Starting with espionage thriller The Hunt for Red October, Jack Ryan, the fictional CIA analyst turned Everyman Hero, has appeared in 21 novels, five feature films, numerous videogames, and even an episodic series – Tom Clancy’s Jack Ryan, now on Amazon Prime. Actors who have portrayed Jack Ryan include Alec Baldwin, Harrison Ford, Ben Affleck, Chris Pine and John Krasinski.
Clearly, Jack Ryan is a fixture in American popular culture, tied to billions in value.[1] But who owns the character? A Federal District Court in Maryland recently addressed this very question in a lawsuit brought by author Tom Clancy’s widow.[2]
Multiple Choice Question: Who owns Jack Ryan?
(a) Tom Clancy’s first wife, and companies aligned with her? Or
(b) Tom Clancy’s widow – his second wife, and his Estate? Or
(c) It’s too soon to say?
For the answer, keep reading.
Simplifications
The recent Clancy court decision runs 89 pages and involves parties, issues, and documents in addition to those referenced in this Client Alert. For the sake of brevity, here, I have limited my focus to the Jack Ryan character, and I have simplified (and, possibly, oversimplified) some of the facts. With those caveats . . .
In the Beginning
Because Jack Ryan first appeared in the novel The Hunt for Red October, Tom Clancy, as the novel’s author and creator, was the initial owner of the Ryan character. In copyright law, it is axiomatic that an author initially owns his or her literary creation.
Conflicting Agreements
On his path from obscure novelist to literary lion, Tom Clancy entered into numerous publishing, film, TV and marital agreements in regard to Red October and the Ryan character. At least some of these agreements were unusual and inconsistent.
Red October Publishing Agreement
In Clancy’s 1983 agreement for Red October – his first publishing agreement – the Naval Institute Press acquired “the exclusive worldwide rights and any subsisting copyright” in the novel, and Clancy even promised not to publish anything “based on, or derived from, or directly competitive”. Based on this agreement, the publisher claimed to own not just the novel but all rights in the Jack Ryan character too. This even though, at the time, mainstream U.S. publishers typically acquired only the limited right to publish novels in text form, in English, in certain English-speaking territories.
It ultimately took litigation, and a substantial payment by Clancy, for Red October’s publisher to finally acknowledge that “all rights in and to the characters are [Clancy’s] sole property”.
Marital Separation
Some 15 years later, as part of their marital separation, Tom Clancy and his first wife agreed that, as between them and various companies formed during the marriage, Clancy “shall be free to use the characters . . . in any sequel to any of [Clancy’s] works or in any other future work that [Clancy] may create” (emphasis added). But while their separation agreement specifically addressed ongoing use of characters, it apparently did not similarly address ownership of characters.
The Ownership Answer from the Court
Given the legal and factual complexity of the case, involving dozens and even hundreds of documents, spanning decades, the Federal District Court judge was unwilling, at this stage in the litigation, to decide whether the first Mrs. Clancy, and companies aligned with her, or the second Mrs. Clancy, and Clancy’s Estate, own the Jack Ryan character.
In other words, although the Jack Ryan character has been around since at least 1984, because of the character’s complicated legal life, it is soon to say who owns him!
So, unless the parties settle their dispute out of court, a jury will decide, after trial, who owns Jack Ryan.
The Answer You Want
In a complex case like this, those four words – “A jury will decide” – can be extremely problematic. In a litigation, if your side benefits from clear drafting, you want a judge to be able to say: “The parties’ intent, as expressed in the documents, is clear. There’s no need for a jury to hear evidence. I’ll decide the case without a trial.”
Of course, in litigation as in life, while one party may benefit from clarity, another may benefit from ambiguity . . .
The Lesson
The important distinction, between ownership of copyright (A) in a novel vs (B) in a literary character in the novel, is often overlooked by inexperienced lawyers, and sometimes even by those with experience.
Insofar as the Jack Ryan character is concerned, this dispute might have been avoided if each of the many rights-related documents the parties entered into had a simple, consistent statement of ownership of the Ryan character.
What Might Have Been
From the point of view of the first Mrs. Clancy, ideally, key documents would have stated that companies aligned with her owned not merely certain books but the Jack Ryan character as well.
From the point of view of the second Mrs. Clancy, those documents would have stated that Tom Clancy as an individual (and, hence, his Estate) retained ownership of the Ryan character, and not simply the right to continue the character’s use.
For Additional Credit
Although perhaps tangential to the dispute between the two Mrs. Clancys, the Federal District Court, in its recent ruling, referenced this 2008 email to Tom Clancy from erstwhile superagent Michael Ovitz, in regard to production rights of Paramount Pictures, the studio behind the Jack Ryan franchise (including the current Amazon Prime series)
The problem with all of this is that you have no legal way to stop them from using your Jack Ryan character, because long before I met you, prior representatives gave away the rights to use JACK RYAN to Paramount, at their discretion… without your permission OR involvement… [T]here is no legal action we can take…
Additional Credit Question
If you are the creator of a valuable literary property, do you want your agent opining, in an email or other communication not governed by attorney / client privilege, that you have no legal rights?
Possible answers:
(a) No.
(b) Uh, no.
(c) Hell no!
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[1] To date, worldwide box office alone for the film franchise is in excess of $900M (not adjusted for inflation). https://www.the-numbers.com/movies/franchise/Jack-Ryan#tab=summary At the time of his death in 2013, Clancy had reportedly sold more than 75M Jack Ryan videogames and, including both Jack Ryan and other titles, more than 100M books. https://www.thefiscaltimes.com/Articles/2013/10/03/Tom-Clancy-Bestselling-Author-Numbers
[2] Clancy v. Jack Ryan Enters., Civil Action No. ELH-17-3371, 2021 U.S. Dist. LEXIS 26553 (D. Md. Feb. 10, 2021)
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Ezra Doner is an entertainment and copyright lawyer who focuses on the film, TV and other content sectors. He is based in New York and is admitted to practice in New York and California. He does not represent any of the parties in this case.
donerlaw.com 