December 2017 - Copyright: The law on joint authorship

Copyright: The law on joint authorship

Given the collaborative nature of much work in this sector it was useful to have a recent court case provide a reminder of how joint authorship arises when a work is created collaboratively. Don’t forget that ownership of copyright, though automatic, can be altered by agreement and any such changes should be reflected in contracts. You can always contact ITC for advice when doing this.

The Copyright, Designs and Patents Act 1988 sets out two express requirements for joint authorship:
(1) the work must have been produced by the collaboration of two or more authors

(2) the contribution of each author must not be distinct from that of the other author(s). For example, one author adding a scene to an existing play would not be a joint author of the play unless there had been some collaboration and common design at the time the copyright work was created.

There is, however, an implied third requirement, which the courts confirmed in the case of Stones in His Pocket in 2004 (a work that came from our sector) and have just confirmed again in a case relating to authorship of the film Florence Foster Jenkins, which was released in 2016. This is that to be a joint author, a collaborator must contribute a significant part of the skill and labour protected by the copyright. Suggestions as to how the author should exercise his or her skill - for instance criticism or notes provided to a writer by a director or by the editor of a literary work – will not constitute joint authorship if the main author still has the final decision as to the form and content of the work. In Stones in His Pocket the Director of the play claimed joint authorship because of her creative input, and failed. In this case the writer Nick Martin (credited as the sole author of the screenplay) had frequently discussed the script with his then partner Julia Kogan. She is an opera singer, the film is about this world, and it was accepted that the couple had frequently discussed treatments for the film and early drafts of the script but this was not enough for her claim to be a joint author of the screenplay to succeed.

It is worth noting, though, that if someone was to create the entire plot of a novel or play and all the characters featured in it, and a collaborator was left to do the writing with discretion as to wording (so that collaborator was not merely a scribe) the resulting work would probably be a work of joint authorship.