These days, upon the rise of the Gig Economy, classifying workers as “employees” or “independent contractors” is quite meaningful. Employees are entitled to overtime, unemployment insurance, health benefits and more. Independent contractors often get none of those things, but do enjoy a higher degree of flexibility and maybe more hiring opportunities. Worker classification has become an incredibly controversial public policy issue, but in some ways, the debate is not new nor cabined to Uber drivers and freelance journalists. Just watch Friday the 13th.
Just what does worker classification have to do with an iconic horror film? Well, it turns out, the future of many movie franchises might turn on whether screenwriters are deemed to be employees or independent contractors. On Thursday, the Second Circuit Court of Appeals heard an important case on this issue. And an attorney representing the original producer of Friday the 13th urged three appellate judges to factor a screenwriters union membership above everything else.
The reason why classification matters in this context is because copyright law allows authors, after waiting a certain amount of time, to reclaim the rights to what they once created. But the power to terminate copyright grants doesn’t apply to “works made for hire,” including those “prepared by an employee within the scope of his employment.” So in this instance, being classified an independent contractor is the more favorable position.
In September 2018, U.S. District Court Judge Stefan Underhill ruled that the original screenplay for Friday the 13th wasn’t a work for hire, and that Victor Miller could indeed recapture what he had once written. Now, as studios face the sweeping loss of rights to other works including Beetlejuice, Terminator, Die Hard and Nightmare on Elm Street, Underhill’s ruling is being challenged by companies associated with Friday the 13th producer Sean Cunningham.
At the appellate stage, the big argument being made is that Underhill should have heavily weighted Miller’s place as a member of the Writers Guild of America, which bargains for working conditions for Hollywood’s scribes. As a result of membership, Miller got health and pension benefits, among other things. Since Miller’s work on Friday the 13th was in part guided by the WGA’s 1977 master agreement, Cunningham’s company contends Miller was really an employee, not an independent contractor.
Although Judge Underhill nodded to Miller’s WGA membership, much more important was examining the working relationship between Miller and Cunningham in light of factors enumerated in the Supreme Court’s 1989 decision in Community for Creative Non-Violence v. Reid. That old case dealt with a nonprofit that had hired a sculptor to create a sculpture that would dramatize the plight of the homeless. The organization and the sculptor then got into a contest over ownership of the sculpture, which led to the high court examining whether Reid was an employee or independent contractor for the commissioned work. What’s a work made for hire? Reid guided judges to examine the hiring party’s right to control, the skill required, the source of the tools required to complete the task, the location of the work, the duration of the relationship, the method of payment, the provision of any health benefits, whether taxes were withheld and so forth.
But one thing that wasn’t addressed because it was a different situation was union membership.
At the Second Circuit hearing, the producer’s attorney Kathleen Sullivan repeatedly pressed the point that Miller’s WGA status mattered. Not only did she say that his union membership and the WGA’s collective bargaining agreement should be an additional factor to the Supreme Court’s list in Reid, but she told the judges, “We submit that it should be the most important factor.”
According to Sullivan, since unions like the WGA negotiate the freedom for members to work from home and the ability for fee guarantees, among other things, that basically transforms Reid‘s factors like the location of work and the method of payment. She also contends that WGA members wouldn’t have any health benefits in the first place if employment wasn’t the discussion at hand during a union’s collective bargaining. If Miller gets these benefits plus a pension through his union, the Friday the 13th producer appears to want to be credited (even if, as Miller’s attorney points out, there’s no evidence that Cunningham ever made contributions to the health and pension plans).
The argument ran into some skepticism from the Second Circuit judges, who seemed to think that Judge Underhill indeed assigned some relevancy to WGA collective bargaining — just not as weighty as Sullivan wished. The three judges — Ralph Winter, Susan Carney, and John Walker — also appeared to take the view that labor law principles are different from copyright law ones. Finally, Carney in particular kept guiding Sullivan back to examining Miller’s WGA status within the Reid framework even as Sullivan was nearly shooting for the judges to develop a new one.
Representing Miller, attorney Marc Toberoff agreed with the judges that Underhill hadn’t treated collective bargaining as irrelevant and said the Reid factors favored his client.
“With the demise of the studio system in the 1950s, almost all screenwriters work as independent contractors,” said Toberoff. “The only writers today in Hollywood that arguably don’t work as independent contractors are those working in the writers room of a TV series that goes on for many, many years. There’s nothing that interesting that Miller is a member of a union.”
At the conclusion of his remarks, Toberoff added to laughs, “My only regret is that the hearing is Thursday the 13th instead of Friday.”