UK Courts find hidden voice in film authorship dispute

12 February 2021

The Intellectual Property Enterprise Court (IPEC) has found that there was an additional joint author of the Florence Foster Jenkins screenplay – in a decision of significant relevance to the film industry.

This case concerned the screenplay of Florence Foster Jenkins, the successful 2016 film starring Meryl Streep as the eponymous 1940s American socialite, whose love of music and singing was matched only by her lack of talent. 

The Claimant, Nicholas Martin, who was until recently recognised (and credited) as the film's writer, issued the claim seeking a Court's declaration confirming the same, and confirming that he was the sole author and owner in the copyright. 

The catalyst for the claim was actually a letter from Mr Martin's ex-partner (who was the Defendant in this claim).  Julia Kogan's legal letter before action claimed that she was a joint author and joint owner of the copyright in the screenplay (and Ms Kogan raised these issues as counterclaims in the present case). 

She also claimed copyright infringement for the screenplay having been exploited without her consent and without being given a credit.  

In a nutshell, the factual background was that, although Mr Martin "held the pen" on the various drafts of the screenplay, and did virtually all of the writing, the initial idea and early development of the story was an iterative process developed in collaboration with Ms Kogan who (for example):

a) had effectively come up with the idea of making a film about Florence Foster Jenkins; 

b) used her musical training and experience to correct technical terms and to help devise double entendres which would generate humour; 

c) suggested that a particular song (the "Bell Song" performed by Lily Pons at Carnegie Hall) should be used as a means of dramatic contrast against Florence's voice and performance, as a means of characterisation through music; and

d) suggested that the pianist eventually hired by Florence should play The Swan by Saint-Saëns at his audition rather than "The Elephant" because of the importance placed by Florence on the quality of "loveliness" (and he therefore gets the job because he plays gentle music). 

These were some of the main points which led to the Judge  finding that Ms Kogan was in fact a joint author of the screenplay, and her contribution was of 20%.

However, the Judge also found that Ms Kogan could not, having allowed the film to be produced and sold, now seek an injunction against the film companies which had purchased the relevant rights, or any form of restriction on how they distributed the film, or financial relief, as long as they pay her 20% of anything owing to Mr Martin going forwards. 

This will come as a relief for producers and commissioners who inevitably have to rely on the writer giving an accurate representation of the screenplay's authorship (or rely on warranties/indemnities which may be equally unsatisfactory). 

That being said, others may well be surprised by the Court's finding of co-authorship in circumstances where it was broadly accepted that Mr Martin was more or less solely responsible for all of the writing; even more so given the often quoted notion that copyright protection is intended to protect only the expression of an idea – not the idea itself. 

The key take-away for writers is to be extremely careful with whom they discuss their screenplay, even if it is just with a friend or a partner who they consider to be a "sounding board" for ideas.  It is not practical to suggest that ideas for screenplays will not be shared with loved ones – but it is practical to ensure that the creation of the screenplay is documented so that writers are able to point back to the iterative timeline of how their work was created by them.  It is also important for writers to ensure (and for producers and commissioners to check that the writers have ensured) that the contractual position is clear  to avoid surprises later as to late claims in joint authorship. 

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