Joint authorship in copyright works: a legal overview

In advising authors, something that often arises in relation to ownership of copyright is the question of joint authorship and what makes one a “joint author” such that they have a claim to a share in the copyright subsisting in a work and in turn a right to exploit the work for a profit. This is not always straightforward but is something that authors should be aware of when collaborating with others or seeking input in relation to a piece of work.

Authorship / ownership

Section 9(1) of the Copyright, Designs and Patents Act 1988 (“the Act”) provides that the author of a work is the person who creates it, which is important because per Section 11 of the Act, the author of the work is also the first owner of the copyright. Practically speaking, this means the author is the person who decides what happens to the work and when.

Joint authorship

Matters can become complicated when more than one person is involved in the creation of a work or where someone has contributed ideas to the development of a book or screenplay which goes onto become commercially successful. Below, we summarise the legal position in relation to joint authorship, followed by some practical tips for those seeking input to their work from others or indeed seeking to work closely with another to create something that might qualify as a work of joint authorship:

1. A work of joint authorship is a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors. “Collaboration” is not defined but guidance is offered in the case law, which suggests broadly that there will be collaboration where there is a joint undertaking to create the work.
2. There does not need to be any intention for a work to be a work of joint authorship. All that is required is that the authors engage in a process of jointly creating the work, rather than one party merely making additions or editorial suggestions in respect of an already complete piece of work.

Bobby Valentino (who played the iconic violin opening to Young at Heart by The Bluebells and was paid £75 for doing so) was for example famously successful in a claim of joint authorship in relation to the song, meaning he was entitled to a share in the copyright and royalties flowing therefrom. This was despite opposition from Robert Hodgens, one of the writers, whose position was that Bobby Valentino was merely a “session” player and there was no intention for him to qualify as a joint author.

3. Authors can collaborate in many different ways and whether there is “collaboration” will depend on the circumstances. There may, then, be scope for a claim of joint authorship where one person devises the plot (or key plot points) and the other writes the words.

In Martin v Kogan, for example, a dispute emerged about authorship of the screenplay for the film Florence Foster Jenkins, starring Meryl Streep. Martin, the screenplay writer, claimed to be the sole author. His ex-partner Julia Kogan, a classical singer and writer, claimed to have contributed not only key ideas and background information (in relation to the life of a classical singer) but also that she had worked closely with Martin on the overall development of the screenplay.

In order to prove the value of her contribution, Kogan was invited to submit to the court her ‘six best’ examples of where her contribution was not merely editorial or as a “sounding board” but rather as a collaborative joint author. In view of the input of ideas, background information and collaboration on key scenes, it was held that there was joint authorship, with the court offering a salutary reminder that a joint author does not need to be the person holding the pen. 

What is required for a claim of joint authorship?

In Martin v Kogan, the Court of Appeal summarised the legal principles that should be taken into account when determining whether a work is a work of joint authorship. These are repeated below and form a useful blueprint for those seeking to determine whether there is scope for a claim of joint authorship:

1. A work of joint authorship is a work produced by the collaboration of the people who created it (per Section 10(1) of the Act).
2. There will be collaboration where those people undertake jointly to create the work with a “common design” and a “sharing” of the labour.
3. Editorial corrections or critique, without wider collaboration, does not meet the threshold for joint authorship.
4. It is never enough to ask “who did the writing?”. Collaboration can take many different forms. There may for example be joint authorship if one person creates the plot and the other writes the words.
5. Joint authors must be authors, insofar as their contributions must be substantial and also original. “Original” should be determined with reference to Infopaq, which provides that an original contribution is one that is the author’s own intellectual creation (and has not for example been copied from another work). If the contribution is not original, the claim for joint authorship would in all likelihood fail.
6. The fact that one author has the final say on what goes into the work may have some relevance to the question of whether there is collaboration (and to what extent), but this is informative rather than determinative.
7. In view of 7) above, the respective shares of joint authors can reflect, pro rata, their respective contributions, i.e., joint authors are not automatically entitled to ownership of 50% of the copyrighted work. This will of course always be a question of degree and entirely fact specific.

What practical steps can you take to prevent any claims for joint authorship (or disputes)?

It is not always possible to pre-empt potential issues, but authors should be live to the possibility that someone with whom they are discussing their work (and from whom they are obtaining input) may have a stateable claim for joint authorship.

In Martin v Kogan, it was alleged that the original idea came from Kogan, who had a lifelong interest in Florence Foster Jenkins, a socialite who was known for her poor singing ability. Kogan argued that she and Martin discussed the screenplay often, with Kogan contributing information and ideas to which Martin might not otherwise have been privy about the private life of a classical singer. Hindsight is 20/20 but had Kogan and Martin realised that they were joint authors (or potentially so) and dealt with it accordingly, they would have avoided an expensive litigation.

As ever, issues of joint authorship tend to come into play in the event of a work that is commercially successful and it is impossible to anticipate which book, song or film might become so. To mitigate the risk of a claim of joint authorship (or indeed a dispute), authors should:

• be live to the principles outlined in Kogan v Martin, and in particular the notion that to qualify as an author, one does not necessarily need to be holding the pen;
• keep records of meetings and conversations concerning the work and of course any emails, texts etc. which might demonstrate the nature, extent and relevance of any contribution; and
• consider putting in place a simple collaboration agreement which outlines parties’ intended contributions and seeks to deal with the copyright ownership at the outset.

If you are an author, musician or screenplay writer and have concerns about claims for joint authorship (or indeed are actively collaborating with another author), please contact Lauren McFarlane at lmf@bto.co.uk or 0131 222 2944.