Recently Clive Barker sued Park Avenue Entertainment, LLC in California Central District Court under copyright law. He seeks a Declaratory Judgement that he terminated the company’s copyrights to the Hellraiser film screenplay and the book it was based on under the Copyright Act of 1976 Termination Rights. This lawsuit is the latest filed by horror screenwriters for reversion of copyrights to a successful horror franchise. Previously, Victor Miller served notices of termination rights to the original film script for Friday the 13th on Horror Inc. In 2016, Horror Inc. sued Miller to retain those rights on the basis that Miller was an employee and the work was a work for hire. As discussed below, that case is still ongoing.

Termination Rights

The termination rights under the Copyright Act of 1976 protect authors who assign rights to their works before knowing the true commercial value. This allows authors who may have been in an unequal bargaining position at the time of the assignment to share in some of the profits of a successful work. Under the termination right, authors have an inalienable right to terminate a grant of copyright 35 years after the grant. The termination right applies only if the work was not a work for hire. The author must terminate their grant within a 5 year period starting from the end of the 35th year. The author must serve a Notice of Termination on the grantees no less than 2 and no more than 10 years before the effective date of the termination.

Upon termination, all copyright interests in the US conveyed under the initial grant revert to the original grantor (author). The grantee may retain copyright interests outside the US. The grantee may also retain copyright interests in derivative works prepared under the original grant prior to its termination. If the author recovers his copyright under the termination right, he also recovers the right to authorize new derivative works.

Friday the 13th Horror Case

Miller wrote the Friday the 13th screenplay in 1979 and received a mere $9282. The franchise has grossed over $39.7 million in the U.S. Miller received a little less then $227,000 for residuals. As noted above, Horror Inc. sued Miller to retain rights to the screenplay. Horror Inc. alleges Miller was an employee working in the scope of his employment. As such, they should retain the copyright. Miller argued that he was not an employee but rather an independent contractor. Accordingly, as an independent contractor, he can regain the copyright.

In 2018, a District Court judge ruled Miller was an independent contractor and thus could regain the copyright. Horror Inc. appealed to the Second Circuit Court of Appeals. Horror Inc. argues that Miller was a member of the Writers Guild of America (WGA) at the time of writing the screenplay. As such, the WGA collective bargaining agreement states that a screenwriter writing a screenplay is an employee. They also assert Miller received several benefits from his membership including a minimum salary, pension, residuals, etc. Miller’s attorney argues that members of a labor union are free to work as an independent contractor, particularly since the “studio system” of having screenwriters signed to long term employment contracts is all but dead. The Second Circuit heard oral arguments on Friday, February 14th but have not yet given a ruling.

Hellraiser Horror Case

Clive Barker assigned the rights in his screenplay for Hellraiser as well as the book it was based on, The Hellbound Heart, back in 1986. Announcements were made earlier this year regarding a potential movie reboot with David Bruckner directing. Later, HBO announced a potential TV series based on the Hellraiser franchise. If Barker’s termination is successful, it would not take effect until December 2021. If the potential movie or TV series is released prior to this date, the company retains the rights to those derivative works. Any new derivative works after the date would belong to Barker. Given the difficulties, Victor Miller has faced with the Friday the 13th copyright, it will be interesting to see how both cases play out.

Michele Lawson

Michele Lawson is a U.S. Registered Patent Attorney.