By Mirae Heo

 

Just in time for the spooky season, film writer Victor Miller—best known for the screenplay of Friday the 13th—has reclaimed the domestic rights to the iconic slasher film after a five-year legal battle.[1] In 2016, Miller filed a copyright termination in an attempt to regain ownership of the Friday the 13th screenplay after thirty-six years since the release of the film.[2] The Copyright Act of 1976 allows for an author to terminate any right or license of copyright as long as the work in question was not “made for hire.”[3] In response to Miller, Manny Company and Horror Inc., the company that originally held control over the Friday the 13th screenplay and its successor, sued Miller seeking a declaratory judgement that the film writer never had authorship over the screenplay because it was work made for hire, making it so that Miller had no grounds to terminate his copyright.[4]

The main issue at hand was whether Miller created the screenplay of Friday the 13th while working for hire. The Copyright Act of 1976 defines “work made for hire” in two ways:

  • a work prepared by an employee within the scope of his or her employment; or
  • a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.[5]

The district court ruled that Miller fit neither category. Firstly, Miller was not considered an “employee” under agency law.[6] Secondly, according to the contract Miller had with Manny Company, there was no express agreement indicating that the screenplay was specially commissioned.[7] The district court declared Miller as the sole copyright owner of the Friday the 13th screenplay, and the Second Circuit affirmed the decision on September 30, 2021.[8]

Miller’s victory is a very different outcome than previous copyright termination cases involving big name multimedia franchises. In Marvel Characters, Inc. v. Kirby, comic book publisher Marvel sued the children of the late comic book artist, Jack Kirby, after the children filed for copyright termination of Kirby’s iconic characters such as Iron Man and Thor.[9] The facts in this case differ from Horror Inc. v. Miller in that Miller created the Friday the 13th screenplay after the Copyright Act of 1976 took effect while Kirby created his iconic superheroes mostly during the 1960s before the 1976 Act was enacted. In Marvel Characters, Inc., the applicable rule was 17 U.S.C.A. § 304(c), versus  § 203, and it applied because the characters at issue were subsisting copyrighted work.[10] This meant that when the Second Circuit analyzed whether Kirby’s creations were work made for hire, the court applied case law that defined “work made for hire” as used in the Copyright Act of 1909.[11] The Second Circuit ruled in 2013 that the characters at issue were created at Marvel’s “instance and expense,” making them work made for hire and their copyright unable to be terminated by Kirby’s estate.[12]

Over the past couple of months, Marvel has sued more relatives of late comic book creators, including Stan Lee, Gene Colan, and Steve Ditko, for filing copyright termination notices and is once again seeking declaratory relief that the characters these comic book writers and artists created were work made for hire.[13] Marvel claims that the circumstances in the lawsuits against the heirs and relatives are identical to the lawsuit against Kirby’s estate and that the outcome should be no different.[14] It is unclear how the copyright termination, if successful, would change the way Marvel could use the comic book characters in future media.[15] Marvel fans should definitely take an interest in how the litigation between Marvel and comic book creators’ estates play out and affect their favorite superheroes.

 

[1] Eriq Gardner, ‘Friday the 13th’ Screenwriter Wins Big Appeal Over Copyright Termination, The Hollywood Reporter (Sept. 30, 2021, 8:54 AM), https://www.hollywoodreporter.com/business/business-news/friday-the-13th-copyright-termination-appeal-1235023236.

[2] Eriq Gardner, ‘Friday the 13th’ Rights at Stake in Lawsuit Over Horror Classic, The Hollywood Reporter (Aug. 25, 2016, 12:11 PM), https://www.hollywoodreporter.com/business/business-news/friday-13th-rights-at-stake-922911.

[3] 17 U.S.C. § 203.

[4] Horror Inc. v. Miller, 335 F. Supp. 3d 273 (D. Conn. 2018).

[5] 17 U.S.C. § 101.

[6] Horror Inc., 335 F. Supp. 3d at 296.

[7] Id.

[8] Horror Inc. v. Miller, No. 18-3123-cv, 2021 WL 4468980, at *21 (2d Cir. Sept. 30, 2021).

[9] Eriq Gardner, Appeals Court Denies Jack Kirby Estate’s Bid to Overturn Marvel Copyright Ruling, The Hollywood Reporter (Aug. 8, 2013 9:45 AM), https://www.hollywoodreporter.com/business/business-news/appeals-court-denies-jack-kirby-602663.

[10] Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 137 (2d Cir. 2013).

[11] Id.

[12] Id. at 143.

[13] Eriq Gardner, Marvel Suing to Keep Rights to ‘Avengers’ Characters From Copyright Termination (Sept. 24, 2021 8:57 AM), https://www.hollywoodreporter.com/business/business-news/marvel-suing-avengers-copyright-termination-1235020110.

[14] Id.

[15] See id.

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