Copyright Termination Right Slashes Friday the 13th Franchise In Two

[Victor Miller] declared … to be the sole owner of the original Friday the 13th screenplay

by: Patrick Anderson, Chief Technology Officer | October 2, 2018

As I predicted back in May, a Federal Judge sided with screenwriter Victor Miller in his lawsuit with the current owner of the Friday the 13th film franchise. District of Connecticut Judge Stephen Underhill, cloaked in black and armed with the law, picked off each of Horror Inc’s arguments one-by-one, like so many horny camp counsellors. And like Jason, Judge Underhill showed no mercy with his introduction:

Lurking below that peaceful surface [of Crystal Lake], however, was the Copyright Act’s termination right, waiting for just the right moment, when it would emerge and wreak havoc on the rights to the screenplay.

As our previous coverage noted:

Publishers, record labels, and film studios are essentially forced by Congressional policy to re-negotiate to maintain the author’s IP rights after 35 years. However, as the lawsuit against Miller demonstrates, some studios simply will not cooperate.

To those in the patent space, this is no surprise. Large corporate interests regularly disregard the valid intellectual property rights of small entities and inventors. From that same playbook, Horror Inc. and the Manny Company sued Miller, rather than negotiate. Their claim, which we summarized last October, is that Miller’s screenplay was actually a work made for hire. …

The agreement itself is notable for its complete and total omission of any ‘work for hire’ language. Thus, Cunningham’s company relies on an “employment” relationship allegedly defined in a contract that offered Miller a flat fee and no traditional employment benefits. Copyright law requires courts to look beyond labels and the determine whether an actual employment relationship exists—a test the Manny Company is likely to fail.

And their arguments indeed failed, in spectacular fashion. In fact, Underhill noted a general lack of support for Horror’s positions. In particular Horror claimed that union members are “necessarily employees … without any citations, but bolstered by the occasional use of italicization and/or bolding.” (For those keeping score at home, this is the verbal equivalent of pounding the table when neither the law nor facts are on your side.)

Underhill tackled the complicated agency analysis under Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989) (“CCNV“). In view of the fact that “Miller performed skilled work, received no employee benefits, [and] was not treated as an employee for tax purposes,” the CCNV factors deemed most important in the 2d Circuit weighed heavily in favor in finding Miller was an independent contractor, rather than an employee. In addition, Miller used his own equipment, worked from home at his own pace, and was paid in lump sums.

Dispatching the remaining arguments in turn, Underhill knocked out Horror’s claims of authorship or shared authorship based on their supervision of the script. In reality, he writes that their behavior is more in line with the commissioning of a work than authoring it. Horror had also claimed that the three year statute of limitations under the Copyright Act expired as a result of the Copyright registration which identified the screenplay as a work for hire. This action, according to Horror, put Miller on notice that his authorship claims were “expressly repudiated.” Unfortunately, the settled law of multiple circuits holds the exact opposite: “the mere act of registering an adverse claim in the Copyright office [is] not an effective repudiation” of authorship rights. Wilson v. Dynatone Publ’g Co., 892 F.3d 112, 119 (2d Cir. 2018).

With the exception of a single scene, which Miller admits he did not write, Underhill declared him to be the sole owner of the original Friday the 13th screenplay by operation of his termination notice. When asked for a comment, Miller’s counsel, Marc Toberoff, said “Given that Judge Underhill’s decision is so thorough, well-reasoned and squarely based on binding Supreme Court and Second Circuit precedent the chances of a reversal on appeal are slim.”

The pièce de résistance, however, is Underhill’s express refusal to analyze ownership of the older “Jason” character who appears in the later films. In fact, he acknowledges that Horror may very well be able to stake a claim that Jason himself is “independently copyrightable.” This, in turn, fractures the franchise ownership in two, essentially forcing the parties to finally negotiate a peace if either wants to proceed with a film based on the original script. Miller’s rights only extend to the US, limiting the distribution scope of any film he might produce. Thus, both parties are now incentivized to reach a deal. Whether they will remains to be seen.



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