[Guest post] Unsung Florence Foster Jenkins screenwriter is entitled to joint authorship share

The IPKat is delighted to host the following guest post on the important Florence Foster Jenkins joint authorship case [Katposts here and here] by Katfriend Daniela Simone (Macquarie University), who is also the author of Copyright and Collective Authorship.

The real Florence Foster Jenkins

The Intellectual Property Enterprise Court (IPEC) has just handed down judgment in the retrial of a dispute concerning the authorship of the screenplay of the film Florence Foster Jenkins, starring Meryl Streep and Hugh Grant. The film tells the story of a New York socialite who loved to sing and became a musical cult figure in the 1940s, despite her lack of musical talent. 

The Court of Appeal ordered a retrial following an initial IPEC decision that found the screenplay to be a work of sole authorship. (A previous GuestKat post provides detailed expert analysis of the appeal case.) The Court of Appeal provided welcome clarification of copyright law’s joint authorship test. We now have a chance to see the refined joint authorship test in action!

Readers may recall the protagonists of the dispute, Nicholas Martin (screenwriter) and Julia Kogan (opera singer and writer), whose lives were romantically and creatively intertwined when the idea for the screenplay emerged and during its first stages of development. Their relationship broke down before the final draft was finished with Martin alone receiving screenwriting credit on the resulting film.

In preliminary proceedings in March 2020, Birss J (as he then was) determined the main issues to be resolved at the re-hearing, viz:

• Were the parties collaborating in the relevant sense, and what was the nature of Kogan’s contribution?
• Was Kogan’s contribution ‘authorial’ – an expression of her own intellectual creation – and not distinct from the screenplay as a whole?
• What were the relevant amounts of the parties’ respective contributions?

A harmonious Kat-collaboration!

Were the parties collaborating in the relevant sense, and what was the nature of Kogan’s contribution?

Following the Court of Appeal’s instructions, Mr Justice Meade began by characterising the working relationship between the parties. It was clear that the project was the result of a relevant collaboration (a ‘common design as to general outline and a sharing of labour’ at [313]). The IPEC judgment includes a detailed account of the disputed facts and evidence from each side, which the judge assessed in light of the emotional dimensions of the parties’ interactions (necessarily making it somewhat lengthy!). 

In applying the joint authorship test, Kogan’s input needed to be understood in its context, as a contribution to a dramatic work (the screenplay). Although Martin did most of the writing in the literal sense, Kogan’s input was significant in shaping the dramatic content. They worked together on important creative elements, such as mapping the characters, feeling, main events and key musical content. Kogan’s input was particularly valuable because of her ‘feeling for the musicality of the screenplay and its interaction with the characters and their development’ ([317]). 

Overall, the judge concluded that her role surpassed that of a ‘mere’ researcher, proof-reader, or sounding board. Kogan’s contributions were clearly authorial in that they involved the ‘creation, selection and gathering together of detailed concepts and emotions which the words have fixed in writing’ (at [319], referring to the Appeal judgment’s quotation of Laddie J’s well-known phrase from Cala Homes). A joint author does not necessarily need to ‘hold the pen’ or have the ‘final say’.

Kogan’s joint authorship contribution was assessed at 20%. As Martin undertook the greater share of the creative work, a departure from the general presumption in favour of joint authorship in equal shares was justified. This 20% figure was arrived at in a ‘broad brush way and recognising that it is a matter of both quantitative and qualitative assessment’ [345]; then, verified with a more mathematical ‘cross check’ of parties’ relative contributions across two phases of the creative process (initial development and drafting) [355].

As Kogan had asserted her authorship claim at late stage, she was estopped from using her copyright interest to restrain the commercialisation of the film. The Film companies were found to have acted reasonably and in good faith. They were only required to ensure Kogan receives the appropriate credit on the film’s IMBD page and that she is paid her 20% share of any further revenues that may be owing. In addition, Kogan is entitled to an inquiry as to damages or an account of profits against Martin from the period after she withdrew her consent for him to use her work. There may be further proceedings to determine quantum and addressing outstanding issues, such as Kogan’s moral rights claims against Martin.

During proceedings, the film companies’ expressed concerns about the possibility of numerous unacknowledged collaborators emerging from the woodwork, which would undermine the safety of screenplay investments. 

Surely, the proper role for copyright is to recognise all creators who make significant contributions that reach the legal standard of authorship? After all, as the court points out, the risks to investors, disseminators, and the like, might be adequately managed by ‘dealing authors with a good reputation, by making appropriate inquiries, by taking appropriate warranties and indemnities, and by acting responsibly if a problem arises’ ([410]). 

But, what do readers think?