Horror Inc. v. Miller (335 F. Supp. 3d 273, 2018)

Stefan R. Underhill, United States District Judge

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.

This is a case about copyright ownership in the screenplay to the original Friday the 13th film. The Copyright Act, which went into effect in 1978, only a year before the screenplay was written, provided authors with a new and important benefit-the ability to terminate grants of their copyright interests and reclaim their copyrights, beginning thirty-five years after they first transferred their rights. The termination right was established to permit authors to access the long tail of proceeds from a successful work that they could not initially have anticipated when they conveyed away their rights. The important exception to the Copyright Act's termination right is that the copyright in "works made for hire" by an employee, and, in limited circumstances, an independent contractor, cannot be clawed back. The termination right cannot apply in such cases because the hiring party is itself considered the initial author of the work.

The defendant in this declaratory judgment action is Victor Miller ("Miller"), the credited screenwriter of the original Friday the 13th screenplay. In 1979, Miller was contacted by his friend, Sean Cunningham ("Cunningham"), an already successful producer, to collaborate on a horror film project-with Miller as the screenwriter and Cunningham as the producer. The duo's process was informal, meeting at each other's homes and at coffee shops in the southern Connecticut area. But the deal was also papered over, and Miller, a Writer's Guild of America ("WGA") member, was officially hired to write the screenplay for the film pursuant to a short form-agreement by the Manny Company ("Manny"), an entity formed by Cunningham that was a party to the WGA collective bargaining agreement. The agreement between Miller and Manny was silent regarding authorship of the screenplay (as that term is used in the Copyright Act) but Miller plainly relinquished any control over the exploitation of the screenplay to Cunningham and Manny. Cunningham and Manny eventually sold their interest in the film, and the runaway hit earned Manny's successors in interest significant profits. Now, more than three decades later, Miller has timely filed and served notices purporting to terminate any permission he granted to Manny and its successors to exploit his work.

Manny and Manny's latest successor-in-interest, Horror Inc. ("Horror") have brought the present action seeking a declaration that Miller prepared the screenplay as a work for hire, and thus never held authorship rights in the work and cannot terminate Horror's ongoing exploitation of the copyright. Miller has counterclaimed seeking a declaration of the validity of his termination of Horror's and Manny's rights.

Understanding the context of this case requires understanding what is not in dispute. This is not a case where the parties signed a written agreement that expressly provided that Miller's work was being commissioned as a work made for hire. Such a writing is one of two paths to work-for-hire status, and writings of that type are the norm in the motion picture industry.

Horror's and Manny's remaining path to work-for-hire status for Miller lies in the argument that Miller produced the work as Manny's employee, within the scope of his employment. Perhaps concerned by the implications of Miller's casual relationship with Cunningham, however, Horror and Manny do not focus on the traditional agency-law analysis mandated by the Supreme Court for determining employee status under the Copyright Act. Horror and Manny propose a sort of "no further inquiry" rule of employee status resulting from Miller's hiring, as a WGA member by a signatory to the WGA collective bargaining agreement. Unfortunately for Horror and Manny, the Supreme Court's agency-law analysis does not allow any exceptions for union members, and under the proper agency analysis Miller was not Manny's employee. Accordingly, the screenplay written by Miller was not a work-for-hire.

I. Background

Victor Miller is a professional writer of novels, screenplays and teleplays, and has been a member of the Writers Guild of America, East, Inc. ("WGA") since 1974. [Plaintiffs' 56(a)(1) Statement ("Pls.' Facts"), Doc. No. 43-2, at ¶ 2; Defendant's 56(a)(1) Statement ("Def.'s Facts"), Doc. No. 45-3, at ¶ 1.] Sean S. Cunningham is a producer, director, and writer of feature films, who began producing and directing films in 1970. [Declaration of Sean S. Cunningham ("Cunningham Decl."), Doc. No. 43-4, at ¶ 2.] Cunningham's involvement in filmmaking is primarily coordinated through Sean S. Cunningham Films, Ltd. ("SSCF"), of which Cunningham is a principal. [Cunningham Decl., Doc. No. 43-4, at ¶ 2; Pls.' Facts, Doc. No. 43-2, at ¶ 1.] In 1976, Miller and Cunningham, who were already close friends [Def.'s Facts, Doc. No. 45-3, at ¶ 4], began working together on motion picture projects, starting with a film titled Here Come the Tigers [Pls.' Facts, Doc. No. 43-2, at ¶¶ 4-5]. Here Come the Tigers was a "non-union project", written by Miller and produced and directed by Cunningham. [Pls.' Facts, Doc. No. 43-2, at ¶¶ 6-7.]

In 1978, Miller and Cunningham again collaborated on another film, Manny's Orphans . In order to develop Manny's Orphans , Cunningham and his company, SSCF, formed The Manny Company ("Manny"), a Connecticut Limited Partnership, with Cunningham and SSCF as its general partners. [Def.'s Facts, Doc. No. 45-3, at ¶¶ 2-3.] In order to engage Miller to work on Manny's Orphans , Miller was hired by Manny, which had become a signatory to the then-operative collective bargaining agreement between the WGA and signatory industry employers, the 1977 WGA Theatrical and Television Basic Agreement (the "Minimum Basic Agreement" or "MBA"). [Pls.' Facts, Doc. No. 43-2, at ¶ 11.]

On each film, the nature of Miller's and Cunningham's working relationship remained the same: while Miller was writing the screenplay, he and Cunningham would meet at each other's homes, Cunningham's home office, a local diner, or over the phone, in order to exchange ideas. [Cunningham Decl., Doc. No. 43-4, at ¶ 6; Pls.' Facts, Doc. No. 43-2, at ¶¶ 7, 12; Defendant's 56(a)(2) Response ("Def.'s Obj. to Pls.' Facts"), Doc. No. 51-3, at ¶ 12.]

In 1979, the success of the low-budget horror film Halloween inspired Cunningham to make a horror film. [Pls.' Facts, Doc. No. 43-2, at ¶ 13; Def.'s Facts, Doc.

No. 45-3, at ¶ 6.] Cunningham contacted Miller to solicit his involvement as a writer for the film. [Pls.' Facts, Doc. No. 43-2, at ¶ 14; Plaintiffs' 56(a)(2) Response ("Pls.' Obj. to Def.'s Facts"), Doc. No. 47-2, at ¶ 6; Def.'s Facts, Doc. No. 45-3, at ¶ 6.] Miller agreed to work on the project, and, at some point in time over the course of working alone and with Cunningham on a story and script, Miller entered into a "Writer's Flat Deal Contract" (the "Contract") with Manny. [Pls.' Facts, Doc. No. 43-2, at ¶ 25; Def.'s Facts, Doc. No. 45-3, at ¶ 17.]

The Contract itself is a brief form agreement with blanks to be filled in by the parties. Styled as an "EMPLOYMENT AGREEMENT", it states that "[t]he Company employs the Writer to write a complete and finished screenplay for a proposed motion picture ... presently entitled or designated Friday 13." [Ex. B, Cunningham Decl., Doc. No. 43-6] The form allows the parties to check various boxes to designate whether the work product called for in the agreement will include a "Treatment", "Original Treatment", "Story", "First draft screenplay", "Final draft screenplay", or "Rewrite of screenplay", and only the boxes for "First draft screenplay" and "Final draft screenplay" are checked. [Ex. B, Cunningham Decl., Doc. No. 43-6.] The form also includes a section in which the parties can identify pre-existing materials on which the agreed-upon work product will be based ("based upon (describe form of material & title) ___________ written by ___________"). [Ex. B, Cunningham Decl., Doc. No. 43-6.] In the Contract, the "Writer" represents that he is a member in good standing of the Writers Guild of America, and the Contract provides that, "[s]hould any of the terms hereof be less advantageous to the Writer than the minimums provided in [the] MBA, then the terms of the MBA shall supersede such terms" and that, in the event the Contract fails "to provide for the Writer the benefits which are provided by the MBA, then such benefits for the Writer provided by the terms of the MBA are deemed incorporated herein." [Ex. B, Cunningham Decl., Doc. No. 43-6.] The form agreement provides a fillable blank where the total lump sum payable to the "Writer" can be filled in, and the total sum of $9,282 was filled in. [Ex. B, Cunningham Decl., Doc. No. 43-6.] The form agreement also includes a series of fillable blanks where the total lump sum payment designated for the "Writer" can be subdivided into component amounts payable for delivery of a treatment, first draft screenplay, final draft screenplay, etc., and only the blanks designating amounts payable for a first draft screenplay and final draft screenplay are filled in (calling for payments of $5,569 and $3,713, respectively). [Ex. B, Cunningham Decl., Doc. No. 43-6.] Finally, the Contract provides that, following completion of any deliverable by the Writer, the Company has three days to call for changes to such deliverable, after which, such deliverable shall be deemed approved. [Ex. B, Cunningham Decl., Doc. No. 43-6.]

At some point in time following Cunningham's recruitment of Miller for the horror film project, Miller saw Halloween [Def.'s Facts, Doc. No. 45-3, at ¶ 7], discussed ideas and locations for the film with Cunningham [Pls.' Facts, Doc. No. 43-2, at ¶ 18], came up with the idea for setting the film at a summer camp before it opens [Pls.' Facts, Doc. No. 43-2, at ¶ 20], wrote a 16-page treatment for the horror film titled "The Long Night at Camp Blood" [Def.'s Facts, Doc. No. 45-3, at ¶ 7; Pls.' Obj. to Def.'s Facts, Doc. No. 47-2, at ¶ 7] , wrote a first draft screenplay and second draft screenplay [Def.'s Facts, Doc. No. 45-3, at ¶¶ 8, 10; Pls.' Obj. to Def.'s Facts, Doc. No. 47-2, at ¶¶ 8, 10], and made revisions to the second draft screenplay, including adding a new ending [Def.'s Facts, Doc. No. 45-3, at ¶ 12].

Miller wrote the various versions of the treatment and screenplay over the course of approximately two months. [Def.'s Facts, Doc. No. 45-3, at ¶ 16] As with Miller's and Cunningham's prior collaborations, 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. [Pls.' Facts, Doc. No. 43-2, at ¶ 49; Miller Decl., Doc. No. 45-1, at ¶ 15; Cunningham Supp. Decl., Doc. No. 47-1, at ¶ 12.] Among the ideas Cunningham contributed were the suggestion that the killings that occur in the movie should be "personal" (and that guns are "impersonal" ways to kill in movies), that the killer should remain masked at all times, and that a major character should be killed early on. [Miller Dep., Doc. No. 43-16, at 89:15-90:11, 189:23-190:17.].

Miller wrote the treatment and screenplay on his own typewriter, using his own typewriter ribbon and paper. [Def.'s Facts, Doc. No. 45-3, at ¶ 14; Pls.' Obj. to Def.'s Facts, Doc. No. 47-2, at ¶ 14; Def.'s Obj. to Pls.' Facts, Doc. No. 51-3, at ¶ 51; Miller Decl., Doc. No. 45-1, at ¶ 15.] Miller made use of Cunningham's photocopier and photocopy paper, and Cunningham's assistant re-typed the entire second draft of the screenplay to reformat the draft to contain the proper margin content. [Def.'s Facts, Doc. No. 45-3, at ¶ 14; Pls.' Obj. to Def.'s Facts, Doc. No. 47-2, at ¶ 14; Pls.' Facts, Doc. No. 43-2, at ¶ 51; Def.'s Obj. to Pls.' Facts, Doc. No. 51-3, at ¶ 51; Miller Decl., Doc. No. 45-1, at ¶ 15.] Miller usually did his writing in the morning because he was a "morning person" [Miller Decl., Doc. No. 45-1, at ¶ 17], and not because Cunningham would dictate Miller's specific work hours [Miller Decl., Doc. No. 45-1, at ¶ 17; Pls.' Opp. Br., Doc. No. 47, at 26-27]. Miller was responsible, however, for conforming his completion of screenplay drafts to the demands of the film's broader production schedule. [Pls.' Obj. to Def.'s Facts, Doc. No. 47-2, at ¶ 15; Cunningham Supp. Decl., Doc. No. 47-1, at ¶ 16.] Cunningham did not have the right to assign additional projects beyond the writing of the treatment and screenplay to Miller. [Def.'s Facts, Doc. No. 45-3, at ¶ 20; Pls.' Obj. to Def.'s Facts, Doc. No. 47-2, at ¶ 20.] Cunningham, and later on, even an eventual investor, Phil Scuderi ("Scuderi") did suggest revisions and additions for Miller to make to the screenplay, and occasionally required revisions and additions over Miller's objections. [Pls.' Obj. to Def.'s Facts, Doc. No. 47-2, at ¶ 20; Cunningham Decl., Doc. No. 43-4, at ¶ 29; Cunningham Supp. Decl., Doc. No. 47-1, at ¶ 13.]

Once Miller had completed an early draft of the treatment, Cunningham revised and edited the treatment in order to create a version to show to potential investors. [Cunningham Decl., Doc. No. 43-4, at ¶ 22; Miller Dep., Doc. No. 43-16, at 180:17-181:24, 274:23-276:11.] Cunningham's revisions included adding a title page that read:

FRIDAY 13

A Screenplay Treatment

By

Victor Miller

and included a copyright notice in the name of Sean S. Cunningham Films, Ltd., which was the general partner of Manny. [Ex. D, Cunningham Decl., Doc. No. 43-8; Cunningham Decl., Doc. No. 43-4, at ¶ 22; Miller Dep., Doc. No. 43-16, at 274:23-276:11.] The version of the second draft screenplay typed by Cunningham's assistant likewise contained a title page with identical formatting that stated "A Screenplay By Victor Miller" and that also included a copyright notice in the name of Sean S. Cunningham Films, Ltd. [Ex. G, Cunningham Decl., Doc. No. 43-11; Cunningham Decl., Doc. No. 43-4, at ¶ 26; Miller Dep., Doc. No. 43-16, at 212:8-213:5.] Miller received a copy of the screenplay draft that contained the copyright notice in the name of Sean S. Cunningham Films, Ltd. [Cunningham Decl., Doc. No. 43-4, at ¶ 26; Miller Dep., Doc. No. 43-16, at 212:8-213:5].

One potential investor who had expressed an interest in the film was Scuderi, principal of Georgetown Productions, Inc. ("Georgetown"). [Pls.' Facts, Doc. No. 43-2, at ¶ 23; Def.'s Obj. to Pls.' Facts, Doc. No. 51-3, at ¶ 23; Cunningham Decl., Doc. No. 43-4, at ¶ 12.] Cunningham eventually provided an early draft of the screenplay to Scuderi, and after reviewing the draft, at some point between late July and mid-August 1979, Scuderi agreed to finance the entire $500,000 budget of the film in exchange for Georgetown having complete control over the screenplay and ultimate film. [Cunningham Decl., Doc. No. 43-4, at ¶¶ 27-28.] Pre-production of the film began shortly thereafter, in mid-August 1979 and principal photography began in or about September 1979. [Cunningham Decl., Doc. No. 43-4, at ¶ 27.] Following his joining the project, Scuderi, acting on Georgetown's behalf, provided his own input and ideas, which were occasionally incorporated into the screenplay and film despite Miller's misgivings. [Cunningham Decl., Doc. No. 43-4, at ¶¶ 28-29].

For his work on the treatment and screenplay, Miller was paid $9,282 in 1979-the total lump sum called for under the Contract for Miller's work. [Pls.' Obj. to Def.'s Facts, Doc. No. 47-2, at ¶ 27; Ex. B, Cunningham Decl., Doc. No. 43-6.] Disputes arose as early as 1980 regarding whether Miller was receiving additional sequel and residual payments allegedly due to him under the MBA, and in 1989 Miller received an additional $27,396.46 in settlement of such disputes. [Pls.' Facts, Doc. No. 43-2, at ¶ 65-67; Ex. X, Haye Decl., Doc. No. 43-29, at 327-29; Miller Dep., Doc. No. 43-16, at 234:16-250:19.] Since that time, Miller has received additional sequel and residual payments, totaling approximately $200,000. [Pls.' Obj. to Def.'s Facts, Doc. No. 47-2, at ¶ 28; Miller Dep., Doc. No. 43-16, at 262:16-263:1.] Manny did not directly provide Miller with any traditional employee benefits (e.g., vacation pay or plans, health care plans, insurance plans, pension plans) during his brief period of work on the treatment and screenplay [Miller Decl., Doc. No. 45-1, at ¶ 24], and there is no indication that Manny or any other entity ever made contributions to WGA health care or pension plans related to Miller's work on the treatment or screenplay [Parsignault Decl., Doc. No. 55-1 at ¶¶ 1-9]. Manny also paid Miller the lump sum payments due to him under the agreement without any deductions or withholding for taxes, Social Security or Medicare. [Def.'s Facts, Doc. No. 45-3, at ¶ 27; Miller Decl., Doc. No. 45-1, at ¶ 22.]

Friday the 13th was released on or about May 9, 1980 and was an immediate hit. [Pls.' Facts, Doc. No. 43-2, at ¶ 60; Def.'s Obj. to Pls.' Facts, Doc. No. 51-3, at ¶ 60.] Miller was provided with exclusive "written by" credit for the film. [Def.'s Facts, Doc. No. 45-3, at ¶ 32; Pls.' Obj. to Def.'s Facts, Doc. No. 47-2, at ¶ 32.] Two days before the public release of the film, Manny sold to Georgetown all of its "right, title and interest" in and to the screenplay. [Pls.' Facts, Doc. No. 43-2, at ¶ 59; Ex. H, Cunningham Decl., Doc. No. 43-12.] The agreement between Manny and Georgetown described the screenplay as "written by Victor Miller, as author for [Manny]", and Manny "represent[ed] and warrant[ed]" in the agreement "[t]hat Victor Miller is the sole author of the [s]creenplay." [Ex. H, Cunningham Decl., Doc. No. 43-12.] In the agreement, Manny transferred to Georgetown, among other rights, "the right to copyright the [s]creenplay". [Ex. H, Cunningham Decl., Doc. No. 43-12.]

On September 26, 1980, Georgetown obtained a copyright registration for the film, which claimed copyright in the "entire work" including the "screenplay, remaining musical compositions and other literary and cinematographic materials". [Ex. O, Haye Decl., Doc. No. 43-20.] The copyright registration lists Georgetown as the author of the work as a work made for hire. [Ex. O, Haye Decl., Doc. No. 43-20.] The Copyright Office's digital version provides a "written by" credit to Miller.

Plaintiff Horror, Inc. acquired its rights and interests in the Friday the 13th franchise and the original Friday the 13th film and screenplay from its predecessors-in-interest Georgetown, Jason Productions Inc. (a/k/a Jason, Inc.), Friday Four Inc., and Terror Inc. [Barsamian Decl. at ¶ 4.] On January 26, 2016, Miller served a termination notice (the "First Termination Notice") pursuant to 17 U.S.C. § 203(a) on Paramount Pictures Corporation, Sean S. Cunningham Films, Ltd., Warner Bros. Entertainment Inc., New Line Film Productions Inc., and Crystal Lake Entertainment, purporting to terminate the grants of Miller's rights under the copyrights in and to the screenplay made to Manny on July 6, 1979, pursuant to the Contract entered into on June 4, 1979. [Toberoff Decl., Ex. H, Doc. No. 45-2] The First Termination Notice stated an effective date of termination of January 25, 2018. [Toberoff Decl., Doc. No. 45-2 at ¶ 9.] Miller's attorney recorded the First Termination Notice with the U.S. Copyright Office prior to January 25, 2018. [Toberoff Decl., Doc. No. 45-2 at ¶ 10.]

On June 27, 2016, Miller served a second termination notice (the "Second Termination Notice") on the aforementioned companies as well as Horror, Inc., Robert Barsamian, Jason, Inc., Terror, Inc., Georgetown Productions, Inc., Belmont Management, Inc., Jason Productions Inc., and Friday Four, Inc., again purporting to terminate the grants of Miller's rights under the copyrights in and to the screenplay made to Manny on July 6, 1979, pursuant to the Contract entered into on June 4, 1979. [Toberoff Decl., Ex. J, Doc. No. 45-2.] The Second Termination Notice stated an effective date of termination of July 1, 2018. [Toberoff Decl., Doc. No. 45-2 at ¶ 11.] Miller's attorney mailed the Second Termination Notice to the U.S. Copyright Office for recording on June 28, 2016-i.e., prior to July 1, 2018. [Toberoff Decls., Doc. No. 45-2 at ¶ 12; Ex. K, Toberoff Decl., Doc. No. 45-2; Pls.' Obj to Def.'s Facts, Doc. No. 47-2, at ¶ 36.]

On July 14, 2016, Miller served a third termination notice (the "Third Termination Notice") on the same companies served with the Second Termination Notice, modifying only the addresses of some of the recipients. [Toberoff Decl., Doc. No. 45-2 at ¶ 13; Ex. L, Toberoff Decl., Doc. No. 45-2] The Third Termination Notice stated an effective date of termination of July 15, 2018. [Toberoff Decl., Doc. No. 45-2 at ¶ 13; Ex. L, Toberoff Decl., Doc. No. 45-2.] Miller's attorney mailed the Third Termination Notice to the U.S. Copyright Office for recording on July 22, 2016-i.e., prior to July 15, 2018. [Toberoff Decls., Doc. No. 45-2 at ¶ 15; Ex. N, Toberoff Decl., Doc. No. 45-2.]

Horror and Manny commenced the present lawsuit on August 24, 2016, seeking a declaration: that the screenplay was written by Miller as a "work made for hire" as that phrase is used in the Copyright Act, and thus that Miller does not have any right to terminate Horror's copyright interests in the screenplay, that each of Miller's termination notices are therefore invalid, that Horror is entitled to continue to exclusively exploit the copyright in the screenplay throughout the entire copyright term, and that Miller's termination notices constitute a material breach and repudiation of his "[e]mployment agreement" with Manny. [Compl., Doc. No. 1.] Plaintiffs also seek an alternative declaration, in the event that any of Miller's termination notices are deemed valid, limiting the elements of the screenplay to which the termination applies to only those creative elements in the screenplay that can be identified as having been created by Miller. Plaintiffs have also brought a series of state law claims against Miller, all of which rely on the alleged illegitimacy of Miller's termination notices. [Compl., Doc. No. 1.] On November 17, 2016, Miller filed a counterclaim seeking a declaration that the screenplay was not prepared as a work for hire, and thus a determination that at least one of his three termination notices is valid. [Counterclaim, Doc. No. 37.] Cross-motions for summary judgment regarding the work for hire claims and the legitimacy and effect of Miller's termination notices followed. [Motions for Summary Judgment, Doc. Nos. 43, 45.]

II. Standard of Review

Summary judgment is appropriate when the record demonstrates that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment).

When ruling on a summary judgment motion, the court must construe the facts of record in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Adickes v. S.H. Kress & Co. , 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; see also Aldrich v. Randolph Cent. Sch. Dist. , 963 F.2d 520, 523 (2d Cir. 1992) (court is required to "resolve all ambiguities and draw all inferences in favor of the nonmoving party"). In the context of cross-motions for summary judgment, the same standard is applied, however, in deciding each motion, the court must construe the evidence in the light most favorable to the respective non-moving party. See Scholastic, Inc. v. Harris , 259 F.3d 73, 81 (2d Cir. 2001).

When a motion for summary judgment is properly supported by documentary and testimonial evidence, the nonmoving party may not rest upon the mere allegations or denials of the pleadings, but must present sufficient probative evidence to establish a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Colon v. Coughlin , 58 F.3d 865, 872 (2d Cir. 1995).

"Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci , 923 F.2d 979, 982 (2d Cir. 1991) ; see also Suburban Propane v. Proctor Gas, Inc. , 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits evidence that is "merely colorable," or is not "significantly probative," summary judgment may be granted. Anderson , 477 U.S. at 249-50, 106 S.Ct. 2505.

The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.

Id. at 247-48, 106 S.Ct. 2505. To present a "genuine" issue of material fact, there must be contradictory evidence "such that a reasonable jury could return a verdict for the non-moving party." Id. at 248, 106 S.Ct. 2505.

If the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof at trial, then summary judgment is appropriate. Celotex , 477 U.S. at 322, 106 S.Ct. 2548. In such a situation, "there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 322-23, 106 S.Ct. 2548 ; accord Goenaga v. March of Dimes Birth Defects Found. , 51 F.3d 14, 18 (2d Cir. 1995) (movant's burden satisfied if he can point to an absence of evidence to support an essential element of nonmoving party's claim). In short, if there is no genuine issue of material fact, summary judgment may enter. Celotex , 477 U.S. at 323, 106 S.Ct. 2548.

III. Discussion

This case presents complicated and interesting questions of authorship and ownership of the copyright in the screenplay for the well-known, original Friday the 13th movie. The Copyright Act of 1976 provides that copyright ownership vests initially in the author or authors of a copyrighted work, 17 U.S.C. § 201(a), and the initial "author" is usually considered to be "the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection", Community for Creative Non-Violence v. Reid , 490 U.S. 730, 737, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (hereinafter " CCNV "). In the case of a "work made for hire", however, "the employer or other person for whom the work was prepared is considered the author" of the work and the initial owner of the copyright therein. 17 U.S.C. § 201(b) ; CCNV , 490 U.S. at 730, 109 S.Ct. 2166. All authors can transfer subsequent ownership of a copyright, or any portion of the exclusive rights comprised in a copyright, by any means of conveyance, 17 U.S.C. § 201(d), but an author can eventually terminate the transfer of his or her copyright interests pursuant to the procedures set out in 17 U.S.C. § 203(a), unless the copyrighted work is a work made for hire. Once an author has terminated a transfer of copyright interests, the interests revert to the author, but such reversion does not prevent the continuing exploitation of any derivative works prepared prior to the termination and properly under the authority of the transferred interests. 17 U.S.C. § 203(b).

In both their complaint and motion for partial summary judgment, Horror and Manny seek a declaration that Miller wrote the screenplay as a work made for hire for Manny (which subsequently transferred its copyright interests in the screenplay to Horror), and thus that Miller's purported termination of Horror's copyright interests in the screenplay are invalid. Conversely, Miller seeks, in both his complaint and motion for summary judgment, a declaration that his writing of the screenplay did not constitute a work made for hire, and thus that he is entitled to recover the United States copyright in the screenplay. To the extent that Miller's work on the screenplay is held to have not been "for hire", Manny and Horror request a determination of authorship of, and thus copyright ownership in, individual creative elements of the screenplay. Accordingly, following my determination that the screenplay was not a work made for hire, I must examine whether Miller can be excluded from authorship status on any other grounds, whether Miller was the sole author of his contributions to the screenplay, whether Miller shared joint authorship of the screenplay, and whether any portions of the screenplay can be carved out from Miller's termination right.

A. The Screenplay Was Not a Work Made for Hire

Plainly, the best outcome for Horror and Manny would be if Miller were determined to have made his writing contributions to the screenplay while working for hire for Manny. In such a case, Manny would be deemed the initial author of the screenplay, 17 U.S.C. § 201(b), and Miller would not possess any exercisable termination rights, 17 U.S.C. § 203. The Copyright Act of 1976, which became effective in 1978, 17 U.S.C. App'x, one year before Miller and Manny began working on the screenplay, provides two routes according to which a writer's contributions could be considered "for hire." A "work made for hire" is defined as:

(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.

17 U.S.C. § 101 (emphasis added). Thus, the framework set up by the definition in section 101 establishes "two mutually exclusive means" through which a work for hire might arise. CCNV , 490 U.S. at 742-43, 109 S.Ct. 2166. So long as the hired party qualifies as an employee and not an independent contractor, section 101(1) applies to all works created by that employee acting within the scope of his or her employment. Id. Section 101(2), meanwhile, confers work-for-hire status on even those works prepared by independent contractors, but only if the work was specially commissioned for use in one of the nine types of specifically enumerated works set out in section 101(2), and only if the parties expressly agreed to the work-for-hire status in a signed writing. Id. at 738, 109 S.Ct. 2166.

1. The Screenplay was not specially commissioned as a work for hire pursuant to the parties' agreement in a signed written instrument

Manny and Horror make no argument that the screenplay was specially commissioned as a work for hire pursuant to an express agreement in a signed written instrument. Works commissioned as contributions to a motion picture are one of the categories set out in section 101(2), and indeed, "the norm for Hollywood production ... is for all concerned to execute work for hire agreements, vesting all copyright ownership in the producer." 1 Nimmer on Copyright § 6.07 (2018); see also Garcia v. Google, Inc. , 786 F.3d 733, 743 (9th Cir. 2015) ("The reality is that contracts and the work-made-for-hire doctrine govern much of the big-budget Hollywood performance and production world."). It is only in the absence of such agreements that thorny issues of authorship arise, due to the numerous potential creative contributors to a motion picture. See F. Jay Dougherty, Not A Spike Lee Joint? Issues in the Authorship of Motion Pictures Under U.S. Copyright Law , 49 U.C.L.A. L. Rev. 225, 269 (2001) ("In most cases these issues of authorship are avoided because in the United States, contributors to a film prepare their work as a work made for hire for the producer. Yet there can be instances in which work-for-hire arrangements are not made or somehow fail." (citation omitted) ); see also 1 Nimmer on Copyright § 6.05 (2018) (noting that "[a] motion picture is a joint work consisting of a number of contributions by different 'authors', including the writer of the screenplay", but that "[n]ormal practice" is for the motion picture studio to insist that all relevant parties execute agreements applying the work for hire doctrine with "the legal result, in that instance, ... that there is only one 'author' ").

Notably, the Contract executed by Manny and Miller does not contain any express agreement regarding work-for-hire status, or any other express arrangement regarding copyright. [Ex. B, Cunningham Decl., Doc. No. 43-6.] The WGA 1977 Theatrical and Television Basic Agreement, the collective bargaining agreement between the WGA and signatory companies in operation at the time, likewise contains no express agreement regarding work for hire status. [Ex. N, Haye Decl., Doc. No. 43-19,] It is interesting to note that, although Horror and Manny claim that Sean Cunningham used as the template for the Contract "the standard WGA short form complete screenplay agreement issued by the WGA at the time", Cunningham Decl., Doc. No. 43-4, at ¶ 17, the comparable screenwriter's short-form contract now in use by the WGA does expressly designate that any writing covered by the contract is work made for hire, Writer's Theatrical Short-Form Contract, at ¶ 24, https://www.wgaeast.org/wp-content/uploads/typo3/user_upload/writers_theatrical_short-form_contract.pdf ("Writer acknowledges that all results ... of Writer's services ... are being specially ordered by Producer for use as part of a Motion Picture and shall be considered a 'work made for hire' for Producer ... in accordance with Sections 101 and 201 of ... the U.S. Copyright Act."). Intriguingly, although Miller entered into the Contract with Manny in 1979, and the Copyright Act became effective in 1978, a type-written notation in the bottom left-hand corner of each page of the Contract ("3/77") suggests that the form Cunningham used for the Contract was last updated in 1977. [Ex. B, Cunningham Decl., Doc. No. 43-6.] In any event, whether or not motivated by the failure of the Contract to expressly designate the screenplay as a work for hire, Horror and Manny have conceded that they are not pursuing a work for hire theory under section 101(2). [Pls.' Opp. Br., Doc. No. 47, at 11 n.7.] The screenplay will thus be considered a work made for hire only if Miller's contributions to the screenplay were made as Manny's "employee", within the scope of his employment, pursuant to section 101(1).

2. Miller did not prepare the Screenplay as Manny's employee within the scope of his employment .

Horror and Manny argue that Miller was necessarily an employee of Manny, and not an independent contractor, because Miller, a WGA member, was hired by Manny, a WGA collective bargaining agreement signatory company, pursuant to a contract controlled by the WGA's collective bargaining agreement with signatory companies. [Pls.' Br., Doc. No. 43-1, at 26-30.] That is, of course, not the traditional test mandated by the Supreme Court in CCNV for determining whether a hired party is an employee or independent contractor according to the definition of "work made for hire" contained in section 101(1) of the Copyright Act. The established CCNV test relies on the general common law of agency, and not labor law, and sets out a series of non-exhaustive factors to be used in determining whether a work was prepared by an employee agent. See CCNV , 490 U.S. at 751-52, 109 S.Ct. 2166. Horror and Manny reject the applicability of the CCNV factors to the present case, arguing that, because the Copyright Act's definition of "employee" is identical to the definition used in the National Labor Relations Act ("NLRA") and because labor law requires that Miller be considered Manny's employee, Miller must also be considered Manny's employee for the purposes of the Copyright Act. The multi-factor test set out in CCNV , so goes their argument, is only designed to be used when an individual's employment status is otherwise "unclear." [Pls.' Br., Doc. No. 43-1, at 30 n.14.] As detailed below, because I reject Horror's and Manny's attempt to circumvent the CCNV analysis, and because, under the CCNV analysis, there is no reasonable dispute that Miller wrote the screenplay as an independent contractor, I hold that Miller did not prepare the screenplay as a work for hire under section 101(1) of the Copyright Act.

a. Labor law does not provide grounds for displacing the CCNV analysis.

i. The CCNV factors are not subordinate to labor law considerations.

As a preliminary matter, there is nothing in CCNV to suggest that the Supreme Court intended its agency law analysis to serve the more limited purpose that Horror and Manny now propose. In other words, there is nothing to suggest that any subordination of the CCNV analysis to labor law considerations was intended. Quite the opposite-the CCNV Court repeatedly used sweeping language suggesting the general applicability of its agency law analysis. See CCNV , 490 U.S. at 750-51, 109 S.Ct. 2166 ("To determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor. After making this determination, the court can apply the appropriate subsection of § 101."); id. at 740, 109 S.Ct. 2166 ("Nothing in the text of the work for hire provisions indicates that Congress used the words 'employee' and 'employment' to describe anything other than 'the conventional relation of employer and employé'.... On the contrary, [the text suggests] Congress' intent to incorporate the agency law definition...." (emphasis added) (quoting Kelley v. Southern Pac. Co. , 419 U.S. 318, 323, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974) ). In fact, in holding that an individual's potential "employee" status for the purposes of the Copyright Act should be determined pursuant to agency law, the Court expressly distinguished the use of agency law under the Copyright Act from the broader definition of "employee" once used under labor law. See id. at 740, 109 S.Ct. 2166 (describing NLRB v. Hearst Publ'ns, Inc. , 322 U.S. 111, 124-32, 64 S.Ct. 851, 88 L.Ed. 1170 (1944), as "rejecting agency law conception of employee for purposes of the National Labor Relations Act where structure and context of statute indicated broader definition"). Although even at the time of the CCNV decision, the Hearst Court's broad interpretation of the NLRA had itself been nullified by Congressional amendment, see Nationwide Mut. Ins. Co. v. Darden , 503 U.S. 318, 324-25, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), the fact remains that in no way did the CCNV Court indicate an intent to subordinate its agency law analysis to any other standard-and particularly not to any other statutory regimes' deviations from agency law principles.

Moreover, although Horror and Manny rely on Darden to argue that the Copyright Act's definition of "employee" must follow the development of labor law [Pls.' Br., Doc. No. 43-1, at 27], Darden only stood for a commonality of interpretation among the Copyright Act, NLRA, and ERISA inasmuch as all three were controlled by the common law of agency. 503 U.S. at 322-25, 112 S.Ct. 1344. In fact, the core of the Supreme Court's opinion in Darden consisted of a rejection of attempts by petitioners and amici to subordinate the CCNV agency analysis to broader definitions of "employee":

Darden tried to subordinate [ CCNV ] to Rutherford Food Corp. v. McComb [331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) ] which adopted a broad reading of "employee" under the Fair Labor Standards Act (FLSA). And amicus United States, while rejecting Darden's position, also relied on Rutherford Food for the proposition that, when enacting ERISA, Congress must have intended a modified common-law definition of "employee" that would advance, in a way not defined, the Act's "remedial purposes." ... But Rutherford Food supports neither position. The definition of "employee" in the FLSA [used in Rutherford Food ] ... stretches the meaning of "employee" to cover some parties who might not qualify as such under a strict application of traditional agency law principles.... [This] precludes reliance on FLSA cases when construing ERISA's concept of "employee."

Darden , 503 U.S. at 325-26, 112 S.Ct. 1344. Darden is thus a shaky platform for Horror's and Manny's argument (detailed below) that implications unique to labor law, which rely on the byzantine machinations of the NLRA's statutory regime, require a departure from the CCNV analysis for the purposes of interpreting the Copyright Act.

Finally, it is worth noting that, in justifying its generally applicable agency law analysis, the CCNV Court was itself not silent on the place of contributors to a motion picture in such an analysis. The Court's opinion included a thorough review of the legislative history of the Copyright Act, over the course of which the Court noted that, whereas an earlier draft bill had only included works prepared by employees in the definition of "works made for hire", subsequent revisions to the bill added as works for hire "works for use '... as a part of a motion picture.... because [the interested parties] concluded that these commissioned works, although not prepared by employees and thus not covered by the first subsection , nevertheless should be treated as works for hire", so long as the contracting parties had expressly so agreed in writing." 490 U.S. at 746, 109 S.Ct. 2166 (emphasis added) (citing S. 1006, H.R. 4347, H.R. 5680, H.R. 6835, 89th Cong., 1st Sess., § 101 (1965); Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess., Copyright Law Revision, pt. 6, p. 67 (H.R. Judiciary Comm. Print 1965) ).

ii. Labor law does not require a holding that Miller was Manny's employee.

Even if the CCNV Court did leave the door open for labor law considerations to impinge on its mandated agency-law analysis, Horror's and Manny's argument that labor law requires a holding that Miller was Manny's employee is misplaced. Horror's and Manny's argument is that the NLRA provides only "employees" with the right to organize, form, join, or assist labor organizations, and to bargain collectively, 29 U.S.C. § 157 ; [Pls.' Br., Doc. No. 43-1, at 27-28], and that the definition of "employee" under the NLRA "specifically excludes 'any individual having the status of independent contractor' ", [Pls.' Br., Doc. No. 43-1, at 27 (quoting N.L.R.B. v. United Ins. Co. of Am. , 390 U.S. 254, 255 n.1, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968) ) ]; 29 U.S.C. § 152(3). Horror and Manny are presumably not arguing, however, that the simple fact of union membership precludes any work an individual union member ever accepts from being considered work as an independent contractor, for Supreme Court precedent clearly acknowledges that possibility. See Am. Fed'n of Musicians of U.S. & Canada v. Carroll , 391 U.S. 99, 105-06, 88 S.Ct. 1562, 20 L.Ed.2d 460 (1968) (recognizing that union member musicians could be independent contractors for the purposes of individual commissions as orchestra leaders); see also Home Box Office, Inc. v. Directors Guild of Am., Inc. , 531 F.Supp. 578, 598-600 (S.D.N.Y. 1982), aff'd , 708 F.2d 95 (2d Cir. 1983) (holding that union member television directors are independent contractors when engaged in certain specific "producer-director" jobs for HBO). Horror and Manny instead attempt a more nuanced argument-that union members are only necessarily employees when hired by union signatory companies pursuant to a relevant collective bargaining agreement.

From that point, Horror and Manny's argument progresses on two separate tracks. On the first track, Horror and Manny point to the exemptions provided to union members from antitrust regulation. [Pls.' Br., Doc. No. 43-1, at 26-30.] Horror and Manny argue that, inasmuch as certain union activity is protected from antitrust regulation, see, e.g. , Connell Const. Co., Inc. v. Plumbers and Steamfitters Local Union No. 100 , 421 U.S. 616, 621-22, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975) ; 15 U.S.C. § 17 ; 29 U.S.C. § 52, and inasmuch as the NLRA provides the protections of union membership exclusively to employees and not independent contractors, 29 U.S.C. § 152, any application of union agreements to the hiring of independent contractors would involve the independent contractors in the concerted actions of the union without the protective shield of the NLRA, thus subjecting the contract in question, and the broader union coordination with such independent contractors to antitrust regulation. Specifically, Horror and Manny point to the statutory exemption from the antitrust laws for labor organizations outlined in United States v. Hutcheson , 312 U.S. 219, 232, 61 S.Ct. 463, 85 L.Ed. 788 (1941), and observe that a party seeking refuge in the Hutcheson statutory exemption must be a "bona-fide labor organization, and not an independent contractor or entrepreneur", [Pls.' Br., Doc. No. 43-1, at 28 (quoting H.A. Artists & Assocs., Inc. v. Actors' Equity Ass'n , 451 U.S. 704, 717 n.20, 101 S.Ct. 2102, 68 L.Ed.2d 558 (1981) ) ]. Plaintiffs argue that, because the WGA is the federally-recognized labor union with jurisdiction over screenwriters, and because Miller was hired by Manny as a screenwriter under the terms of the MBA between the WGA and signatory employers, Miller's Contract with Manny, and the collective action of the WGA more generally, would be subject to antitrust enforcement if Miller's involvement with the WGA brought the WGA outside the definition of "bona-fide labor organization[s]" protected under the Hutcheson statutory exemption.

What Horror's and Manny's argument misses is that the protection for "bona-fide labor organization[s]" extends beyond the actions of a union that relate exclusively to members hired as employees. The Hutcheson test for statutory antitrust exemption asks whether the union has acted in its self-interest and not in combination with any "non-labor group[ ]". H.A. Artists & Assocs., Inc. , 451 U.S. at 714-15, 101 S.Ct. 2102 (quoting Hutcheson , 312 U.S. at 232, 61 S.Ct. 463 ). Where there is "job or wage competition or some other economic inter-relationship affecting legitimate union interests between the union members and the independent contractors", even independent contractors are properly considered a "labor group", and can participate in union activity and be subject to union regulation, including minimum fee scales and other terms of employment. Am. Fed'n of Musicians , 391 U.S. at 105-07, 88 S.Ct. 1562 ; see also Home Box Office, Inc. , 531 F.Supp. at 600 ("Despite the independent-contractor status of such producer-directors, however, they may properly be the subject of the Guild's collective organizing efforts.... [The] independent producer-directors[ ] are in job or wage competition or some other economic interrelationship affecting legitimate union interests with the union members."). In other words, even screenwriters hired as independent contractors pursuant to the CCNV analysis can be subject to union regulation and the minimum terms set out in the MBA, because if their hiring relationships were not so regulated they could undermine the ability of screenwriter-union-members deemed to be employees under CCNV to secure employment pursuant to the MBA's minimum terms. Am. Fed'n of Musicians , 391 U.S. at 109, 88 S.Ct. 1562 ("[T]he price floors, including the minimums for leaders [who act as independent contractors], are simply a means for coping with the job and wage competition of the leaders to protect the wage scales of musicians who respondents concede are employees on club-dates, namely sidemen and subleaders."); Home Box Office, Inc. , 531 F.Supp. at 600 ("All producer-directors [including those acting as independent contractors] ... are ... in direct competition with other Guild members for Guild-category jobs.... The Guild has a legitimate interest in seeking to preserve the directorial parts of the producer-director's job for its members working under Guild-established terms and conditions ... [and] in preventing the erosion of standards threatened by the existence of productions on which directors work under substandard conditions."). The ability of unions to represent and regulate independent contractors applies where the independent contractors are union members who, from job to job are sometimes hired as employees and sometimes hired as independent contractors, see Am. Fed'n of Musicians , 391 U.S. at 103, 88 S.Ct. 1562 (applying the statutory exemption for labor groups to union members who "may perform in different capacities on the same day or during the same week, at times as leader [ (independent contractor) ] and other times as subleader or sideman [ (employee) ]"); Home Box Office, Inc. , 531 F.Supp. at 602-03 (applying the statutory exemption to union regulation of "director-packager" entrepreneurs who likewise sometimes work as director[-employees] for production companies other than their own, and holding that the union can require the director-packagers to comply with union agreements even when acting as independent contractors), and also applies where the independent contractors are only ever hired as independent contractors, Am. Fed'n of Musicians , 391 U.S. at 108, 88 S.Ct. 1562 (citing approvingly the court of appeals' observation that " 'even those orchestra leaders who, as employers in club dates, lead but never perform as players, are proper subjects for membership because they are in job competition with union subleaders; each time a non-union orchestra leader performs, he displaces a 'union job' with a 'non-union job'."); see also Los Angeles Meat & Provision Drivers Union, Local 626 v. United States , 371 U.S. 94, 103, 83 S.Ct. 162, 9 L.Ed.2d 150 (1962) (noting that labor organizations often might "have a legitimate interest in soliciting self-employed entrepreneurs as members").

On the second track, Horror and Manny argue that union members are necessarily employees when hired pursuant to a collective bargaining agreement. That argument is less grounded in case law and seemingly relies instead on an appeal to common sense notions of the many terms of art that are at issue. Horror and Manny assert, without any citations, but bolstered by the occasional use of italicization and/or bolding, that union membership and any engagement to provide services pursuant to the terms of a collective bargaining agreement "is the antithesis of independent contractor status. " [Pls.' Br., Doc. No. 43-1, at 28-29 (emphases in original).] Horror and Manny appeal to an apparently lay sensibility:

By definition, an independent contractor is independent-he is free to negotiate the terms of his engagement and is not mandated by law to adhere to the minimum terms and conditions of any collective bargaining agreement; he is free to accept terms and conditions of employment that are less favorable , or which substantially vary, from the terms mandated by the collective bargaining agreement. For this fundamental reason, a person cannot be engaged by a union signatory employer under the terms of a collective bargaining agreement and, at the same time, maintain that he is an "independent contractor" who is free to negotiate the minimum terms and conditions of his engagement.

[Pls.' Br., Doc. No. 43-1, at 29 (emphasis in original).] Aside from offering scant justification for departing from the more thoroughly supported CCNV analysis, the argument amounts to no more than an unsupported bit of wordplay that is both circular and generally unconvincing.

As a preliminary matter, absent any basis in statute or precedent, the argument that the relevant measure of an independent contractor's independence is his ability to depart from the terms of a collective bargaining agreement seems grounded in nothing other than Horror's and Manny's optimistic assertion that that is the case. And while Horror and Manny claim that the definitional hallmark of an independent contractor is the independence to depart above or below the minimum terms and conditions of any collective bargaining agreement, the threshold measurement of independence could just as easily be the more limited independence to depart only above the minimum terms of a collective bargaining agreement, as the parties did here.

The novel "independent contractors are independent" standard also in no way distinguishes independent contractors from employees, the ultimate goal of any such analysis. A non-unionized convenience store clerk, for example, who would otherwise pass the usual tests for employee status, would have to be deemed an independent contractor under such an analysis, because he is free to negotiate whatever terms of employment he can wheedle out of the convenience store owner. To the extent Horror's and Manny's argument is that the "independent contractors are independent" standard for assigning employee status should only be used to isolate the lack of independence that results from union restrictions where the hired party would otherwise be considered an independent contractor, it is circular to suggest that the proposed standard can provide its own justification for applying only in such circumstances.

In sum, neither of the two arguments presented by Horror and Manny convince me that labor law requires that I conclude that Miller was Manny's employee. Indeed, applying the analysis mandated by CCNV , Miller was an independent contractor.

b. Under the CCNV agency law analysis, Miller wrote the screenplay as an independent contractor.

Having decided that labor law provides no authority for skirting the analysis mandated by the Supreme Court in CCNV for determining a hired party's status as employee or independent contractor under the Copyright Act, I now turn to the agency law analysis mandated by the CCNV Court. The Supreme Court set out thirteen non-exhaustive factors to be considered:

[1] the hiring party's right to control the manner and means by which the product is accomplished[;] ... [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; and [13] the tax treatment of the hired party".

CCNV , 490 U.S. at 751-53, 109 S.Ct. 2166 (citing Restatement (Second) of Agency § 220(2) (1958) ). Although "[n]o one of these factors is determinative", id. at 752, 109 S.Ct. 2166, the Second Circuit has held that the hiring party's right to control the manner and means of creation, the skill required, the provision of employee benefits, the tax treatment of the hired party, and whether the hiring party has the right to assign additional projects to the hired party will usually be highly probative and should be given more weight in the analysis. Aymes v. Bonelli , 980 F.2d 857, 861 (2d Cir. 1992). The Second Circuit has also cautioned that courts should not apply the CCNV test "in a mechanistic fashion" and should consider the relative importance of each factor in light of the idiosyncratic circumstances of a given case. Id. at 861-62.

i. The hiring party's right to control the manner and means by which the product was accomplished

Although the CCNV Court rejected any analysis that relies exclusively on either the right to control or actual control exerted over a hired party's work, 490 U.S. at 750-51, 109 S.Ct. 2166, the right to control the manner and means of creation nonetheless remains an important factor in the traditional agency law analysis, id. at 751, 109 S.Ct. 2166 ; Aymes , 980 F.2d at 861. In analyzing this factor, however, we must be careful not to ask simply whether the hiring party directed or supervised the work, because that standard is "hard not to meet when one is a hiring party" of any stripe. CCNV , 490 U.S. at 750, 109 S.Ct. 2166. "If inevitable, routine participation sufficed to transform the hiring party into a work-for-hire author, [ CCNV ] would be eviscerated and the law would retrogress to the 'actual supervision and control' rule" rejected in CCNV . SHL Imaging, Inc. v. Artisan House, Inc. , 117 F.Supp.2d 301, 314 (S.D.N.Y. 2000). We must therefore instead look to the specific quality and depth of control applicable in a particular case.

In Langman Fabrics v. Graff Californiawear, Inc. , the Second Circuit held that the "right to control" factor weighed in favor of work for hire status for a feather design in a fabric pattern where the hiring party "controlled the artist's work to the smallest detail", including by standing over the artist during the artist's daily work at the hiring party's place of business and providing detailed instructions about "the tapering of the feathers, the size of the feathers, the overlapping, the spacing, the thickness, the relationship of one feather to another, and the overall view of all the feathers". 160 F.3d 106, 111-13 (2d Cir. 1998). On the other hand, in Marco v. Accent Pub. Co. , a case addressing a copyright in photographs, the Third Circuit discounted the importance of the hiring party's right to control where the party "controlled only the subject matter and composition of the images" and "did not control most aspects of the work, which include the choice of light sources, filters, lenses, camera, film, perspective, aperture setting, shutter speed, and processing techniques". 969 F.2d 1547, 1551-52 (3d Cir. 1992). The Third Circuit also noted that the hiring party in Marco only sometimes physically supervised the photographer's photo sessions and observed that the hiring party's "control of the product was thus no greater than the control exercised by the [hiring party] in CCNV , who articulated the subject and composition, who supplied models, who occasionally supervised the work, who constructed part of the sculpture, and who was still not an employer". Id. at 1552.

Courts in this Circuit have likewise emphasized in their analysis of the right to control factor "the extent of the hiring party's control over the hired party's daily activities". Tagare v. Nynex Network Sys. Co. , 994 F.Supp. 149, 156-57 (S.D.N.Y. 1997) (emphasis in original) (collecting cases). The district court in Tagare also observed that the CCNV Court itself discounted a hiring party's right to control where "daily supervision" of the artist was not possible and the hiring party only "directed en