Florence Foster Jenkins – the film
Last week, the High Court settled the dispute between script
writer Nicholas Martin and opera singer Julia Kogan over the authorship of the
script used to produce the film Florence Foster Jenkins (full decision
). The decision gives a clear summary of the case law on joint authorship
applicable in the UK. However, Hacon J’s reasoning becomes a bit  more uncertain regarding the distinction he
proposes to draw between ‘primary skill’ and ‘secondary skill’ and how it may
apply to a claim of joint-authorship [para 44 to 51].
The subsequent paragraphs detail with each point in turn. 

The dispute

Martin applied to the court to confirm his rights as the sole
author and reject Kogan’s joint-authorship claims. Martin and
Kogan lived together as partners when Martin began writing the script, which
described the life of Florence Foster Jenkins, an American socialite and
would-be soprano known perversely for her poor voice (hear here!). Martin
produced three drafts to each of which Kogan contributed inter alia edits to
the dialogue and suggestions of scenes or themes. By the time Martin produced
the last version of the screenplay, the couple had separated. The film premiered
in 2016, crediting Martin as  sole author
of its script.
The actual Florence Foster Jenkins

Kogan’s case for joint authorship was based on the argument
that the contributions she made to the first three drafts of the script had
found their way into the last (and fourth) version. Hacon J rejected this
contention, stating that  Kogan had
failed to satisfy the condition of ‘collaboration’ and ‘sufficient
contribution’ to qualify her as ‘joint author’ of the work.  Moreover, the Court stressed that Kogan’s defence
was poorly served  claims that lacked in
clarity and evidence [para 10-11]. 

consent and ‘common design’

Hacon J noted that Kogan’s claim of joint authorship in the
screenplay failed to meet the “collaboration” requirement, noting that
Section 10(1)
of the CDPA 1988
made it an express requirement for the copyright work ‘to
be produced by the collaboration of two or more authors’ to be regarded as
jointly authored [para 13 to 15].
Indeed, at the time Martin finalised the last iteration of the script, which
served as the actual screenplay of the film, the parties were no longer living together
and they had not discussed the final version, unlike  the previous drafts [para 16, 26]. This
alone was enough, in Hacon J’s view, for the condition of ‘collaboration’ to
fail – as far as the last version of the script was concerned [para 26].

Hogan’s counsel attempted to argue that Hogan’s consent for previous
drafts to be used within the final script was a form of collaboration, holding  that “consent was enough to
make her a collaborator
” [para 25]. Hacon J rejected this  claim, stating that

“Consent by an author to the use
of his or her work product in combination with that of another is no doubt
necessary for collaboration, but not sufficient. There must have been a ‘common
[para 25].

‘Sufficient contribution’: ‘ultimate arbiter’, ‘primary skill’ and ‘secondary

Another condition that arises from the definition of joint authorship
under section 10(1) is that or all collaborators  make a ‘sufficient contribution’ to the work [para 15, para
. Hacon J examined why Kogan’s contribution to the previous
drafts of the script was sufficient to make her joint author of its final
version. Hacon J rejected Martin’s contention that the mere fact that he ‘had
the final words as to what would go in and what would not’ was enough to rule
that he was sole author [para 28-29].
There  is nothing in the precedents on
‘sufficient contribution’ that warranted such an ‘absolutist’ application of
the ‘ultimate arbiter test’ [para 29]. Though
this fact is relevant to test of joint-authorship, it is not enough to be
decisive taken on its own [para 54, point 9
and 10

In  concluding that Kogan
had not sufficiently contributed to the screenplay [para 85],
even by adding to the first three drafts, Hacon J considered the following points
and authorities:

the use of paws…a primary skill?
Kogan’s counsel argued that the test for joint authorship
should be assessed in light of the test  for ‘intellectual creation’, following the jurisprudence
of the ECJ
regarding the Infopaq decision.
to the defendant, ‘the test for whether a work is protected by copyright is now
governed by EU law’ [not for much longer in the UK!] [para 38]. The
court agreed, but concluded that there was no material difference between the
UK test for ‘skills and labour’ and the EU doctrine of ‘intellectual creation’ [para 43]. Hacon
J writes:

“Turning to contributions which did form
part of the creation of the work, it could be inferred from earlier cases that
the significance of the contribution depends on the type of skill employed in
making that contribution. Here I use ‘skill’ as a shorthand term for the
intellectual creativity of an author required for copyright protection within
the meaning discussed in Infopaq.

Finally, Hacon J goes on to explain how a useful distinction
can be drawn between ‘primary skill’ and ‘secondary skill’ employed to create a
work [para 44
to 51
]. In the context of literary works, Hacon J explains that  primary skills would relate to “the selection
and arrangement of words in the course of setting them down”. By contrast,
secondary skills would apply to “inventing the plot and character”. With
regards to artistic works, Hacon J associates the notion of ‘primary skill’
with “the use of a pencil, brush, computer or other means to create an image”.
On the other hand, ‘secondary skills’ for this category of works would involve “the
composition and selection of colour”. 

Hacon J stresses that
the distinction between primary and secondary skills does not imply that one is
more important than the other to the creative process, but that the specific
test of ‘sufficient contribution’ in relation to joint authorship under
copyright law would be more easily met in cases of primary skills. He takes the
view that a larger amount of secondary skill must be employed to receive
joint-authorship for it, in comparison to primary skill [para 48-50].

This Kat finds the distinction interesting in itself, and as
such, worth exploring further. What is questionable  are the types of creative choices Hacon J has classified
as either ‘primary’ or ‘secondary’. For example, some would take the view that
in many cases  the choice of a painting’s
colours or composition is as defining for its originality as ‘the use of a brush’.
If so, perhaps all such choices could be seen as ‘primary’. In fact, most
nineteenth century painters in Europe dedicated their work to showcasing the
importance of light and colour to a painting over brush skills and methodical

For this reason, this Kat would counsel against formally
associating specific creative choices to either type of ‘skill’ through
judicial precedents, should the notions of ‘primary’ and ‘secondary’ skills catch
momentum in UK case law. However, this more flexible approach, while preventing
a rigid taxonomy of creative skills from settling in the jurisprudence on joint
authorship, might lead to over-uncertainty and  unpredictability.

The use (any?) brush…a primary skill?
Indeed,  perhaps the
primary/secondary skill distinction does not achieve anything that would not be
obtained by applying the more general idea-expression dichotomy doctrine.  As such, what Hacon J describes as ‘secondary
skills’ would be akin to ‘ideas’ (unprotected by copyright, therefore
insufficient contributions) and what he regards to be ‘primary skills’ would be
a form of expression (protected by copyright).  

This Kat wonders how readers come down on the issue of
primary and secondary skills.

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