Exchanging The Machete for a Copyright: The New Friday the 13th Lawsuit

Like their antagonists, the slasher films of the 1980’s never die. By our count, there have been eleven renditions of Friday the 13th, ten of Halloween, and eight of Nightmare of Elm Street. Add in the Freddy v. Jason cross-over and that is a whole lot of slasher gore. Good or bad, they just keep coming back as if nothing can stand in their way. Not bad reviews. Not transporting the evil 445 years into the future. And not even silly Rob Zombie remakes. It seems like nothing can stop them. Up until this point, however, Freddy, Jason Voorhees, and Michael Myers have never stared into the face of a copyright lawsuit.

According to a report from The Hollywood Reporter, a lawsuit has been filed in Connecticut questioning who has the rights to license new film versions of Friday the 13th. Here’s the story: Victor Miller wrote the script for the original film back in 1979 and created the characters in some of the sequels. According to the complaint, Miller wrote the script as a “work-for-hire” employee of the Manning Company at the request of Sean Cunningham, its general partner. Thereafter, Georgetown Productions financed the production of the film in exchange for an assignment of the Manny Company’s rights to the screenplay, including any and all copyrights therein.  Now, some 36 years later, Miller is attempting to terminate the grant of rights and reclaim ownership.

To hedge off Miller’s attempts, Plaintiffs Horror, Inc., a successor entity of Georgetown, and the Manny Company, filed suit against Miller, alleging that because the screenplay was written as a “work for hire,” he does not have the right to terminate Horror’s copyright interests under Section 203(a) of the United States Copyright Act. In addition to seeking a declaration of the parties’ respective rights, Horror and the Manny Company seek a determination that Miller has materially breached the Employment Agreement, slandered Horror’s title in “Friday the 13th”, and engaged in unfair trade practices.

We here at Abnormal Use find this suit intriguing, not because of the legal copyright issues, but because of the history behind the making of the Friday the 13th franchise. Miller and Cunningham began working together in 1976. Prior to Friday the 13th, Miller wrote and Cunningham produced family friendly classics such as Here Come the Tigers and Manny’s Orphans. We understand if you have never heard of them. Miller and Cunningham got into the horror genre only after witnessing the huge success of Halloween in 1979. Wanting to capitalize on that success, Cunningham asked Miller to write what is essentially a copycat film placed in a different setting (the stories of Jason Voorhees and Michael Myers took much different paths in the sequels). While we do not know who reaped the most benefits, we assume they both earned a nice check over the years. With this background, we find it silly that Miller and Cunningham are now wanting to fight over the rights to this “novel” idea all of these years later.

Regardless of the outcome, we have not seen the last of Jason Voorhees. A little copyright dispute is nothing for Camp Crystal Lake’s indestructible, machete-wielding mass murderer.

All These Hacks, But Why Should I Care?

In 2002, I had my first exposure to computers with the most basic computer class called “Computers,” where we played games on Mavis Beacon to improve our typing. For many, that would be our last formal education in the world of computing. But look around, in 2016, 84 percent of all stock trades are by high frequency computers, and 86 percent of Americans between 18 and 29 carry around smartphones, the examples of technology and computing integration are nearly endless. Unfortunately, wherever there is money, you will also find those who want to exploit and take advantage of the system. No one ever got robbed at an ATM until ATMs existed and there were no hackers until the Internet and computers existed.

People have always been terrified of being robbed, but being hacked? Many people and businesses still regard hackers as nerds who live in their mother’s basement. But again, it’s 2016, and times have changed, and bank robbers may make the local news, but hackers are making the national news, just look at the recent headlines. But let’s say you aren’t a presidential candidate or never had a MySpace account, you have probably been a victim, but just didn’t pay attention to it. In February 2015, Anthem, the second-largest health insurer in the United States, was hacked, potentially exposing approximately 80 million members’ names, dates of birth, social security numbers, addresses, phone numbers, and email addresses. According to Anthem’s website, the perpetrator’s identity is still undiscovered. In 2014, hackers obtained the names, passwords, email address, physical addresses, and other information from “a large amount” of eBay’s 148 million active members. Need more examples, in the past 4 years, Target, T-Mobile, ScottTrade, JP Morgan Chase, Home Depot, AOL, Adobe, Tumblr, Evernote, Linkedin, and Snapchat have all been hacked, and the list goes on and on.  You can see the biggest data breaches here represented by visually pleasing bubbles.

But, those are all big companies, and sure, though they are losing your information, that’s on them, and hacking won’t impact me in my day to day life, right? Wrong. The reality is that anything that is connected to the Internet is vulnerable, that means your smartphone, your smart TV, and even your car.  In July 2015, a Wired editor volunteered to be the victim of a car-hack. As he drove a Jeep Cherokee down the highway, two programmers took full control of every computerized function within the vehicle, the entertainment system, the dashboard, the steering, the brakes, and the transmission. Chrysler, with the help of the two programmers, has since released a patch to correct the exploit, but other exploits are surely coming.

Unfortunately, short of going off the grid, it isn’t possible to avoid being a victim in the current computerized world. However, the best defense for both businesses and individuals alike is to be proactive. Stop ignoring those updates on your computer (or notices from your car company to return to the dealership to have a patch installed), be skeptical about the email you receive, and change your passwords. In fact, read this guide from Carnegie Mellon about choosing good passwords. For businesses, be smart about what you store electronically and give very real thought to how that information is stored and protected.

Friday Links

Believe it or not, but tomorrow is the 25th anniversary of the release of Pearl Jam’s Ten, the band’s debut album which arrived in stores on August 27, 1991. Those were the days. More than a few of us here at Abnormal Use and Gallivan, White, & Boyd, P.A. have seen the band live over the years. We encourage everyone to spend just a bit of this weekend revisiting that album and its very fine songs “Alive” and “Black.” Early 1990’s alternative rock doesn’t get much better than that.

GWB attorney and current IADC President John T. Lay, Jr. was recently quoted in an article concerning a growing trend in the legal profession: Level Insurance.  If you’d like to read the article, please click here.

Don’t forget that you can follow us on Twitter at @GWBLawfirm! A number of our writers are also on Twitter, as well, including Jim Dedman (@JimDedman), Nick Farr (@NAFarr), Kyle White (@Kyle_J_White), and of course, Stuart Mauney (@StuartMauney).

One of us here at Abnormal Use is moving soon, and in light of that, our favorite tweet of the week comes from music critic Steven Hyden.

Hot Coffee Karma: The Day Was Bound To Happen

I have written about the hot coffee litigation for years. So much so that I suspected that one day I, too, would face my own hot coffee incident. After all, there is only so many times one can say, “Coffee is meant to be served hot and producers shouldn’t be held liable for serving it that way,” before the fates intervened. Karma works that way.  As I anticipated, that day finally came.

Recently, I had an out-of-town deposition that required me to leave my house long before nature intended humans to wake. After the lengthy deposition concluded, I began my sojourn home and thought it wise to acquire a cup of coffee. Thankfully, I found a not-to-be-named establishment selling coffee near the deposition location. I purchased a cup at the drive-thru and proceeded towards the exit to make my way to the interstate. Unfortunately, fate had other plans.

Turning left out of a parking lot with a cup of hot coffee in your right hand is not the best idea. Not able to coordinate the counterclockwise turning of the steering wheel with the proper handling of hot liquid, I squeezed the cup a bit excessively and dropped it. The lid dislodged, and piping hot coffee poured into my lap. And, let me be the first to tell you, it was hot. Really hot. Just how I like to drink it, but not so much how I want it soaking my nether regions. Apparently, karma burns.

Thankfully, I learned a thing or two about hot coffee during my studies (and knew to exercise a bit of common sense). I jumped out of the car (stopping first, of course) and pulled my pants away from my legs rather than allowing the hot coffee to cling to my skin. Thereafter, I engaged in a bit of a “shimmy” typically only acceptable on the dance floor of a wedding reception. In not so scientific terms, the movement kept the clothing fabric separated from the skin and allowed the coffee spill to air dry (or something like that). After several minutes of the “shimmy,” the worst passed. I wiped up the coffee lingering in my car seat with a towel, and  I was out of harm’s way.

While karma may have won the moment, the spill wasn’t the epiphany it may have desired. Rather than learn the horrors of hot coffee, I went right back to the drive-thru and ordered a second cup. I didn’t tell the establishment to lower the temperature. I didn’t call the news to report the hot coffee spill. I didn’t threaten to sue. Nope. Not me. I put that coffee right to my lips and enjoyed that first sip of piping hot nectar just like I always do.

You know why?

Coffee is meant to be served hot and producers shouldn’t be held liable for serving it that way.


Friday Links

More than five years ago, we here at Abnormal Use compiled a list of songs about lawyers and judges. It was quite a feat! If you’re feeling nostalgic or wish to cite to a song about expert witnesses, revisit that list here!

Congratulations to GWB’s Greg Sloan who has been elected Eastern Regional Vice President for the National Association of Railroad Trial Counsel.  The Eastern Region is the largest region of the NARTC with 25 states.

Okay, so who has watched “Stranger Things” on Netflix?

Our favorite tweet of late, from our own Stuart Mauney, deals with the perils of email and vacation.

Suicide Squad Lawsuit In The Works Over Lack Of Joker Screen Time

Last weekend’s Suicide Squad premiere was a huge box office success. In spite of dismal critical reviews, the film raked in receipts in excess of $135 million. Apparently, those moviegoers by-and-large didn’t share the same opinions as the critics – the film has netted a 71 percent audience score on Rotten Tomatoes.  But don’t count Reddit user BlackPanther2016 (“BP”) as one of those posting favorable reviews. He was so disappointed in the film that he has threatened to sue Warner Brothers and DC Comics. Here we go.

According to an Independent report, BP drove over 300 miles from Scotland to London to see the film, and upon seeing it, he was none too pleased with the fruits of his pilgrimage. After demanding a refund from the theater and earning only laughter from its owners, BP claims to be voicing his dissatisfaction in another forum by filing a lawsuit on August 11 against the studio. His legal grounds? BP takes issue with Joker scenes shown in the movie trailers that did not make their way into the film, an act BP claims amounts to “unjust false advertising.”

While we don’t know the allegations that will be contained in this much anticipated complaint, if it is in fact filed, we can only hope that they are somewhat similar to this Reddit user’s epic rant. BP offered the following thoughts on the grave injustice he experienced:

Movie trailers are like food menus, they give you a preview of what you’re gonna get. You look at a McDonald’s menu and you choose to get your favourite burger, presented in a nice picture with pickles, chicken, mild cheese (your favourite, in fact that’s the only reason you’re getting this burger, because you love mild cheese). You use your hard-worked money to pay for this burger, you get the burger, only to find out that this isn’t the burger you ordered. Yes it has pickles and chicken but it doesn’t have mild cheese, it has regular cheese.

Suicide Squad trailers showcased several specific Joker scenes that I had to pay for the whole movie just so that I can go watch those specific scenes that Warner Bros/DC Comics had advertised in their trailers and TV spots. These scenes are: when Joker banged his head on his car window, when Joker says ‘“Let me show you my toys’, when Joker punches the roof of his car, when Joker drops a bomb with his face all messed up and says, ‘Bye bye!’ None of these scenes were in the movie.

I drove 300 miles to London to go watch these specific scenes they had explicitly advertised in their TV ads…and they didn’t show them to me. Adding to this, they were also two specific Katana scenes they advertised that were also the reason I wanted to go watch the movie. These scenes were: Katana’s eyes going black, and a slow motion shot of her and her sword taking souls in a smoky kind of style. These scenes were advertised several times in the first trailer and many TV ads but they didn’t show it to me in the movie. I wasted a lot of money paying and travelling to go watch this movie because of these specific scenes they had advertised to me and all of us saying, ‘Hey, check out our preview! This will all be in our movie, come watch it on the 5th!’ All lies.

BP goes on to say that he is taking matters to court so he can obtain his refund as well as compensation for his fuel costs and the trauma of being embarrassed by people laughing at him for wanting his refund. We completely understand how BP feels. We, too, anticipated much more Joker in the film based on the trailers, and we too were disappointed by his lack of screen time. We also understand that passion of die hard comic fans. (However, we can’t imagine driving 300 miles to meet the actual Joker much less see him in a blockbuster film). Nonetheless, we can’t imagine filing suit over our dissatisfaction with a movie. We understand cut scenes in a trailer can, in some respects, be considered false or deceptive, but what trailer isn’t misleading on some level? Even when all of the trailer scenes make into the final product, we recall countless examples of trailers making a film look like something it is not. Whether it is showing the only “good” scenes or making an otherwise boring drama look like an action film, a trailer’s very purpose is to trick you into seeing the film.

Every movie has scenes that get cut, and often, those cut scenes find their way into the trailers. Unfortunately for BP, he was one of those super fans that actually noticed. At least for BP’s sake, the Joker made his way into the film albeit not as much as he would like. While we understand how he feels, we just can’t seem to quantify his damages.

The Latest Twist In The Ecuadorian Rainforest Pollution Litigation – Chevron Is Victorious In $9.5 Billion Oil Pollution Appeal

Reportedly, a three-judge panel of the Second Circuit, “unanimously affirmed a trial court’s determination that, in 2011, the lead attorney for some 30,000 Ecuadorians had won a $9.5 billion judgment against Chevron by means of bribery, coercion, and fraud.” For those who need background on the underlying case, Steven Dozinger, the lawyer at issue, obtained a $19 billion verdict in Ecuador in 2011 that “was supposed to compensate residents of the Amazon rainforest in eastern Ecuador for contamination allegedly left behind by Texaco, which drilled for oil in the region from 1964 to 1992. (Chevron acquired Texaco in 2001.).” The Ecuadorian judgment was then reduced in 2013 from $19 billion by the Ecuadorian Supreme Court. Apparently, Chevron owns no property in Ecuador, so there was no mechanism by which the judgment could be enforced in Ecuador, so the Plaintiffs attempted to enforce the judgment in Canada, and in September of 2015, “the highest court in Canada . . . ruled that villagers can move forward with an effort to seize assets tied to the oil company.”

Meanwhile, Chevron filed suit in federal court in New York, and Judge Lewis Kaplan concluded that “Donziger had won the judgment against Chevron in Lago Agrio, Ecuador, Kaplan . . . , by engaging in extortion, wire fraud, obstruction of justice, witness tampering, money laundering, bribery, and Foreign Corrupt Practices Act violations in a pattern of conduct that also amounted to a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO).”  Interestingly, the decision did not address the merits of the underlying pollution case; it simply said that the methods by which Dozinger acquired the judgment were improper and that no one could enforce the judgment in the U.S. or profit from it in the United States. The recent Second Circuit opinion affirmed Judge Kaplan.

This is an interesting development in a lengthy saga that has involved PR campaigns by both Chevron and Dozinger. Chevron also filed suit in Gibraltar against Amazonia Recovery Ltd, the company set up by Plaintiffs’ attorneys to collect the Ecuadorian judgment and obtained a $28 million verdict. According to Dozinger, “the villagers have filed standard collection actions against Chevron in jurisdictions where the company maintains substantial assets (thus far, Canada, Brazil, and Argentina).” This is an interesting, monstrous piece of litigation that has cost everyone involved an extraordinary amount of money. Judging by the appearances listing on the U.S. District Court opinion, this case has kept plenty of lawyers on both sides busy for a long time. It will be interesting to see what happens next.

Friday Links


So, we’re only somewhat excited by the release of Suicide Squad, which seems both intriguing and silly at the same time. We remember the comic book from the 1980’s, and although we here at Abnormal Use may have owned an issue or two, we don’t remember reading them. In fact, our editor most definitely owned 1987’s Suicide Squad #1, the cover of which is depicted above. But we just don’t know if we can bring ourselves to see the new film at the theaters. Alas, as they say.

We are told that today is the 50th anniversary of the release of Revolver by The Beatles. Can you imagine that five decades ago a band released such gems as “She Said, She Said,” “Eleanor Rigby,” and “For No One” all on the same album? That’s an amazing feat.

Our favorite legal tweet of late comes from our own John Cuttino, and you can probably guess why.


Tattoos: Who Really Owns Them?

Last year, Take-Two Interactive, the parent company of 2K Sports, was sued in a New York federal court for the unauthorized reproduction of tattoo designs featured on the bodies of players in the popular NBA 2K video game series. The plaintiff, Solid Oak Sketches, alleged that it owned copyrights on several tattoo designs on the bodies of LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan, and Eric Bledsoe, and, in an era increasing video game realism, 2K infringed on its rights in creating the players’ likeness. Solid Oak sought damages in excess of $1 million.

According to reports, 2k recently scored the dismissal of a huge chunk of the plaintiff’s claims. Judge Laura Taylor Swain dismissed the plaintiff’s claim for statutory damages under U.S. Copyright law on the grounds that the first of the series of infringements occurred before the works in question were registered with the U.S. Copyright Office. The tattoo designs were apparently registered in 2015, some two years after the release of NBA 2K14. In lieu of statutory damages, the plaintiff can still seek actual damages related to lost income for the tattoos’ appearances.

While the ruling is significant in terms of damages (the plaintiff sought up to $150,000 per infringement), 2K was saved by the timing limitations of copyright law. The bigger legal issue still remains – who really owns a tattoo after it has, in fact, been tattooed onto a body? As fans of tattoos, we recognize that a tattoo is indeed a piece of art. The tattoo artist is an “artist” and the human body is his/her “canvas.” On the other hand, a tattoo differs from a traditional piece of art in one key area. The tattoo is placed onto a canvas that itself has legal rights. When a traditional artist creates a painting, he owns the canvas on which his design comes to life (until it is sold). Obviously, that is not the case with tattoos. While money is exchanged for the design and work, the tattoo artist never owns the human canvas.

In any event, we respect the tattoo artist’s right not to have his work ripped off. We could certainly argue that a tattoo artist should never replicate another artist’s work on an ethical, if not legal, basis. But, this is not the situation in the 2K case. 2K is creating a player’s likeness which necessarily includes tattoos, hairstyles, eyes, height, weight, et cetera. 2K is not seeking to make a profit off of the tattoos themselves any more than Nike is by placing an image of Lebron James on a t-shirt. The tattoos are a part of the player and necessarily come along with him.  If Solid Oak prevails, conceivably every image of Lebron James, Kobe Bryant, et cetera on a t-shirt, poster, or basketball card is a case of copyright infringement.

The truth is that the tattoo designs are out in the public domain. Such is the case when one places a visible tattoo on a public figure whose career necessitates that his arms be exposed. Certainly, Solid Oak knew that its designs where going to be all over when it chose to tattoo the most popular basketball player on the planet.