9:53am PT by Eriq Gardner
'Friday the 13th' Producer Points to Writers' Union Membership in Bid to Retain Franchise Rights
Imagine this Friday the 13th horror story: The franchise is ripped apart. In the United States, new films in the canon are made but without the "Jason" character. Outside the country, other Friday the 13th sequels come — these with "Jason" — but are banned domestically. If that sounds odd, it's all possible thanks to the 1976 Copyright Act and what happens soon in a Connecticut federal court.
In the 1970s, the U.S. Congress amended copyright law by allowing authors or their heirs to terminate a grant of rights and reclaim ownership. Victor Miller, the screenwriter of the original Friday the 13th, is looking to do exactly that. But in a bid to reclaim rights as soon as next year, he's facing contentions from the 1980 film's producer, Sean Cunningham, that Miller wrote Friday the 13th as a work-made-for-hire and has no ability to terminate.
Now, both sides have filed summary judgment motions, and a federal judge is set to make a huge decision for the entertainment industry. Those in the movie business haven't dealt with termination rights issues to the same extent as the music industry, but the reckoning is coming. And recent court papers filed by each side in this Friday the 13th battle illustrate the stakes and also hint how the dispute could provoke some union action.
Horror, Inc. and Manny Company, a successor to the company that originally produced Friday the 13th, say in court papers filed Friday that it was Cunningham who conceived of the idea to do a Halloween-type film, that it was he who hired the team, including Miller, to develop the idea, that it was he who obtained financing and that it was he who controlled all creative decisions.
Bonnie Eskenazi, representing the producers, writes that Miller was and still is a member of the Writers Guild of America, and that when the author scripted Friday the 13th, he did so pursuant to a standard form WGA employment agreement.
"This fact is critical because the WGA negotiates with employers on behalf of its members to set the minimum terms and conditions of employment, which are reflected in its collective bargaining agreement," writes Eskenazi. "WGA members, like Miller, do not have the right to freely negotiate the minimum terms and conditions of their employment. Rather, Miller’s WGA employment agreement incorporates and is subject to the terms of the WGA’s collective bargaining agreement, which provides substantial employee benefits for Miller, such as a minimum guaranteed salary, payment of residuals, sequel payments, and pension and health benefits—all of which Miller received over the past thirty-eight years, and continues to receive to this day."
"Now, nearly 40 years later, Miller seeks to dissociate himself from the same employee status by which he has collected hundreds of thousands of dollars of union negotiated employee benefits for his work on the Film," continues the summary judgment motion. "Miller pretends that he was not an employee hired pursuant to a WGA employment agreement after all and now seeks to reap statutory copyright termination rights ascribed only to original owners and grantors of copyright — rights which Miller’s union employment agreement and the undisputed facts show he does not have."
Under copyright law, if a work is made in the scope of employment, it's the employer who is considered the statutory author. That's why the producers are touting how Friday the 13th was Cunningham's vision. Speaking to the relationship between Cunningham and Miller, summary judgment papers from the producers' camp say that Miller would submit drafts of his writings, and Cunningham would make changes and modifications and mark up drafts. Miller would take notes and incorporate changes. The discussions allegedly included direction about film elements, plots, scenes and characters. Cunningham says he explained to Miller key elements of successful horror films.
Even if the court finds that Miller's termination notices are valid, Eskenazi argues that "Miller’s purported rights could only extend to those elements of the screenplays that he actually created. Here, it is undisputed that Miller did not create either the title 'Friday the 13th' or the 'Jason' character as a living adult monster who is the villainous killer in all of the eleven (11) sequels. Instead, Cunningham created the title 'Friday the 13th' and Miller created a 'Jason' character that died as a young boy due to the negligence of his camp counselors. Accordingly, Miller cannot claim any right to the title 'Friday the 13th,' or the ongoing 'Jason' character, or Jason’s iconic look of a man in a hockey mask carrying a machete."
Marc Toberoff, the attorney representing Miller, of course presents a different perspective. He submits that producers provided the writer with no employee benefits whatsoever — no health insurance, no paid vacation, no pension and so forth.
As for the WGA, he argues, "The Court need not enter this thicket, however, because the WGA’s records demonstrate that no one made any contributions to the WGA’s pension and health funds. The failure of Manny to provide Miller with any conventional employment benefits weighs heavily against 'employee' status."
As for his version of the working relationship, Miller says he wrote a 15-page treatment (called "The Long Knight at Camp Blood") and screenplay "on spec" at his home without daily supervision. Miller contends he worked as a freelancer over the course of two months and that it was up to him when and for how long he worked. The writer says he was paid $5,569 upon delivery of a first draft and $3,713 upon delivery of a final draft screenplay. He says that revisions with the exception of a new ending were "minor." The film was released by Paramount Pictures.
"Cunningham, his successors reaped tens of millions from the Film and resulting film franchise; his good friend Miller, who had thrown in his lot in authoring the Film, received relatively minor sums," writes Toberoff, noting that nowhere in the old agreement was there word of a "work made for hire."
The producers are also arguing that the statute of limitations bars Miller's claim for ownership. They assert that Miller knew in 1979 that Cunningham asserted ownership and that the writer thus had only three years to raise a claim.
Meanwhile, Toberoff looks to have a court honor the termination provisions of copyright code, but also speaks about what it will mean.
"Whereas Miller will thereby recover the U.S. copyright to his original film treatment and screenplay this does not prevent the continued exploitation by Plaintiffs or their licensees of prior derivative works, including the 1980 film and its many sequels; it solely relates to new derivative works after the effective 2018 termination date," writes the attorney. "Furthermore, as the U.S. Copyright Act has no extra-territorial application, the foreign rights to Miller’s screenplay remain with Plaintiffs or their licensees."
Thus, the possibility that Friday the 13th rights could be split.
As for the potential that Miller could walk away with certain domestic rights that don't include the character of "Jason," his attorney points to the fact that Miller got sole screenwriting credit and that any co-authorship claim is "unsupported" and would likewise be barred by the statute of limitations. Nevertheless, the judge is free to wield a machete as he wishes in accordance with the law.