Horror Inc. v. Miller

• Decision Date: 30 September 2021
• Docket Number: Docket No. 18-3123-cv,August Term 2019
• Citation: 15 F.4th 232
• Parties: HORROR INC., a Massachusetts Corporation, Manny Company, a Connecticut Limited Partnership, Plaintiffs-Counter-Defendants-Appellants, v. Victor MILLER, an Individual, Defendant-Counter-Claimant-Appellee, Does, 1 Through 10, Inclusive, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

15 F.4th 232

HORROR INC., a Massachusetts Corporation, Manny Company, a Connecticut Limited Partnership, Plaintiffs-Counter-Defendants-Appellants,

v. Victor MILLER, an Individual, Defendant-Counter-Claimant-Appellee,Does, 1 Through 10, Inclusive, Defendants.

Docket No. 18-3123-cv

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: February 13, 2020

Decided: September 30, 2021

Kathleen Sullivan (Todd Anten, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA (Bonnie E. Eskenazi, Julia R. Haye, Greenberg Glusker Fields Claman & Machtinger LLP, Los Angeles, CA, on the brief), for Plaintiffs-Counter-Defendants-Appellants.

Marc Toberoff, Toberoff & Associates, P.C., Malibu, CA, for Defendant-Counter-Claimant-Appellee.

Before: Walker and Carney, Circuit Judges.^*

Carney, Circuit Judge:

This dispute concerns whether, for Copyright Act purposes, the screenwriter Victor Miller was an employee or independent contractor of the film production company Manny, Inc., in 1979, when Miller wrote the screenplay for the landmark horror film Friday the 13^th , released in 1980. Almost forty years later, in 2016, Miller gave notice to Manny purporting to terminate its copyright under the authority vested in authors by section 203 of the Act. See 17 U.S.C. § 203. If Miller was Manny's employee when he wrote the screenplay, then it is a "work made for hire" under the Act; Manny, not Miller, owns the screenplay; and Miller's notice is of no effect. Alternatively, if Miller was an independent contractor vis-à-vis Manny when he wrote the screenplay, and if certain other conditions are satisfied, then Miller is entitled to terminate Manny's and its successors’ rights and, as author, to reclaim his own.

Manny argues primarily that Miller's membership in the Writers’ Guild of America, East, Inc. ("WGA"), and Manny's participation in the producers’ collective bargaining agreement with the WGA in the same period establish that Miller was Manny's employee for Copyright Act purposes. We reject that argument and conclude that Miller was an independent contractor when he wrote the screenplay and is therefore entitled to authorship rights. Accordingly, the notice of termination that he gave under section 203 is effective as to Manny and its successors.

We AFFIRM the District Court's order granting summary judgment to Miller.

BACKGROUND

I. Factual Background

The following statement of the facts is taken from the careful and comprehensive opinion by District Judge Stefan R. Underhill, which was based on the record at summary judgment. See Horror Inc. v. Miller , 335 F. Supp. 3d 273, 285 (D. Conn. 2018). The relevant facts were essentially undisputed by the parties.

Victor Miller is a professional writer of novels, screenplays, and teleplays. Sean S. Cunningham is a producer, director, and writer of feature films. His company, Sean S. Cunningham Films Ltd., is the general partner of Manny Company, a Connecticut limited partnership. Cunningham formed Manny as a corporate vehicle for producing and distributing motion pictures. Miller and Cunningham, then close friends and both residents of Connecticut, began working together professionally in or about 1976. During the five-year period that followed, they collaborated on five motion pictures.

Since 1974, Miller has been a member of the Writers Guild of America, East. The WGA is a federally recognized labor union representing writers in the film and television industry. In 1978, Manny became a signatory to the 1977 WGA Theatrical and Television Basic Agreement (also referred to as the "Minimum Basic Agreement" or the "MBA"), the then-operative collective bargaining agreement governing WGA writers and signatory employers.¹

In 1979, the nationwide success of Halloween , a low-budget horror film, inspired Cunningham to produce his own horror film. Cunningham contacted Miller about the idea. In late spring of 1979, Miller and Cunningham "orally agreed that Miller would write the screenplay for [the] horror film project." App'x at 90. Sometime in June of that year—the document is not dated—Manny and Miller executed an agreement using the 1977 WGA standard form entitled "Writer's Flat Deal Contract" (the "Contract"). Id. at 71, 99. A brief, two-page document entitled "Employment Agreement," it comprised primarily an introduction and six numbered paragraphs. Id. at 99-100. The text affirmed that Miller was a member of the WGA, that Manny was a signatory to the MBA, and that its terms could not be "less advantageous to [Miller] than the minimums provided in said MBA." Id. at 99. It provided that Manny "employ[ed] the Writer"—Miller—"to write a complete and finished screenplay for a proposed motion picture to be budgeted at $under $1 million [sic], and presently entitled or designated Friday 13." Id. In exchange, Manny promised to "pay [Miller] as full compensation for his services" $9,282 in two lump-sum payments: $5,569 for delivery of the first draft of the screenplay, and $3,713 for delivery of the final draft. Id. at 99-100. Each payment was to be made "within forty-eight (48) hours after delivery" of the promised product. Id. at 100. It advised, "this Agreement contemplates payment of the entire agreed[-]upon compensation." Id.

After Cunningham recruited Miller for the project, Miller viewed the recently released Halloween , discussed ideas and locations for the film with Cunningham, and developed the idea for setting the film at a summer camp before the camp seasons opens (Miller suggested the idea; Cunningham agreed). He then wrote a treatment for the horror film, at the time entitled "The Long Night at Camp Blood" (the "Treatment").² Miller next proceeded to write first and second drafts of the related screenplay (the "Screenplay"), and over time revised the second draft, developing the Screenplay in its final form. The revisions included adding references to "Friday the 13th" (the title suggested by Cunningham), and a new ending (one that project investor Phil Scuderi insisted on).

Miller wrote various versions of the Treatment and Screenplay over the course of approximately two months. As with Miller and Cunningham's past collaborations, the two worked closely together to develop the two documents. Miller described how, during the writing process, the pair "enthusiastically bounced ideas off of one another." Id. at 423. 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, on his own typewriter, using his own typewriter ribbon and paper. Miller made use of Cunningham's photocopier and photocopy paper, and Cunningham's assistant retyped the second draft of the Screenplay to reformat the draft to contain certain margin content.

Miller usually did his writing in the morning because he was a "morning person" and preferred to write between "7 a.m. and noon," and not because Cunningham would dictate Miller's specific work hours. Id. at 423. Miller was responsible, however, for conforming his completion of screenplay drafts to the demands of the Film's broader production schedule. Cunningham had no right to assign Miller additional projects beyond the writing of the Screenplay provided in the Contract.

The parties dispute the extent to which Cunningham dictated the contents of the Treatment and Screenplay. Cunningham averred that he "tutor[ed] Miller on key elements of successful horror films," id. at 90, and "retained final authority over what went into, or stayed out of, the Screenplay, id. at 638. According to Cunningham, sometimes, while "Miller drafted on his typewriter, [Cunningham] stood over [Miller's] shoulder making suggestions and contributions." Id. at 638. In contrast, although Miller acknowledges that Cunningham provided "notes or suggestions" on the Screenplay drafts, he contends that "Cunningham did not dictate what [Miller] should do or write." Id. at 664. The parties agree, however, that Cunningham made the following general suggestions: that the killings throughout the movie should be "personal" (and that guns are "impersonal" ways to kill in movies); that the killer should always remain masked; and that a major character should be killed early on. Id. at 78, 195-96, 787.

It is undisputed that, although Cunningham and Miller often collaborated on the Treatment and Screenplay, Miller consistently received "sole ‘written by’ credit" as the screenwriter for the Film. App'x at 639. Indeed, Cunningham stated that he "wanted Miller, [his] friend, to have the screenwriting credit." Id. For example, after Miller completed an early draft of the Treatment, Cunningham revised and edited it to create a version to show to potential investors. Cunningham's revisions included adding a title page that read:

FRIDAY 13

A Screenplay Treatment

By

Victor Miller

The version of the second draft screenplay typed by Cunningham's assistant similarly contained a title page, identically formatted and announcing, "A Screenplay By Victor Miller."

During the same summer, in 1979, Cunningham accepted an offer from investor Phil Scuderi, the principal of Georgetown Productions, Inc. ("Georgetown"), to finance Friday the 13^th in exchange for giving Georgetown "complete control over the Screenplay and the Film." Id. at 94. Cunningham recounted that, after agreeing to this arrangement, Scuderi "provided extensive notes, mark-ups and ideas which were incorporated into the final shooting script and Film itself." Id. at 95. Cunningham did not offer any details on Scuderi's "extensive" changes to the script, except for noting that Scuderi altered the Film's closing scene as follows: Scuderi proposed that, in the final scene, "the character ‘Jason’—who, in Miller's Treatment and Screenplay, died as a young boy and never appears in any of Miller's drafts—emerges from the depths of the lake as a disfigured child, and reaches out of the water to pull one of the main protagonists into the lake." Id.

As Cunningham recalls it,...