A recent case heard by the Court of Appeal,  Kogan v. Martin sheds light on the test which the court needs to apply to decide whether someone is in fact a “joint author” of a work. Joint authors share ownership of the copyright in a work, so the decision whether someone’s contribution is sufficient to make them a joint author can have important consequences, especially if the work has a  significant commercial value. Kogan v. Martin concerns the authorship of the film script for Florence Foster Jenkins a feature film released in  2016. The test for someone to qualify as a joint author is examined in great detail in the Court of Appeal judgment and summarised very well in a post about the case on the IPKat blog

Interesting points which one can take away from this case:

• It can be misleading to place too much importance on “who pushed the pen” when a collaborator contributing ideas for plot, scenes and characters to a dramatic or literary work can be equally entitled to be recognised as a joint author.
• The test for authorship, influenced by important case law from the Court of Justice of the European Union (CJEU) is whether the work is the expression of the person’s own intellectual creation.
• One can make a smaller contribution but still be a “joint author” if one satisfies the test.

This is interesting in the academic context, where research papers are often published under the names of multiple authors.

One of the issues faced regularly by archives which hold the correspondence of a prominent person is that the letters will have multiple copyright owners. Copyright in a letter belongs to the author and typically there will be many authors. This becomes an issue when you need permission to digitise or publish letters from the archive.

The ownership of copyright in letters has been thrown into the spotlight by the legal action brought by Her Royal Highness the Duchess of Sussex against Associated Newspapers with regard to the alleged publication of private correspondence in the Sunday Mail. Infringement of copyright is one of the claims, perhaps the main claim.

The underlying copyright issues are discussed in depth here on the IPKat blog including the difficulty the newspaper might have if they try to claim their use of the letters was covered by one of the exceptions to copyright contained within Section 30 of the Copyright, Designs and Patents Act 1988 (CDPA), which deals with “fair dealing” for the purpose of criticism, review and quotation more generally. The difficulty for the publisher is that the letters in question must have been previously “made available to the public” with permission of the copyright owner (the Duchess in this case), otherwise the exception does not apply (by virtue of CDPA Sub Section 30,1ZA,a). It seems unlikely they could claim that this condition has been fulfilled.

Although copyright is often in the headlines with respect to the music business it is less common to find copyright in unpublished literary works featuring so prominently.