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Victor Miller, the screenwriter of Friday the 13th, has responded to a lawsuit over rights to the 1980 horror classic with two consequential motions.
In June, Miller sent a notice of termination to producers with the aim of grabbing back rights to Friday the 13th. In doing so, Miller looked to exploit changes that Congress made to copyright law in 1976. Back then, lawmakers lengthened the copyright term, but, in recognition of authors who had signed over their rights to publishers and studios without much bargaining power, allowed these authors to reclaim rights in the latter stages of a copyright term. Specifically, authors have to wait 35 years to cancel rights hand-offs, and here, Miller wants to effectuate a Friday the 13th copyright termination in July 2018, which potentially would allow him to license the franchise to other studios.
In late August, producer Horror, Inc. and Manny Company filed a lawsuit in Connecticut federal court upon receiving Miller’s notice of termination. The copyright termination provisions has an exception for a “work made for hire,” that is a work prepared by an employee within the scope of his or her employment. Under this scenario, the employer is deemed to be the statutory author.
Horror, Inc. and Manny Company, a successor to Georgetown Productions, claims in its suit that this is what happened in the development of the original Friday the 13th. Miller’s friend Sean Cunningham had wanted to capitalize on the success of the film Halloween, and worked with Miller to develop ideas. Miller signed an agreement to write the screenplay in exchange for a lump- sum payment.
But in a motion to dismiss filed Monday (read here) by Miller’s attorney Marc Toberoff — no stranger to copyright termination battles after litigating Superman, Lassie and other works — the argument is put forward that Friday the 13th was hardly a “work made for hire.”
“While the Screenplay was clearly commissioned by Manny for use as part of a motion picture, the Film, Plaintiff never alleges that a written instrument signed by Manny agreeing the Screenplay shall be considered a ‘work made for hire,’ ” states the motion. “And the Agreement attached to the Complaint, and alleged by Plaintiffs to be Miller’s operative agreement, does not contain any such express agreement, nor even the phrase ‘work made for hire’ or ‘work for hire.’ ”
The absence of an express agreement in writing providing that Miller’s screenplay was to be considered a work made for hire dooms the claim, the defendants argue.
Miller also addresses whether he was an “employee” at the time, saying that the seminal 1989 Supreme Court case (CCNV) on the topic referred to a conventional employment relationship.
“CCNV drew a clear distinction between an ’employee’ and an independent contractor, stating that ‘when Congress has used the term ‘employee’ without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by [the federal] common-law agency doctrine.’ ”
Several cases before the 2nd Circuit Court of Appeals, which covers Connecticut, have since refined the tests for an employment relationship, including the Toberoff-driven lawsuit over Jack Kirby’s Marvel works. That one was almost reviewed by the U.S. Supreme Court before being settled without the high court’s added guidance over how to interpret who is an “employer” for commissioned works. As the Friday the 13th lawsuit proceeds, a judge may look at factors including the producer’s right to control the manner and means of creation.
In the Friday the 13th lawsuit, the plaintiffs spoke about the producer’s “bold risk” to finance the production and how Miller worked on the script with direction, but Miller’s motion to dismiss states that plaintiffs have only alleged on information and belief “indirect benefits and right to control,” and furthermore, tell the judge, “CCNV cautions against placing too much weight on the right of control. In fact, CCNV was prompted by attempts to shoe-horn specially commissioned works…covering traditional employees, just as Plaintiffs do here.”
Miller also points out there’s no allegation he was paid a salary, had taxes and social security withheld, and worked on the producer’s premises in the writing of Friday the 13th. He says he was hired for just one skilled task and provided his own tools.
If the first motion deals with plaintiff’s work-for-hire and employee ownership theories, the second one addresses the need to protect Miller’s First Amendment rights.
Miller’s motion to strike (read here) is a bit more nuanced insofar as it asks a Connecticut judge to apply California’s anti-SLAPP statute, which gives recourse to those whose First Amendment activity on public interest subjects are being deterred by frivolous legal actions. When most people think of the First Amendment, they think of free speech or free press or freedom of religion. Less recognized is the right to petition, and here, Miller argues that his termination notices constitute such protected petition activity.
California courts have accepted this proposition, but whether or not a Connecticut judge will apply California’s anti-SLAPP statute is a bit more thorny. Miller asserts he’s a “long-time resident of California,” for whatever that’s worth.
If Miller is able to convince the judge that the lawsuit falls within the ambit of California’s anti-SLAPP statute, then the judge would address whether Horror, Inc. and Manny Company have a likelihood of prevailing before moving the case any further. For the reasons articulated above, Miller tells the judge that the plaintiffs cannot show a reasonable probability of success on their ownership theories nor do plaintiffs’ separate breach of contract, slander of title and unfair competition claims survive being preempted by federal copyright law.
The plaintiffs are represented by Bonnie Eskenazi at Greenberg Glusker, who has some copyright termination experience too. In fact, she and Toberoff squared off against each other in the termination case over Lassie.
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