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Legal bondage

Judge set to kill Sony's 007 pic hopes

Sony Corp.’s hopes of a James Bond franchise were probably shaken, not stirred, after Monday’s legal hearing.

U.S. District Court judge Edward Rafeedie declared he was “99.9%” convinced he will grant Metro-Goldwyn-Mayer’s motion for a preliminary injunction. If that happens, Sony would be prevented from developing a script or otherwise proceeding with the creation of its own Bond movies — at least until (and if) it prevails at trial, which is scheduled for December.

At Monday’s hearing, the judge revealed that Sony — which has been secretive about its 007 development strategy — has been in talks with filmmakers Roland Emmerich and Dean Devlin about creating the Bond franchise. The team, whose “Independence Day” was a huge hit for 20th Century Fox, produced and directed Sony’s “Godzilla” and has a production pact with the studio.

MGM has rights to the James Bond films, via its United Artists and its deal with Danjaq, which produced the films. However, Sony announced last year that it had obtained rights to a “Thunderball” remake, and hoped to spin that out as its own Bond franchise.

Sony had obtained rights from Kevin McClory, who is usually described as a collaborator with Ian Fleming, on what ultimately became the script for “Thunderball.” Sony has argued that as a result of McClory’s contributions, he is the co-creator and co-owner of “an original cinematic Bond character.” In legal terms, Sony says McClory is a joint author with separate rights to exploit the Bond character.

MGM counsel Pierce O’Donnell said, “Based on today’s ruling, it’s clear that Sony’s claim that they are building a new home for Bond is built on legal quicksand.” He added that Monday was likely “one of the darkest days in the history of Sony Studios.”

‘Not final’

Minimizing the impact of the judge’s apparent decision, Sony counsel David Steuber said, “We are disappointed that the court didn’t decide the motion in our favor, but we’re encouraged that the judge realizes this is not the final (ruling) on the merits.”

In the course of the extensive argument Monday, Rafeedie found that MGM has satisfied the basic requirements for obtaining a preliminary injunction: likelihood of success on the merits and showing of irreparable harm at least to plaintiff Danjaq.

The judge found that MGM is likely to succeed on both its copyright claims and its trademark claims. On the copyright side, the judge appears to rule that the McClory materials — 10 variations of the “Thunderball” script — are derivative works that do not create any rights in the underlying Bond material.

The judge also appeared to agree that the “McClory rights” reverted to the estate of Fleming, the creator of James Bond, under the principles outlined by the U.S. Supreme Court in the “Abend” or “Rear Window” case.

That case dealt with the rights to “Rear Window,” the Alfred Hitchcock film based on a Cornell Woolrich short story.

The case held that the owner of derivative work (which is McClory in the current case) does not retain rights when the death of the author (Fleming) causes the renewal rights in the underlying work (the Bond novels) to revert to the author’s estate.

Limited rights

MGM has argued that McClory is not a joint author but the recipient of limited rights as the result of a 1963 settlement of a lawsuit with Fleming over the film rights to “Thunderball.”

MGM also argued that, as a result of the “Abend” case, McClory lost whatever rights he had.

Last year, MGM acquired the film rights for the renewal term in all the Bond novels, including “Thunderball,” from the Fleming estate.

Sony has argued that because McClory is a joint author, the “Abend” case simply does not apply.

On the trademark claims, the judge also indicated he will side with MGM and find that “James Bond” is a protectable trademark. That means Sony will not be able to use the name James Bond and presumably variants such as “007” in connection with its films.

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