COPYRIGHT
Music Publishing, Television

This case (like the Belle & Sebastian article above) looks at joint authorship. Here, Pamela Brighton (‘PB’), the director of the original (1996) production of the play “Stones in His Pockets”, claimed to be its author jointly with Marie Jones (‘MJ’), the accredited author both of that play and of its later (1999) incarnation, which was a huge success in the West End and elsewhere. The position was complicated, as MJ’s original version of the play was itself based in part on an earlier script drafted by PB. The Copyright Designs & Patents Act 1998 defines a work of joint authorship as “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(s) [section 10(1)]. MJ had been widely accredited as sole author without previous objection from PB so it was for PB to establish the joint authorship. In a judgement handed down on 18 May Mr Justice Park set out three considerations suggested by case law as being relevant to the question of joint authorship:

1. The contribution of a joint author has to be ‘significant’, although not necessarily of the same magnitude as the contributions of the other joint author(s);

2. The contribution must be a contribution to the creation of the work (rather than, for example, to the interpretation of it); and

3. If the creator’s words are physically written down by someone else on the creator’s behalf, this will not prevent the creator being a joint author.

The judge did not consider PB’s role as the director did not amount to a significant and original contribution to the final play, However the judge found that PB’s first draft of a proposed script for the opening scenes of the play was itself a separate copyright work and that although elements of it had been copied in MJ’s script for the 1996 production with PB’s implied consent the copying into the 1999 play was an infringement of copyright.

In considering this claim the judge emphasised that, although copyright does not exist in an idea, a work can be ‘copied’ for copyright purposes without repeating a single word of the original (‘altered copying’). Having established that MJ had read PB’s original script and having identified in MJ’s script for the 1996 production a number of elements of the storyline (if not the actual words) from PB’s original script, copying was established. It was common ground that an implied licence for that copying had been granted. Given that the 1999 script was derived from the 1996 version, which in turn was derived in part from PB’s original version, was that implied licence sufficient to cover the use in the 1999 version without further reference to PB? The judge came to the conclusion that the original implied licence was sufficient. However, an implied licence granted without payment or other ‘consideration’ (as in this case) can be terminated on reasonable notice. The judge found that such a notice was implicit in the ‘letter before action’ sent by PB’s solicitors to MJ before commencing proceedings in November 2001. The effect of the termination of the implied licence as of that date was that whilst agreements entered into by MJ before that date in respect of the exploitation of the 1999 version could not be overturned, any subsequent agreements for exploitation of that work would require PB’s consent.

So whilst, on the face of it, the spoils go to MJ, PB has been handed a powerful weapon in the form of a veto over further exploitation of her original script (except under agreements concluded before November 2001) whether as part of either of the existing versions of the stage play or otherwise. However, the judge does not appear to have closed the door on further argument as to the extent to which it would be right for PB to be restricted in exercising her new-found rights to MJ’s detriment. Perhaps the balance might yet be redressed.

Brighton and Dubbeljoint v Jones [2004] EWHC 1157 (Ch)

This update is taken from the article by David Franks, solicitor, and can be found at :http://www.simkins.com/ebulletins/archive/default.aspx