With an increase in the number of couples choosing to live together before marriage has come an awareness of the practical and, it has to be said, not very romantic, need to stipulate who would own what in the event of a relationship breakdown.
Cohabitation agreements are perhaps the most effective way of doing this: such an agreement would usually detail each party’s rights and responsibilities in relation to the property where they live or intend to live, financial arrangements both during and following cohabitation and the arrangements to be made if they decide that they no longer want to live together.
A key point is what is considered to be ‘property’ for the purposes of such an agreement. Whilst the facts of the recent case of Martin & Ors v Kogan & Ors [2017] EWHC 2927 (IPEC) are unlikely to resonate with the majority of couples, it does serve as a reminder that copyright whilst intangible, is valuable property nonetheless and that it should be treated accordingly.
The case of Martin concerned a claim made by a Mr Nicholas Martin, for a declaration that he was the sole author of the screenplay to the film “Florence Foster Jenkins”, a comedy drama starring Meryl Streep and Hugh Grant and based on the latter part of the life of Florence Foster Jenkins, a New York heiress and socialite who died in 1944.
It was common ground that Julie Kogan, the defendant, was in a relationship with Mr Martin during the time that the initial drafts for the screenplay were written. The relationship had since soured and Ms Kogan sought a proportion of Martin’s income from the film. Ms Kogan argued that she had made a contribution to the screenplay used to shoot the film and that her contribution was sufficient to qualify as a work of joint ownership, within the meaning of section 10 of the Copyright Designs and Patents Act 1988.
Consequently, Ms Kogan defended Mr Martin’s claim and filed a counterclaim for a declaration that she was a joint author of the screenplay and that Martin infringed the copyright in it. Ms Kogan’s application also joined the production and the financing companies for the film as Part 20 defendants, against whom she also sought relief for infringement of copyright.
The question posed was whether Ms Kogan’s contributions were sufficient to make her a joint author. If joint authorship is established, the Court would then apportion ownership of copyright; as a consequence of section 104 (2) and (3) CDPA the burden of proof lay with Ms Kogan. Ms Kogan was unable to satisfy that burden, her position no doubt not helped by the fact that the Judge perceived her case to have altered throughout the proceedings but also because she was unable to adduce any evidence, beyond her own assertions, to support her claim to the input which she identified as hers alone.
By contrast, Mr Martin was able to produce documentary evidence which suggested:
- that the first three drafts of the screenplay were written by him alone, with limited help from Ms Kogan;
- that at the time the screenplay was written, Ms Kogan was simply making typographical corrections and other comments of the proof reading kind, but nothing substantial; and
- Ms Kogan knew and raised no objection to the registration by Mr Martin of the first three drafts of the screenplay with the Writers’ Guild of America where he alone was listed as the sole author.
Consequently, Ms Kogan could not satisfy the burden of proof and failed to establish that she was a joint author of the screenplay.
Summary
The case demonstrates the importance of being explicit when it comes to ownership of intellectual property rights.
The facts of the Martin case are unusual but the lessons to be learnt from it are by no means unique; disputes often arise as to ownership of intellectual property following the breakdown of a relationship, whether that relationship be of a personal or commercial nature. Martin serves as a salutary reminder that having a written agreement in place that deals with the ownership of intellectual property, whilst it might not save a relationship, may save a burdensome and expensive process in trying to assert those rights.
Emma Ward is a Partner in our Intellectual Property team. To discuss this area of work, please contact Emma on 0800 024 1976 or via our online form.