How much do you have to contribute to a creative project to claim joint authorship?

Periodically individuals call me and explain that they have been working on a book or a screenplay with a friend, and now they are not getting along due to a dispute over the content of the piece. They want advice on copyright issues and how to resolve the dispute.

A great example of a very public dispute involves the authorship of the 2016 film Florence Foster Jenkins. Nicholas Martin was credited as the sole author of the screenplay, but his former partner, Julia Kogan, argued that she should be credited as a joint author for her contributions to the work.

“As a general rule, the author is the party who actually created the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989)

In the case involving the film Florence Foster Jenkins, the judge set out specific elements to test the joint authorship:

• genuine collaboration in the creation of the work,
• the contribution must be sufficient,
• and each author having made a contribution not distinct from the other author(s).

Was there genuine collaboration?

The final screenplay was completed after the partners split up. Kogan did not have any input after the screenplay’s third draft.

This posed a problem for Kogan. “Collaboration” requires common design by the authors at the time the work was created.

Kogan argued that she contributed to the first three drafts and consented to their use in the final version, which made her a collaborator. The court did not accept this argument.

Consent to use previous work does not constitute collaboration. Instead, there must be acts of cooperation at the time the work is created.

Was there a sufficient contribution?

Martin had final say over what was included in any draft, which he believed should be enough to establish him as the sole author. However, the court rejected this argument. It acknowledged that one party being the ultimate arbiter should be taken into account but was not conclusive.

According to the judge, Kogan’s contributions included, “providing useful jargon, along with helpful criticism and some minor plot suggestions.” The judge determined that was not a “sufficient contribution” to the screenplay, even if they had been made in the course of a collaboration, so Kogan did not qualify as a joint author of the screenplay. This also meant the third element did not apply in this case since the judge determined Kogan’s contribution was not sufficient.

It is interesting to note that, if her contribution had made up a substantial part of the screenplay in a tangible form, then her contribution would not have been a collaboration but may have been protected by copyright.

Conclusion

To claim joint authorship, it is not enough to simply edit or provide feedback on a work. Instead, you must contribute something of your own intellectual creation in a tangible form.

If you are in a situation where the authorship of a work is questionable, or you are working as a team on a creative work, it is important to protect the rights of all participants. Seek out the legal guidance of the Marks Gray Intellectual Property Team.