Jim and John Thomas say Disney's hold on the franchise expires this week. Disney goes to court for the first time on the copyright termination front.
Jim and John Thomas, the brothers who wrote the 1987 action film Predator, have filed a lawsuit against Disney seeking confirmation of successfully recapturing rights to the franchise. Meanwhile, Disney's 20th Century unit has filed its own suit against the Thomas brothers with the goal of retaining rights.
The Thomas brothers are seeking to exploit copyright law's termination provision, which allows authors to cancel transfers after waiting a period of time, typically 35 years for newer works. Given the time frame, studios are facing the prospect of losing franchise rights to many iconic works from the 1980s.
Predator starred Arnold Schwarzenegger and spawned three sequels plus the spinoff movie series Alien vs. Predator. Reportedly, Disney has been eyeing a reboot with 10 Cloverfield Lane director Dan Trachtenberg at the helm.
Such plans by Disney may face an obstacle in the form of termination. According to the complaint, the effective termination date for their screenplay (originally titled "Hunters") is April 17, this Saturday.
Jim and John Thomas say they served a termination notice all the way back in 2016 — and for four and a half years heard no objection.
As stated in their complaint, "Then, in early January 2021, Defendants’ counsel unexpectedly contacted Plaintiffs’ counsel, contesting the Termination Notice as supposedly untimely, based on a theory that the 1986 Grant of the Screenplay underlying their Predator films allegedly qualified for the special, delayed termination time 'window' in 17 U.S.C. § 203(a)(3), intended for 'book publication' grants."
In response, the Thomas brothers say they served alternative notices of termination with later effective termination dates. That hasn't satisfied Disney so the Thomas brothers are now seeking declaratory relief. They are represented by Marc Toberoff, who has been somewhat of a specialist in copyright termination and notably represented the Friday the 13th writer in a court win (pending appeal). (The complaint is below.)
Within hours of the filing by the Thomas brothers, Disney's 20th Century division had its own lawsuit ready to go.
"While federal statutory copyright law endows certain grantors, like defendants [the Thomas brothers], with copyright termination rights, such rights may only be exercised in accordance with the statute’s requirements, including provisions delineating when termination notices may be served and when the termination of rights becomes effective," states the 20th Century complaint. "Defendants’ notices fail to comply with these statutory requirements and are invalid as a matter of law."
Disney's 20th Century is being represented by star O'Melveny litigator Daniel Petrocelli.
About a decade ago, on behalf of Warner Bros., Petrocelli fought Toberoff over rights to Superman. That case lasted for years and grew very nasty with allegations that Toberoff had tortiously interfered with rights. Ultimately, Warner Bros. prevailed.
The two are now stepping back into the legal ring over Predator.
"20th Century seeks a declaration pursuant to 28 U.S.C. § 2201 that defendants’ notices of termination are invalid," continues the 20th Century complaint. "This action is necessary because defendants are improperly attempting to prematurely terminate 20th Century’s rights to the Hunters Screenplay, at the very time that 20th Century is investing substantial time, money, and effort in developing another installment in its successful Predator franchise."
4/15 4:55 pm: This post has been updated with news of the 2oth Century lawsuit.
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