United States District Court, D. Connecticut
HORROR INC. and MANNY COMPANY, Plaintiffs,
VICTOR MILLER, Defendant.
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
R. Underhill United States District Judge
40 years ago, a screenplay was written about Camp Crystal
Lake. The film created from the screenplay went on to
significant commercial success. Lurking below that peaceful
surface, however, was the Copyright Act's termination
right, waiting for just the right moment, when it would
emerge and wreak havoc on the rights to the screenplay.
a case about copyright ownership in the screenplay to the
original Friday the 13th film. The Copyright Act,
which went into effect in 1978, only a year before the
screenplay was written, provided authors with a new and
important benefit-the ability to terminate grants of their
copyright interests and reclaim their copyrights, beginning
thirty-five years after they first transferred their rights.
The termination right was established to permit authors to
access the long tail of proceeds from a successful work that
they could not initially have anticipated when they conveyed
away their rights. The important exception to the Copyright
Act's termination right is that the copyright in
“works made for hire” by an employee, and, in
limited circumstances, an independent contractor, cannot be
clawed back. The termination right cannot apply in such cases
because the hiring party is itself considered the initial
author of the work.
defendant in this declaratory judgment action is Victor
Miller (“Miller”), the credited screenwriter of
the original Friday the 13th screenplay. In 1979,
Miller was contacted by his friend, Sean Cunningham
(“Cunningham”), an already successful producer,
to collaborate on a horror film project-with Miller as the
screenwriter and Cunningham as the producer. The duo's
process was informal, meeting at each other's homes and
at coffee shops in the southern Connecticut area. But the
deal was also papered over, and Miller, a Writer's Guild
of America (“WGA”) member, was officially hired
to write the screenplay for the film pursuant to a short
form-agreement by the Manny Company (“Manny”), an
entity formed by Cunningham that was a party to the WGA
collective bargaining agreement. The agreement between Miller
and Manny was silent regarding authorship of the screenplay
(as that term is used in the Copyright Act) but Miller
plainly relinquished any control over the exploitation of the
screenplay to Cunningham and Manny. Cunningham and Manny
eventually sold their interest in the film, and the runaway
hit earned Manny's successors in interest significant
profits. Now, more than three decades later, Miller has
timely filed and served notices purporting to terminate any
permission he granted to Manny and its successors to exploit
and Manny's latest successor-in-interest, Horror Inc.
(“Horror”) have brought the present action
seeking a declaration that Miller prepared the screenplay as
a work for hire, and thus never held authorship rights in the
work and cannot terminate Horror's ongoing exploitation
of the copyright. Miller has counterclaimed seeking a
declaration of the validity of his termination of
Horror's and Manny's rights.
the context of this case requires understanding what is not
in dispute. This is not a case where the parties signed a
written agreement that expressly provided that Miller's
work was being commissioned as a work made for hire. Such a
writing is one of two paths to work-for-hire status, and
writings of that type are the norm in the motion picture
and Manny's remaining path to work-for-hire status for
Miller lies in the argument that Miller produced the work as
Manny's employee, within the scope of his employment.
Perhaps concerned by the implications of Miller's casual
relationship with Cunningham, however, Horror and Manny do
not focus on the traditional agency-law analysis mandated by
the Supreme Court for determining employee status under the
Copyright Act. Horror and Manny propose a sort of “no
further inquiry” rule of employee status resulting from
Miller's hiring, as a WGA member by a signatory to the
WGA collective bargaining agreement. Unfortunately for Horror
and 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, the screenplay written by Miller was not a
Miller is a professional writer of novels, screenplays and
teleplays, and has been a member of the Writers Guild of
America, East, Inc. (“WGA”) since 1974.
[Plaintiffs' 56(a)(1) Statement (“Pls.'
Facts”), Doc. No. 43-2, at ¶ 2; Defendant's
56(a)(1) Statement (“Def.'s Facts”), Doc. No.
45-3, at ¶ 1.] Sean S. Cunningham is a producer,
director, and writer of feature films, who began producing
and directing films in 1970. [Declaration of Sean S.
Cunningham (“Cunningham Decl.”), Doc. No. 43-4,
at ¶ 2.] Cunningham's involvement in filmmaking is
primarily coordinated through Sean S. Cunningham Films, Ltd.
(“SSCF”), of which Cunningham is a principal.
[Cunningham Decl., Doc. No. 43-4, at ¶ 2; Pls.'
Facts, Doc. No. 43-2, at ¶ 1.] ¶ 1976, Miller and
Cunningham, who were already close friends [Def.'s Facts,
Doc. No. 45-3, at ¶ 4], began working together on motion
picture projects, starting with a film titled Here Come
the Tigers [Pls.' Facts, Doc. No. 43-2, at
¶¶ 4-5]. Here Come the Tigers was a
“non-union project”, written by Miller and
produced and directed by Cunningham. [Pls.' Facts, Doc.
No. 43-2, at ¶¶ 6-7.]
1978, Miller and Cunningham again collaborated on another
film, Manny's Orphans. In order to develop
Manny's Orphans, Cunningham and his company,
SSCF, formed The Manny Company (“Manny”), a
Connecticut Limited Partnership, with Cunningham and SSCF as
its general partners. [Def.'s Facts, Doc. No. 45-3, at
¶¶ 2-3.] In order to engage Miller to work on
Manny's Orphans, Miller was hired by Manny,
which had become a signatory to the then-operative collective
bargaining agreement between the WGA and signatory industry
employers, the 1977 WGA Theatrical and Television Basic
Agreement (the “Minimum Basic Agreement” or
“MBA”). [Pls.' Facts, Doc. No. 43-2, at
film, the nature of Miller's and Cunningham's working
relationship remained the same: while Miller was writing the
screenplay, he and Cunningham would meet at each other's
homes, Cunningham's home office, a local diner, or over
the phone, in order to exchange ideas. [Cunningham Decl.,
Doc. No. 43-4, at ¶ 6; Pls.' Facts, Doc. No. 43-2,
at ¶¶ 7, 12; Defendant's 56(a)(2) Response
(“Def.'s Obj. to Pls.' Facts”), Doc. No.
51-3, at ¶ 12.]
1979, the success of the low-budget horror film
Halloween inspired Cunningham to make a horror film.
[Pls.' Facts, Doc. No. 43-2, at ¶ 13; Def.'s
Facts, Doc. No. 45-3, at ¶ 6.] Cunningham contacted
Miller to solicit his involvement as a writer for the film.
[Pls.' Facts, Doc. No. 43-2, at ¶ 14;
Plaintiffs' 56(a)(2) Response (“Pls.' Obj. to
Def.'s Facts”), Doc. No. 47-2, at ¶ 6;
Def.'s Facts, Doc. No. 45-3, at ¶ 6.] Miller agreed to
work on the project, and, at some point in time over the
course of working alone and with Cunningham on a story and
script, Miller entered into a “Writer's Flat Deal
Contract” (the “Contract”) with Manny.
[Pls.' Facts, Doc. No. 43-2, at ¶ 25; Def.'s
Facts, Doc. No. 45-3, at ¶ 17.]
Contract itself is a brief form agreement with blanks to be
filled in by the parties.Styled as an “EMPLOYMENT
AGREEMENT”, it states that “[t]he Company employs
the Writer to write a complete and finished screenplay for a
proposed motion picture . . . presently entitled or
designated Friday 13.” [Ex. B, Cunningham
Decl., Doc. No. 43-6] The form allows the parties to check
various boxes to designate whether the work product called
for in the agreement will include a “Treatment”,
“Original Treatment”, “Story”,
“First draft screenplay”, “Final draft
screenplay”, or “Rewrite of screenplay”,
and only the boxes for “First draft screenplay”
and “Final draft screenplay” are checked. [Ex. B,
Cunningham Decl., Doc. No. 43-6.] The form also includes a
section in which the parties can identify pre-existing
materials on which the agreed-upon work product will be based
(“based upon (describe form of material & title)
___ written by ___”). [Ex. B, Cunningham Decl., Doc.
No. 43-6.] In the Contract, the “Writer”
represents that he is a member in good standing of the
Writers Guild of America, and the Contract provides that,
“[s]hould any of the terms hereof be less advantageous
to the Writer than the minimums provided in [the] MBA, then
the terms of the MBA shall supersede such terms” and
that, in the event the Contract fails “to provide for
the Writer the benefits which are provided by the MBA, then
such benefits for the Writer provided by the terms of the MBA
are deemed incorporated herein.” [Ex. B, Cunningham
Decl., Doc. No. 43-6.] The form agreement provides a fillable
blank where the total lump sum payable to the
“Writer” can be filled in, and the total sum of
$9, 282 was filled in. [Ex. B, Cunningham Decl., Doc. No.
43-6.] The form agreement also includes a series of fillable
blanks where the total lump sum payment designated for the
“Writer” can be subdivided into component amounts
payable for delivery of a treatment, first draft screenplay,
final draft screenplay, etc., and only the blanks designating
amounts payable for a first draft screenplay and final draft
screenplay are filled in (calling for payments of $5, 569 and
$3, 713, respectively). [Ex. B, Cunningham Decl., Doc. No.
43-6.] Finally, the Contract provides that, following
completion of any deliverable by the Writer, the Company has
three days to call for changes to such deliverable, after
which, such deliverable shall be deemed approved. [Ex. B,
Cunningham Decl., Doc. No. 43-6.]
point in time following Cunningham's recruitment of
Miller for the horror film project, Miller saw
Halloween [Def.'s Facts, Doc. No. 45-3, at
¶ 7], discussed ideas and locations for the film with
Cunningham [Pls.' Facts, Doc. No. 43-2, at ¶ 18],
came up with the idea for setting the film at a summer camp
before it opens [Pls.' Facts, Doc. No. 43-2, at ¶
20], wrote a 16-page treatment for the horror film titled
“The Long Night at Camp Blood” [Def.'s Facts,
Doc. No. 45-3, at ¶ 7; Pls.' Obj. to Def.'s
Facts, Doc. No. 47-2, at ¶ 7], wrote a first draft
screenplay and second draft screenplay [Def.'s Facts,
Doc. No. 45-3, at ¶¶ 8, 10; Pls.' Obj. to
Def.'s Facts, Doc. No. 47-2, at ¶¶ 8, 10], and
made revisions to the second draft screenplay, including
adding a new ending [Def.'s Facts, Doc. No. 45-3, at
wrote the various versions of the treatment and screenplay
over the course of approximately two months. [Def.'s
Facts, Doc. No. 45-3, at ¶ 16] As with Miller's and
Cunningham's prior collaborations, Miller and Cunningham
met at each other's homes to discuss ideas for the film
and Miller drafted the treatment and screenplay at his own
home. [Pls.' Facts, Doc. No. 43-2, at ¶ 49; Miller
Decl., Doc. No. 45-1, at ¶ 15; Cunningham Supp. Decl.,
Doc. No. 47-1, at ¶ 12.] Among the ideas Cunningham
contributed were the suggestion that the killings that occur
in the movie should be “personal” (and that guns
are “impersonal” ways to kill in movies), that
the killer should remain masked at all times, and that a
major character should be killed early on. [Miller Dep., Doc.
No. 43-16, at 89:15-90:11, 189:23-190:17.].
wrote the treatment and screenplay on his own typewriter,
using his own typewriter ribbon and paper. [Def.'s Facts,
Doc. No. 45-3, at ¶ 14; Pls.' Obj. to Def.'s
Facts, Doc. No. 47-2, at ¶ 14; Def.'s Obj. to
Pls.' Facts, Doc. No. 51-3, at ¶ 51; Miller Decl.,
Doc. No. 45-1, at ¶ 15.] Miller made use of
Cunningham's photocopier and photocopy paper, and
Cunningham's assistant re-typed the entire second draft
of the screenplay to reformat the draft to contain the proper
margin content. [Def.'s Facts, Doc. No. 45-3, at ¶
14; Pls.' Obj. to Def.'s Facts, Doc. No. 47-2, at
¶ 14; Pls.' Facts, Doc. No. 43-2, at ¶ 51;
Def.'s Obj. to Pls.' Facts, Doc. No. 51-3, at ¶
51; Miller Decl., Doc. No. 45-1, at ¶ 15.] Miller
usually did his writing in the morning because he was a
“morning person” [Miller Decl., Doc. No. 45-1, at
¶ 17], and not because Cunningham would dictate
Miller's specific work hours [Miller Decl., Doc. No.
45-1, at ¶ 17; Pls.' Opp. Br., Doc. No. 47, at
26-27]. Miller was responsible, however, for conforming his
completion of screenplay drafts to the demands of the
film's broader production schedule. [Pls.' Obj. to
Def.'s Facts, Doc. No. 47-2, at ¶ 15; Cunningham
Supp. Decl., Doc. No. 47-1, at ¶ 16.] Cunningham did not
have the right to assign additional projects beyond the
writing of the treatment and screenplay to Miller.
[Def.'s Facts, Doc. No. 45-3, at ¶ 20; Pls.'
Obj. to Def.'s Facts, Doc. No. 47-2, at ¶ 20.]
Cunningham, and later on, even an eventual investor, Phil
Scuderi (“Scuderi”) did suggest revisions and
additions for Miller to make to the screenplay, and
occasionally required revisions and additions over
Miller's objections. [Pls.' Obj. to Def.'s Facts,
Doc. No. 47-2, at ¶ 20; Cunningham Decl., Doc. No. 43-4,
at ¶ 29; Cunningham Supp. Decl., Doc. No. 47-1, at
Miller had completed an early draft of the treatment,
Cunningham revised and edited the treatment in order to
create a version to show to potential investors. [Cunningham
Decl., Doc. No. 43-4, at ¶ 22; Miller Dep., Doc. No.
43-16, at 180:17-181:24, 274:23-276:11.] Cunningham's
revisions included adding a title page that read:
A Screenplay Treatment By Victor Miller
included a copyright notice in the name of Sean S. Cunningham
Films, Ltd., which was the general partner of Manny. [Ex. D,
Cunningham Decl., Doc. No. 43-8; Cunningham Decl., Doc. No.
43-4, at ¶ 22; Miller Dep., Doc. No. 43-16, at
274:23-276:11.] The version of the second draft screenplay
typed by Cunningham's assistant likewise contained a
title page with identical formatting that stated “A
Screenplay By Victor Miller” and that also included a
copyright notice in the name of Sean S. Cunningham Films,
Ltd. [Ex. G, Cunningham Decl., Doc. No. 43-11; Cunningham
Decl., Doc. No. 43-4, at ¶ 26; Miller Dep., Doc. No.
43-16, at 212:8-213:5.] Miller received a copy of the
screenplay draft that contained the copyright notice in the
name of Sean S. Cunningham Films, Ltd. [Cunningham Decl.,
Doc. No. 43-4, at ¶ 26; Miller Dep., Doc. No. 43-16, at
potential investor who had expressed an interest in the film
was Scuderi, principal of Georgetown Productions, Inc.
(“Georgetown”). [Pls.' Facts, Doc. No. 43-2,
at ¶ 23; Def.'s Obj. to Pls.' Facts, Doc. No.
51-3, at ¶ 23; Cunningham Decl., Doc. No. 43-4, at
¶ 12.] Cunningham eventually provided an early draft of
the screenplay to Scuderi, and after reviewing the draft, at
some point between late July and mid-August 1979, Scuderi
agreed to finance the entire $500, 000 budget of the film in
exchange for Georgetown having complete control over the
screenplay and ultimate film. [Cunningham Decl., Doc. No.
43-4, at ¶¶ 27-28.] Pre-production of the film
began shortly thereafter, in mid-August 1979 and principal
photography began in or about September 1979. [Cunningham
Decl., Doc. No. 43-4, at ¶ 27.] Following his joining
the project, Scuderi, acting on Georgetown's behalf,
provided his own input and ideas, which were occasionally
incorporated into the screenplay and film despite
Miller's misgivings.[Cunningham Decl., Doc. No. 43-4, at
work on the treatment and screenplay, Miller was paid $9, 282
in 1979-the total lump sum called for under the Contract for
Miller's work. [Pls.' Obj. to Def.'s Facts, Doc.
No. 47-2, at ¶ 27; Ex. B, Cunningham Decl., Doc. No.
43-6.] Disputes arose as early as 1980 regarding whether
Miller was receiving additional sequel and residual payments
allegedly due to him under the MBA, and in 1989 Miller
received an additional $27, 396.46 in settlement of such
disputes. [Pls.' Facts, Doc. No. 43-2, at ¶ 65-67;
Ex. X, Haye Decl., Doc. No. 43-29, at 327-29; Miller Dep.,
Doc. No. 43-16, at 234:16-250:19.] Since that time, Miller
has received additional sequel and residual payments,
totaling approximately $200, 000. [Pls.' Obj. to
Def.'s Facts, Doc. No. 47-2, at ¶ 28; Miller Dep.,
Doc. No. 43-16, at 262:16-263:1.] Manny did not directly
provide Miller with any traditional employee benefits (e.g.,
vacation pay or plans, health care plans, insurance plans,
pension plans) during his brief period of work on the
treatment and screenplay [Miller Decl., Doc. No. 45-1, at
¶ 24], and there is no indication that Manny or any
other entity ever made contributions to WGA health care or
pension plans related to Miller's work on the treatment
or screenplay [Parsignault Decl., Doc. No. 55-1 at
¶¶ 1-9]. Manny also paid Miller the lump sum
payments due to him under the agreement without any
deductions or withholding for taxes, Social Security or
Medicare. [Def.'s Facts, Doc. No. 45-3, at ¶ 27;
Miller Decl., Doc. No. 45-1, at ¶ 22.]
the 13th was released on or about May 9, 1980 and was an
immediate hit. [Pls.' Facts, Doc. No. 43-2, at ¶ 60;
Def.'s Obj. to Pls.' Facts, Doc. No. 51-3, at ¶
60.] Miller was provided with exclusive “written
by” credit for the film. [Def.'s Facts, Doc. No.
45-3, at ¶ 32; Pls.' Obj. to Def.'s Facts, Doc.
No. 47-2, at ¶ 32.] Two days before the public release
of the film, Manny sold to Georgetown all of its
“right, title and interest” in and to the
screenplay. [Pls.' Facts, Doc. No. 43-2, at ¶ 59;
Ex. H, Cunningham Decl., Doc. No. 43-12.] The agreement
between Manny and Georgetown described the screenplay as
“written by Victor Miller, as author for
[Manny]”, and Manny “represent[ed] and
warrant[ed]” in the agreement “[t]hat Victor
Miller is the sole author of the [s]creenplay.” [Ex. H,
Cunningham Decl., Doc. No. 43-12.] In the agreement, Manny
transferred to Georgetown, among other rights, “the
right to copyright the [s]creenplay”. [Ex. H,
Cunningham Decl., Doc. No. 43-12.] On September 26, 1980,
Georgetown obtained a copyright registration for the film,
which claimed copyright in the “entire work”
including the “screenplay, remaining musical
compositions and other literary and cinematographic
materials”. [Ex. O, Haye Decl., Doc. No. 43-20.] The
copyright registration lists Georgetown as the author of the
work as a work made for hire. [Ex. O, Haye Decl., Doc. No.
43-20.] The Copyright Office's digital version provides a
“written by” credit to Miller.
Horror, Inc. acquired its rights and interests in the Friday
the 13th franchise and the original Friday the 13th
film and screenplay from its predecessors-in-interest
Georgetown, Jason Productions Inc. (a/k/a Jason, Inc.),
Friday Four Inc., and Terror Inc. [Barsamian Decl. at ¶
4.] On January 26, 2016, Miller served a termination notice
(the “First Termination Notice”) pursuant to 17
U.S.C. § 203(a) on Paramount Pictures Corporation, Sean
S. Cunningham Films, Ltd., Warner Bros. Entertainment Inc.,
New Line Film Productions Inc., and Crystal Lake
Entertainment, purporting to terminate the grants of
Miller's rights under the copyrights in and to the
screenplay made to Manny on July 6, 1979, pursuant to the
Contract entered into on June 4, 1979. [Toberoff Decl., Ex.
H, Doc. No. 45-2] The First Termination Notice stated an
effective date of termination of January 25, 2018. [Toberoff
Decl., Doc. No. 45-2 at ¶ 9.] Miller's attorney
recorded the First Termination Notice with the U.S. Copyright
Office prior to January 25, 2018. [Toberoff Decl., Doc. No.
45-2 at ¶ 10.]
27, 2016, Miller served a second termination notice (the
“Second Termination Notice”) on the
aforementioned companies as well as Horror, Inc., Robert
Barsamian, Jason, Inc., Terror, Inc., Georgetown Productions,
Inc., Belmont Management, Inc., Jason Productions Inc., and
Friday Four, Inc., again purporting to terminate the grants
of Miller's rights under the copyrights in and to the
screenplay made to Manny on July 6, 1979, pursuant to the
Contract entered into on June 4, 1979. [Toberoff
Decl., Ex. J, Doc. No. 45-2.] The Second Termination Notice
stated an effective date of termination of July 1, 2018.
[Toberoff Decl., Doc. No. 45-2 at ¶ 11.] Miller's
attorney mailed the Second Termination Notice to the U.S.
Copyright Office for recording on June 28, 2016-i.e., prior
to July 1, 2018. [Toberoff Decls., Doc. No. 45-2 at ¶
12; Ex. K, Toberoff Decl., Doc. No. 45-2; Pls.' Obj to
Def.'s Facts, Doc. No. 47-2, at ¶ 36.]
14, 2016, Miller served a third termination notice (the
“Third Termination Notice”) on the same companies
served with the Second Termination Notice, modifying only the
addresses of some of the recipients. [Toberoff Decl., Doc.
No. 45-2 at ¶ 13; Ex. L, Toberoff Decl., Doc. No. 45-2]
The Third Termination Notice stated an effective date of
termination of July 15, 2018. [Toberoff Decl., Doc. No. 45-2
at ¶ 13; Ex. L, Toberoff Decl., Doc. No. 45-2.]
Miller's attorney mailed the Third Termination Notice to
the U.S. Copyright Office for recording on July 22,
2016-i.e., prior to July 15, 2018. [Toberoff Decls., Doc. No.
45-2 at ¶ 15; Ex. N, Toberoff Decl., Doc. No. 45-2.]
and Manny commenced the present lawsuit on August 24, 2016,
seeking a declaration: that the screenplay was written by
Miller as a “work made for hire” as that phrase
is used in the Copyright Act, and thus that Miller does not
have any right to terminate Horror's copyright interests
in the screenplay, that each of Miller's termination
notices are therefore invalid, that Horror is entitled to
continue to exclusively exploit the copyright in the
screenplay throughout the entire copyright term, and that
Miller's termination notices constitute a material breach
and repudiation of his “[e]mployment agreement”
with Manny. [Compl., Doc. No. 1.] Plaintiffs also seek an
alternative declaration, in the event that any of
Miller's termination notices are deemed valid, limiting
the elements of the screenplay to which the termination
applies to only those creative elements in the screenplay
that can be identified as having been created by Miller.
Plaintiffs have also brought a series of state law claims
against Miller, all of which rely on the alleged illegitimacy
of Miller's termination notices. [Compl., Doc. No. 1.] On
November 17, 2016, Miller filed a counterclaim seeking a
declaration that the screenplay was not prepared as a work
for hire, and thus a determination that at least one of his
three termination notices is valid. [Counterclaim, Doc. No.
37.] Cross-motions for summary judgment regarding the work
for hire claims and the legitimacy and effect of Miller's
termination notices followed. [Motions for Summary Judgment,
Doc. Nos. 43, 45.]
Standard of Review
judgment is appropriate when the record demonstrates that
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff
must present affirmative evidence in order to defeat a
properly supported motion for summary judgment).
ruling on a summary judgment motion, the court must construe
the facts of record in the light most favorable to the
nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the moving party.
Anderson, 477 U.S. at 255; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 (1970); see also Aldrich v. Randolph Cent.
Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (court is
required to “resolve all ambiguities and draw all
inferences in favor of the nonmoving party”). In the
context of cross-motions for summary judgment, the same
standard is applied, however, in deciding each motion, the
court must construe the evidence in the light most favorable
to the respective non-moving party. See Scholastic, Inc.
v. Harris, 259 F.3d 73, 81 (2d Cir. 2001).
motion for summary judgment is properly supported by
documentary and testimonial evidence, the nonmoving party may
not rest upon the mere allegations or denials of the
pleadings, but must present sufficient probative evidence to
establish a genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 327 (1986); Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
when reasonable minds could not differ as to the import of
the evidence is summary judgment proper.” Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see
also Suburban Propane v. Proctor Gas, Inc., 953
F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits
evidence that is “merely colorable, ” or is not
“significantly probative, ” summary judgment may
be granted. Anderson, 477 U.S. at 249-50.
The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact. As to materiality, the
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.
Id. at 247-48. To present a “genuine”
issue of material fact, there must be contradictory evidence
“such that a reasonable jury could return a verdict for
the non-moving party.” Id. at 248.
nonmoving party has failed to make a sufficient showing on an
essential element of his case with respect to which he has
the burden of proof at trial, then summary judgment is
appropriate. Celotex, 477 U.S. at 322. In such a
situation, “there can be ‘no genuine issue as to
any material fact,' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 322-23; accord Goenaga v. March of Dimes
Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)
(movant's burden satisfied if he can point to an absence
of evidence to support an essential element of nonmoving
party's claim). In short, if there is no genuine issue of
material fact, summary judgment may enter. Celotex,
477 U.S. at 323.
case presents complicated and interesting questions of
authorship and ownership of the copyright in the screenplay
for the well-known, original Friday the 13th movie.
The Copyright Act of 1976 provides that copyright ownership
vests initially in the author or authors of a copyrighted
work, 17 U.S.C. § 201(a), and the initial
“author” is usually considered to be “the
party who actually creates the work, that is, the person who
translates an idea into a fixed, tangible expression entitled
to copyright protection”, Community for Creative
Non-Violence v. Reid, 490 U.S. 730, 737 (1989)
(hereinafter “CCNV”). In the case of a
“work made for hire”, however, “the
employer or other person for whom the work was prepared is
considered the author” of the work and the initial
owner of the copyright therein. 17 U.S.C. § 201(b);
CCNV, 490 U.S. at 730. All authors can transfer
subsequent ownership of a copyright, or any portion of the
exclusive rights comprised in a copyright, by any means of
conveyance, 17 U.S.C. § 201(d), but an author can
eventually terminate the transfer of his or her copyright
interests pursuant to the procedures set out in 17 U.S.C.
§ 203(a), unless the copyrighted work is a work made for
hire. Once an author has terminated a transfer of copyright
interests, the interests revert to the author, but such
reversion does not prevent the continuing exploitation of any
derivative works prepared prior to the termination and
properly under the authority of the transferred interests. 17
U.S.C. § 203(b).
their complaint and motion for partial summary judgment,
Horror and Manny seek a declaration that Miller wrote the
screenplay as a work made for hire for Manny (which
subsequently transferred its copyright interests in the
screenplay to Horror), and thus that Miller's purported
termination of Horror's copyright interests in the
screenplay are invalid. Conversely, Miller seeks, in both his
complaint and motion for summary judgment, a declaration that
his writing of the screenplay did not constitute a work made
for hire, and thus that he is entitled to recover the United
States copyright in the screenplay. To the extent that
Miller's work on the screenplay is held to have not been
“for hire”, Manny and Horror request a
determination of authorship of, and thus copyright ownership
in, individual creative elements of the screenplay.
Accordingly, following my determination that the screenplay
was not a work made for hire, I must examine whether Miller
can be excluded from authorship status on any other grounds,
whether Miller was the sole author of his contributions to
the screenplay, whether Miller shared joint authorship of the
screenplay, and whether any portions of the screenplay can be
carved out from Miller's termination right.
The Screenplay Was Not a Work Made for Hire
the best outcome for Horror and Manny would be if Miller were
determined to have made his writing contributions to the
screenplay while working for hire for Manny. In such a case,
Manny would be deemed the initial author of the screenplay,
17 U.S.C. § 201(b), and Miller would not possess any
exercisable termination rights, 17 U.S.C. § 203. The
Copyright Act of 1976, which became effective in 1978, 17
U.S.C. App'x, one year before Miller and Manny began
working on the screenplay, provides two routes according to
which a writer's contributions could be considered
“for hire.” A “work made for hire” is
(1) a work prepared by an employee within the scope of his or
her employment; or
(2) 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
17 U.S.C. § 101 (emphasis added). Thus, the framework
set up by the definition in section 101 establishes
“two mutually exclusive means” through which a
work for hire might arise. CCNV, 490 U.S. at 742-43.
So long as the hired party qualifies as an employee and not
an independent contractor, section 101(1) applies to all
works created by that employee acting within the scope of his
or her employment. Id. Section 101(2), meanwhile,
confers work-for-hire status on even those works prepared by
independent contractors, but only if the work was specially
commissioned for use in one of the nine types of specifically
enumerated works set out in section 101(2), and only if the
parties expressly agreed to the work-for-hire status in a
signed writing. Id. at 738.
The Screenplay was not specially commissioned as a work
for hire pursuant to the parties' agreement in a signed
and Horror make no argument that the screenplay was specially
commissioned as a work for hire pursuant to an express
agreement in a signed written instrument. Works commissioned
as contributions to a motion picture are one of the
categories set out in section 101(2), and indeed, “the
norm for Hollywood production . . . is for all concerned to
execute work for hire agreements, vesting all copyright
ownership in the producer.” 1 Nimmer on Copyright
§ 6.07 (2018); see also Garcia v. Google, Inc.,
786 F.3d 733, 743 (9th Cir. 2015) (“The reality is that
contracts and the work-made-for-hire doctrine govern much of
the big-budget Hollywood performance and production
world.”). It is only in the absence of such agreements
that thorny issues of authorship arise, due to the numerous
potential creative contributors to a motion picture.
See F. Jay Dougherty, Not A Spike Lee Joint?
Issues in the Authorship of Motion Pictures Under U.S.
Copyright Law, 49 U.C.L.A. L. Rev. 225, 269 (2001)
(“In most cases these issues of authorship are avoided
because in the United States, contributors to a film prepare
their work as a work made for hire for the producer. Yet
there can be instances in which work-for-hire arrangements
are not made or somehow fail.” (citation omitted));
see also 1 Nimmer on Copyright § 6.05 (2018)
(noting that “[a] motion picture is a joint work
consisting of a number of contributions by different
‘authors', including the writer of the
screenplay”, but that “[n]ormal practice”
is for the motion picture studio to insist that all relevant
parties execute agreements applying the work for hire
doctrine with “the legal result, in that instance, . .
. that there is only one ‘author'”).
the Contract executed by Manny and Miller does not contain
any express agreement regarding work-for-hire status, or any
other express arrangement regarding copyright. [Ex. B,
Cunningham Decl., Doc. No. 43-6.] The WGA 1977 Theatrical and
Television Basic Agreement, the collective bargaining
agreement between the WGA and signatory companies in
operation at the time, likewise contains no express agreement
regarding work for hire status.[Ex. N, Haye Decl., Doc.
No. 43-19, ] It is interesting to note that, although Horror
and Manny claim that Sean Cunningham used as the template for
the Contract “the standard WGA short form complete
screenplay agreement issued by the WGA at the time”,
Cunningham Decl., Doc. No. 43-4, at ¶ 17, the comparable
screenwriter's short-form contract now in use by the WGA
does expressly designate that any writing covered by the
contract is work made for hire, Writer's Theatrical
Short-Form Contract, at ¶ 24,
(“Writer acknowledges that all results . . . of
Writer's services . . . are being specially ordered by
Producer for use as part of a Motion Picture and shall be
considered a ‘work made for hire' for Producer . .
. in accordance with Sections 101 and 201 of . . . the U.S.
Copyright Act.”). Intriguingly, although Miller entered
into the Contract with Manny in 1979, and the Copyright Act
became effective in 1978, a type-written notation in the
bottom left-hand corner of each page of the Contract
(“3/77”) suggests that the form Cunningham used
for the Contract was last updated in 1977. [Ex. B, Cunningham
Decl., Doc. No. 43-6.] In any event, whether or not motivated
by the failure of the Contract to expressly designate the
screenplay as a work for hire, Horror and Manny have conceded
that they are not pursuing a work for hire theory under
section 101(2). [Pls.' Opp. Br., Doc. No. 47, at 11 n.7.]
The screenplay will thus be considered a work made for hire
only if Miller's contributions to the screenplay were
made as Manny's “employee”, within the scope
of his employment, pursuant to section 101(1).
Miller did not prepare the Screenplay as Manny's
employee within the scope of his employment.
and Manny argue that Miller was necessarily an employee of
Manny, and not an independent contractor, because Miller, a
WGA member, was hired by Manny, a WGA collective bargaining
agreement signatory company, pursuant to a contract
controlled by the WGA's collective bargaining agreement
with signatory companies. [Pls.' Br., Doc. No. 43-1, at
26-30.] That is, of course, not the traditional test mandated
by the Supreme Court in CCNV for determining whether
a hired party is an employee or independent contractor
according to the definition of “work made for
hire” contained in section 101(1) of the Copyright Act.
The established CCNV test relies on the general
common law of agency, and not labor law, and sets out a
series of non-exhaustive factors to be used in determining
whether a work was prepared by an employee agent. See
CCNV, 490 U.S. at 751-52. Horror and Manny reject the
applicability of the CCNV factors to the present
case, arguing that, because the Copyright Act's
definition of “employee” is identical to the
definition used in the National Labor Relations Act
(“NLRA”) and because labor law requires that
Miller be considered Manny's employee, Miller must also
be considered Manny's employee for the purposes of the
Copyright Act. The multi-factor test set out in
CCNV, so goes their argument, is only designed to be
used when an individual's employment status is otherwise
“unclear.” [Pls.' ...