On September 28, 2018, the District Court for the District of Connecticut issued a significant ruling on the rights of authors to terminate grants of copyright. It ruled that Victor Miller, the original and sole writer of the highly successful horror movie Friday the 13th, had validly terminated his grant of rights in the screenplay, thus recapturing the copyright in the screenplay to his sole ownership. 1
At work is a little known provision of the Copyright Act that allows authors to take back the copyright they have sold or bargained away, upon the fulfillment of various requirements. The first and foremost requirement is that the author must wait 35 years from the date of the grant for the termination to take effect. 2 Since this clause applies to works created after January 1, 1978, the earliest a work could have been terminated would have been in 2013, and thus results in the handful of cases that have been decided.
The idea behind this provision is that frequently the author bargains away the copyright at a time when no one knows of the potential commercial success or failure work. This usually results in a very small fee being paid to the author. Indeed, with Friday the 13th, this sum was a mere $9,282. 3
In turn, the 35 year waiting period insures that the recipient of the grant of rights has the exclusive rights to the project during the period of its greatest commercial viability. So, only in the most successful of projects will the writer choose the option of termination.
And what a successful project it was.
Based on an estimated budget of only $550,000, Friday the 13th ended with a worldwide gross of nearly $60 million. 4 It is also notable as being one of the earliest screen appearances of Kevin Bacon. 5 (He gets an arrow in the throat. 6) The film spawned 12 sequels, a television show, comic books and video games, 7 featuring the indestructible hockey masked killer, Jason Voorhees.
The only exception to the termination provision is if the author has created “work made for hire.” If so, the grant cannot be terminated. 8 This requires either:
- The author created the work as an employee which is within the scope of employment
- In the case of a motion picture where the author is an independent contractor, a signed agreement in which the author agrees that the resulting work is a “work for hire” 9
So, all the Producers of Friday the 13th had to do to save them this potential headache 35 years down the road was to get screenwriter Victor Miller to sign a contract with the necessary “work for hire” language.
Guess what? They didn’t do it.
They did have Miller sign a contract. It provided for a lot of things, like what he was supposed to provide, the schedule by which certain drafts were due, and the amount and dates of the payments to him. 10 But no mention was made that the screenplay was a “work for hire” “or any other express arrangement regarding copyright.” 11 This simple omission, of this simple phrase, winds up costing the Producers dearly.
For now, the Producers are tasked with proving that Miller was not an independent contractor, but their employee.
The first tack is for the Producers to argue that because the relationship between Miller and the Producers was governed by the relevant Writers Guild of America collective bargaining agreement, that this has the effect of making the film a “work for hire.” The Court pointed out three problems with this theory:
- The WGA agreement in effect at the time did not confer “work for hire” status on the completed screenplay, unlike the current WGA agreements.
- The contract did not incorporate by reference the CBA terms, it merely said Miller would receive no less favorable terms than in the CBA.
- The Supreme Court has ruled that questions regarding employment status in “work for hire” questions is governed by the laws of agency, not labor laws. 12
On this last point, the Court is citing the SCOTUS decision in the 1989 case of Community for Creative Non-Violence v. Reid. 13 There, the Court was tasked with deciding whether the copyright in a sculpture belonged to the artist who created it, or the non-profit advocacy group who commissioned it.
It held that this question is to be resolved by looking to the laws of agency and set out (a non-exhaustive list) of 13 factors to be considered, none of which were in and of themselves determinative of the issue:
- The hiring party’s right to control the manner and means by which the product is accomplished
- The skill required
- The source of the instrumentalities and tools
- The location of the work
- The duration of the relationship between the parties
- Whether the hiring party has the right to assign additional projects to the hired party
- The extent of the hired party’s discretion over when and how long to work
- The method of payment
- The hired party’s role in hiring and paying assistants
- Whether the work is part of the regular business of the hiring party
- Whether the hiring party is in business
- The provision of employee benefits
- The tax treatment of the hired party 14
The only factors which favor the Producers are the first, fifth and tenth factors. Certainly they had the right to control what elements were to be delivered and the time schedule for the delivery of those elements. Miller and the Producers had worked together before. Producing films was the regular business of the Producers. Other than that, virtually all the remaining factors favor Miller and a finding of independent contractor status.
- Miller was a professional writer and a member of the Writer’s Guild
- Miller provided his own typewriter and ribbon (this is 1979 folks)
- Miller worked from his home
- Producers had no right to assign additional projects to Miller
- Miller worked his own hours, mainly in the morning and would meet for script conferences on an ad hoc basis
- Miller was paid in two lump sum payments
- Miller received no employee benefits
- No income tax or social security payments were deducted from his payments
It’s the last three points that really point to independent contractor status; two lump sum payments, no employee benefits and no tax withholding.
The Producers make a late charge at arguing that they are co-authors of the screenplay. However, the Court rules that the proffered elements of authorship, namely that the killings should be “personal,” that guns not be used, and that the film should end with a fantasy or dream sequence, were either unprotectable ideas or scenes a faire. 15 The Court further notes that the screenplay was always credited to Miller as the sole author, and any attempt now, some 40 years after the fact, to claim co-authorship, is barred by the three-year statute of limitations under the Copyright Act. 16
So now that Miller has reclaimed the copyright in the entire Friday the 13th screenplay, he can presumably license a remake (it has already been remade once) 17 or even a new series of sequels.
Jason’s back! Or is he?
The killer on the first Friday the 13th is not Jason Voohees, but his mother, Pamela Voorhees. She is taking revenge on the camp counselors who ignored her drowning son in order to have sex. 18
That’s right, in the original, Jason is dead.
Mrs. Voorhees does not seem to be able to return as the franchise villain either, as she is decapitated in the film’s climactic scene. 19 I know in horror films nobody is ever really dead, but being decapitated seems to make a return rather unlikely.
Here’s where it gets really interesting.
The first film does close with a sequence that is depicted as either fantasy or dream, in which Jason comes out of the lake to attack the heroine. Jason is depicted as deformed and decomposing but lacks his trademark hockey mask, overalls and machete. These are elements that were created by the sequels.
So, Miller’s recapture extends to all of the elements that were contained in the original, but none of the elements that were solely the creations of the sequels. Under the Copyright Act, the Producers can continue to exploit the sequels as termination does not extend to any derivative works that were made when the Producers owned the rights. 20 However, they can no longer make derivative works based upon material covered by the termination notice.
So, since “Jason Voorhees” is indeed a character contained in the original Friday the 13th, does this preclude his appearance in any more sequels? What if the character is never named? What if the character is simply identified by his “trademark” appearance, e.g. hockey mask, torn overalls and machete, which is a creation of the sequels?
In turn, can Miller “resurrect” Jason, as it is implied at the end of the original, and make him a continuing villain? Can he do so as long as he eliminates the signature visuals that were the creation of the sequels?
The Court, perhaps wisely, sidesteps the issues.
“Miller, as sole author of all but one scene has reclaimed ownership in a copyright spanning all copyrightable elements in all but the excluded scene. I… decline to analyze the extent to which Miller can claim copyright in the monstrous ‘Jason’ figure present in sequels to the original film. [Producers] may very well be able to argue that the Jason character present in later films is distinct from the Jason character briefly present in the first film, and [Producers] or other participants may be able to stake a claim to have added sufficient independently copyrightable material to Jason in the sequels to hold independent copyright in the adult Jason character. That question is not properly before the court in this case, however. Miller’s termination notices apply only to the copyright in the screenplay for the first film, and did not purport to terminate a separate copyright in the adult Jason character present in later films. Adjudication of the status of any copyright in the adult Jason character will have to await a ripe dispute with respect to that issue.” 21
Some things…refuse to die.
- Horror, Inc. v. Miller 2018 WL 4697284, District of Connecticut 2018 ↩
- 17 USC 203 (a) (3) ↩
- Horror, Inc. v. Miller at 6. All page references are to the original pagination of the opinion. ↩
- IMDb: Friday the 13th ↩
- IMDb: Kevin Bacon ↩
- Friday the 13th (1980 film) ↩
- Friday the 13th (franchise) ↩
- 17 USB 203 (a) ↩
- 17 USC 101 “work made for hire” ↩
- Horror, Inc. v. Miller at 5-6 ↩
- Horror, Inc. v. Miller at 19 ↩
- Horror, Inc. v. Miller at 19-21 ↩
- 490 U.S. 730, 109 S.Ct. 2166 (1989) ↩
- Id. at 751-752 ↩
- Horror, Inc. v. Miller at 51 ↩
- Horror, Inc. v. Miller at 51-56 ↩
- Friday the 13th (franchise) ↩
- Friday the 13th (1980 film) ↩
- Friday the 13th (1980 film) ↩
- 17 203 (b) (1) ↩
- Horror, Inc. v. Miller at 61-62 ↩