Copyright Fun Part 2

From Kristine Kathryn Rus ch:

What I want all of you blog readers to do is to think about possibilities. The possibilities exist on two fronts:

  1. What can you do before signing a contract to protect yourself and your copyright?

And

  1. What can you do after you signed a (bad) contract to protect yourself and your copyright?

Copyright law is a constantly changing beast, particularly here in the U.S. How we make money, as artists, is through the licensing of our copyright, not by “selling” our books. If you don’t understand copyright, guaranteed you will get screwed, maybe many times, throughout your writing career. This is why I recommend that writers buy The Copyright Handbook and read it.

I would also suggest that you learn to become a copyright geek, like Dean and I are, excited about the things you learn about copyright each and every year. Take a look at Part One of this series to see some ways to make your copyrights work for you.

This post, and the other two in this limited series, come from the copyright coolness that occurred in 2021. I was going to put this information in my year in review, but there’s simply too much of it. (If you want to read the year in review, start here.)

Copyright law in the United States comes from our founding document, the Constitution of the United States. Lawmakers have made significant changes to that original law throughout our history. Some of the changes are major. Others are minor until they’re used properly (or improperly) by someone.

We’re going to step outside of the book writing sphere to examine a few cases that have sent shivers through the spines of major corporations in 2021.

First, let’s talk about current law. The Copyright Act of 1976 gave creators the ability to reclaim their copyright, lost to a contract or some kind of agreement, 35 years after the agreement was signed.

This 35-year rule, as some call it, nearly upended the music industry as creator after creator tried to reclaim their copyrights from the music industry’s egregious contracts. Some major players in the industry stood to lose entire catalogs of works from artists like Billy Joel.

There were a lot of speculative articles written about 10 years ago, talking about the death of the larger music industry because of this. That was before the industry fought back, with all kinds of expensive lawsuits. The fight ended up being major, especially for artists who did not have the financial (or emotional) wherewithal to handle protracted litigation.

Billy Joel lost his case. Duran Duran lost theirs in 2016 and it made major international news, because the courts held that the British contract governed their copyrights, not the U.S. contracts.

After a bunch of high profile cases, the lawsuits went underground. No company wanted to be known as a company that would allow artists to reclaim their rights. So there are non-disclosures involved with artists who have sued and won, and no major press releases for artists who sued and lost.

(I went deep down a copyright rabbit hole as I was looking at these, and found a bunch of fascinating cases, including one between Cher and Mary Bono, Sonny Bono’s widow. Mary Bono is trying to use the copyright termination to stop paying Cher 50% of the Sonny and Cher royalties. It’s a complicated and probably bitter mess, and one worth keeping an eye on.)

Other industries have either fearfully watched the music industry grapple with this or chuckled behind their hands as they saw the lawsuits going by. But, they shouldn’t have chuckled, because they’re facing some serious issues on their own.

Under U.S. law, there’s a difference between works made for hire, and works that are independently created. Both can become, say, the basis of a movie or a comic book, but the question becomes who owns the copyright to the work.

A work made for hire is owned by the person who employed a writer to create the work. The word “employed” is essential here, and has specific definitions under copyright law.

Quite frankly, some of the book work that Dean and I did in the 1990s does not meet the standard for work-made-for-hire, even though the contract said the books we created were work for hire. That would take a lawsuit to settle, and there’s not enough money in that.

Some of the other books we did as work for hire (which we’ll now discuss as wfh) did fall under that definition.

Works made for hire do not (generally) fall under the 35-year rule, because the writer never owned the copyright in the first place. The writer was playing in someone else’s universe, under the guidance of the universe’s owner (or one of their employees).

But, wfh is not always easy to determine. And sometimes, big corporations just claimed product was wfh when it was not.

With that in mind…

In September of 2021, the 2nd Circuit Court of Appeals decided a case concerning the Friday The 13th franchise based on both the termination clause and California labor law. The 2nd Circuit upheld a lower court’s decision that the screenplay that Victor Miller wrote was not work for hire.

The decision had to delve into the various ways that employment was defined in California, not just the way it was defined under copyright law. In other words, the court had to determine whether or not Miller was an independent contractor when he wrote the screenplay.

If he was, then he could reclaim his rights to that screenplay.

The 2nd Circuit determined that Miller was an independent contractor. He could reclaim the rights to the Friday the 13th screenplay and the way that screenplay was used under U.S. law.

What does this mean? Well, for the franchise, it’s a scary moment (pun intended). Because he could pull their right to use that screenplay, which means they might not be able to distribute the movie any longer.

It’s doubtful that will happen, for a variety of reasons, most of them financial. As The Hollywood Reporter wrote in its coverage of the case:

And there’s still reason for settlement given that the producer retains (nonexclusive) foreign rights as well as intellectual property derived from Friday the 13th sequels, including maybe the monstrous “Jason” character that showed up later in the franchise

In other words, if there is no settlement, then someone would have to figure out how to keep the movies out there, how to handle the foreign rights that probably do not belong to Miller (or maybe that’s a separate lawsuit) and how to handle all the derivative rights to characters, merchandise, sequels and more.

I couldn’t find much on the state of the case at the moment I write this. I’d be surprised if the Friday the 13th franchise lawyers fail to settle this.

I actually hope they do settle, because that’s the best way to handle something this complicated. But the settlement will benefit Miller, because he’ll be asking for a new (and probably much bigger) payday for his 40-year-old work on the franchise.

Link to the rest at Kristine Kathryn Rusch

As regular visitors to TPV know, PG usually doesn’t include the links in the OP from which he excerpts his posts here. PG has followed this practice for many years for a couple of reasons:

  1. He would like it if his excerpts sent visitors to the location of the original post if the excerpts tweak their curiosity. PG has received more than a few emails over the life of TPV that say something like, “I couldn’t figure out why my blog traffic went crazy until I learned that you linked to a post I made there. Thanks!”
  2. He works to to be confident that his excerpts will fall under the Fair Use provisions of the United States copyright laws and similar laws in other nations.

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.