[co-author: Marisa Masters]*
With Halloween 2020 having just passed, we thought it was important to remember two of the spookiest of intellectual property cases, in particular, those copyright cases addressing issues with well-known horror movies.
GALLAGHER v. LIONS GATE ENTERTAINMENT, INC.
The Cabin in the Woods is a 2011 film that starts off as a typical horror movie, but slowly evolves into a genre-bending plotline that is seen as satirical and even an “anti-horror, horror movie”. In the 2015 case, Gallagher v. Lions Gate Entertainment Inc. 1
, Peter Gallagher, the author of The Little White Trip: A Night in the Pines, brought suit against Lions Gate Entertainment Inc. for copyright infringement of his book published in 2006. Gallagher based his argument of copyright infringement on the allegation that The Cabin in the Woods copied his book substantially, in addition to having access to the book.
When determining whether two works are substantially similar, the Ninth Circuit has consistently used a two-part test that requires the plaintiff to prove substantial similarity under both an extrinsic and intrinsic test. The extrinsic test is an objective analysis of specific expressive elements in each work, whereas the intrinsic test is a subjective analysis that relies on whether a reasonable audience would consider the two works substantially similar as a whole.
The court analyzed nine factors comparing the movie and book using the extrinsic test, including plot, characters, setting, dialogue, mood, pace, sequence of events, themes, and random alleged similarities. While the movie and the book were similar with respect to the basic premise of a group of young adults venturing into the wilderness who are subsequently manipulated by a third party, everything else about the movie and the book was different. It’s important to note, also, the scenes a faire of horror movies that is present in both the movie and the book: a group of young adults venturing off into the wilderness and being murdered. Importantly, The Cabin in the Woods has a comical aspect, making it more of an “anti-horror horror movie”, whereas Gallagher’s book follows the common themes and plot of a typical horror story. Finding no substantial similarity after reviewing both works in their entireties, the Court granted Lions Gate’s motion to dismiss with prejudice.
HORROR INC. v. MILLER (THE DREADED THIRTY-FIVE YEAR COPYRIGHT TERMINATON RIGHT)
Perhaps one of the most well-known and most-referenced horror movie franchises of all time, Friday the 13th, was the subject of the 2018 case, Horror Inc. v. Miller 2. Even the case opinion written by United States District Judge Stefan R. Underhill, emphasizes and appreciates the spookier elements of this case, “Nearly 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.” (Horror, 283). The Copyright Act of 1978 went into effect just a year prior to the writing of the original screenplay for Friday the 13th. An important aspect of The Copyright Act of 1978 for this case in particular, introduced the ability of copyright owners to terminate grants of their copyright interests and reclaim their copyrights starting 35 years after they first transferred their rights. (Horror, 283-284). This termination right does not apply, however, in cases where the work was done as a work-for-hire. A “work made for hire” can be defined as either (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 for hire.
After seeing how successful the movie Halloween was, Sean Cunningham contacted Victor Miller to collaborate on a horror movie project, filling the roles as Miller as the screenwriter and Cunningham as the producer. Miller effectively relinquished his rights in the project to the Manny Company, an entity created by Cunningham, and further, to the production company, Horror Inc. In this case, Horror Inc. and Manny were seeking a declaration that the work was created as a work-for-hire, and thus, Miller would not be able to terminate their ongoing exploitation of the copyright. Ultimately, the U.S. District Court of Connecticut held that the screenwriter, Miller, was an independent contractor when he wrote the screenplay, and so, the screenplay was not a work-for-hire under the Copyright Act. In particular, Miller was neither an employee of the plaintiffs nor was the work specially commissioned for use in one of the nine types of specifically enumerated works set out above, and the parties did not expressly agree to the work-for-hire status in a signed writing. Therefore, the court granted summary judgment for Miller, asserting the validity of his termination of Horror Inc. and successor Manny’s rights. Now, Miller is the sole owner of the copyright in the screenplay for Friday the 13th.