Kogan v Martin & ors

21 November 2019

Ashton Chantrielle appeared for the Appellant, Julia Kogan in an appeal concerning joint authorship of copyright works. Jonathan Hill appeared for three film companies, which were third party defendants in the proceedings.

The appeal concerned authorship of copyright in the screenplay for the film Florence Foster Jenkins. At first instance, HHJ Hacon declared that the First Respondent (Mr Martin) was sole author and owner of copyright in the screenplay. HHJ Hacon also upheld the film companies’ argument that Ms Kogan was estopped from preventing them from commercialising the film, as she did assert any rights when she knew the film was at the production stage.

The Court of Appeal provided some much-needed guidance on the law of joint authorship of copyright works and considered the impact of the approach set out by Leggatt J in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) to testimony based on the memories of witnesses.

The Court of Appeal allowed Ms Kogan’s appeal on the issue of joint authorship and ordered a new trial to take place before a different judge in the IPEC. A retrial was held to be necessary as the trial judge was found to have failed to make essential findings of fact, adopted an erroneous approach to the evidence and applied incorrect legal standards to the question of whether Ms Kogan’s contributions were sufficient to make her a joint author.



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