Kogan v Martin: A New Framework for Joint Authorship in Copyright Law
| Published date | 01 July 2020 |
| Author | Daniela Simone |
| Date | 01 July 2020 |
| DOI | http://doi.org/10.1111/1468-2230.12538 |
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Modern Law Review
DOI: 10.1111/1468-2230.12538
Kogan vMartin: A New Framework for Joint
Authorship in Copyright Law
Daniela Simone ∗
The Court of Appeal has set out a new framework for the application of copyright law’s joint
authorship test in a recent landmark case. Kogan vMartin brings some welcome clarity to the
complex joint authorship landscape, embedding an inclusive pro-collaboration default standard.
This case note contrasts the appeal court’s nuanced framing of the dispute with the first instance
court’s narrower approach. The note then examines the new joint authorship framework and
explains how it allows the test to be applied with an eye to the reality of collaborative creative
endeavours. Finally, the significance of Kogan vMartin is highlighted, as are some questions
which remain unanswered.
INTRODUCTION
Controversies about authorship abound in fields where collaboration is the de-
fault mode of creativity. It is rarely straightforward to determine which of many
contributors merit an author ial credit, for example, on a film or a large scien-
tific study.1Unsurprisingly, copyright law too has struggled when faced with
the task of allocating authorship in respect of collaborative work. This issue is of
great practical importance as authorship is usually the basis for copyright own-
ership. Thus, the author is positioned first in line to benefit from the economic
exploitation of creative work.2Authors are also entitled to moral rights, which
protect non-economic interests allowing them to safeguard the reputational
benefits that might attach to authorial credit.3For copyright purposes, the
allocation of authorship in respect of collaborative copyright works is generally
∗Lecturer in Law and Co-Director of the Institute of Brand and Innovation Law,University College
London. My thanks to Lynne Chave and the anonymous reviewer for their valuable comments.
1 For a discussion of authorial credit in the film industry, see C. Fisk, ‘The Role of Private
Intellectual Property Rights in Markets for Labor and Ideas: Screen Credit and the Writers Guild
of America, 1938-2000’ (2012) 32 Berkeley J of Employment and Labour L 215. On authorial
credit in science, see M. Biagioli and P. Galison (eds), Scientific Authorship: Credit and Intellectual
Property in Science (New York, NY; London: Routledge 2003).
2 The author is usually the first owner of any copyright subsisting in the work (with certain
exceptions such as employee works and Crown copyright): the Copyright, Designs and Patents
Act 1988 (CDPA), s 11. Despite the central importance of the author, some consider copyright
law to operate principally to the advantage of investors, producers and distributors in light of the
ease at which authors may assign their copyright and waive their moral rights. This view is also
supported by the existence of ‘entrepreneurial’ copyright (CDPA, ss5A-8) and default employer
ownership of employee works(CDPA, s 11(2)).
3 CDPA, Ch 4. Although these rights can be waived and are limited by numerous exclusions and
pre-conditions.
C2020 The Author. The Modern Law Review published by John Wiley& Sons Ltd on behalf of Moder n LawReview Limited.
(2020) 83(4) MLR 877–892
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no modifications or
adaptations are made.
A New Framework for Joint Authorship in Copyright Law
governed by section 10 of the Copyright, Designs and Patents Act 1988
(CDPA), which includes the definition of a ‘work of joint authorship’ as
‘a work produced by the collaboration of two or more authors in which the
contribution of each other is not distinct from that of the other author or
authors’ (the joint authorship test). The application of the joint authorship
test has been fraught with uncertainty as case law has tended to employ brief,
opaque or superficial reasoning.4This uncertainty is concerning as it risks un-
dermining copyright law’s objectives of encouraging creativity in the context
of collaborative endeavours.
The Court of Appeal has now brought some welcome clarity in Kogan v
Martin by setting out a new framework to guide the application of the joint
authorship test.5This landmark decision sweeps aside some troubling trends
embedding an inclusive pro-collaborationdef ault standard.The new framework
recalibrates the joint authorship test in a way that leaves it better equipped to
deal with the reality of the collaborative creative process. This case note begins
by outlining the background to Kogan vMartin and then goes on to contrast the
first instance and the appeal court’s framing of the dispute focussing on their
different approaches to construing the copyright subject matter and assessing
the evidence of the parties’ working relationship. The next part examines the
framework which the Court of Appeal set out for the determination of joint
authorship, explains how the framework operates, and identifies some questions
which remain unanswered.
BACKGROUND TO THE DISPUTE
Kogan vMartin concerned the authorship of the screenplay to Florence Foster
Jenkins (FFJ), a film directed by Stephen Frears, starring Meryl Streep and
Hugh Grant. The film dramatises the latter part of the life of heiress and
socialite Florence Foster Jenkins who loved music and dreamed of becoming
an opera singer. Despite her terrible singing voice, Jenkins became a cult figure
ontheNewYorkmusicscene.
6The film portrays the events leading to her
infamous performance at Carneg ie Hall in 1944, mining Jenkins’ self-delusion
and the obsequious behaviour of her entourage for comic effect. Authorship
of the screenplay to FFJ had been solely credited to Nicholas Martin, although
Julia Kogan also contributed to its development.
The context of the relationship between the parties is crucial to under-
standing the dispute. Nicholas Martin is a professional scriptwriter for film
and television. Julia Kogan is a professional opera singer, who has also worked
4 D. Marchese, ‘Joint ownership of intellectual property’ (1999) 21 EIPR 364, 364; A. Stokes,
‘Authorship collaboration and copyright: a view from the United Kingdom’ (2002) 13 Enter-
tainment L Rev 121, 124; L. Zemer, ‘Contribution and Collaborations in Joint Authorship:
Too Many Misconceptions’ (2006) 1 JIPLP 283, 283. For an overview of some of the areas of
uncertainty, see D. Simone, Copyright and Collective Authorship: Locating the Authorsof Collaborative
Wor k (Cambridge: Cambridge University Press, 2019) 29-53.
5Kogan vMartin [2020] FSR 3, [2019] EWCA Civ 1645 (Floyd, Henderson and Jackson LJJ).
6 D.Wepman, ‘Jenkins, Florence Foster’ American National BiographyApr il 2013 at https://doi.org/
10.1093/anb/9780198606697.article.1803857 (last accessed 13 April 2020).
878 C2020 The Author. The Modern Law Review published by John Wiley& Sons Ltd on behalf of Moder n LawReview Limited.
(2020) 83(4) MLR 877–892
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