Who Owns Tom Clancy’s Fictional Character Jack Ryan?

Posted by Oliver Herzfeld on September 20, 2017

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This article originally appeared in Forbes.

 

Tom Clancy’s widow, Alexandra Clancy, recently commenced a lawsuit against the personal representative of her late husband’s estate, J. W. Thompson Webb, to determine the ownership of the author’s most famous fictional character, Jack Ryan. Clancy’s widow believes Jack Ryan is owned by Clancy’s estate and claims Webb has wrongfully entered into agreements that have surrendered the estate’s interest in Jack Ryan to Jack Ryan Enterprises, Ltd. (JREL) and Jack Ryan Limited Partnership (JRLP), two entities created by Clancy to hold ownership of his literary works. The dispute raises a number of thorny issues involving the ownership and assignment of copyrights that I will explore here.

Clancy originally created Jack Ryan as the main character in his first novel, Hunt, released in October 1984. As part of the publishing agreement for Hunt, Clancy granted and assigned to his publisher the exclusive worldwide copyrights to Hunt and agreed “that he will not, without the written permission of the Publisher, publish or permit to be published any material based on, or derived from, or directly or competitive with [Hunt].” In January 1988, the publisher contacted Clancy asserting that it had acquired all rights to Hunt and that use of the Jack Ryan character by Clancy in subsequent works would constitute copyright infringement. This led to a dispute between the parties that was resolved in September 1988 via a settlement agreement under which the publisher agreed to reassign the copyright to Hunt to Clancy, explicitly including all rights to the Hunt characters, but exclusive of book publishing rights.

In December 1988, as part of the foregoing settlement agreement, Clancy had his publisher transfer and assign to JREL (a newly created entity at that time) the “exclusive worldwide rights of every kind and nature (now or hereafter known), any subsisting copyright, (including the right to secure copyright and any renewals or extensions thereof),” in Hunt. The assignment language was very broad but made no explicit mention of the Hunt characters. Clancy’s widow reads the provision to mean Clancy retained ownership of the characters for himself. However, Webb presumably reads the assignment language to include the Hunt characters, so ownership of such characters resides with JREL and not with Clancy. Of course, it would have been very easy for Clancy’s attorneys to either include mention of the characters in the assignment, or more explicitly exclude the characters, based on what Clancy really intended. Had they done so, this current lawsuit would likely have been avoided. Nonetheless, the very broad language of the assignment (e.g., “worldwide rights of every kind and nature”), together with the failure to exclude the characters, leads me to believe Clancy probably intended to include the characters in the assignment.

In December 1998, Clancy entered into a marital settlement agreement with his first wife, Wanda King, resolving the economic issues between them in connection with their impending divorce. The agreement stated:

In the event that Husband or an entity affiliated with him (other than JRLP and JREL) signs a contract with any third party relating to the story line, in whole or in part (and characters in connection therewith), from works owned by JRLP or JREL (other than incidental use, such as flashbacks), Husband shall cause the contract to be assigned to JRLP or JREL as the case may be. Otherwise, Husband shall be free to use the characters in the works owned by JRLP or JREL in any sequel to any of those works or in any other future work that Husband may create without the approval of or obligation to Wife.

Again, Clancy’s widow reads this provision as evidence that confirms Clancy’s ownership of the characters. However, I think it is easier to read the provision as evidence of ownership by JREL and a license to use the characters granted by JREL to Clancy on a royalty-free basis (i.e., it does not say “Husband owns”; it says “Husband shall be free to use”). Perhaps Webb reads the provision the same way and somehow concluded that the royalty-free license to the characters expired upon Clancy’s death and reverted to JREL. Similarly, Webb may read the phrase “that Husband may create” to mean the license only extended to Clancy personally, and not to other authors of books published after Clancy’s death that feature the Jack Ryan character.

With 20/20 hindsight, Clancy could have better clarified the ownership status of Jack Ryan. After the dispute with his first publisher, the issue should have definitely been on the radar screen of Clancy and his legal counsel. So this case is an important reminder to contracting parties to be mindful when preparing agreements, to properly clarify and memorialize the parties’ intent and to avoid simply filling in the blanks or casually agreeing to the terms of standard forms. Parties would be well advised to engage legal counsel that take a “defensive driving” approach, thoughtfully considering potential future disputes, specifically spelling out the parties’ expectations and paying particular attention to clarify both what is included and explicitly excluded from the relevant bargained for exchange. Doing so will help avoid future copyright ownership and other disputes between contracting parties and avoid unpleasant trips to the courthouse.

Oliver Herzfeld is the Chief Legal Officer at Beanstalk, a leading global brand extension agency and part of the Diversified Agency Services division of Omnicom Group.