In a ruling that is spooking film producers, Victor Miller, the screenwriter behind the 1980 horror classic “Friday the 13th,” successfully convinced a federal judge in Connecticut that he was an independent contractor at the time he wrote the screenplay, and may be able to reclaim the copyright to it, which he assigned to the film’s producer nearly 40 years ago.
Under a provision of the Copyright Act known as “termination rights,” authors who assign their copyrights to other entities many claw back those rights, under certain conditions, after 35 years. This is Congress’s way of providing relief to struggling copyright owners who may have signed away the rights to their works under lopsided deals, who then miss out on a big payday if the project goes on to be successful.
Miller is a member of the Writer’s Guild of America (WGA), the union representing Hollywood screenwriters. He wrote the “Friday” screenplay after being contacted by his friend Sean Cunningham, the film’s producer, to collaborate on a horror film project. Cunningham formed a corporate entity to handle the production, the Manny Company, which was subject to WGA’s Collective Bargaining Agreement. Officially, Miller was hired by Manny Co. to write the “Friday” screenplay. The contract between them did not expressly provide that the screenplay was a work for hire. It did however, plainly state that Miller assigned his copyright in the screenplay to Manny.
Under the Copyright Act’s termination of rights provision, Miller may Manny’s rights to his screenplay after 35 years unless:
- Miller signed a written agreement expressly providing that he was producing the work as a work-made-for-hire, or
- Miller produced the work as Manny’s employee, within the scope of Miller’s employment. This is evaluated under a traditional agency-law analysis, guided by the Supreme Court’s analysis in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), which sets out a list of factors to consider when determining whether an author is an employee or an independent contractor under the Copyright Act.
Here, the contract between Miller and Manny did not expressly provide that Miller’s screenplay was a work for hire, which means the only way Manny can block Miller’s termination rights is to establish the second prong–that Miller was Manny’s employee at the time Miller wrote the screenplay, i.e. not an independent contractor.
Manny argues that the presence of a Collective Bargaining Agreement (CBA), which governs the business relationship between Miller and Manny, necessarily prevents the relationship from being one of client (Manny) and independent contractor (Miller). By definition, under any CBA, the parties to it may not contract freely; they must adhere to the CBA’s restrictions, which are the product of negotiations between, in this case, the WGA and film studios. Freedom of contract, Manny asserts, is the hallmark of an independent contractor relationship. Without it, one does not exist. By process of elimination then, Miller must have been Manny’s employee, employed for the purpose of writing a screenplay, and thus may not terminate Manny’s rights to the screenplay.
The U.S. District Court in Connecticut rejected these arguments, noting that “[u]nfortunately for. . . Manny, the Supreme Court’s agency-law analysis does not allow any exceptions for union members, and under the proper agency analysis Miller was not Manny’s employee.” Accordingly, Manny’s grip on the screenplay is not absolute, and Miller may properly seek termination under the Copyright Act.
Manny has appealed the decision to the Second Circuit.