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Jim & John Thomas vs. Disney: Examining the Battle for Predator

When the shocking news was reported a couple of days ago that the original creators Jim and John Thomas were suing Disney to reclaim the rights to Predator, it understandably drove much of the fan community into quite a state of turmoil.

Most of the distress was due to the uncertainty regarding what would happen to the current Disney era Predator projects in the works, most notably the Dan Trachtenberg directed “Skulls” film that is currently in pre-production in Alberta, Canada.

Well we have studied the official legal complaint courtesy of The Hollywood Reporter and hopefully we will try to clear up the most common questions Predator fans may be asking.

 Jim & John Thomas vs. Disney: Examining the Battle for Predator

What are the Thomas Brothers pursuing?

The Thomas Brothers are pursuing a recapturing of copyright ownership of Predator permitted by United States Law, which means this action (if successful) will solely apply to U.S. copyright of Predator, not foreign copyrights. (The foreign copyright of Predator would remain with Disney, but still require a license from the Thomas Brothers for new projects.)

Per their legal complaint:

The Copyright Act, 17 U.S.C. §203(a), provides authors with the inalienable right to recapture the copyright to their creative work, after a lengthy waiting period, by statutorily terminating without cause prior transfer(s) of copyright, provided advance notice of termination is given and accepted for recordation by the U.S. Copyright Office.

If the Thomas Brothers reclaim the copyright to Predator, will they gain control of the previous Predator films and works?

No. If the Thomas Brothers recapture the U.S. copyright, they will only have 100% rights of future Predator productions in the United States. All of the pre-existing Predator works, including the 1987 original classic film, will still belong to the current copyright holder (which is Disney).

Per the legal complaint:

Under the termination provisions, prior “derivative works” “can continue to be” distributed as before. 17 U.S.C. § 203(b)(1). Plaintiffs’ recovery of the U.S. copyright to their Screenplay therefore does not prevent Defendants or their licensees from continuing to exploit prior derivative works, including the original Predator film and TCFFC’s five sequel films.

It’s worthy to note that the legal council representing the Thomas Brothers include both Alien vs. Predator and Aliens vs. Predator: Requiem among the “five sequel films”.

According to the legal claim filed on behalf of the Thomas Brothers, when should the transfer of Predator copyright ownership from Disney to Jim & John Thomas take place?

On the 17th of April, 2021.

However, Disney appears to be challenging the validity of this date of April 17th that the Thomas Brothers are claiming to be valid. And it appears the Thomas Bros are even conceding their date may not hold up in court in their complaint, so they included alternative dates in their lawsuit of June 2022 or January 2023.

Per the legal complaint:

The Termination Notice is valid and effective under 17 U.S.C. § 203(a) and terminates on April 17, 2021, Plaintiffs’ 1986 Grant of their Screenplay to TCFFC and that, as of said date, Plaintiffs recovered the U.S.

In the unlikely event the Court finds the Termination Notice is invalid, Plaintiffs’ Second Termination Notice or Third Termination Notice is valid, with effective termination dates of June 14, 2022 or January 13, 2023, respectively.

So this whole ordeal may be pushed out to June 2022 or January 2023 and Disney will proceed as normal with their current projects until said time. This will be up to a court Judge.

Are the Thomas Brothers trying to stop the new Disney era Predator film “Skulls” from going into production?

Yes, it would seem so. The legal representation for the Thomas Brothers indicate they are entitled to have the court issue a “preliminary injunction” on new Predator works, which is a temporary court order that would prevent Disney from continuing new Predator works until the conclusion of a trial.

Per the legal complaint:

Plaintiffs are entitled to a preliminary injunction, during the pendency of this action, and thereafter to a permanent injunction, pursuant to 28 U.S.C. § 2202, enjoining Defendants, their officers, agents and employees, and all persons acting in concert with them, from exploiting after April 17, 2021 (the effective termination date), new derivative works based on the Screenplay and derivative Predator film franchise, without first obtaining at arms’ length a new copyright license from Plaintiffs.

If the Thomas Brothers successfully reclaim the Predator copyright, can they license Predator right back to Disney if they choose to, if both parties agree on the terms?

Yes, but they are not required to.

If the Thomas Brothers successfully obtain ownership of the Predator U.S. copyright, they can license Predator to Disney or any other studio of their choosing (and then strike a joint deal with Disney for foreign distribution, etc..)

Now the law did allow Disney the exclusive opportunity to negotiate a U.S. re-license of Predator with the Thomas Brothers between the moment the Brothers served notice and the termination date, but that day has passed according to the Thomas Brothers lawsuit.

Per the legal complaint:

Congress anticipated that an author’s exercise of his/her termination right would usually result in a new license by the author to the terminated grantee (such as TCFFC). To that end, Congress provided “the original grantee” with the exclusive opportunity to re-license an author’s recaptured copyright “after the notice or termination has been served,” but before “the effective date of the termination.” Id. § 203(b)(4). The termination provisions thus reflect a deliberate balance of competing interests.

So what will happen to new Predator projects like the feature film “Skulls” slated to begin filming this June, or the ongoing Predator Marvel Comic series set to launch this November?

It’s up to the courts to decide. But until they do, for now, it seems to be business as usual at Disney.

Be sure to keep your targets set on Alien vs. Predator Galaxy for all the latest Predator news! You can also follow us on FacebookTwitter, Instagram and YouTube to get the latest on your social media walls. Be sure to join in with fellow Alien and Predator fans on our forums as well!

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  1. SiL
    I can imagine they want to take control over a franchise since they wrote the first two, saw what the third had in terms of potential and ripped their hair out over AVP and the latest installment. I just think they want to bring the franchise back to a place where the creative control was far more important than making it on par with the MCU which i think is what would happen if Disney took the reigns. The franchise would start to become more PG 13 and adventure based which wasn't the point originally. And you can bet their network of directors are pressuring the bros to take control.
    There is literally nothing to suggest any of this.

    We have zero knowledge of their motives. The best we can glean is from their complaint, which leans heavily to negotiating a better deal for themselves, not some master plan to take control. And even that's still speculative.
  2. acrediblesource
    I can imagine they want to take control over a franchise since they wrote the first two, saw what the third had in terms of potential and ripped their hair out over AVP and the latest installment. I just think they want to bring the franchise back to a place where the creative control was far more important than making it on par with the MCU which i think is what would happen if Disney took the reigns. The franchise would start to become more PG 13 and adventure based which wasn't the point originally. And you can bet their network of directors are pressuring the bros to take control.

    Granted, the game is a little different and does sport what we as fans want. Illfonic forum members are very vocal about what they want to see but ultimately PHG has it's own unique take that I think has something going for it. But it does have a very adventure theme currently rather than a gore fest.

    As far as films go, I believe the brothers just don't want Disney marketing the film as something that is accessible as possible to all audiences and taking it back to it's roots.



    Great post! And this has been my line of thinking as well that the brothers’ simply want to get they’re deserved piece of the pie. But ya the trademark aspect further confirms that renegotiating the license would be the most financially smart move for the brothers to make.
  3. Xiggz456
    Trademarks can be renewed in perpetuity, yes. So Steamboat Willy will be going out of copyright soon (This year I think? Or it's already there), but Mickey Mouse is still a trademarked character.

    And there's the rub. The Brothers get the copyright to their script; but if they wanted to shop it around, presumably the trademarks are still held at Fox/Disney. They'd need to sell it as a completely new adaptation, I think. But Disney/Fox couldn't continue to exploit the trademark beyond what's already made, as it would rely on the copyright of the original script.

    Which is one of many reasons I'm pretty sure they just want to use this legal tool to renegotiate their license, not kill the franchise. But we won't know until it happens.

    EDIT

    A friend of mine is a trademark lawyer so I'm running this by her. Very curious to hear what she says!

    EDIT

    On the face of it, she says they wouldn't be allowed to use the trademarks without permission. So if they sold the rights elsewhere, it would need to be a new adaptation, or with Fox's blessing.

    Great post! And this has been my line of thinking as well that the brothers’ simply want to get they’re deserved piece of the pie. But ya the trademark aspect further confirms that renegotiating the license would be the most financially smart move for the brothers to make.
  4. Immortan Jonesy
    EDIT

    A friend of mine is a trademark lawyer so I'm running this by her. Very curious to hear what she says!

    EDIT

    On the face of it, she says they wouldn't be allowed to use the trademarks without permission. So if they sold the rights elsewhere, it would need to be a new adaptation, or with Fox's blessing.

    That or their own "Predator", with a different physical expression of the character, another name, and so on. I think something like this happened with the Superman character: a similar super hero but with his own design and trademark.

    It's not like I'm saying they would want that, nor that I would want that as well. I'm just guessing.  ;D
  5. Lost_Hunter
    I’m with ya Valaquen, though I’m always down for new material, I want it to be good. I don’t want another The Predator or another Covenant for that matter. Skulls looks like its going for a PG-13, ADI, Woke cash crab and why bother? Hope that’s not the case but it’s a fool’s hope.

    Thomas Brothers for the Win
  6. Immortan Jonesy
    99% of lawyers will NEVER advise going to court. You almost always want the issue settled between parties before it gets to that point.

    Now the issue that is bigger here IMO is whether the Thomas Bros. are entitled to the "Predator" design that Stan Winston Studios created for the film. Did he sign over ownership of the character to 20th Century Fox?

    As others have mentioned, simply getting the rights back to "Hunter" about a alien space hunter is pretty generic compared to the ICONIC "Predator" Winston designed and created.

    Also, I'm not down on the Thomas Bros. at all for trying to get their property back or pursue the copyright laws that may lead them to a better "pay day". Let's face it, Fox and now Disney have a very valuable I.P. in Predator and I think it's safe to say that none of us would have predicted the Predator franchise is as popular as it was back in 87. Video games, toys, t-shirts, cups, posters, etc.

    Disney MILKS their I.P.s dry and are making literally millions upon millions of dollars from all the intellectual properties they own. The Thomas Brothers have a legal right to re-capture those rights. There is *NOTHING* wrong with that.

    I'm still very hesitant with Disney owning the ALIEN I.P. and have no idea how that it going to go.

    Anyways, I still think best case scenario for all involved(fans, Disney, Thomas Brothers, production staff on Skulls) is that a settlement is hammered out that is amicable to all sides.

    Yes, the written part of the character can fall into the generic, ambiguous or even archetypal. But since this is not a merely literary character, Stan Wingston's design is the expression of the Predator, and what really makes it distinguishable.

    I don't know anything about laws, but I can understand it with the following scenario: someone could make a movie about an alien that hunts for sport, as long as they don't copy the exact expression of the Predator character.

    Has anyone been able to find Disney's counterclaim? A few sites quote it, but I can't find the text in full.

    Apparently in January they said "We have more time" and now they're saying "hey judge these guys totally didn't file it properly please stop them because we're spending so much time and money on the sequel already."

    This is the only source I remember  :-\

    https://twitter.com/THR/status/1382853342678896641
  7. LiquidMonster
    99% of lawyers will NEVER advise going to court. You almost always want the issue settled between parties before it gets to that point.

    Now the issue that is bigger here IMO is whether the Thomas Bros. are entitled to the "Predator" design that Stan Winston Studios created for the film. Did he sign over ownership of the character to 20th Century Fox?

    As others have mentioned, simply getting the rights back to "Hunter" about a alien space hunter is pretty generic compared to the ICONIC "Predator" Winston designed and created.

    Also, I'm not down on the Thomas Bros. at all for trying to get their property back or pursue the copyright laws that may lead them to a better "pay day". Let's face it, Fox and now Disney have a very valuable I.P. in Predator and I think it's safe to say that none of us would have predicted the Predator franchise is as popular as it was back in 87. Video games, toys, t-shirts, cups, posters, etc.

    Disney MILKS their I.P.s dry and are making literally millions upon millions of dollars from all the intellectual properties they own. The Thomas Brothers have a legal right to re-capture those rights. There is *NOTHING* wrong with that.

    I'm still very hesitant with Disney owning the ALIEN I.P. and have no idea how that it going to go.

    Anyways, I still think best case scenario for all involved(fans, Disney, Thomas Brothers, production staff on Skulls) is that a settlement is hammered out that is amicable to all sides.
  8. Voodoo Magic
    The day the Thomas Brothers attorney filed this in the US District Court just literally happened on Thursday, April 15th.  So after all the appropriate filings from both parties, the court will set a date. So now we wait. I assume it could be at least a couple weeks, perhaps a month, even two before this saga continues.
  9. Proteus
    When will the decision?

    The 17th has already passed.

    The legal system can be very slow. Just look at how long it’s taking the Friday the 13th issue.

    With that said, considering Skulls is supposed to start shooting in June, the hope is that Disney and the brothers can resolve this (favoring both parties but in which Disney retains rights) by the shooting date. So basically now until end of May we MIGHT hear something.
  10. SiL
    Has anyone been able to find Disney's counterclaim? A few sites quote it, but I can't find the text in full.

    Apparently in January they said "We have more time" and now they're saying "hey judge these guys totally didn't file it properly please stop them because we're spending so much time and money on the sequel already."
  11. Valaquen
    Honestly, I always support the creators in issues like this. If there's no more Predator comics or movies I won't really weep. It's a cash grab for the studio every time and some fans are gluttons who simply want to consume endlessly (I know I'll be pilloried for that :laugh:).
  12. SiL
    Yes, which further points to this just being them exercising their right to get a better deal, not give the franchise to someone else.

    (Of course she doesn't know the case in detail and is only giving her opinion based on the case summary).
  13. SiL
    Trademarks can be renewed in perpetuity, yes. So Steamboat Willy will be going out of copyright soon (This year I think? Or it's already there), but Mickey Mouse is still a trademarked character.

    And there's the rub. The Brothers get the copyright to their script; but if they wanted to shop it around, presumably the trademarks are still held at Fox/Disney. They'd need to sell it as a completely new adaptation, I think. But Disney/Fox couldn't continue to exploit the trademark beyond what's already made, as it would rely on the copyright of the original script.

    Which is one of many reasons I'm pretty sure they just want to use this legal tool to renegotiate their license, not kill the franchise. But we won't know until it happens.

    EDIT

    A friend of mine is a trademark lawyer so I'm running this by her. Very curious to hear what she says!

    EDIT

    On the face of it, she says they wouldn't be allowed to use the trademarks without permission. So if they sold the rights elsewhere, it would need to be a new adaptation, or with Fox's blessing.
  14. Immortan Jonesy
    But what about trademark ??? I thought the trademark lasts forever.  :-\

    Well given they've been working on Skulls for at least 4 years, Disney didn't do the homework that Fox didn't do either.  :-\

    https://twitter.com/DannyTRS/status/1329919692157444096
    4 years ago they had time to make and release the film inside the guidelines, though. They only started casting and location scouting in the last few months, when the clock was running down.

    Very true.
  15. SiL
    Hicks, Voodoo, and I discuss:

    Great discussion!

    One thing that stood out; at about 16 minutes VooDoo says that this case isn't unique because of Superman and F13, but there's actually quite a big difference here.

    The Superman rights issue had nothing to do with this particular provision; the issue stemmed from whether one of the creators had or had not actually transferred rights to the other back in the 1930s. The estate of one of the original co-creators contended that he hadn't, and so they had the rights to the character. The courts found otherwise.

    With F13, it's actually quite muddy whether the provision could be invoked at all. The original script was written because the producer asked the writer to put something together that would ride the post-Halloween gravy train. This would make the script a work-for-hire, and thus ineligible. However, nothing was ever put onto paper explicitly declaring the script a work for hire, and so the provision was invoked. The appeal seems to be based around clarifying whether a verbal agreement is legally binding.

    This is actually the first time (as far as anyone seems aware) that this specific provision has been used pretty unambiguously, following the specific steps laid out in its use. There's no contention this was a spec script, and the Brothers filed their intent well within the guidelines. Disney's entire counter-claim is that the date they gave was too early, not that they aren't allowed to get the rights back.

    Well given they've been working on Skulls for at least 4 years, Disney didn't do the homework that Fox didn't do either.  :-\

    https://twitter.com/DannyTRS/status/1329919692157444096
    4 years ago they had time to make and release the film inside the guidelines, though. They only started casting and location scouting in the last few months, when the clock was running down.
  16. SiL
    Disney's held the property since 2019 and clearly developed plans to continue to exploit it; they maybe should've done their homework. They responded to the claim in January; again, that's four months they could've done something rather than throw up a limp-wristed legal speed bump.

    Keep in mind there's actually nothing they can do to stop it. But they could've at least tried to work out a deal before putting Skulls and the comics into action.
  17. SiL
    Original film and five sequels.

    People acting like the Brothers getting the rights back immediately means the end of the franchise are being unnecessarily pessimistic. It's a possibility, not a certainty.

    It’s not so much the possibility of an end, but more that this year was set to have some decent amount of Predator content and things to talk about and/or speculate. And all that could come to a screeching halt or end depending on judge’s ruling. That’s the awful part. We KNOW a new film is in the works, but that could stop. We KNOW new comics were coming. That could stop. We KNOW new updates for the game were coming. Again... stop. If this had occurred when none of us were privy to any of this, we wouldn’t feel this downtrodden. In fact, we all would probably largely welcome it because nothing was happening with the franchise anyway, right? But that’s not true. Content was on its way, and now it could be YEARS before anything. As a fan, do you not agree that sucks?
    The Brothers filed their intent five years ago. The only thing this makes me is annoyed at Fox/Disney for not sorting this shit out already.
  18. Immortan Jonesy
    Hicks, Voodoo, and I discuss:



    Thanks!



    Original film and five sequels.

    People acting like the Brothers getting the rights back immediately means the end of the franchise are being unnecessarily pessimistic. It's a possibility, not a certainty.

    It’s not so much the possibility of an end, but more that this year was set to have some decent amount of Predator content and things to talk about and/or speculate. And all that could come to a screeching halt or end depending on judge’s ruling. That’s the awful part. We KNOW a new film is in the works, but that could stop. We KNOW new comics were coming. That could stop. We KNOW new updates for the game were coming. Again... stop. If this had occurred when none of us were privy to any of this, we wouldn’t feel this downtrodden. In fact, we all would probably largely welcome it because nothing was happening with the franchise anyway, right? But that’s not true. Content was on its way, and now it could be YEARS before anything. As a fan, do you not agree that sucks?


    It may be too early, but fear is normal. We are fans aren't we?  :laugh:
  19. bb-15
    I saw that YouTube video “predator legal battle discussion - Thomas Bros. v. Disney"; I appreciate the information.
    - What this highlights for me is how convoluted the US copyright system is. Where film rights belong to a studio but then the rights can revert back to another copyright holder if a film production of the copyrighted property is not done quickly enough.

    In the Thomas Bros. v. Disney case there isn't even an agreement about what the deadline date should be! The lawsuit admits that there could be other dates. In the meantime the Thomas Bros. are trying to get an injunction to stop future productions including for "Skulls". Ugh!

    :-(
  20. Proteus
    Original film and five sequels.

    People acting like the Brothers getting the rights back immediately means the end of the franchise are being unnecessarily pessimistic. It's a possibility, not a certainty.

    It’s not so much the possibility of an end, but more that this year was set to have some decent amount of Predator content and things to talk about and/or speculate. And all that could come to a screeching halt or end depending on judge’s ruling. That’s the awful part. We KNOW a new film is in the works, but that could stop. We KNOW new comics were coming. That could stop. We KNOW new updates for the game were coming. Again... stop. If this had occurred when none of us were privy to any of this, we wouldn’t feel this downtrodden. In fact, we all would probably largely welcome it because nothing was happening with the franchise anyway, right? But that’s not true. Content was on its way, and now it could be YEARS before anything. As a fan, do you not agree that sucks?
  21. Engineer
    Are you afraid that The Predator might be the last movie of the franchise ?


    https://i.imgur.com/T7Qv7k7.png

    Hey, remember the part in the document where they considered all 5 movies, Predator, Predator 2, Predators, AVP, and AVPR, as part of their  “five sequel films” and NOT The Predator  :laugh:

    Quote
    Under the termination provisions, prior “derivative works” “can continue to be” distributed as before. 17 U.S.C. § 203(b)(1). Plaintiffs’ recovery of the U.S. copyright to their Screenplay therefore does not prevent Defendants or their licensees from continuing to exploit prior derivative works, including the original Predator film and TCFFC’s five sequel films.

    “Original predator film and TCFFC’s five sequel films”

    1. Predator 2
    2. AvP
    3. AvP: Requiem
    4. Predators
    5. The predator
  22. SiL
    Original film and five sequels.

    People acting like the Brothers getting the rights back immediately means the end of the franchise are being unnecessarily pessimistic. It's a possibility, not a certainty.
  23. Mr.Turok
    Are you afraid that The Predator might be the last movie of the franchise ?


    https://i.imgur.com/T7Qv7k7.png

    Hey, remember the part in the document where they considered all 5 movies, Predator, Predator 2, Predators, AVP, and AVPR, as part of their  “five sequel films” and NOT The Predator  :laugh:

    Quote
    Under the termination provisions, prior “derivative works” “can continue to be” distributed as before. 17 U.S.C. § 203(b)(1). Plaintiffs’ recovery of the U.S. copyright to their Screenplay therefore does not prevent Defendants or their licensees from continuing to exploit prior derivative works, including the original Predator film and TCFFC’s five sequel films.

  24. Proteus
    It's respectable I guess.  :-\

    But...can you imagine someone doing a blockbuster rip off of the Predator, like that (initially) ripoff from Superman. :laugh:

    https://i.ibb.co/SVSYc1z/supreme41-superman1.jpg

    Of course I don't want that, it's just that I'm worried about not seeing the Predator in a new installment.  :'(

    Are you afraid that The Predator might be the last movie of the franchise ?


    https://s4.gifyu.com/images/tenor-22998264adad5f8997.gif

    Unless Disney cuts a deal that the brothers can’t walk away from, I don’t see how the courts rule in favor of Disney. Very well could be the last film we ever see.

    Damn! I don't want the Predator to end this way.

    Neither do I, but it’s the sad reality we’re faced with. The unfortunate truth that all things come to an end. I wish we could this Skulls installment as much as anyone, but my stomach aches knowing it won’t happen. Sorry to be so pessimistic, but the courts will likely side with the brothers.
  25. Immortan Jonesy
    It's respectable I guess.  :-\

    But...can you imagine someone doing a blockbuster rip off of the Predator, like that (initially) ripoff from Superman. :laugh:

    https://i.ibb.co/SVSYc1z/supreme41-superman1.jpg

    Of course I don't want that, it's just that I'm worried about not seeing the Predator in a new installment.  :'(

    Are you afraid that The Predator might be the last movie of the franchise ?


    https://s4.gifyu.com/images/tenor-22998264adad5f8997.gif

    Unless Disney cuts a deal that the brothers can’t walk away from, I don’t see how the courts rule in favor of Disney. Very well could be the last film we ever see.

    Damn! I don't want the Predator to end this way.
  26. SuperiorIronman
    They'd have to negotiate with them for future projects. The only way I see things going to an absolute halt is if they play things like Toho does with Godzilla and does a 10 year hiatus. I don't really see them doing that but you never know.
  27. Proteus
    Are you afraid that The Predator might be the last movie of the franchise ?


    https://s4.gifyu.com/images/tenor-22998264adad5f8997.gif

    Unless Disney cuts a deal that the brothers can’t walk away from, I don’t see how the courts rule in favor of Disney. Very well could be the last film we ever see.
  28. Immortan Jonesy
    Are you afraid that The Predator might be the last movie of the franchise ?


    https://s4.gifyu.com/images/tenor-22998264adad5f8997.gif
  29. HumanPredator
    This happened because the brothers transferred the rights to Fox(then disney when they bought them) because copywrite lasts a lifetime correct?
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