The horror of a horror film’s writer and his copyright rights. Right?
by: Patrick Anderson | Friday the 13th of October, 2017
In a dispute between Horror Inc.—owner of the Friday the 13th movie franchise—and Victor Miller—writer of the 1980 film that kicked off the franchise—the parties completed summary judgment briefing months ago, but Judge Stefan Underhill, of the District of Connecticut, has yet to side with either party or allow the question to go to a jury. Is Judge Underhill waiting for the paraskevidekatriaphobic date to slash Miller’s hopes of reclaiming limited rights to the franchise? Or will Horror Inc. emerge, like a final girl, bloodied but victorious in its battle against an ally-turned-enemy?
Previously at IPWire, we discussed how authors can reclaim copyright ownership through a termination of transfer process provided by law. However, this right only applies to authors who originally own and subsequently assign or license their copyrights. Under a different section of the law, copyright ownership of a so-called “work made for hire” vests initially in the company that either hired the writer or commissioned the work. Thus, in the case of a “work made for hire,” the termination provisions do not apply. In other words, authors who create works made for hire cannot “reclaim” rights because they never had any in the first place. In the case of Victor Miller and Horror Inc., the question becomes relatively straightforward: was Miller’s original screenplay an independent work of authorship that was transferred, or was Miller an employee acting within the scope of his employment at the time he wrote the screenplay?
Horror Inc. claims that Miller was—and remains—a member of the Writers Guild of America (WGA) and wrote the screenplay while subject to a standard WGA employment contract. Miller, conversely, claims to be a freelance writer who wrote the first draft “on spec” prior to completing the work pursuant to a screenwriting agreement that failed to render the author an employee as that term is understood in the “work made for hire” context. Horror Inc.’s arguments focus largely on the labels in the agreement itself, which allegedly, and conspicuously, refer to Miller as an employee in multiple places. Conversely, Miller focuses on the lack of traditional employment characteristics, such as insurance, vacation and worker’s compensation insurance. Additionally, Miller claims that he controlled his work schedule and was paid a discrete sum for completing specific work, rather than a salary. In a development that may prove fatal to Miller’s claim, however, Horror Inc. points out that Miller failed to identify the “on spec” draft as a pre-existing work when signing the original employment agreement.
Assuming, for the moment, that Judge Underhill acts as a lightning rod of justice for Miller, reanimating the dead corpse of his copyright ownership, would Miller therefore gain ownership of the hockey-mask wielding uber-killer that tormented Tommy Jarvis, battled the psycho-kinetic Tina, and ultimately “took” Manhattan? Likely not. Despite writing the original screenplay, subsequent Friday the 13th films credit Miller only with creation of characters. Diehard fans of the franchise know that the character of Jason Voorhees changed dramatically throughout the series and enjoyed relatively little screen-time in Miller’s original film. Instead, the plot of Friday the 13th Part 1 follows <spoiler alert> Jason’s mother, Pamela Voorhees, as she exacts revenge on Camp Crystal Lake staffers after Jason drowns in the lake. Jason only appears briefly, as a young child, in Part 1, and only takes over as the primary antagonist in Part 2. The iconic hockey mask did not appear until midway through Part 3 when Jason murders the prankster character Shelley, who had previously used the mask in an attempt to scare his friends and fellow campers. Miller apparently played no role in these developments that clearly stand separate and apart from the Jason character that appeared in Miller’s work.
At best, therefore, a Miller victory paves the way for his own re-creation of the original film and any sequels that take a direction distinct from the existing franchise. Meanwhile, Horror Inc. remains entitled to exploit any derivative works created prior to Miller’s termination, which includes the later, more well-known version of Jason Voorhees that would remain off-limits to Miller. Fans of the character and the series, meanwhile, will be kept waiting until a decision is reached as the producers are unlikely to invest in developing additional films while their rights are being questioned.