American copyright law is being tested in court, with the likes of Disney threatened with losing control over some very lucrative franchise and characters…
Bloodied Bruce Willis and Bonnie Bedelia wrapped in blanket in a scene from the film ‘Die Hard 2’, 1990. (Photo: 20th Century-Fox)
Even as Disney pours millions upon millions into its current plan to reawaken the Predator movie franchise and in turn reboot the once-mighty sci-fi action series – thanks to ongoing development on a new film – there’s a real risk it’ll soon lose its grip on the title character. Not just that, but the right to make any more movies that feature its charming, crabby little face.
It’s thanks to a powerful little provision in copyright law, one that’s currently being tested in the American courts. It might mean a sudden end for the Predator series – or, even more frustratingly for Disney – the possibility of the character being sold to another studio, where it could eventually go on to start the hunt all over again. Even more dramatically, this same copyright clause could soon see a whole raft of big-ticket brand names and movie franchises come crashing to a halt.
It’s all thanks to a crucial ‘termination provision’ that’s tucked away in Section 203 of the United States Copyright Act, a clause that states explicitly that deals made since the law was updated in 1976 can later be cancelled. The fine print is, unsurprisingly, complex but the short version is this: 35 years after selling a screenplay to a movie studio, its authors can reverse the deal and get the copyright back.
Predator was originally written in 1984 by brothers Jim and John Thomas, then sold to 20th Century Fox in 1986. This means that the cancellation due date is now here, and so the Thomas brothers are suing Fox, in its new form as a subsidiary part of Disney, to get the rights back.
Precedent
Disney will have the very best lawyers on this case, as you might imagine, but the law and precedent are both on the Thomas brothers’ side. The key test case, it seems, is a suit back in 2018 where it was determined that the rights to the original Friday The 13th screenplay should revert to its original author, Victor Miller.
Things have proven complex for the Friday The 13th movie copyright, with producer Sean S Cunningham arguing that Miller wrote the script as a piece of work for hire, which would mean that he never owned the copyright in the first place and therefore has no termination rights. This wriggle definitely couldn’t be applied in the Predator case though – Jim and John Thomas’ original script was clearly written ‘on spec’ and sold to Fox later.
Fans of the Friday The 13th series and/or the first scene of 1996’s Scream will be aware that the original Friday movie is somewhat different to the rest of the series. Not only does the famous hockey mask the franchise is renowned for not show up until the third film but – spoilers ahead! – the killer in the first film isn’t actually the character most associated with the franchise, Jason Vorhees. In fact, if Jason appears in the film at all, it’s in a dream sequence at the end of the film, and in which he isn’t named. This means any Miller-powered offshoot would have to skew away at a sharp tangent to the original series. It’s hard to imagine how this is a bad thing, even while it sounds considerably less marketable than more of Jason in his Wayne Gretzky cosplay.
Assuming that Disney does lose the rights to the Predator, what would happen next? It could, of course, simply buy the rights again, if it was so inclined. It’s certainly in the best position to leverage the brand, and has already spent some time and those aforementioned millions developing filmmaker Dan Trachtenberg’s new Predator movie, so there’s certainly incentive for it to stay in the game.
Or perhaps the Thomas brothers would find a better deal elsewhere. This would be where things get really weird, because while this law returns the rights to the screenplay, it doesn’t give the author any rights to the completed movie. The key part is that the look of the Predator will still belong to Disney no matter what happens here. Even if another studio gets its mitts on the original script and can make new films based on its contents, it’d have to steer clear of the well-known character design.
Surely the cinematic value of The Predator is linked to it being recognisable?
And if not the characters’ face, how about is name? Because the screenplay that the Thomas brothers sold was called Hunter, and the film kept that title a long way through development. Predator was definitely a bit of Fox-craft, and besides this, titles aren’t protected by copyright, though they can be trademarked – and Disney owns the Predator trademark.
Overseas
Making things immeasurably more complex on top of US deals is the nature of international copyright law: the transfer cancellation provision affects the rights within the United States, but not everywhere else in the world. Could a new Predator movie, not even called Predator and made without Disney’s input or funding, really be viable when Disney would automatically have the rights to release it internationally? The Lord Of The Rings films were subject to similar wrangling around global rights for just one example, so it’s not impossible. Deals can always be made, but it does seem that the most likely outcome of the Thomas brothers’ action is either a new deal with Disney or no new Predator movies at all.
Predator might just be only the beginning, though. Many other beloved films of the 1980s have original material that is now subject to the same ‘ejector seat’ law. The rights to The Terminator, for example, now lie 50-50 with James Cameron and Gale Anne Hurd, authors of the original early 1980s screenplay, and anybody wanting to make any more Terminator films will have to renegotiate a deal with them both.
From an audience perspective, this could mean the rash of 80s movie re-re-reboots will be winding down soon. It would be nice to fantasises about a wave of new, original stories to take their place, but it’s all too easy to predict, however that the 90s do-overs will kick it up a gear instead. That should keep things looking very familiar for the next few years – until the 2000s remakes take their place, and so on, and so on.
Under threat
So which big-brand series might we have already seen the end of?
The rights to A Nightmare On Elm Street reverted back to the estate of Wes Craven in 2019, putting it in a very similar place as The Terminator series. There had already been one attempt to re-do the series, in 2010, and despite a promising new screenplay from Arrival‘s Eric Heisserer, things went awry on the way to a finished film and what we saw when the movie was released was not at all what was originally intended. That seemed to close the door on Freddy Krueger, at least for a while – and now that door will be a little more expensive, and maybe rather more difficult, to re-open again.
The family of Michael McDowell, author of the original (much revised, not to mention somewhat improvised-over) screenplay for Beetlejuice is exercising its transfer cancellation option too. There have been many attempts to get a Beetlejuice sequel going, including several screenplays set bizarrely in Hawaii, but none of them came to anything concrete, and now it’s less likely than ever that we’ll see some more of Betelgeuse the Bio-Exrocist.
Roderick Thorp’s family meanwhile is looking to get the rights to his aptly-named novel Nothing Lasts Forever back from Fox – thereby ending the Die Hard series, as Thorp’s book formed the basis for the original film. Of all the candidates for a fresh start, this seems like the most likely. There’s certainly a marketing angle here, and the book is distinct enough from the original film version to seem like fresh material, while also maintaining the big ‘terrorists in a tower block’ hook.
Similarly, Gary K Wolf wants to retrieve the rights to his novel Who Censored Roger Rabbit? from Disney, thereby preventing any Who Framed Roger Rabbit sequels without a new deal. It seems like the original Roger Rabbit was a one-off, so I can’t see Disney would be in a rush to re-up with Wolf, but… well, it has enough money to buy the rights to basically everything, so perhaps it will.
Once an author or their estate gives notice that they wish to terminate the transfer and get their rights back, the current copyright holder has two years to take action and make more adaptations or derivative works. We’ve already seen this provoke a studio into production – the recent remake of Pet Semetary was ushered along in the wake of Stephen King issuing his two-year warning on that book’s copyright.
Ahead
Coming up at the end of this year is the reversion of US-based Hellraiser rights back to Clive Barker. Barker is the author of the original story, The Hellbound Heart, and writer-director of the 1987 movie. That reversion is happening on December 19, though it remains unclear what will happen to Hellraiser copyright outside of the US. Just like the Predator case, this might create an impasse where Barker and Park Avenue Entertainment, who hold the rights in the meantime, fail to agree on international plans and we never see the Lament Configuration unlocked again.
Would it simply be a shame for all of these movie series to wrap up or is it more of a mercy? There’s no telling what any sequel might be like, to be fair, but there’s definitely been a trend for long-running movie series to lose its way. Perhaps it’s best that some of these famous faces of film land are laid to rest – and in the cases where a series deserves to run on and new deals are made, that the continued rewards are shared with the original author.
Copyright, like any other law, was never really set in stone and amendments abound. Disney has infamously lobbied for and won several extensions and alterations over the years, reputedly desperate to stop Mickey Mouse from lapsing into the public domain. That particular pursuit seems to be at an end now, however, with original Mickey cartoon Steamboat Willie set to phase out of copyright on 1st January 2024.
The ways things are looking today, Batman, Superman and several of the Looney Tunes will be public domain within the next fifteen years too. The stakes, thus, are high for the movie studios in particular. At the very least, these next few years are set to make a whole bunch of copyright lawyers really rather rich…
Would it simply be a shame for all of these movie series to wrap up or is it more of a mercy? There’s no telling what any sequel might be like, to be fair, but there’s definitely been a trend for long-running movie series to lose their way. Perhaps it’s best that some of these famous faces of film land are laid to rest – and in the cases where a series deserves to run on and new deals are made, that the continued rewards are shared with the original author.
