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Pryor Cashman Partner James Sammataro, co-chair of the
firm’s Media + Entertainment Group, spoke with Variety
about Sylvester Stallone’s issues with the current state of the
Rocky film franchise.

Stallone wrote and starred in the original Rocky in
1976, but recently expressed that he is unhappy with an upcoming
project featuring franchise characters Ivan and Viktor Drago.

In “Could Sylvester Stallone Get His Share of
‘Rocky?’ Legal Experts Explain,” James weighed in with
historical context for Stallone’s position regarding his rights
to the franchise:

While Stallone’s public dissatisfaction with the
ownership situation hasn’t spilled over into any legal action,
disputes over copyright and ownership over fictional characters are
fairly common, and almost always go in the direction of the content
owner. The comic book realm is particularly rife with with legal
battles from the estates of creators like Jack Kirby over the
characters they created — such as the Fantastic Four and
X-Men — ending in courts ruling in Marvel or DC’s

James Sammataro, partner at Pryor Cashman and co-chair of
the firm’s media and entertainment group, explains that these
cases rest on a provision in copyright acts that Congress developed
for cases before the current 1976 copyright act, due to an inequity
of bargaining power in deals made before that time. In this
provision, after a roughly 35-year period after the original deal,
creators can issue “termination rights” to attempt to
reclaim their copyright.

The reason why many of these cases go in favor of the
current rights holder, according to Sammataro, is because it rests
on proving that the original work was developed outside of a
“work for hire” situation, or that the project was
developed without being commissioned by the rights holder for the
express purpose of selling the work. With comic book properties
especially, the cases have found that the works were made for hire,
and as such the courts have sided with the rights holder.

“When you do something as a work made for hire, your
company that you’re rendering the services to becomes the
owner,” Sammataro explains. “In most of those instances,
the facts have lined up that it was a work made for hire, such that
the employer or that company provided the tools, heavily edited the
project, farmed out the work, essentially was the governing spirit
behind the work and the person was more of a scribe as opposed to
the creative source for it.”

For a case that ended in success for the original writer,
Sammataro pointed to a 2018 lawsuit regarding “Friday the
13th,” where original screenwriter Victor Miller received full
ownership over the original screenplay after the court ruled in his
favor, as an example of the termination rights succeeding. In that
case, the court ruled in Miller’s favor by stating that the
original screenplay was not made on a work for hire basis, not
prepared within scope of employment, and that he was an independent
contractor working on the project.

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