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Movie Rights to Kesey Novel Again Challenged

PORTLAND, Ore. (CN) - The 9th Circuit on Tuesday heard the latest chapter in a decades-long saga over the movie rights to Ken Kesey's final novel, "Last Go Round," based on the historic 1916 Pendleton roundup that pitted black, white and Indian bronco riders against each other and brought a rodeo audience to the brink of rioting.

Kesey, the author and drug culture icon immortalized in Tom Wolfe's "Electric Kool-Aid Acid Test," died in 2001. He wrote the classic books "One Flew Over the Cuckoo's Nest" and "Sometimes a Great Notion," along with numerous short stories.

In 1984, he wrote the screenplay "Last Go Round" with Irby Smith, a Hollywood producer whom Kesey brought in after his 20-year-old son, Jed, died in a car accident.

Smith later transferred his literary rights to Kesey, but the movie was never made, and Kesey published the story as a 1994 novel titled "Last Go Round: A Real Western."

Kesey LLC, which manages the late author's literary estate, sued Sundown & Fletcher in Oregon District Court in 2006, claiming the company wrongly registered a copyright in 1994 over the movie rights to the book.

Sundown & Fletcher says a short note allegedly typed by Kesey documents that it bought the rights to the screenplay from the writer for $10,000.

"To whom it may concern," begins the note, which is attached to the original complaint. "I have agreed to write a screenplay about bygone rodeo greats Jackson Sundown and Nigger George Fletcher, concerning their historic confrontation at the Pendleton Round Up in 1916. The name of the production company that I am writing for is Sundown Fletcher Inc. and the people I am dealing with are Mike Hagen and MiShelle McMindes."

Kesey's signature is scrawled at the bottom of the page.

Hagen, a former member of Kesey's 1960s group of Merry Pranksters, and McMindes, a former Playboy model and sometimes private detective, formed Sundown & Fletcher to raise money for the movie.

Kesey's 73-year-old widow, Faye, told the court in a 2008 deposition that movie producers were interested in optioning the novel.

"And because other people, namely the defendants, were claiming an interest in the copyright, that made it impossible to go forward," Faye Kesey told the court.

In December 2009, U.S. District Judge Garr King nixed Sundown & Fletcher's (S&F) claims, finding that Kesey LLC held all rights to the book and screenplay.

King wrote that Kesey's 1984 letter was not a binding contract because it is "fatally indefinite, utterly lacking essential material terms, fails to indicate that the screenplay was being created as a 'work for hire' to be owned by S&F, contains no language specifying that any rights whatsoever in the screenplay were being granted or licensed to S&F, and is not even executed by S&F."

The lawyer for Kesey's estate, David Aronoff of the Los Angeles firm Lathrop & Gage, argued Tuesday that the document was not binding.


"There are only a handful of ways that you become an owner of a copyright," Aronoff said. "You either have to be an author, the work has to be a work-for-hire by an employee, the work has to be a work-for-hire by special commission, or there has to be a transfer. And as the District Court below found none of these events occurred.

"Plainly, Kesey and Irby Smith were independent contractors - they weren't paid a salary, they received no benefits, they did their work in Kesey's home."

Sundown & Fletcher's lawyer, Mike Kratville, on Tuesday laid out the 27-year history of the argument to illustrate that the estate waited too long to file its complaint for declaratory judgment establishing its ownership of the screenplay.

Kratville said the timeline establishes his argument for statute of limitations, estoppel and laches.

Aronoff, the estate's attorney, rejected the contention.

"Basically, the defendants are here in position of spoilers," Aronoff said. "They aren't saying they are the owners, they're just saying Kesey LLC sued too late. And as the District Court found, those arguments fare no better than their ownership arguments."

Kratville said he has plenty of specific examples to prove Sundown & Fletcher owns the screenplay.

"You've got the 1984 discussions, where my client says the corporation will own the screenplay; you've got the 1990 option, that Mr. Kesey was aware of, that we optioned to Ms. Wilson, who was out marketing the screenplay herself. He knew about that. 1994, you've got the lawyers letters back and forth, you've got all the statements -"

Circuit Judge Sandra Ikuta clucked that Kratville had a "series of transactions" but could not point to a "specific letter or action that was a plain and expressed repudiation without any offer for further negotiations."

Aronoff took up this point in his argument, contending that this aspect also undermines the company's statute-of-limitations argument.

"Since there is no plain and expressed repudiation, statute of limitations never accrued," Aronoff continued. "And for these same reasons, there is no laches. Laches requires an unreasonable delay in filing an action. Well, there is no unreasonable delay here, because from 1994 through 2006, a period of 12 years, the novel was being distributed with out contest, without challenge or controversy."

The publication of the novel repudiates Sundown & Fletcher's ownership claims, Aronoff said.

"Here, there is nothing plain and expressed, except for the fact that in 1994, Kesey published the novel," he said. "Kesey, as an author, expressed his repudiation as clearly as he could - he published the novel, which is virtually identical to the screenplay. And, it's undisputed that the defendants knew about the novel."

Kesey's lawyers rejected Sundown & Fletcher's offers to settle when he went forward with the novel, Aronoff claimed.

"He rejected that and published the novel," Aronoff said. "There could not have been a more plain and expressed repudiation possible."

And Kesey copyrighted that novel the same year, the lawyer noted. Ultimately Sundown & Fletcher acquiesced to the novel's publication, Aronoff added.

"There is testimony in the record that they decided strategically or tactically that publication of the novel might be a good thing," he said. "I think in their minds, they thought that maybe there would be some way they could shoehorn their way into production of the movie if the novel proved to be successful. But obviously that never happened."

Aronoff also dismissed the idea that Kesey's letter made the book a work-for-hire by special commission, saying that kind of contract requires the "work-for-hire or equivalent language."

"Here, you have a letter that begins, 'To Whom it May Concern,'" he said. "It's a letter of introduction, nothing more than that. It doesn't remotely meet the requirements of a work-for-hire-by-special-commission writing."

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