March 16, 2021
In a copyright infringement case relating to the authorship of the screenplay to the film Florence Foster Jenkins, which the Court of Appeal had remitted back to the High Court following an appeal of the first instance decision, Mr Justice Meade has found that the claimant, Nicholas Martin, was not the sole author of the screenplay, but a joint author with his former partner, Julia Kogan, the defendant.
Ms Kogan was a professional opera singer. It was not in dispute that she was highly knowledgeable about opera, Florence Foster Jenkins and music in general before work on the screenplay began, unlike Mr Martin. Mr Martin was a professional writer of film and television scripts. He had been identified as the sole author of the screenplay in the credits to the film.
Meade J found that, on examination of the chronology of events leading to the final draft and of the “six best” points put forward by Ms Kogan, Ms Kogan had shown that she had contributed to the authorship of the screenplay.
Meade J considered the importance of characterisation in the screenplay, finding that music was central to the whole film and key to the understanding of the two main characters, Florence, and her singing teacher, Mr McMoon. The characterisation depended on music and its performance, and therefore all depended on the input of Ms Kogan to the creative process. It was not necessarily easy to reflect this kind of contribution by pointing to specific dialogue or scenes because it suffused the whole screenplay.
Meade J also found, on the facts, that Ms Kogan had had the original idea of a screenplay about Florence. She and Mr Martin had then set about the creation of a screenplay, initially by mapping out the characters, feeling, main events and key musical content, resulting in the first five draft treatments. Ms Kogan had a feeling for the musicality of the screenplay and its interaction with the characters and their development. She had an understanding of musical tuition and the feel of the world of opera and 1940s New York. She made plot and character suggestions based on this. She also made some suggestions for dialogue which were worked up with Mr Martin into important scenes.
The Court of Appeal had summarised the legal principles applicable to addressing joint authorship. It was not correct to focus extensively on who had fixed the work in writing. An author included those who “created, selected and gathered together the detailed concepts and emotions which the words have fixed in writing”. Ms Kogan’s contribution was authorial. The mere idea to write a screenplay about Florence would not have been authorial on its own, he said.
It followed, therefore, that Ms Kogan’s contributions were an expression of her own intellectual creation. They were far from mechanical or constrained and were highly creative and imaginative. She was not a mere a researcher or sounding board. The fact that Mr Martin had the final decision did not mean that her contribution was not an expression of her own intellectual creation.
As for the contribution percentages, Meade J found that the circumstances justified an allocation different than 50:50, as requested by Ms Kogan. Indeed, he said that a 50:50 decision would be an obvious injustice given how much greater was the work of Mr Martin. On the facts, Meade J found that Ms Kogan’s contribution was 20%.
As for the Film Companies, they argued that Ms Kogan was estopped from claiming relief for copyright infringement from them because she had acquiesced in the screenplay being produced as a film.
Meade J found that the following three requirements for an estoppel to exist were established:
- Ms Kogan knew that the Film Companies believed they were free to commercialise the screenplay without interference from Ms Kogan;
- the Film Companies relied on their belief; and
- the Film Companies had incurred detriment as a result.
On the issue of unconscionability Meade J found, inter alia, that:
- it was highly relevant that Ms Kogan knew about the Film Companies’ belief that they could commercialise the screenplay, and had fostered that belief by encouraging Mr Martin to try to get the screenplay commercialised in his name alone;
- it was highly relevant that, if Ms Kogan had stated the true position before the Film Companies became committed, they would have been able to go ahead with the film at no greater expense as they would have insisted that Ms Kogan and Mr Martin share the amount they had agreed to pay Mr Martin;
- on the other hand, the Film Companies had accrued substantial benefit from the exploitation of the film, including Ms Kogan’s contribution; and
- the fact that the film was released without a credit to Ms Kogan was her own fault as her claim was late, unclear and confusing and apparently inconsistent with Mr Martin’s sole authorship, which she had allowed the Film Companies to believe in.
Accordingly, Meade J concluded that Ms Kogan was estopped from seeking an injunction against the Film Companies, or any restriction on the form in which they distributed the film, or any financial relief against them, so long as they paid to her 20% of anything owing by them to Mr Martin in the future (subject to argument at the form of Order hearing to follow). She was also estopped from withdrawing her consent to their commercialisation of the film. Therefore, Meade J was clear that the Film Companies had not infringed Ms Kogan’s copyright or moral rights.
Meade J also held that Mr Martin was entitled to rely on consent by Ms Kogan down to the point when it became clear as between them that she would get no writer’s credit. Ms Kogan was therefore entitled to an inquiry as to damages or an account of profits against Mr Martin for the period after she had withdrawn her consent. Mr Martin’s acts of dealing with the screenplay thereafter (making copies in the course of improving the screenplay for shooting and the like) were real and, Meade J found, infringements.
Meade J concluded that:
- Ms Kogan was a joint author;
- her contribution was 20%;
- the Film Companies’ defence of estoppel in substance succeeded, on certain very minor conditions;
- Ms Kogan had consented to dealings with the screenplay but had withdrawn her consent in 2015; and
- Mr Martin had infringed after Ms Kogan withdrew consent on 16 March 2015.
(Nicholas Martin v Julia Kogan  EWHC 24 (Ch) (11 January 2021) — to read the judgment in full, click here).