Intellectual Property Enterprise Court finds screenplay for film Florence Foster Jenkins was written by sole author

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The claimant, Nicholas Martin, a professional writer of film and television scripts, was identified as the sole author of the screenplay in the credits to the film Florence Foster Jenkins, a comedy drama starring Meryl Streep and Hugh Grant, which premiered in London in April 2016.

Since April 2014 the defendant, Julia Kogan, a professional opera singer, had sought a proportion of Mr Martin’s income from the film.  Mr Martin and Ms Kogan had lived together as partners during the period in which the idea for the film arose and when treatments and early drafts of the screenplay were written.

Mr Martin issued proceedings against Ms Kogan seeking a declaration that he was the sole author of the screenplay.  Ms Kogan filed a counterclaim for a declaration that she was joint author of the screenplay and that Mr Martin had infringed the copyright in it.  She also joined the production and financing companies for the film as Part 20 Defendants, against which she sought relief for infringement of the copyright.

The issues the court had to decide were:

  • what was the nature and extent of Ms Kogan’s contribution to the writing of the screenplay?
  • did that contribution make the screenplay a “work of joint authorship” within the meaning of s 10(1) of the Copyright, Designs and Patents Act 1988 and qualify Ms Kogan to be joint author with Mr Martin?
  • did any act or statement by Ms Kogan, or lack of the same, provide the Part 20 Defendants with a defence of acquiescence or estoppel?

The court noted that Ms Kogan’s case had evolved over time.  She had first asked for part of Mr Martin’s income from the screenplay in April 2014.  In April 2015 she claimed that she had contributed to the screenplay.  In December 2016 she said that the entire screenplay had been jointly written by her and Mr Martin.  In May 2017 Ms Kogan served a witness statement in which she said that her contributions had included text written only by her.  In the annex to that witness statement Ms Kogan summarised her sole input in this way:

Some of the dialogue was written solely by me.  This is mainly musical jargon or mumbo-jumbo which I had heard during my career in music.  … [Mr Martin] had no musical training [and] did not have any idea of the expressions that singers would use.  I was able to bring this to the collaboration.”

At trial, Ms Kogan claimed that her textual input as sole writer went significantly further than musical jargon and mumbo-jumbo.  However, aside from Ms Kogan’s own assertions, there was no support for this claim.

The court found that Ms Kogan’s contributions as sole writer of the text of the screenplay were limited to suggestions of technical musical language.  These were incorporated into drafts one to three of the screenplay and some of them found their way into the final version.

Ms Kogan also claimed that most of the remainder of the text of the screenplay was written jointly with Mr Martin.  There was, however, limited evidence in support of this and the court found that the documentary and undisputed evidence supported Mr Martin’s claim to have been the sole writer of the text of drafts one to three of the screenplay with only limited input from Ms Kogan.

As for non-textual contributions, the court said it was “likely” that Ms Kogan had also been responsible for non-textual contributions to the first three drafts, made in the course of her discussions with Mr Martin.  However, as with the textual input, it was Mr Martin who had decided which of Ms Kogan’s ideas were to be used in the screenplay.

As for whether Ms Kogan’s contributions had been sufficient, the court found that the textual and non-textual contributions made by Ms Kogan never rose above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions.  Taken together, they were not sufficient to qualify Ms Kogan as a joint author of the screenplay, even if those contributions had all been made in the course of a collaboration to create the screenplay.  Mr Martin was the sole author.

As for the Part 20 claim, the court found that had Ms Kogan been joint author of the copyright in the screenplay it would have been unconscionable for her to rely on joint ownership of the copyright to restrict the public performance of the film in any way.  To that extent, the defence of estoppel would have succeeded.

The court could not take it further, however, because to do so would require hypothetical facts arising from the assumption that Ms Kogan had made significant textual and other contributions to the screenplay but had not informed the Part 20 Defendants about them or made any claim to joint authorship until late in the day.  Whether Ms Kogan had acted unconscionably would depend on the precise nature and circumstances of those facts.

The court concluded that Mr Martin was entitled to a declaration that he was the sole author of the screenplay and that he had not infringed the copyright.  The Counterclaim and Part 20 Claim were dismissed.  (Nicholas Martin v Julia Kogan [2017] EWHC 2927 (IPEC) (22 November 2017) — to read the judgment in full, click here).