Brighton v Jones
| Jurisdiction | England & Wales |
| Judge | Mr Justice Park |
| Judgment Date | 18 May 2004 |
| Neutral Citation | [2004] EWHC 1157 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC02CO3260 |
| Date | 18 May 2004 |
[2004] EWHC 1157 (Ch)
IN THE HIGH COURT of JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Park
Case No: HC02CO3260
Kevin Garnett QC (instructed by Schillings) for the claimants
Andrew Sutcliffe QC and Leslie Christy (instructed by Reynolds Porter Chamberlain) for the defendant
Hearing dates : 24.03–30.03.2004
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Approved Judgment
Abbreviations, dramatis personae, etc.
These are as follows.
Overview
| Binding, Mr | Justin Binding; at the time employed by Dubbeljoint as full time administrator. A witness for the claimants. |
| Brighton, Miss | Pamela (Pam) Brighton, theatrical director. The first claimant and a director of Dubbeljoint, the second claimant. A witness for herself and for Dubbeljoint. |
| Connaughton, Mr | Shane Connaughton, writer of books, including 'A Border Diary'; describes himself as 'a de facto director of Dubbeljoint'. A witness for Dubbeljoint. |
| Cranney, Mr | Niall Cranney. In 1996 the stage manager for the production by Dubbeljoint of Stones In His Pockets. A witness for Miss Jones (the defendant). |
| Draft opening script, the | A script for the opening scenes of Stones In His Pockets, written in manuscript by Miss Brighton and sent to Miss Jones at some time in May 1996. |
| Dubbeljoint | Dubbeljoint Theatre Company Limited, the second claimant; theatre production company, trading as Dubbeljoint Productions; put on the first production of Stones In His Pockets in 1996. |
| Garnett, Mr | Kevin Garnett QC, counsel for the claimants. |
| Gordon, Dan | Dan Gordon; actor in earlier Dubbeljoint productions, but not in Stones In His Pockets. A witness for the defendant. |
| Hill, Mr | Conleth Hill, actor; a member of the first cast of Stones In His Pockets in 1996. A witness for Miss Jones (the defendant). |
| Jones, Miss | Marie Jones (Mrs McElhinney), referred to in the particulars of claim as Sarah Jones. The defendant. Actress and playwright, credited as author of Stones In His Pockets. A witness on her own behalf. |
| McElhinney, Mr | Ian McElhinney, actor and theatrical director. Husband of Miss Jones (the defendant). A witness for her. |
| McLaughlin, Mr | Patrick McLaughlin, production manager for the 1996 Dubbeljoint production of Stones In His Pockets. A witness for the claimants. |
| Miss Brighton's draft opening script claim | Description used in the judgment for one of the two main claims being advanced by Miss Brighton (the first claimant). See also the next entry. |
| Miss Brighton's joint authorship claim | Description used in the judgment for the other of the two main claims advanced by Miss Brighton (the first claimant). See also the previous entry. |
| Murphy, Mr | Tim Murphy, actor. One of the members of the 1996 cast of Stones In His Pockets. A witness for Miss Brighton. |
| Stones In His Pockets | A play the credited author of which has hitherto been Miss Jones. The copyright in the play is the main subject matter of the present case. |
| Sutcliffe, Mr | Andrew Sutcliffe QC, counsel for Miss Jones (the defendant). |
This is a case about the rights in a play, Stones In His Pockets. The play was first produced in Northern Ireland in 1996. It was presented in that year at a number of theatres in Northern Ireland and in the Irish Republic. The production company was Dubbeljoint, the second claimant. Dubbeljoint commissioned Miss Jones, the defendant, to write the play. She was the credited author in programmes, publicity material and the like. The director was Miss Brighton. In 1999 Miss Jones to some extent rewrote the original 1996 script of the play. It was still recognisably the same play, but the 1996 script and the 1999 script were different 'dramatic works' within the meaning of the CDPA 1988, and each had its own separate copyright. Miss Jones exploited the 1999 script in various ways, including contracts with theatres and production companies (not Dubbeljoint by this time). The 1999 version of the play has been a major commercial and critical success.
Miss Brighton is the first claimant. She makes two claims against Miss Jones. By 'Miss Brighton's joint authorship claim' she claims that, because of contributions which she made to the play in the course of the initial rehearsals, she became a joint author of the 1996 script and therefore a joint owner of the copyright in it. She says that Miss Jones acted in breach of her (Miss Brighton's) interest in the 1996 copyright when she (Miss Jones) created the 1999 script and when she thereafter exploited it. I do not agree with Miss Brighton's joint authorship claim. In my view the contributions which she made during the initial rehearsals, though important and valuable, were not of the nature to make her a joint author. Accordingly Miss Jones was the sole owner of the copyright in the 1996 script.
Miss Brighton's second claim is 'Miss Brighton's draft opening script claim'. At a time before Miss Jones had started work on writing the 1996 script Miss Brighton had written in manuscript a draft script for the opening scenes of the play. She sent it to Miss Jones, leaving it to Miss Jones to make whatever use of it she chose. In the event Miss Jones did not use any of the precise words of the draft opening script, but she did follow the plot lines in it quite closely until the draft opening script ended (which was well before the end of the plot of the final completed 1996 and 1999 scripts). Miss Brighton says that the draft opening script was a dramatic work in itself, that copyright subsisted in it, and that that particular copyright was owned by herself. So far, I agree. Miss Brighton does not say that the creation of the 1996 script by Miss Jones or the exploitation of it by Dubbeljoint involved any breach by Miss Jones of Miss Brighton's copyright in the draft opening script: Miss Jones was impliedly authorised to use the draft opening script as she did in 1996.
However, Miss Brighton says that Miss Jones was not authorised to use the draft opening script when she created the 1999 script, or when she exploited the copyright in the 1999 script by contracts with theatres and the like. She says that the creation of the 1999 script and the exploitation of it constituted unauthorised uses of the copyright in the draft opening script. They were, therefore, acts which were infringements of Miss Brighton's copyright in the draft opening script. She claims various reliefs in consequence.
I agree with some of the stages in Miss Brighton's draft opening script claim, but I do not agree with the critical proposition that the writing of the 1999 script and the early exploitation of the copyright in the 1999 script were acts which were unauthorised by Miss Brighton. In my judgment, when Miss Brighton provided Miss Jones with the draft opening script in 1996 she impliedly authorised Miss Jones to make any use of the copyright in the draft opening script unless and until Miss Brighton revoked the authority on reasonable notice. She did not revoke the authority until 7 November 2001, the date of a letter from her then solicitors. Nothing which Miss Jones did before then was a breach of copyright. The 1999 script was created before then, and I believe that all significant contracts to exploit the 1999 script were made before then. However, future contracts by Miss Jones to exploit the 1999 script will involve breaches of Miss Brighton's copyright in the draft opening script unless Miss Brighton's consent for them is obtained.
Dubbeljoint is the second claimant. There was a contract between it and Miss Jones for her to write the play in 1996. Dubbeljoint has two claims. The first arises from a clause of the contract which required Miss Jones to pay percentages of future income from Stones In His Pockets to Dubbeljoint. She did not do that. She now admits liability to pay the amounts to Dubbeljoint. Her agent has calculated the amount it believes to be due, and has paid it to Dubbeljoint. However, Dubbeljoint is considering whether to require an inquiry into whether the amount paid is sufficient to fulfil the contractual obligation.
Dubbeljoint's second claim arises from another clause in the contract between it and Miss Jones. She ought to have caused theatre programmes for presentations of Stones In His Pockets otherwise than by Dubbeljoint to credit Dubbeljoint as having been the original producer of the play. She failed to do that. Dubbeljoint claims an order requiring her to do it, and also claims damages. Miss Jones has undertaken through her solicitors to ensure that Dubbeljoint is credited in future programmes, so the first relief claimed by Dubbeljoint is not in dispute. As respects Dubbeljoint's claim for damages, in my judgment it has not suffered any by reason of Miss Jones' breach of contract in this respect. I therefore make no award of damages.
I record that Mr Kevin Garnett QC appeared on behalf of the claimants, Miss Brighton and Dubbeljoint, and that Mr Andrew Sutcliffe QC and Mr Leslie Christy appeared on behalf of the defendant, Miss Jones. I am particularly grateful to them all for their helpful presentations and submissions.
The facts
Miss Brighton is a director for stage, television and radio. She commenced her profession in 1969, and apart from a comparatively brief period when she qualified as a barrister and practised in London, she has been a director ever since. She comes originally from Bradford in England, but she has done much work in Northern...
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