You probably know Jason Vorhees, the hockeymask-wearing, machete-wielding villain of the Friday the 13th franchise. He’s been terrifying audiences for over forty years now. But perhaps the most scary thing Jason has done recently is win $886,564.88 in attorney’s fees for his creator in a copryight case involving who is—and who isn’t—an independent contractor or an employee.
Some background first. As readers of Copyright for Creatives know, the person who creates content owns the copyright the moment the content is set in a tangible medium. The exception to that rule (and this being law stuff there’s always an exception to the rule) is that if the content is created by a company’s employee as part of their employment duties, then the copyright is held by the employer who paid the creator’s salary, not by the person who actually did the creating. But if the creator is an independent contractor, paid by a client to create something, the story is different. In that case, the independent contractor is assumed to be the copyright holder unless the contract specifically states otherwise. And as we find out in Horror, Inc. v. Miller[1], though, it’s sometimes hard to tell whether someone is an employee or an independent contractor.
I’m going to cheat a little here, and quote the following paragraphs directly from Copyright for Creatives[2] …
“A work for hire happens when one party (the “employer”) pays someone to create a work based on the employer’s concept, and the employer has the right to direct and supervise the process of carrying out the work. On the other hand, if you are an independent contractor being paid to create something, then you most likely are the copyright holder, unless your contract states otherwise.”
“The IRS defines an independent contract this way: “an individual is an independent contractor if the [person paying them] has the right to control or direct only the result of the work and not what will be done and how it will be done.”[3] So as long as you control how you’re doing the work, and the person paying only has the right to specify the result, you’re an independent contractor and hold copyright to the work.[4]
“There’s a twist, though. (Of course there’s a twist; this is law and there’s always a twist.) Under some circumstances, an independent contractor may not be the copyright holder. That happens if the work is “specially ordered or commissioned for use;” and the parties sign a written contract that specifically states that the job is a work-for-hire; and the work falls into one of [nine very specific] categories…”[5]
Basically, if your job requires you to create things, then the copyright to the things you create belongs to your employer. If you’re freelancing, the copyright may belong to the person who pays you, if that’s part of your contract.
Anyway, back to Jason Vorhees, before he gets impatient. You wouldn’t like Jason Vorhees when he’s impatient.
So in 1979, an independent film producer, Sean Cunningham, general partner of the film-making Manny Company, hoped to piggyback on the success of another company’s low-budget horror movie, Halloween. Cunningham hired a professional author, Victor Miller, to write a low-budget horror film. Miller was paid the princely sum of $9,282 to write the screenplay that became Friday the 13th—a franchise that earned more than $468 million over the last forty years, making it the world’s second highest-grossing horror franchise, after the Halloween series.[6] The contract between Manny and Miller was called an “Employment Agreement,” and called on Miller to write “a finished screenplay for a proposed motion picture to be budgeted at under $1 million.”[7]
It took Miller about two months to write multiple drafts of the screenplay for The Long Night at Camp Blood, as the film was originally titled. While Miller wrote the screenplay at his own home, he and Cunningham met at each other’s homes to discuss the project, Miller used Cunningham’s photocopier and paper, and Cunningham’s secretary retyped a draft of the screenplay. Cunningham didn’t dictate Miller’s work hours (Miller liked to write in the morning), and had no right to assign other projects to Miller.[8]
Cunningham claimed that he was deeply involved in the project: that he taught Miller about what made a successful horror film screenplay, and that he literally “stood over Miller’s shoulder, making suggestions and contributions” while he typed. Miller disagreed, saying that Cuningham merely provided notes and suggestions about how people should be killed in the movie and that the killer should be masked.[9] That same year, Cunningham accepted an offer from Georgetown Productions to finance the film, and its owner had additional suggestions for the screenplay, including (spoiler alert) the movie’s final scene in which the presumed-dead Jason rises from the lake and kills a main character—an idea Miller disliked, but included anyway.[10] As part of the financing deal, Manny assigned his rights in the movie to Georgetown, and Georgetown registered its copyright. In its registration, the screenplay is described as a work for hire. The movie was produced and made a boatload of money from people who enjoy being frightened.[11]
Eventually, in 2016, Miller decided it was time to reclaim his copyright ownership. Under §203(a) of the Copyright Act, an author can, under some circumstances, terminate and reclaim an assigned copyright. Manny and Georgetown’s successor, Horror, Inc., sued Miller, arguing that because the Friday the 13thscreenplay was a work for hire, Miller had no copyright interest to reclaim. The court disagreed, and awarded the copyright to Miller. The court of appeals agreed with the trial court, and the trial court subsequently awarded Miller $886,564.88 in attorney’s fees.
There are a few key takeaways from the court of appeals’ analysis that are important to know. First, the court was clear that the issue of employment in this case was not covered by labor law (as the plaintiffs argued) but by copyright law. In a US Supreme Court case, Community for Creative Non-Violence v. Reid,[12] the Court established a test to determine whether a creator was an employee or an independent contractor. The five “Reid factors” that the court of appeals found relevant to a copyright situation are:
- Control: Does the hiring party have control over how the work is created?
- Skill: Does the hired party have a unique skill or expertise?
- Benefits: Did the hired party receive employee benefits, such as vacations or insurance?
- Tax Treatment: Did the hiring party withhold or deduct taxes, Social Security, Medicare, etc. from the hired party’s payment?
- Other Projects: Did the hiring party have the right to assign additional projects to the hired party?
The court concluded that only the first factor might potentially weigh in favor of Horror, Inc., since Manny and Cunningham had both been involved with Miller’s creative process. However, the court felt that generally their involvement was “big picture” stuff, not control over the details of the creative process. The other factors clearly weighed in Miller’s favor. (The court also noted that the other eight Reid factors not especially important to copyright also favored Miller.)
Just as a point of interest, Miller was represented by five intellectual property lawyers, who spent a total of 1,855 hours on his case. The court found that some of that time seemed excessive, and that some of it was working on aspects of the case that weren’t relevant, and so reduced the award by 25%. Still, $886,564.88 put a good dent in Miller’s legal expenses[13], and he now is the legal copyright owner of Jason Vorhees, which may or may not be a good thing, depending on how Jason feels about it.
Happy Halloween!
[1] Original decision: Horror Inc. v. Miller, 335 F. Supp. 3d 273 (D. Conn., 2018); Reversed on appeal: Horror Inc. v. Miller, 15 F. 4th 232 (2nd Cir., 2021); Attorneys Fee Decision: Horror Inc. v. Miller (D. Conn., 2022)
[2] Butterfield, Evan. Copyright for Creatives: A Comprehensive Guide to Copyright Law for Creative People Who Make Stuff (2022); https://www.amazon.com/dp/B0B4K1BWVR
[3] https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-defined
[4] Copyright for Creatives
[5] If you’re interested, the categories are: a contribution to a collective work, part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas
[6] Wikipedia, Friday the 13th (franchise)
[7] Horror Inc. v. Miller, 15 F. 4th 232
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989)
[13] If you’re considering a career in intellectual property law, $637 per hour is something to think about.