A recent legal victory for Friday the 13th screenwriter Victor Miller against the producer of the horror classic is now before the 2nd Circuit Court of Appeals — and rather unexpectedly, a copyright fight has become, in part, a question about the continued worth of unions in the entertainment industry.
Miller is exploiting the provision of copyright law that allows authors, after waiting 35 years, to reclaim copyright material by terminating grants. Last September, a Connecticut federal judge rejected the producer’s contention that Friday the 13th was a work-made-for-hire — basically meaning within the scope of employment or specially defined in contract — and ruled that Miller can indeed recapture what he wrote in the late 1970s.
Since the ruling, the two sides have been unable to settle their differences to the frustration of Friday the 13th fans who await reboots, sequels and video games.
Companies associated with producer Sean Cunningham are having a federal appellate court take another look at this dispute and making an argument that is much about labor law as it is about intellectual property.
According to the the producer, represented by a highly respected appellate team including Kathleen Sullivan at Quinn Emanuel, it matters that when Miller penned the Friday the 13th screenplay, he was a member of the Writers Guild of America. They tell the 2nd Circuit that the terms of the WGA collective bargaining agreement make clear that a screenwriter writing a screenplay is an employee. As a WGA member for four decades, Miller got benefits (e.g. minimum salary, pension, residuals, etc.), so it’s argued that Miller can’t suddenly turn around now and claim being an independent contractor entitled to cancel transfer of Friday the 13th rights.
Then, after proclaiming how the district court ignored all of this, comes an argument intended to spook the appellate judges.
The producer believes that when Congress set copyright law, it considered and rejected an approach that would always treat screenwriters as independent contractors vested with rights they could shop to studios. Not when “work-made-for-hire” rules were specifically written to include works “prepared by an employee within the scope of his employment.” Moreover, the producer asserts this creates conflict with the National Labor Relations Act (NLRA) that grants “employees” the right to organize or join labor unions and to bargain collectively. To be both a union-covered employee and an independent contractor at the same time while performing a single function is out of the realm of square thought. Or so it’s argued.
“Miller cannot have it both ways — availing himself of his screenwriting work on Friday the 13th to garner advantages only employees enjoy, while simultaneously insisting that he is an independent contractor for purposes of copyright termination rights,” states the producer’s appellate brief. “To allow him to do so would upset long-settled expectations and reliance on WGA collective bargaining practices.”
The appellate brief (read here) then makes this startling prediction: “If upheld, the district court’s decision threatens to undermine both the ability of screenwriters to collectively bargain and the expectations of employers that have engaged in collective bargaining for nearly a century, almost certainly leading employers to challenge whether the WGA can continue to organize and collectively bargain on behalf of screenwriters In fact, such a finding will beg the question: are all employees who work on films actually independent contractors? If so, the district court’s decision may inadvertently set the stage for the decertification of all unions governing the film industry, which is one of the largest unionized private sector industries in the United States.”
This all comes as the California legislature wrestles with whether to reclassify independent contractors as employees in the “gig economy” — a subject of some import to those in entertainment — but that’s a side issue. In the meantime, is the producer of Friday the 13th right? Is there about to be massive upheaval the other way — employees become independent contractors and entertainment guilds crumble — because of some copyright termination case in Connecticut?
On Tuesday, Miller’s attorney Marc Toberoff took a shot at poking a hole in the producer’s logic. His opening brief (read here) includes a trip down the Hollywood memory lane back to 1938 when the right of screenwriters to collectively bargain was recognized by the National Labor Relations Board.
Members of a labor union are free to work as an independent contractor, states the brief, and guilds such as the WGA, SAG-AFTRA and DGA negotiate the working condition of independent contractors, too. While the NLRB decided 80 years ago that writers were “employees” because producers had ultimate power over their work, Miller’s brief says this came at a much different time — a.k.a. “the old ‘studio system,’ where a small number of vertically integrated studios produced movies using creative personnel, including screenwriters, on long-term employment contracts. Writers, in those days, ‘punched a clock’ and ‘sat in cubbyholes, writing to order like tailors cutting a suit.’… Even then, everyone agreed that some screenwriters still worked as freelancers, and when the ‘studio system’ ended in the mid-1950s freelance work became the norm.”
So yes, nearly all Hollywood writers might today be deemed independent contractors, continues the brief, but that doesn’t mean they can’t also be part of a union negotiating their working conditions.
“[T]here is no cause for alarm,” adds the latest Friday the 13th court filing. “Appellants never explain why affirming the judgment in this case would prompt screenwriters to petition for decertification elections, or why the WGA would lose them, or (most importantly) what any of this has to do with the Copyright Act. In sum, appellants are proposing to abandon the Supreme Court’s and this Court’s settled rules of copyright law and replace them with labor-law rules that do not exist, and they imagine this to be necessary based on historical events, taken out of context, to avoid future events that would never happen. The district court was correct to decline that proposal.”
A reply brief is forthcoming. Then a date for oral arguments will be set. All this while Jason waits for his next kill.