Whether does the UK Intellectual Property Enterprise Court’s judgement on claim for screenplay co-authorship of the comedy film “Florence Foster Jenkins” pay the way for a Vietnamese court to pass a judgement on a 12-year unheard co-authorship dispute “Than Dong Dat Viet”[1]?

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From a UK court’s rejection of a claim for co-authorship

Shortly after the premiere in London on April 12, 2016 of the comedy movie “Florence Foster Jenkins” starring Meryl Streep and actor Hugh Grant, wherein the film’s credits was a sole author of the screenplay being the screenwriter Nicholas Martin, had erupted a copyright lawsuit over those who are the authors of the film screenplay. In particular, the opera singer Julia Kogan brought action demanding the court to recognize her as a co-author of the film's script with the writer Nicolas Martin[2].

Looking back at the history of the script, it was found that Julia Kogan and Mr. Nicolas Martin had had time to live together at an early stage in the creation of the screenplay. Ms. Julia Kogan told the court that it was her who had the idea related to the film, making a significant contribution to the plot, characters, and details of the script. In contrast, Mr. Nicolas asked the court to only recognize him as the sole author of the script and asked the court to dismiss the claim for co-authorship with Julia Kogan. The suit files show that the first three manuscripts of the script made by Mr. Martin were contributed by Ms. Kogan, such as editing dialogue and proposing scenes and topics. However, before the final manuscript was produced, the manuscript that looked like the movie came out, the couple broke up. 

A number of legal questions that the court considered to need to be clarified, including: (1) what is the nature and extent of Kogan's contribution to the script? (2) does this contribution constitute co-authorship under the meaning of Section 10.1 of the copyright, designs and patents act 1988 and does it make Ms. Kogan a co-author with Mr. Martin or not?

A work of joint authorship under Section 10.1 means 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 or authors”. The court held that this rule could indicate three conditions to consider before concluding whether joint authorship exists: (a) a work must be created in collaboration with two or more authors, (b) secondly, the contribution of each author must not differ from the contributions of other authors, and (c) this contribution must be an appropriate contribution, in other words it must be a significant contribution of the skills and labor.

Based on those criteria, Judge Richard Hacon concluded that Kogan's contribution was not yet reached the threshold of being considered to be an appropriate or substantive contribution, like many other types of contributions that were not sufficient to create a joint authorship. Authors such as merely adding details that themselves are not protected by copyright, providing expert feedback or criticism, reporting bugs and suggestions for correcting editorial errors and expression. In order to be considered as a material or appropriate contribution, this contribution must aim to or directly affect the originality of the work, which is understood to originate directly from the "skill and labor" in the process of conceiving a work, not just shaping it. 

To the unheard lawsuit asking for revocation of co-authorship entitlement in the copyright dispute Than Dong Dat Viet in a Vietnamese court

First-instance trial against the 12-year-old Than Dong Dat Viet comic-book copyright dispute by the District Court 1 of Ho Chi Minh City scheduled on December 28, 2018 was formally announced to postpone at the request of defendant[3].

As shared by the artist Le Linh (full name as Le Phong Linh) on the social network, he is the one who directly created and took care of all stages of giving birth of this comic. After debuting until episode 78, in 2006, a conflict between him and Ms. Phan Thi My Hanh - Director of Phan Thi Company led to the two sides stop cooperating. According to the case file, the author Le Linh and Ms. Phan Thi My Hanh jointly named as co-authors of the comic series as shown on certificates of copyright registration issued by the Copyright Office. After ceasing to cooperate, Phan Thi Company hired other painters to continue creating the next episodes of the comic book, forcing him to sue asking the court to recognize only him as the sole author of the series. In addition, he also requested the court to protect the integrity of his work, saying that no one had the right to create subsequent episodes based on the characters in his story without his permission. In contrast, Phan Thi counterclaimed against the painter Le Linh, accussing him of illegally generating characters Long Tin in his own comic Long Thanh because his use of the figure Trang Ty, which according to Phan Thi Company, is under their control and exploitation.

Consequently, in summary, the trial panel must solve two key issues: is Mr. Le Linh the sole author of the Vietnamese best-selling comic book Than Dong Dat Viet or the co-author with Ms. Phan Thi My Hanh? Assuming that Mr. Le Linh is recognized as the only author, whether Mr. Le Linh has the right to prevent Phan Thi Company from continuing to exploit the figures in order to create the next series of Than Dong Dat Viet based on the legal ground for protecting the integrity of the work that Article 19(4) of the Vietnamese IP Law is exclusively favor of Mr. Le Linh? This is a court case that touches on the most rationale and fundamental issues of copyright law in the context that Vietnam has issued a comprehensive legal framework on copyright protection after its accession to the Berne Convention since October 26, 2004, so this case can also be considered as a heavyweigh test of adjudication capacity of intellectual property disputes by Vietnamese courts.

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