Copyright

On September 28, 2018, the District Court for the District of Connecticut issued a significant ruling on the rights of authors to terminate grants of copyright. It ruled that Victor Miller, the original and sole writer of the highly successful horror movie Friday the 13^th, had validly terminated his grant of rights in the screenplay, thus recapturing the copyright in the screenplay to his sole ownership.[ref]Horror, Inc. v. Miller 2018 WL 4697284, District of Connecticut 2018[/ref] At work is a little known provision of the Copyright Act that allows authors to take back the copyright they have sold or bargained away, upon the fulfillment of various requirements. The first and foremost requirement is that the author must wait 35 years from the date of the grant for the termination to take effect.[ref]17 USC 203 (a) (3)[/ref] Since this clause applies to works created after January 1, 1978, the earliest a work could have been terminated would have been in 2013, and thus results in the handful of cases that have been decided. The idea behind this provision is that frequently the author bargains away the copyright at a time when no one knows of the potential commercial success or failure work. This usually results in a very small fee being paid to the author. Indeed, with Friday the 13^th, this sum was a mere $9,282.[ref]Horror, Inc. v. Miller at 6. All page references are to the original pagination of the opinion.[/ref] In turn, the 35 year waiting period insures that the recipient of the grant of rights has the exclusive rights to the project during the period of its greatest commercial viability. So, only in the most successful of projects will the writer choose the option of termination. And what a successful project it was. Based on an estimated budget of only $550,000, Friday the 13th ended with a worldwide gross of nearly $60 million.[ref]IMDb: Friday the 13th[/ref] It is also notable as being one of the earliest screen appearances of Kevin Bacon.[ref]IMDb: Kevin Bacon[/ref] (He gets an arrow in the throat.[ref]Friday the 13th (1980 film)[/ref]) The film spawned 12 sequels, a television show, comic books and video games,[ref]Friday the 13th (franchise)[/ref] featuring the indestructible hockey masked killer, Jason Voorhees. The only exception to the termination provision is if the author has created "work made for hire." If so, the grant cannot be terminated.[ref]17 USB 203 (a)[/ref] This requires either:

• The author created the work as an employee which is within the scope of employment
• In the case of a motion picture where the author is an independent contractor, a signed agreement in which the author agrees that the resulting work is a "work for hire"[ref]17 USC 101 "work made for hire"[/ref]

So, all the Producers of Friday the 13^th had to do to save them this potential headache 35 years down the road was to get screenwriter Victor Miller to sign a contract with the necessary "work for hire" language. Guess what? They didn't do it. They did have Miller sign a contract. It provided for a lot of things, like what he was supposed to provide, the schedule by which certain drafts were due, and the amount and dates of the payments to him.[ref]Horror, Inc. v. Miller at 5-6[/ref] But no mention was made that the screenplay was a "work for hire" "or any other express arrangement regarding copyright."[ref]Horror, Inc. v. Miller at 19[/ref] This simple omission, of this simple phrase, winds up costing the Producers dearly. For now, the Producers are tasked with proving that Miller was not an independent contractor, but their employee. The first tack is for the Producers to argue that because the relationship between Miller and the Producers was governed by the relevant Writers Guild of America collective bargaining agreement, that this has the effect of making the film a "work for hire." The Court pointed out three problems with this theory:

• The WGA agreement in effect at the time did not confer "work for hire" status on the completed screenplay, unlike the current WGA agreements.
• The contract did not incorporate by reference the CBA terms, it merely said Miller would receive no less favorable terms than in the CBA.
• The Supreme Court has ruled that questions regarding employment status in "work for hire" questions is governed by the laws of agency, not labor laws.[ref]Horror, Inc. v. Miller at 19-21[/ref]

On this last point, the Court is citing the SCOTUS decision in the 1989 case of Community for Creative Non-Violence v. Reid.[ref]490 U.S. 730, 109 S.Ct. 2166 (1989)[/ref] There, the Court was tasked with deciding whether the copyright in a sculpture belonged to the artist who created it, or the non-profit advocacy group who commissioned it. It held that this question is to be resolved by looking to the laws of agency and set out (a non-exhaustive list) of 13 factors to be considered, none of which were in and of themselves determinative of the issue:

• The hiring party's right to control the manner and means by which the product is accomplished
• The skill required
• The source of the instrumentalities and tools
• The location of the work
• The duration of the relationship between the parties
• Whether the hiring party has the right to assign additional projects to the hired party
• The extent of the hired party's discretion over when and how long to work
• The method of payment
• The hired party's role in hiring and paying assistants
• Whether the work is part of the regular business of the hiring party
• Whether the hiring party is in business
• The provision of employee benefits
• The tax treatment of the hired party[ref]Id. at 751-752[/ref]

The only factors which favor the Producers are the first, fifth and tenth factors. Certainly they had the right to control what elements were to be delivered and the time schedule for the delivery of those elements. Miller and the Producers had worked together before. Producing films was the regular business of the Producers. Other than that, virtually all the remaining factors favor Miller and a finding of independent contractor status.

• Miller was a professional writer and a member of the Writer's Guild
• Miller provided his own typewriter and ribbon (this is 1979 folks)
• Miller worked from his home
• Producers had no right to assign additional projects to Miller
• Miller worked his own hours, mainly in the morning and would meet for script conferences on an ad hoc basis
• Miller was paid in two lump sum payments
• Miller received no employee benefits
• No income tax or social security payments were deducted from his payments

It's the last three points that really point to independent contractor status; two lump sum payments, no employee benefits and no tax withholding. The Producers make a late charge at arguing that they are co-authors of the screenplay. However, the Court rules that the proffered elements of authorship, namely that the killings should be "personal," that guns not be used, and that the film should end with a fantasy or dream sequence, were either unprotectable ideas or scenes a faire.[ref]Horror, Inc. v. Miller at 51[/ref] The Court further notes that the screenplay was always credited to Miller as the sole author, and any attempt now, some 40 years after the fact, to claim co-authorship, is barred by the three-year statute of limitations under the Copyright Act.[ref]Horror, Inc. v. Miller at 51-56[/ref] So now that Miller has reclaimed the copyright in the entire Friday the 13^th screenplay, he can presumably license a remake (it has already been remade once)[ref]Friday the 13th (franchise)[/ref] or even a new series of sequels. Jason's back! Or is he? The killer on the first Friday the 13^th is not Jason Voohees, but his mother, Pamela Voorhees. She is taking revenge on the camp counselors who ignored her drowning son in order to have sex.[ref]Friday the 13th (1980 film)[/ref] That's right, in the original, Jason is dead. Mrs. Voorhees does not seem to be able to return as the franchise villain either, as she is decapitated in the film's climactic scene.[ref]Friday the 13th (1980 film)[/ref] I know in horror films nobody is ever really dead, but being decapitated seems to make a return rather unlikely. Here's where it gets really interesting. The first film does close with a sequence that is depicted as either fantasy or dream, in which Jason comes out of the lake to attack the heroine. Jason is depicted as deformed and decomposing but lacks his trademark hockey mask, overalls and machete. These are elements that were created by the sequels. So, Miller's recapture extends to all of the elements that were contained in the original, but none of the elements that were solely the creations of the sequels. Under the Copyright Act, the Producers can continue to exploit the sequels as termination does not extend to any derivative works that were made when the Producers owned the rights.[ref]17 203 (b) (1)[/ref] However, they can no longer make derivative works based upon material covered by the termination notice. So, since "Jason Voorhees" is indeed a character contained in the original Friday the 13th, does this preclude his appearance in any more sequels? What if the character is never named? What if the character is simply identified by his "trademark" appearance, e.g. hockey mask, torn overalls and machete, which is a creation of the sequels? In turn, can Miller "resurrect" Jason, as it is implied at the end of the original, and make him a continuing villain? Can he do so as long as he eliminates the signature visuals that were the creation of the sequels? The Court, perhaps wisely, sidesteps the issues. "Miller, as sole author of all but one scene has reclaimed ownership in a copyright spanning all copyrightable elements in all but the excluded scene. I… decline to analyze the extent to which Miller can claim copyright in the monstrous ‘Jason' figure present in sequels to the original film. [Producers] may very well be able to argue that the Jason character present in later films is distinct from the Jason character briefly present in the first film, and [Producers] or other participants may be able to stake a claim to have added sufficient independently copyrightable material to Jason in the sequels to hold independent copyright in the adult Jason character. That question is not properly before the court in this case, however. Miller's termination notices apply only to the copyright in the screenplay for the first film, and did not purport to terminate a separate copyright in the adult Jason character present in later films. Adjudication of the status of any copyright in the adult Jason character will have to await a ripe dispute with respect to that issue."[ref]Horror, Inc. v. Miller at 61-62[/ref] Some things…refuse to die.  

I always get nervous when appellate Judges start throwing around terms like "descending chromatic scales." The underpinnings of music theory are complex, and not easily understood by people who are not musicians. This decision by the Ninth Circuit Court of Appeals shows the problems that can result. On September 28, 2018, the Court reversed the jury verdict in favor of Led Zeppelin on the controversy of whether the iconic song "Stairway to Heaven" was copied from the song "Taurus" by the band Spirit, and composed by Randy Wolfe.[ref]Skidmore v. Led Zeppelin et al 2018 WL 4654729[/ref] According to the Court, the District Court made a significant error in its jury instructions that "could have led the jury to believe that even if a series of three notes or a descending chromatic scale were used in combination with other elements in an original manner, it would not warrant copyright protection."[ref]Id. at 20. All page references are to the original pagination of the opinion.[/ref] Also: "[T]he instructions undermined [Plantiff's] expert testimony that "Taurus" and "Stairway to Heaven" were similar because of the combination of otherwise unprotectable (sic) elements."[ref]Id. at 22[/ref] I'm afraid those "blurred lines" are about to get blurrier. The Court is correct that while scales themselves are not copyrightable, they do become copyrightable when they are "arranged or modified in a creative, original way." The problem is that not all scales work in the same way, and non-musicians may have trouble understanding the concepts. If you were to play every white note on a piano from C to C, you would play a C major scale. If you were to play every white note on a piano from A to A, you would play an A Minor scale. So even though you would be playing basically the same notes, the harmonic relationship between the notes of the scale is different, leading to a different musical effect. The chromatic scale is the exception to this rule. No matter where you start, and no matter in which direction you move, the next note is always the note immediately adjacent to it. For example, if you were to play a C major scale you would play C-D-E-F-G-A-B-C. If you were to play a C chromatic scale you would play C-C#-D-D#-E-F-F#-G-G#-A-A#-B-C. In musician's terms, the next note in the scale is always a half-step away in terms of pitch. On a piano, this is not that easy to play as every white note and black note must be played in sequence, and this doesn't fall under the fingers very well. But on a guitar, it's absolutely the easiest thing to do. The lowest string on a guitar is tuned to E. Play that string without pressing on any fret, and the note E is sounded. Pressing down the E string on the first fret will play F, do the same on the very next fret up will yield F#, and so on. This is because the guitar is set up in such a way that the next fret on the neck always produces a note that is a half-step away. This is the chromatic scale. If you're not a musician, you're probably confused at this point. Now, imagine you're a juror and have been tasked with deciding which parts of a descending chromatic scale have been infused with sufficient "originality" as to be copyrightable. Now consider the fact that the composers of "Taurus" (Randy California) and "Stairway to Heaven" (Jimmy Page) are both guitarists, and the similar portions of the two songs are both played on an acoustic guitar. This vastly increases the chance that the phrases at issue were created independently, because the chromatic scale is so easy to use on the guitar. When I wrote about this case previously, I provided YouTube links to two songs that sounded a lot more like "Stairway to Heaven" than "Taurus" does.[ref]The "Stairway to Heaven" Guitar Melody Is In the Public Domain! But Does This Get Led Zeppelin Off The Hook?[/ref] Both were played on guitar. And one dated back to the 17^th century. Back then I wrote: "[A]ssuming that neither Wolfe or Graham were aware of this 17th century musical composition, and Wolfe was not aware of Graham's composition, this would mean that three different composers (four if you count Jimmy Page) came up with very similar melodies using arpeggiated chords. This would indicate that the melodies themselves are kind of "stock" motifs that naturally would follow from using standard rules of  European musical theory, and really should receive little, if any, copyright protection."[ref]The "Stairway to Heaven" Guitar Melody Is In the Public Domain! But Does This Get Led Zeppelin Off The Hook?[/ref] The ruling of the jury was that Page had access to "Taurus," but the two songs were not objectively substantially similar to each other, and thus there was no infringement.[ref]Skidmore v. Led Zeppelin at 11[/ref] I fear that the Court's reversal on this point, with an accompanying direction that the new jury be instructed on "originality" and "selection and arrangement" of otherwise uncopyrightable elements, is going to confuse the jury and make matters worse. This will encourage the jury to treat all similarities as being the result of copying, rather than being the result of a natural progression, easily accomplished, and according to long standing rules of harmony and theory. Next up, the Court reverses on the issue of whether the sound recording of "Taurus" should have been played to the jury. Like the "Blurred Lines" case that preceded this case, the registration deposit copy of "Taurus" was sheet music, not the sound recording. The District Court then ruled that Plaintiffs were limited to what was contained in the sheet music, and the sound recording could not be played. The Plaintiff tried to worm around this restriction saying he wanted to play the sound recording to gauge Jimmy Page's "reaction" to it and as being probative on the issue of access. The District Court denied this. Page was played the sound recording outside the presence of the jury.[ref]Skidmore v. Led Zeppelin at 33-34[/ref] The Ninth Circuit agreed that the Plaintiff was limited to the music contained in the sheet music.[ref]Skidmore v. Led Zeppelin at 5[/ref] But then it rules that since the case is going to be re-tried, the exclusion of the sound recording from the proof of access was an error and should have been allowed.[ref]Skidmore v. Led Zeppelin at 34[/ref] This is head scratching for two reasons. First, the jury found that Page had access to "Taurus"! Thus, as the Court notes, this is a "harmless error."[ref]Skidmore v. Led Zeppelin at 33[/ref] So, if not playing the sound recording did not impede a finding of access, why order it on retrial? So a jury can find "more access" than necessary to prove a proposition? Secondly, what possible relevance does hearing a sound recording have with the issue of access? The Court says that the jury should have been allowed to view Page and his "demeanor while listening to the recordings."[ref]Skidmore v. Led Zeppelin at 34[/ref] Trust me, Honorable Justices, at this point, Jimmy Page has probably listened to "Taurus" a bunch of times. His demeanor isn't going to change very much. Sorry. The only reason that the Plaintiff wants to play the sound recording is because it probably sounds a lot more like "Stairway to Heaven" than what is in the sheet music. Telling the jury not to consider the sound recording to judge substantial similarity, as the Court of Appeals suggests[ref]Skidmore v. Led Zeppelin at 34[/ref] is playing with fire. You can't un-hear what you have already heard. In the "Blurred Lines" opinion, one got the feeling that the Court thought the jury got the verdict wrong, but there was at least some evidence to support it. In reading the "Stairway to Heaven" opinion, one gets the feeling that the Court thought the jury got it right, but wanted it done better procedurally. Blurred lines getting blurrier.