Kogan v Martin & Ors

Factual and Procedural Background

This appeal concerns a dispute over the authorship and ownership of the copyright in the screenplay of a film about the latter part of the life of Florence Foster Jenkins ("FFJ"). The claimants, a professional writer and his production company ("Claimants"), brought proceedings against the defendant ("Appellant") seeking a declaration that the Claimant was the sole author and owner of the screenplay copyright. The Appellant contended she was a joint author and joint owner, alleging infringement of her copyright by the Claimants and other companies involved in the film's production ("the film companies").

Following a two-day trial in the Intellectual Property Enterprise Court (IPEC), the trial judge declared the Claimant to be the sole author and owner of the copyright, and held that the Appellant was estopped from asserting rights against the film companies to interfere with the film's public performance. The Appellant appealed with permission granted, challenging the judge's findings on authorship, contribution, and the estoppel defence.

Legal Issues Presented

1. Whether the Appellant was a joint author of the final version of the screenplay under section 10(1) of the Copyright, Designs and Patents Act 1988 ("the Act").
2. Whether any act, statement, or omission by the Appellant estopped or prevented the film companies from asserting rights of sole or joint authorship.
3. Whether the trial judge applied the correct legal standards in assessing joint authorship, including the sufficiency and nature of the Appellant's contributions and the relevance of collaboration.
4. Whether the procedural case management and pleadings were properly handled, particularly concerning the analysis of contributions to earlier drafts versus the final draft.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that she and the Claimant collaborated on the screenplay, with intertwined contributions that could not be distinctly separated, including the original idea, characters, story, dialogue, and non-textual elements.
• She argued that contributions to earlier drafts, which were collaborative, should be considered as part of the final work's authorship.
• The Appellant challenged the judge's high threshold for what constitutes a sufficient contribution, asserting that her input involved free and expressive creative choices qualifying her as a joint author.
• She claimed the judge unfairly disregarded her detailed witness evidence, including a scene-by-scene annex explaining her contributions.
• She disputed the judge's reliance on the "ultimate arbiter" factor as dispositive against joint authorship.
• The Appellant also challenged the judge's acceptance of an unpleaded short cut argument that only the final draft authorship mattered, asserting procedural unfairness.

Claimants' Arguments

• The Claimants argued that the final draft was solely authored by the Claimant, with the Appellant's contributions limited to minor editorial or factual input insufficient to establish joint authorship.
• They submitted that each draft constituted a separate copyright work and that the Appellant's involvement ceased before the final draft, thus precluding joint authorship of the final screenplay.
• They contended the judge was correct to treat the final draft as the relevant work and to reject the Appellant's joint authorship claim on that basis.
• They maintained that the Appellant's contributions amounted to secondary skills or mere ideas, not authorial contributions warranting joint authorship.
• Regarding estoppel, they relied on the Appellant's conduct as acquiescence to the film's production and release.

Film Companies' Arguments

• The film companies supported the Claimants' position on authorship and raised a defence of acquiescence or estoppel based on the Appellant's conduct in allowing the film to be produced without objection.
• They argued that the estoppel defence prevented the Appellant from interfering with the film's public performance.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework governing joint authorship under section 10(1) of the Copyright, Designs and Patents Act 1988, identifying four elements: collaboration, authorship, contribution, and non-distinctness of contribution. It emphasized that joint authorship requires a common design and shared labour, not merely the provision of ideas or editorial comments.

The court reviewed the judge's finding that the final draft was authored solely by the Claimant, with the Appellant's involvement limited to minor textual and non-textual contributions insufficient to constitute joint authorship. The judge had accepted a "short cut" argument treating each draft as a separate copyright work and holding that the final draft alone mattered for authorship. The appellate court found this approach procedurally unfair and inconsistent with the case management, which proceeded on the basis that contributions to earlier drafts could be relevant.

The court criticized the trial judge's heavy reliance on documentary evidence and his disregard of the Appellant's witness testimony and detailed annex setting out her contributions. It found the judge's approach inconsistent, selectively applying the Gestmin/Blue principle on witness memory, which is primarily aimed at commercial fraud cases, not creative collaboration between individuals. The absence of findings on the nature of collaboration and the interaction between the parties was noted as a significant deficiency.

The appellate court rejected the trial judge's distinction between primary and secondary skills, particularly the suggestion that plot and character development were secondary and therefore less likely to support joint authorship. It emphasized that a screenplay is a dramatic work where plot and character are central and that contributions in these areas can be authorial.

The court also addressed the "ultimate arbiter" issue, holding that having final say on content is relevant but not determinative of joint authorship. The judge's failure to clarify whether this affected collaboration or the quantum of contribution was a shortcoming.

On the estoppel defence, the court noted that the judge found the Appellant's conduct represented acceptance of the film's production, preventing interference with public performance, but did not extend this to a bar on claims for financial or other remedies. The appellate court considered this issue academic given the Appellant's withdrawal of certain relief.

Holding and Implications

The appeal is allowed. The appellate court set aside the trial judge's declarations and orders, concluding that the judgment could not stand due to errors in legal approach, failure to make essential findings of fact, and misapplication of evidential principles. The court ordered a retrial before a different judge in the Intellectual Property Enterprise Court, with directions to include explicit consideration of whether there was collaboration and the nature of that collaboration.

The retrial should proceed without new pleadings or written evidence, allowing the Appellant to rely on all contributions to the screenplay, while accepting limited input after the third draft. The estoppel defence will prevent interference with public performance but may not bar other claims. The appellate court emphasized the need for the new trial judge to consider the evidence comprehensively and fairly, particularly the Appellant's witness evidence and the collaborative nature of the creative process.

No new precedent was established; the decision primarily rectifies procedural and evidential errors in the original trial and clarifies the application of joint authorship principles in the context of screenplay creation.