June 7, 2021
In his main judgment on authorship under the Copyright, Designs and Patents Act 1988 of the screenplay for the film Florence Foster Jenkins, Mr Justice Meade found that the defendant, Ms Kogan, was an author as to 20%. He also held that the film companies should arrange a credit on IMDb to reflect Ms Kogan’s work. However, there was a disagreement between the claimant, Mr Martin, and Ms Kogan about what that credit should be. The film companies had by then arranged a credit on IMDb as follows:
Nicholas Martin … (written by)
Julia Kogan … (written by) (originally uncredited)”
Meade J explained that the words “Writing Credits” will appear on IMDb come what may, and are not created by user or IMDb input. The rest of the text is subject to user input and had been arrived at by the film companies applying the IMDb rules, which are that the credits will be as appeared on the screen when the film was played, but that exceptionally an “(originally uncredited)” will be given where there is later evidence that someone else had input.
In addition to the IMDb rules, the parties referred to two sets of guidelines, one from the Writers Guild of American (WGA) and one from the Writers Guild of Great Britain (WGGB), each of which has different written definitions for “Written by”, “Screenplay by”, and “Story by”.
Meade J said there was force in Ms Kogan’s submission that the WGGB Guidelines were more significant given that this litigation concerned UK copyright, but it was permissible to refer to both sets.
Making an overall, merits-based assessment of what was fairest and most reflective of the guidelines and the original judgment, Meade J rejected Mr Martin’s suggestion that Ms Kogan’s quantitative contribution, at 20%, was too little to get a “Screenplay by” or “Written by” credit at all. The time to take any such point was at trial and had passed. In any event, there was no hard limit for percentage contribution in the WGGB guidelines.
Meade J noted that the WGGB Guidelines did not favour Ms Kogan since they required a “substantial written” contribution for a “Screenplay by” credit and, as he had found, Ms Kogan had done very little writing if any at all. Further, under the WGGB Guidelines a “Written by” credit required that the same person undertook both the screenplay and the story.
Meade J noted also that neither set of Guidelines allowed only one person to have a “Written by” credit: teams were clearly allowed and Meade J had found that Ms Kogan and Mr Martin had worked as a team.
Meade J rejected Mr Martin’s argument that he should have a “Screenplay by” credit and that Ms Kogan should have a “Story by” credit as this would imply a significant qualitative difference in input which was not what the judgment had said. It would imply that Ms Kogan did not contribute to the Screenplay, when she clearly did. Her input went well beyond just story, Meade J said.
Having made an assessment of what would be an appropriate credit, Meade J noted that IMDb had not made any such assessment itself. All it had done was replicate the “Written by” credit for Mr Martin that had showed when the film played and used the same categorisation for Ms Kogan, plus “uncredited”. It had not assessed whether she specifically merited “written by”.
Meade J acknowledged that all these factors pulled in different directions, but in his view, the current credit was in fact the best option, as it reflected what credits the film itself showed (the IMDb approach) and the later change from his judgment (“originally uncredited”). It put Mr Martin first, which was appropriate, given his much greater input, and was not in direct contravention of any strong principle in the guidelines. He acknowledged that the solution suffered from two potential problems, but they were of no or low significance: (i) Ms Kogan’s quantitative contribution was small, but this point was made too late to prevent her getting a credit and in any event her contribution was real not trivial and being put second implied she was a more minor, sub-50% contributor; and (ii) Ms Kogan did not write many words of the screenplay, so on a narrow reading of the WGGB Guidelines, she should not get a “Screenplay by” credit and therefore should not get a “Written by” credit; however, the WGA Guidelines were broader.
The final decision was that the current credit complied with the film companies’ obligations under the judgment and ought not to be changed. (Nicholas Martin v Julia Kogan  EWHC 1242 (IPEC) (19 May 2021) — to read the judgment in full, click here).