‘Two heads are better than one’, as the saying goes; and those who work in the creative industries know that a team effort is frequently the only way of completing a project. But if collaboration can often be highly fruitful from a creative standpoint, it can be an absolute minefield from the legal perspective. Indeed, one of the highest-profile copyright wrangles to have perplexed the English courts in recent years was on the subject of the respective rights of those who contributed to the composition of A Whiter Shade of Pale, one of the most successful popular songs of the 20th Century.
So where and how does one draw the line between the rights of those who contribute – in different ways, and in different degrees – to the making of a copyright work? The approach adopted by the applicable legislation – namely, the Copyright, Designs and Patents Act 1988 as amended – is to provide that a work of joint authorship is one produced by the collaboration of two or more authors in which the contribution of each one is not distinct from that of the other author or authors, whereas a work of co-authorship means a work produced by the collaboration of the author of a musical work and the author of a literary work where the two works are created in order to be used together. So, if you and I were to collaborate on the composition of a melody so closely that our respective contributions could not be distinguished from each other, the result would be a work of joint authorship; if, on the other hand, we were to decide that you would write the music and that I would pen the lyrics, the result would be a work of co-authorship. What’s the difference in practice? Essentially, in the former example there would be a single copyright work with two authors; in the latter example, there would be two distinct copyright works – a musical one comprising the melody, and a literary one comprising the lyrics – each with its own author. This distinction would or could have very important repercussions as regards your right and mine to assign or license the work. (Of course, the foregoing presupposes that your contribution and mine are both sufficiently ‘original’ to attract copyright in the first place…but that’s another story!).
A good example of a recent courtroom battle over the respective rights of collaborators is provided by the case of Martin et al v Kogan et al  EWHC 2927, on which the Intellectual Property Enterprise Court adjudicated in the month before Christmas. Its subject matter was the screenplay for the film Florence Foster Jenkins, a comedy drama starring Meryl Streep and
Hugh Grant. The defendant, a professional opera singer called Julia Kogan, sought from the principal claimant, Nicholas Martin, a proportion of the income that he had earned from the screenplay on the grounds that her contributions to it were such as to entitle her to joint authorship. But the claim failed, for the court found that Kogan’s textual and non-textual input ‘…never rose above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions’. ‘Helpful’ though they might have been, they were not enough to qualify her as a joint author of the screenplay, on the basis of which the court declared that Martin was its sole author.
This decision may have been bad news for Kogan, but it is definitely good news for those attempting to pick their way through the ‘collaboration minefield’, for its findings relate not just to disputes over screenplays, but, more generally, to any collaborative work of copyright. In particular, the learned judge laid down ten bite-sized bullet points which, taken together, provide a useful and practical summary of the working rules on joint authorship of copyright. But no matter how clearly judges try to summarise the law on joint authorship, it is likely to be only a matter of time before the next row over the respective rights of collaborators reaches court.
Jonathan Cornthwaite has specialized in (amongst other things) copyright law since 1979 and is the Assistant Editor of the latest (Seventh) edition of A User’s Guide to Copyright.