‘Friday the 13th’ Copyright Case Is Rare Termination Rights Guide

Lessons from the “Friday the 13th” writer’s reclamation of rights could benefit creators getting ready to transfer rights to potentially lucrative artistic work—in 2056.

Victor Miller convinced both a federal district court and the U.S. Court of Appeals for the Second Circuit he wasn’t an employee writing the script for the 1980 horror movie as a work for hire under copyright law. Instead, he originally owned a copyright and had a right to terminate his licensing of the script.

Termination rights let creators reclaim rights 35 to 40 years after assigning them under the Copyright Act of 1976. The law provides a second chance when work creators licensed or sold becomes more valuable than anticipated.

The decision adds to just a trickle of case law on termination rights disputes, which attorneys say usually settle before setting precedent. It may boost awareness of a right many creators don’t know exists. The ruling also illustrates that crafting contract language is critical, but sometimes it can be overcome if the contract doesn’t apply copyright law correctly.

“I think it’s going to bring further attention to the termination right, which is a valuable right to artists,” copyright attorney David S. Gold of Cole Schotz PC said.

Creators often aren’t planning decades ahead when signing rights away, while publishers “know the law stone cold,” Gold said. “You have to know what you’re doing. It’s a small window, and most people don’t know about it.”

The case shows that parties seemingly painted in a corner by contract language can fight back when that language doesn’t match the creative process and copyright law definitions of key terms.

The “Friday the 13th” screenplay was registered with the Copyright Office as a work for hire, creating a rebuttable presumption that it was one. Miller rebutted the presumption, showing he had enough creative control to make that factor a close call, allowing other factors to swing the decision to him.

He also showed his relationship with producer Manny Co. didn’t fit the definition of employee under copyright law, even though he was a member of a film writers union.

“It’s nice to have the Second Circuit say that copyright isn’t affected by other definitions, we have our own,” copyright law professor Philippa Loengard of Columbia Law School said. “They’re called rebuttable presumptions because they can be overturned. That is maybe a bigger takeaway than what is agency, and what is an employer-employee relationship.”

‘Sliding Scale’

That employment question could come into play as creators of various Marvel characters try to terminate assignments of rights held by Marvel—and now Disney—in several lawsuits.

Attorneys say the ruling may well embolden the plaintiffs, some represented by Miller’s attorney, Marc Toberoff, to push forward. But they cautioned that the employment analysis, like other parts of copyright law, consisted of a highly fact-specific multifactor test. Even the law may vary, as work created before 1978 falls under a different standard in the Copyright Act of 1909.

“If I litigate a case, if I had the Second Circuit affirm my viewpoint, and if I think facts in my case are comparable, I don’t know how I wouldn’t be buoyed,” copyright attorney James G. Sammataro of Pryor Cashman LLP said.

But while some may see “a harbinger of bad things for Disney in the Avengers/Marvel case,” he said, the analyses will still turn on very different facts, such as Marvel’s much different collaborative model.

In Miller’s case, Manny argued Miller co-wrote the screenplay with Manny owner and film director and producer Sean S. Cunningham, a friend of Miller.

The Second Circuit said it was difficult to fully assess the collaboration in detail. But it said Manny cited mostly generalized contributions by Cunningham, and only one change made over Miller’s objections.

“For producers and publishers making content with a lot of writers and artists involved, it’s a reminder to figure out how to best structure those deals to retain the rights you want to retain,” intellectual property attorney Scott J. Sholder of Cowan DeBaets Abrahams & Sheppard LLP said.

But that task for producers, creators, and their attorneys remains an inexact science.

“How much control do you have over a person? That’s going to be a sliding scale, and different judges and juries are going to slide that scale differently,” Gold said.

The court also noted Miller alone got a screenwriting credit, which Sammataro said showed “dolling of writer credits should never be a trivial issue.”

Striking a Better Deal

Attorneys said perhaps the most novel determination by the court was that a Writers Guild of America contract didn’t render Miller an employee.

That contract was a general “Minimum Basic Agreement” that applied to WGA writers and signatory employers, the Second Circuit said. But Miller didn’t get typical employee benefits and was treated as a contractor for tax purposes.

“The good thing is that it’s eliminated the idea that just because you’re part of a guild or a union, that impacts your status under the Copyright Act,” copyright attorney Owen Sloane of Eisner LLP said.

Taking another arrow out of the quiver of parties looking to retain rights may only reinforce a tendency for termination disputes to be settled. Even successful terminations usually result in a new deal between the original parties, with better terms for the creator, attorneys said.

“More money, better compensation, different structure. And that’s the end of it,” Sloane said.