UK High Court rules on copyright and joint authorship: “useful jargon”, “helpful criticism” and “minor plot suggestions” are not enough

Summary and key findings

The UK High Court, in Martin v Kogan, ruled, on 22 November 2017, that the defendant’s contribution to the screenplay for the film Florence Foster Jenkins, starring Hugh Grant and Meryl Streep in the role of Florence Foster Jenkins, a famous American socialite known for her poor opera singing, was insufficient to amount to joint authorship.

While the parties had worked on early drafts together, HHJ Hacon found that there had been no collaboration between them in respect of the final version of the screenplay and Ms Kogan’s textual and non-textual contributions had been insufficient.

Business impact

  • Film production companies should make due diligence enquiries as to authorship of commissioned screenplays, and ask about any key contributors and the extent of their contributions. Contractual warranties as to authorship may not shield them from a future copyright infringement action by uncredited authors.
  • Authors who have not actively co-operated in the creation of the final draft of a work will find it difficult to establish collaboration, a key requirement for establishing joint authorship.
  • An author who is the “ultimate arbiter” and has always had the final say in the final content of a work might have good grounds to defend a claim for joint authorship, but this status is not determinative.
  • Individuals who consider themselves co-authors should conduct themselves as such throughout their interactions with other author(s). From an early stage, they should make their contentions known and should seek to have their names published on copies of the work or, if that is not practically possible, object to their names not featuring on the final work. There is indeed a presumption of authorship in favour of the person whose name is on the copyright work.
  • Parties involved in litigation should beware of placing too much emphasis on witness recollection of meetings and conversations unsupported by evidence. The Judge in this case found such evidence unreliable and placed little, if any, reliance on witnesses’ recollection. He preferred to base findings on documentary evidence.

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UK HIGH COURT RULES ON COPYRIGHT PROTECTION OF TV FORMATS FOR GAME SHOWS

Summary

The High Court of England and Wales decided on 19 October 2017 that a particular television format document did not qualify for copyright protection as a dramatic work as its contents were unclear and lacking in specifics. Copyright protection has been notoriously difficult to obtain in respect of TV formats and the case contains useful guidance on the way television formats should be recorded or expressed in order to stand a chance of being protected by copyright as dramatic works. The High Court also considered that the TV format document was too vague and insufficiently developed to be protected as confidential information (Banner Universal Motion Pictures Limited v Endemol Shine Group Limited & others).

Business Impact

  • The decision acts as a warning for TV format developers that generalised commonplace game concepts, even if they are supported by specific examples, will likely fall short of the requirements for copyright protection as dramatic works.
  • Television producers who acquire the rights to TV formats should ensure that TV format documentation is sufficiently detailed and is kept up-to-date as the resulting shows develop. It shows the importance of a format bible.
  • To qualify for copyright protection as a dramatic work, contents of TV formats should be clear, specific and contain elements forming a coherent recognisable framework capable of being reproduced into a distinctive show.
  • In order to increase chances of their formats being protected by copyright, developers/producers should think of including the following in their documentation:
    • where the action is to take place;
    • who the contestants should be and the selection process;
    • the length of the programme;
    • when the show should be aired;
    • the source of the prizes (if any); and
    • catchphrases, identified as such (it is not sufficient to simply list words or expressions).
  • One of the major difficulties in establishing the infringement of copyright in formats for game shows is showing that what has been copied is the expression of ideas, rather than pureĀ ideas themselves.
  • While the High Court acknowledged the possibility for television formats (even if not fully developed) to be protected by the law of confidential information, information which is too vague, insufficiently developed and of a very general nature is unlikely to qualify for protection under the common law of confidential information.
  • Claimants who have been unsuccessful in proceedings in one country should beware of starting similar proceedings against identical defendants elsewhere, as they may be estopped from doing so and such proceedings may amount to an abuse of process.

Authors

Joel Smith
Joel Smith
Head of IP - UK
+44 20 7466 2331
Alexandra Morgan
Alexandra Morgan
Senior Associate, London
+44 20 7466 2808