How the decision of the second circle in “Horror v. Miller” can haunt the production companies for the years to come

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Like Jason’s appearance at the end of Friday the 13th, the latest decision of the Second Circuit in Horror Inc. versus Miller, No. 18-3123-cv, 2021 US App. LEXIS 29479 (2nd Cir. 09/30/2021) revives the termination regulation of the Copyright Act. 17 USCS §203. Although the law came into force on January 1, 1978, due to the future nature of its provisions, it had no practical applicability until relatively recently. Under certain conditions, Section 203 of the Copyright Act provides that the author of a work “other than a work for rent” the granting of a transfer or license under a copyright that was executed on or after January 1, 1978, between two and 10 years’ notice , for a period of five years, starting 35 years after the work has been carried out or published, but not more than 40 years after the work has been carried out. ID card.

For copyrights registered under the Copyright Act 1909, which does not include a definition of “rental work,” appeals courts have generally used the “instance and cost test” to determine whether a work was loan work. See Marvel characters versus Kirby, 726 F.3d 119, 137 (2d Cir. 2013) (Explanation of the history and application of the “instance and expense test”). When examining “instance and costs”, the courts established “a presumption of copyright law with the client, at whose ‘instance and costs’ the work was carried out”. Forward against Thorogood, 985 F.2d 604, 606 (1st Cir. 1993), cited in Markham Concepts v Hasbro, No. 19-1927, 2021 US app. LEXIS 17693, * 10 (1st Cir. June 14, 2021) (whereby it is stated that Markham’s work on “The Game of Life” was a temporary employment and that Markham is withdrawing his termination rights under 17 USCS §203). This test usually concludes that the copyright is owned by the company or the hiring party. Courts continue to use this test on works created before 1976 to determine if the work is on loan. Markham Concept v Hasbro, No. 19-1927, 2021 US app. LEXIS 17693 (1st cir. June 14th 2021).


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