These words may appear to provide a simple solution where more than one person was involved in creating a copyright work, but they can lead to serious problems, such as the inability to license the copyright work without the consent of the other joint owner.

Section 10 of the Copyright Designs and Patents Act 1988 provides that “a work of joint authorship” is “a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author(s).”

If the contributions can be said to be distinct, then each author will own the separate copyright in their contribution (but they may need to co-operate to produce a commercially viable work).

The most recent occasion when the courts have had to consider this issue is the long-running case of  Martin -v- Kogan ([2021]EWHC 24 (Ch)). Having started in the High Court, the case went to the Court of Appeal and was then remitted to the High Court for a re-hearing.

The case concerned the ownership of the copyright in the screenplay for the film “Florence Foster Jenkins”, about the 1940’s socialite and “singer”, who performed to large audiences and even performed at the Carnegie Hall, although her singing was very bad.

The case involved Nicholas Martin (“NM”) and Julia Kogan (JK”), with NM  seeking a declaration that he owned the copyright of the screenplay outright and JK claiming joint copyright and infringement of her moral rights (by NM exploiting the screenplay without her consent and not crediting her contribution).

The High Court decided in favour of NM, but the Court of Appeal accepted JK’s appeal, on the basis that the court had not taken into account all versions of the screenplay, and sent it back to the High Court for a re-trial.

The judge conducted a detailed analysis of the elements of all versions of the screenplay – the script, the characterisation, the scenes, the songs and the action – and concluded that the nature and scale of JK’s contribution was such that she should be regarded as a joint author of the screenplay and so was a joint owner of the copyright in it.

It was decided that the characterisation and musicality (for which JK was largely responsible) ran throughout  the film and it would be impossible to decide which of NM and JK contributed which part. In the words of the judge: “Trying to separate them would be like trying to unmix purple paint into red and blue”.

Take away points?

  • When creating or developing a copyright work (including software), consider carefully who is contributing what and whether there is a risk of joint authorship being claimed.
  • Bear in mind that contributions which could lead to joint authorship, as in this case, can be verbal – they do not have to be in writing.
  • Before the project starts, obtain copyright assignments from contributors. (This should not be necessary for employees creating copyright works in the course of their employment).