A 40-year-old horror story comes to life
by Intellectual Property Attorney Bill Honaker, the IP Guy
Who’d believe that IP Law would have its own scary story, just before Halloween?
Victor Miller wrote the story for the horror movie Friday the 13th. The movie was a landmark success and resulted in numerous sequels. The first movie ends with Jason, a boy thought to have drowned, reaching up from the dark, cold, depths of a lake to pull Alice, a camper, under the murky water. Forty years later, Victor Miller took on the role of his character, Jason, and reached up from the dark, cold, depths of Copyright law to reclaim ownership of his story.
Victor Miller is a professional writer and member of the Writers Guild of America, (WGA) a labor union representing film and television writers. Sean S. Cunningham formed a business called Manny Company to produce and distribute motion pictures, and was a signatory to the WGA’s Minimum Basic Agreement. Cunningham knew Miller and asked him to write the screenplay for the film. Manny and Miller signed a WGA standard agreement, wherein Manny would “employ [Miller] to write a complete and finished screenplay for a proposed motion picture” in exchange for two lump-sum payments.
In 1979, Phil Scuderi, the principal of Georgetown Productions, Inc. (“Georgetown”) agreed to finance Friday the 13th in exchange for giving Georgetown “complete control over the Screenplay and the Film.” Scuderi created the ending that gave birth to the character Jason as an immortal adult killer who returned from the dead, and to numerous sequels in the franchise.
Friday the 13th opened on May 9, 1980. Cunningham described it as “an immediate hit,” that over time, “enjoy[ed] unprecedented box office success for a horror film,” and spawned eleven sequels, among other derivative products.
In 2016, Miller put then-owner Horror Inc., the successor in interest to the copyrights, on notice that he was reclaiming his copyrights. Under Copyright Law, an author can reclaim their copyrights after 35 years. Horrified, Horror Inc. filed suit to stop the request.
Miller could only reclaim his copyrights if he was an independent contractor, and not an employee, when he wrote the screenplay. If Miller was an employee, the work would have been a work for hire, which is excluded from the reclaiming provision. Horror argued that Miller’s membership in the Writers’ Guild of America, (“WGA”) and Manny’s participation in the producers’ collective bargaining agreement with the WGA in the same period, established that Miller was Manny’s employee.
The court disagreed. The court held that the definition of an employee under the NLRB is different than under Copyright Law. The Court looked to the Supreme Court decision in CCNV v. Reid to determine if a person is an employee under Copyright Law. Reid identified thirteen factors to consider: (1) right to control how the work is done; (2) the skill required; (3) who provides the tools; (4) work location; (5) parties relationship duration; (6) whether additional projects can be assigned; (7) discretion over work schedule; (8) method of payment; (9) who hires and pays assistants; (10) whether the work is part of the regular business of the hiring party; (11) is the hiring party in business; (12) were employee benefits paid; and (13) hired party tax treatment.
This case provides important lessons for business that, if heeded, will avoid nightmares.
One lesson is that you may have copyrights that can be recaptured after 35 years. It’s not likely this will affect most businesses outside the entertainment industry, but it could.
The more important lesson is to be sure you own the copyrights in works created for your business. Copyrights are everywhere in business. For example: written content, pictures, videos, websites, computer programs, etc. Many businesses assume if they pay someone to create a work, the business owns it. But this is only true if it is a work for hire. If an independent contractor created the work, the only way the business will own it is if the creator signs a written assignment. The best approach is to provide an assignment of copyrights in your contracts.
Want a treat to avoid a trick? Send me an e-mail and I will send you a sample paragraph. Happy Halloween.
About the Author:
Bill Honaker, “The IP Guy” is a former USPTO Examiner, a partner with Dickinson-Wright, and author of the forthcoming book, Invisible Assets – How to Maximize the Hidden Value in Your Business. To download a sample chapter, click here.