Meghan Markle gets summary judgment – but is she the sole author of her letter?

In a summary judgment, Meghan Markle has been successful in her copyright / breach of confidence case against Associated Newspapers. However, the court did not make judgment on whether Meghan was the sole author of the letter or her former communication secretary was a joint author.

If this joint authorship point makes it to trial, the court will benefit from some helpful guidance from two recent decisions in the Kogan v Martin dispute, which related to joint authorship in a screenplay.

The first is the Court of Appeal decision [here], which overturned the initial IPEC decision and ordered a retrial, while helpfully setting out 11 key principles to joint authorship. The second is the IPEC retrial decision [here], handed down in January this year, that found in favour of the alleged joint author and awarded her 20% ownership. In doing so, the judge carried out an interesting assessment of how her contributions brought him to this figure.

A party to the Kogan v Martin IPEC retrial raised the concern that a finding of joint authorship would open the floodgates to claims of joint authorship by researchers or sounding boards. The alleged author in the case (Ms Kogan) had not done any of the actual writing of the screenplay. Furthermore, her contributions were largely non-textual and included “characterisation, musicality, choice of historical incident and musical terminology” (see [272]).

The judge responded that the goalposts have not been shifted: (1) no new law has been set – he was simply applying the Court of Appeal’s summary of existing law, (2) mere sounding boards and/or researchers will not amount to joint authors, and (3) there were measures that should be taken when working with authors, such as due diligence and contractual protection, that remained appropriate.

However, in hindsight, the greater concern may be the judge’s willingness to derogate from the 50:50 ownership presumption and deal with and consider relatively small, and arguably abstract, contributions in arriving at his 20% figure. In particular, for one part of the process of writing the screenplay, the judge calculated Ms Kogan’s contribution to be one fifteenth of the total screenplay. This one fifteenth was added to other contributions to arrive at the judge’s 20% figure. One wonders what contribution, if anything, would amount to de minimis.

Overall, although the goalposts may not have shifted, it may be easier to get one past the goalkeeper. Going back to Meghan, it will arguably be harder for her to argue she is the sole author in light of Kogan v Martin.

For more detail, see our article on the most recent decision in Kogan v Martin here.