November 5, 2021


November 5, 2021

It’s not unusual for the villains in slasher films to claw their way back from the dead. But in a rare legal victory handed down recently, the screenwriter who brought one of Hollywood’s most famous killers to life clawed back the rights to his creation.

More than 40 years after “Friday the 13th” shocked audiences with its graphic violence and surprised producers by raking in millions during its opening weekend, the Second Circuit Court of Appeals ruled on Sept. 30 that author Victor Miller owns the rights to the original 1980 film.

The decision came just six days after the Walt Disney Company filed a handful of lawsuits to block a group seeking the same “right of termination” of copyrights Disney holds on some of Marvel Comics’s most popular superheroes. Earlier this year, one writer-illustrator and the estates representing four others served separate termination notices to the entertainment giant, which has adapted their 12-cent comic book characters into a movie franchise that has grossed tens of billions of dollars worldwide.

Miller, 81, sold his rights to “Friday the 13th” in a deal commonly accepted by writers short on clout and trying to make a name for themselves. At the time, he had only three screenwriting credits, none of which garnered much attention or revenue.

In 2016, Miller invoked the termination rights spelled out in the Copyright Act of 1976 , his first opportunity to do so. The law requires authors to wait a minimum of 35 ½ years after first surrendering ownership. The 1976 law was intended to compensate authors who had assigned their copyrights before they achieved sufficient notoriety to gain negotiating leverage. It also allows a second opportunity for these creators to reap the fruits of their labor. Musicians may recognize the use of the law to reclaim rights to musical compositions at the 35 ½ year mark.

Horror Inc., the company that owns the entire “Friday the 13th” franchise sued to invalidate Miller’s claim. Attorneys for the company argued that Miller was not entitled to reclaim ownership under the Act because he was merely an employee producing a “work-for-hire,” not an independent contractor. In 2018, a federal judge ruled against the plaintiffs, setting the stage for an appeal which was heard in February 2020.

The Second Circuit Court of Appeals affirmed the lower court, rejecting Horror Inc.’s argument that Miller should be considered an employee under the law simply because the Writers Guild of America represented him during production.

Attorneys for Horror Inc. cited the National Labor Relations Act for support, but the court noted that Miller received no traditional workers’ benefits and that the original production company, Manny Co., withheld no taxes from his pay. The two companies are co-plaintiffs in the case.

“We conclude that because the definition of ‘employee’ under copyright law… serves different purposes than do the labor law concepts regarding employment relationships, there is no sound basis for using labor law to override copyright law goals,” the court wrote.

“Miller was an independent contractor when he wrote the screenplay and is therefore entitled to authorship rights,” the court concluded.

Exactly what Miller intends to do with those rights is unclear, but legal experts have observed that as a practical matter, they are almost always used by authors for one purpose only: to negotiate for more money.

“Copyright reversions are designed to mitigate the inequitable effects of copyright transfers related to works that go on to become highly profitable for the assignee without significant profit flowing back to the original author,” said attorney James Griffith, Head of Entertainment and Media Practice for Ziliak Law, LLP.

“This often comes about where the author lacks negotiating power and accepts terms that are highly favorable to the assignee. A reversion permits the author to revoke the assignment and, typically, renegotiate the license of the work on more favorable terms,” Griffith said.

After Miller finished the screenplay in 1979, he was paid $9,282, as his contract, a Minimum Basic Agreement, stipulated. As box office earnings mounted over the years, Miller suspected he was being shorted on residuals and sought help from the WGA.

The union negotiated a settlement on his behalf. Sean Cunningham, the film’s director and friend of Miller, estimated that by now, Miller has been paid more than $227,000 in addition to the flat fee, the decision said.

The film was shot on a production budget of $550,000. On its opening weekend, it earned a staggering $5.8 million at the box office, according to an industry website called The Numbers. To date, it has grossed more than $39.7 million domestically and $59.7 million worldwide at the box office. Those figures do not include home video markets or merchandise sales.

Miller’s tale underscores how motivated authors can fight for what they see as their fair share of profits after their work becomes popular. The stakes are far greater in the brewing fight between Disney-owned Marvel Studios and the parties who represent the creators of The Avengers.

The first 23 interconnected movies in what has come to be known as the Marvel Cinematic Universe have grossed a total of more than $22.5 billion worldwide since 2008, according to The Numbers. The combined production budgets of those films totaled $4.7 billion. And while the franchise is crowded with about 75 named characters, only about 16 have the distinction of being Avengers or their close allies.

The five artists and illustrators embroiled in the copyright battle with Disney helped create many of those marquee characters, according to an email from the authors’ attorney quoted in The New York Times. Among the characters at issue in the dispute are Spider Man, Thor, Iron Man, Ant Man, Dr. Strange, Black Widow, Hawkeye, Captain Marvel, and Falcon.

The former Marvel authors and artists created all of those characters in the early to mid 1960s, a period of rebirth and expansion for the already decades old comic book publisher. Only one of the artists, Larry Lieber, the co-founder of Marvel and brother of Stan Lee, is still alive; the rest are represented by their respective heirs or estates.

It was during this fertile period in the 1960s that industry legends Stan Lee and Jack Kirby teamed up to create Marvel’s first team-based megahit title “The Fantastic Four.” They went on to collaborate on the wildly popular Incredible Hulk and The X-Men, according to Kirby left Marvel over creative differences with Lee in 1970 and died in 1994.

In 2009, four of Kirby’s children pursued copyright termination actions with respect to dozens of Marvel properties which Kirby authored or co-authored. The Kirby heirs lost in two courts which agreed with Marvel’s lawyers that Kirby’s creations were works-for-hire. But the heirs were able to appeal the decisions all the way to the U.S. Supreme Court, which was considering whether or not to hear the case when the parties settled in 2014.

The attorneys for Marvel have repeated the work-for-hire argument in their recent filings seeking to invalidate the copyright termination notices Lieber and the others served the company earlier this year.

“Marvel assigned Lieber stories to write, had the right to exercise creative control over Lieber’s contributions, and paid Lieber a per-page rate for his contributions,” Marvel said in its complaints, which were filed Sept. 24 in federal courts in New York and Los Angeles.

“As a result, any contributions Lieber made were at Marvel’s instance and expense, rendering his contributions works made for hire, to which the Copyright Act’s termination provisions do not apply,” the complaint argued.

In his email to the New York Times, Lieber’s counsel disagreed: “At the time all these characters were created, their material was definitely not ‘work made for hire’ under the law. These guys were all freelancers or independent contractors, working piecemeal for car fare out of their basements.”

If you have any questions or concerns about works to which you have contributed that are reaching their reclamation period, we invite you to contact our Entertainment and Media team to explore your options.

Article by Kevin Lynch


* indicates required



141 W JACKSON BLVD | SUITE 4048 | CHICAGO, IL | 60604 | 312.462.3350
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram