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Lessons from the Florence Foster Jenkins case: fine tune agreements before things go off-key

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Lessons from the Florence Foster Jenkins case: fine tune agreements before things go off-key

Lessons from the Florence Foster Jenkins case: fine tune agreements before things go off-key

In the recent decision of Martin and another v Kogan and others [2021] EWHC 24 (Ch), the Intellectual Property Enterprise Court (“IPEC”) upheld a claim to joint authorship of the film screenplay of the film "Florence Foster Jenkins", starring Hugh Grant and Meryl Streep.  

The parties, Mr Martin and Ms Kogan, were in a romantic relationship when Ms Kogan introduced the idea of basing a film screenplay on the life of an opera singer to Mr Martin. Mr Martin produced the final version of the film screenplay after his relationship with Ms Kogan ended. The film credits identified Mr Martin as the sole author, which was confirmed by the IPEC in its first ruling granting a declaration of sole authorship to Mr Martin.

Ms Kogan appealed this decision, claiming that she was a co-author of the film screenplay as not only did she come up with the initial idea for the screenplay, she had also worked with Mr Martin in developing the drafts and contributing to ideas about the plot, characters, dialogue and music suggestions.

The decision

The Court of Appeal agreed with Ms Kogan as it found that her contribution may have formed a part of the collaboration, which passed the threshold for joint authorship, and the case was returned to the IPEC.

At the retrial, the IPEC found Ms Kogan to be a 20% joint author of the film screenplay. Ms Kogan had made an ‘authorial contribution’ to the dramatic work which could not be separated from Mr Martin’s. The film screenplay was a work of “joint authorship” under the Copyright, Designs and Patents Act 1988.

EMW’s tips for co-authors

This decision is good news for minor co-authors whose rights may previously not have been recognised. It provides some helpful guidance on joint ownership of copyright works and our tips to those who find a co-authorship relationship has gone sour are to consider these points:

  • to what extent was the co-authorship a “collaboration” (a ‘common design as to general outline and a sharing of labour’)?
  • were your contributions “authorial” (beyond ‘mere’ researcher, proof-reader, or sounding board)?
  • the focus should not be on who actually did the writing or recording but the creative process.

Our most important advice, however, would be that this decision also acts as a warning for authors that ownership and percentage shares of collaborative works should be put in writing by legal agreement at the onset in order to prevent disputes from arising at a later date – where relationships may not be as amicable as they once were!

Get in touch

For more information on this update, or any intellectual property related matters, please contact Olivia Morton.