If Michael Myers is currently riding a wave of excitement in anticipation of David Gordon Green’s Halloween sequel, which arrives in just a few weeks, then the genre’s other long-standing slasher, Jason Voorhees has struggled to catch a break in recent years.
That’s because the Friday the 13th franchise is on hold at the moment due to an ongoing legal battle between Victor Miller and Sean Cunningham’s Horror Inc. It’s one which has gripped the horror community for a while now, but at long last, there seems to be a resolution in sight.
You see, the case is based on the fact that Miller, who penned the screenplay for the 1980 horror film, believed that he was entitled to the rights to the characters and settings. He says that the script wasn’t written as “work-made-for-hire,” thus granting him intellectual property rights.
Judge Stefan Underhill, sitting in the US District Court, agreed with him, too, offering the following judgement this past week:
“I hold that Miller did not prepare the screenplay as a work for hire and that Miller’s Second Termination Notice validly terminated Horror’s rights to the copyright in the screenplay to Friday the 13th.”
That certainly sounds like a victory for Miller, but it’s a little more complicated than that, and here to break it down for us once again is Friday the 13th Part III star Larry Zerner, who’s now an entertainment lawyer. As you can imagine, this is an unbelievably messy case, but Zerner goes into incredible depth as he attempts to explain just what the heck is going on, and from the sounds of it, Miller isn’t out of the woods just yet.
“Just a quick note on the Friday the 13th lawsuit. The judge’s opinion is under seal and once it’s out I’ll have a deeper dive. One thing you should know is that even though Victor won, his lawsuit only affects the U.S. rights,” Zerner began. “Sean does and will control foreign rights to the film no matter whether Victor’s win holds up on appeal. So, neither Victor nor Sean can make a movie without them coming to a deal because no studio will make a new F13 movie that can’t be released domestically and foreign.”
“I read the decision in Horror Inc. v. Miller and here’s my take on the case. First, a little background. The Copyright Act allows authors to terminate grants of their copyright interest 35 years after the transfer. Victor Miller (who wrote the original F13 movie) sent a notice of termination to the current owners of the F13 copyright in July 2016 which went into effect in July 2018. Horror, Inc. (owned by Sean Cunningham, the producer of F13) then sued Victor. Horror’s argument was that although the Copyright Act allows for this termination right there is an exception if the screenplay was written as a “work made for hire.” Horror claimed that Victor wrote the screenplay as a work-for-hire.
To qualify as a work-for-hire, the Copyright Act says that that one of two conditions must exist: 1) there is a writing signed by the parties stating that the screenplay was written as a work-for-hire or 2) the author was an “employee” of the contracting party. The parties agreed that there was no writing to meet the first condition so, Horror was arguing that Victor was Sean’s employee when he wrote the script. In a 1989 case (CCNV v. Reid, 490 U.S. 730), the Supreme Ct gave a list of 13 factors to determine whether the hired party is an employee or independent contractor. These factors include 1) the right to control the manner of creation, 2) the skill required, 3) whether employee benefits were given, 4) the tax treatment of the hired party, 5) whether the hiring party can assign additional projects.”
“The court analyzed the 13 factors and determined that they squarely landed on a determination that Victor was NOT an employee. Therefore, Victor had every right to terminate the rights. Horror tried to argue that even if the 13 factors went in Victor’s favor, because Victor was a WGA member and only “employees” can belong to a labor union, that Victor must be an employee for copyright purposes.
The Court just didn’t buy that argument at all. Horror also argued that Sean was a co-author of the screenplay but the Court said that Sean was barred by the statute of limitations from making that argument. Horror also wanted the judge to rule on whether Victor’s copyright extended to the adult hockey-mask wearing Jason that we know and love, and that didn’t appear in the original F13 movie. The Court declined to express any opinion on that subject.“
“So, what happens next? Horror could appeal, but that will be at least 2 and more likely 3-4 years of waiting for a resolution. Also, IMHO, the chance of Horror winning on appeal is poor. If Horror doesn’t appeal, then it has to make a deal with Victor in order to make a new movie. Victor only owns the U.S. rights to the original movie. Horror owns the foreign rights to the first movie and to all the other movies. Deciding how much money should be received from future movies and merchandise is a really difficult question.
If you look at the 2009 remake for an example, that movie took elements from Parts 1-4. How much was Victor’s contribution worth? And what about Jason merchandise? How do you split the royalties on all the Jason figures?. It’s a really difficult question for which there is no set answer. As for the game, it is and shall always be a great game. But even if Victor and Sean work things out, the guys at [Gun Media] will not be adding new content.”
“But hopefully, Victor and Sean will work something out and get moving on a new F13 movie ASAP. With the new Halloween certain to be a blockbuster, this is the best time to be forging ahead on a new movie. 3-4 years from now is way too long to wait.”
Still with us? We know, it’s a lot to digest and as it stands, though Miller’s certainly taken a big step forwards towards winning the case, it’s not over just yet.
Where things will ultimately end up is tough to say, and we probably won’t know for a while, but there’s certainly reason for Friday the 13th fans to rejoice as it does look promising, and as more updates on the lawsuit roll in, we’ll be sure to let you know.
