By Andrew Peretin

Former Summer Law Intern with Dunlap, Bennett & Ludwig who currently attends Penn State’s Law School and has an interest in both patent law and litigation.

[08.14.2019 Leesburg]  In September 2018, Victor Miller, the screenwriter of the original “Friday the 13th” movie was granted summary judgment on an issue that would allow him to reclaim his copyright to the first film’s screenplay. Miller attempted to terminate the copyright originally granted to the movie’s producers by leveraging the Copyrights Act’s termination provision. See 17 U.S.C. § 203(a). The Copyright Act was enacted in 1978, but the termination provision only recently began taking effect for Miller’s needs. It allows authors to dissolve grants of their copyright made through transfer or license and regain their rights 35 years after the original transfer. See id. § 203(a)(1). A key purpose of this provision is to help authors reestablish their rights to work, especially those that became more successful than anticipated.

A key exception to this provision is that “work made for hire” cannot take advantage of the termination provision. See id. § 203(a). Under a work-made-for-hire agreement, when an employee creates a copyrighted work as part of their job for the employer, that work and its rights immediately belong to and vest in the employer. Work for hire is an exception to the general rule that the person who creates the work is recognized as the author and often turns on whether an author is deemed an “employee” or an “independent contractor” under the agreement and facts. The district court held that Miller was an independent contractor and not an employee when he wrote the script for Friday the 13th, making him sole owner of the rights in the original screenplay.

On June 3, 2019, the producers of the “Friday the 13th” franchise Horror Inc. filed an appeal with the Second Circuit still alleging that Miller wrote the screenplay as “work-for-hire.” In their opening brief, the producers argue that the district court ignored the key fact that Miller was a member of the Writers Guild of America (WGA) when he produced the script, and as a screenwriter, he was protected by numerous employment benefits. The producer’s argument is that only employees belong to labor unions and since Miller was a member of the WGA, he should be considered an employee; not an independent contractor. Secondly, the producer that the district court misapplied the factors for differentiating independent contractors from employees from Community for Creative Non-Violence v. Reid, 490 U.S. 730, 750-752 (1989) The producer’s main argument here was similarly that the court did not give Miller’s union status enough weight when applying the factors.

This case gets particularly complicated when considering Friday the 13th as a franchise film; even now, potential sequels are being stalled due to the pending litigation. If Miller owns the copyright to the first Friday the 13th, it could create uncertainty for ownership of the rest of the franchise. Notably, ownership of the slasher superstar Jason Voorhees has yet to be determined as the character did not actually appear until the franchise’s second film. As many other scripts are subject to the Copyright Act’s termination provision, this case will likely be tracked closely as its ruling could carry important implications for the industry.

Posted in: Copyright, Intellectual Property

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