Austin Padgett and Rusty Close unpack the half-century battle over who really owns James Bond.
In this episode of No Infringement Intended, Austin Padgett and Rusty Close unpack the half-century battle over who really owns James Bond. They trace how Ian Fleming's early collaborations fractured the rights to Thunderball and Casino Royale, why that split spawned two "rogue" Bond films outside the official series, and how it ultimately took more than 50 years to bring the 007 franchise back under one roof. Along the way, Austin and Rusty clarify what counts as a "joint work," how tenancy in common lets any co‑owner license a work while still owing everyone else a share, and why getting clear contracts in place at the start of a project is the only way to keep a blockbuster character from turning into a long‑term legal headache.
No Infringement Intended — How Did James Bond Spark a 50‑Year Legal War Over Who Owns 007?
Hosts: Rusty Close and Austin Padgett
Recorded: 3/16/26
Aired: 4/20/26
Austin Padgett (00:13):
Come one and come all. It's time for gavels and gravy. Welcome to No Infringement Intended, an intellectual property podcast of our law firm, Troutman Pepper Locke, hosted by the so-called bad boys of intellectual property: Rusty Close and me, Austin Padgett. Today we've got stolen credit, a 50-year legal war and two James Bond films in theaters at the same time. The lawyers were more dangerous than the villains, it turns out. But before we get into it, make sure you're subscribed and please, while you're there, drop us five stars and let me reiterate from our prior episodes, the Golden Globes Podcast Award is not going to win itself. We are here and we are going to be heard. Rusty, any thoughts on that before we get the mailbag?
Rusty Close (00:55):
Well, I would say we'd be remiss if we didn't mention the passing of the patron saint of our podcast, the great James Vanderbeek, who I don't believe ever won a Golden Globe, but certainly was deserving, and stands as a good reminder for all the folks that are in our age bracket to do those screenings and take care of your health.
Austin Padgett (01:16):
Absolutely. Absolutely. Big shout out to Vanderbeek. All right, let's get the mailbag. Friend of the pod James writes in and asks us this: “Gents, can I get a ruling on this? Is a hotdog a sandwich?”
Rusty Close (01:27):
That's a tough one. I mean, it's a question as old as time. Does the hotdog qualify as a sandwich? I think if you go by technical definitions, you could come away thinking that it is a sandwich. I don't tend to think that it is because I like to put chili and slaw on top of mine, which I think in that case, your sort of bun is more of a “V”, and the toppings are on top. From my perspective, technically, sure. You can call it a sandwich if that's the way you want to live your life. But I think we all know what a sandwich is and a hot dog isn't one.
Austin Padgett (02:02):
That's right. Tubular meat doesn't count.
Rusty Close:
Exactly.
Austin Padgett:
I hope that helps you out, James. Second question, old Zachary writes in and says, "I love the podcast. From the lengthy disclaimer at the end of each episode, I realize that I can't ask for legal advice, but can you provide relationship advice? If so, I'll send you some questions." I love this. He doesn't actually send the question. It's more like a preface.
Rusty Close (02:25):
Yeah, yeah, yeah. It's a classic – you get three wishes and don't waste one right off the bat.
Austin Padgett (02:32):
That's right. But I'll tell you what, Zachary. You write in with some questions and provided they're within the scope what's legit for a law firm podcast to put out, we'll answer the question. We'll give you some great advice.
Rusty Close (02:44):
It's interesting to hear that there's a disclaimer on the end of the episodes because as soon as I hear something that's not the two of us talking, I'm zipping right through that. I mean, that's getting skip, skip, skipped to whatever episode is next in my queue. So, I don't even bother with that nonsense. They can make it four minutes for all I care.
Austin Padgett (03:02):
Oh man, I got to listen to our jam, our intro and outro music the whole way.
Rusty Close (03:06):
Oh sure, yeah.
Austin Padgett (03:06):
There's a good fade in. All of a sudden, I don't even know who it is, but there's a beautiful voice. It's like an angel coming through, just reminding us of the terms of how this content is being put out. All right, well, I mean, that kind of sets us up here. We've learned a lot about each other, Rusty, through these three seasons of ours on this podcast. We've been friends a long time too before that, but maybe it's time we do start stretching out to Zach's point here. First dates. What's your move? You a dinner and a movie guy or you have a better system?
Rusty Close (03:38):
It's been a long time, I’ve got to say. My wife and I, our first date was dinner. I think dinner and a movie is tough because you're sort of left in this two-hour block where you're both just sort of sitting there. I mean, so the dinner's good. You can engage; you can go back and forth. Movie is tough though. I think for that reason, I, as a much, much younger person had – I was going to say younger man. I'm not even sure I would've qualified at that time – but baseball game was good. There's a lot to do. There's a lot going on. This was actually a person that I knew, so there was a little bit of comfort there. It wasn't just going to be complete blind date type situation where you're together for an extended period of time. That seems like a good option if it's at least someone you have some familiarity with.
Austin Padgett (04:27):
Yeah, I agree. I think for a first date where you don't know much, I mean, you need to be in an avenue where you can ask a lot of questions and have a lot of conversation.
Rusty Close (04:35):
And a quick exit if you need one.
Austin Padgett (04:37):
Absolutely, and a movie is not that. That's a strong move is to leave the movie.
Rusty Close (04:43):
Leave someone stranded watching Wedding Crashers.
Austin Padgett (04:46):
Yeah, exactly. I'll be honest with you Rusty – I'm not a dinner and a movie guy. At one point I thought it was a good move. There are a couple reasons for that. One: I won't even mention the film, but I took a date to go see a film and it was sold out, so we went and saw another and it was wildly inappropriate for a first date. I'll tell you that off the line. The second is that I went, this was the mid '90s. It was with a friend. But we were going to see, and we'd go on our first date, and we go to see a James Bond film. The movie is great, but my date – this was back in the day before theaters got their acts together and knew that it needed to really be an experience, so the seats were all crammed in.
(05:31):
There wasn't much room to move around, and my date kept shifting her legs, like crossing them back and forth and bumping the people ahead of us. The person right in front of us happened to be this super jacked guy and his date. He didn't have a problem coming and telling me what he thought about – because the seats were staggered, he thought I was the one kicking the seats. His first line was to come to me. I mean, I was what, 16 probably at the time. Yeah, and then I sit down, I'm like, "You've got to sit still," which is not like a date line you want to have.
Rusty Close (06:05):
Right, right. You're setting some ground rules early on in this relationship.
Austin Padgett (06:09):
Right. Rule number one: don't get me killed.
Rusty Close (06:12):
Right, right. Now you said you were 16. I think we've learned on previous podcasts, you had the nickname “Buffman” at the time. So, I can't imagine why this guy was feeling so confident that he could talk to you this way.
Austin Padgett (06:23):
Yeah, exactly. Yeah. Looks can be deceiving, guy. For folks that need to get the background, go revisit a couple episodes ago and you'll find out all about that story and how ironic that nickname was. For sure.
Rusty Close (06:35):
Austin’s legendary physique.
Austin Padgett (06:36):
Exactly. Okay. Now I'm on record – dinner and movie's a trap and I've got James Bond as my evidence, which Rusty, is my segue for today. That's how I'm getting you there. It turns out James Bond has caused problems for a lot of people for about 50 years. Before we get to the James Bond story, let's set up the legal concept that's kind of at the heart of what we're talking about today, because it's something that comes up all the time, not just in Hollywood. We've talked about some of this in our previous episodes about multiple people collaborating on a project and then it invites trouble. Rusty, do you have any greatest hits of collaboration gone wrong?
Rusty Close (07:16):
If I think back on our episodes, our crossover episode with our labor and employment friends comes to mind and sort of the creation of Facebook. I think one of the big issues there is not everyone being on the same page in terms of what this collaboration is going to look like. In that case, it was the twins were thinking, "Hey, you're going to come do some work for us,” and Zuckerberg wasn't exactly looking at it that way, and it went horribly wrong.
Austin Padgett (07:43):
We could spend all day talking about this stuff because these-
Rusty Close (07:45):
Which we have.
Austin Padgett (07:46):
Well, that's exactly right, because these kinds of issues are what keep our podcasts going. As long as people work together, we'll never really run out of material. In candor, that's what has me a little worried about AI is that it's jumping in and just doing all the work for everybody and there's no human disputes that are going to happen. I'm sure there's more to worry about than that, but that's one of the biggest.
Rusty Close (08:05):
You can't get this kind of witty banter from AI though.
Austin Padgett (08:07):
That's right. It tries hard. Man does it try. It's got a case of the “try-hards”, as my kids call it.
Rusty Close:
Right.
Austin Padgett (08:13):
When two or more people work together to create something, let's say a screenplay or a song or a novel, who owns it? Well, under copyright law, a joint work – that's the name of it – one that's prepared by two or more authors – and authors here being kind of just the pejorative language in the Copyright Act for the creators – who have the intention that their contributions be merged into a single work and joint authors are co-owners of the copyright. But the question is, Rusty, what kind of ownership do they have? Can I take you back to your first year of law school to property class? Maybe it felt like The Paper Chase movie to you, but do you remember the three main types of joint ownership of property?
Rusty Close (09:00):
Well, first of all, I'm glad you didn't ask if I remember the law against perpetuities because I remembered that for long enough to get a couple of coherent words down on the exam.
Austin Padgett (09:11):
Oh, that one was a dog for sure. Yeah.
Rusty Close (09:13):
Completely out of my mind. Different types of property ownership, joint tenancy, I think was one?
Austin Padgett (09:20):
That's the one where all of the owners, they own it all together, but the last to die takes it.
Rusty Close (09:26):
Last man standing.
Austin Padgett (09:27):
Yeah. The right of survivorship, et cetera.
Rusty Close (09:30):
Okay. All right. Then there's tenancy in common.
Austin Padgett (09:35):
That's very similar where everyone has an undivided interest and they can do whatever they want with the property. They just have to account to the others for any profits that they make out of it.
Rusty Close (09:45):
Okay, and is there another one for married couples?
Austin Padgett (09:49):
Yep. Yep. I'll lead you there. Tenancy by the entirety. You did well for all these years.
Rusty Close (09:55):
Well, two out of three was what, 66%? That sounds about like law school for me.
Austin Padgett (09:59):
Yeah, the great part about this is it was a quiz, but you only really need to know one of them. It's much like your law school exam. You never knew what was going to come around the pike. Tenancy in common is the one that we're talking about here. That's the default rule for copyrights with joint authors. This big practical consequence is that you own something. Any co-owner can exploit the work, let's license it, whatever, without the other's permission. They just have to account for the profits to the other in proportion to the percentage ownership. That's the recipe that comes in for conflict.
Rusty Close (10:33):
Now, if you and I have a tenancy, we jointly own some copyright. I go and license it, and let's say it's fifty/fifty. I go and license it for $100. When you say I have to account to you, does that mean I owe you $50 of the $100?
Austin Padgett (10:48):
Yeah, whatever those profits are. Yeah, you'll be able to offset your costs, but when it comes to profits, you owe me because we're co-owners.
Rusty Close (10:57):
Okay, got it. I don't have to tell you what I'm doing, but I do have to give you some of the money.
Austin Padgett (11:02):
Exactly. That's where you bump into these issues a lot of times, where people co-own this stuff, then there's a falling out. They never really papered it up, but one person thinks that they own it, and in a sense they do. They just have to account to the other for it, but they'll go and do whatever they want. The other person doesn't like that and they find out about it and they're like, "We got to stop that. " Well, the answer isn't really that we can stop it. The answer is probably they've got to pay us for it and that might stop it. It's a different conversation for sure as far as, "Oh, I thought I owned it. " No, you can go do what you want with it. Now that the cat's out of the bag, because the other party started licensing it, maybe it's not worth as much to you.
(11:41):
So, practical issues come up. I should mention here, it's the common refrain in our podcast, Rus. Go ahead. I'll let you spill it.
Rusty Close (11:52):
Just have a contract, guys. Don't ever rely on the defaults.
Austin Padgett (11:56):
That's right. Figure it out while you love each other.
Rusty Close (11:58):
That's right. Figure it out on that first date. You're setting the ground rules. You got to be still and we got to figure out what our rights are going to be in terms of property ownership.
Austin Padgett (12:09):
Oh, I didn't even think about the first date callback. I should have built something in. That's awesome. Well done.
Rusty Close (12:14):
Thank you.
Austin Padgett (12:15):
Yeah. The problem is if everyone has all these agreements, we probably don't have a podcast because life becomes very uninteresting at that point. I mean, we could talk about the agreements, but that's not going to reach the listener's ears like these beautiful episodes we're putting out.
Rusty Close (12:28):
That's going to be a big no, thank you.
Austin Padgett (12:30):
The Bond story is a live case study and what we're working through in these concepts. Buckle up, Rusty, because we have a tangle of facts that I'm going to ... I've worked really hard on an outline here to try to make this as smooth as possible. We've got a few characters and I'm going to simplify some things along the way. Dear listeners, I'm leaving out a lot of details. If you guys can get the numbers up on this thing, and I'll mention this later too, I will do a part two because there's a lot more, not just to like the story of making Bond, but like all sorts of things in the Bond universe. I mean, we're talking theme songs, like crazy... we're talking all sorts of stuff. It is a wild franchise. We got to start with Ian Fleming. Rusty, you probably know him as the guy who wrote Chitty Chitty Bang Bang.
(13:16):
He was born in 1908. His father was a member of Parliament. As a side note, his father was killed by German shelling on the Western Front in 1917, and his obituary in the Times was written by none other than Winston Churchill.
Rusty Close (13:31):
Wow. What a legacy.
Austin Padgett (13:32):
I know, right? Ian, the son, starts his professional career as a journalist. Then he worked in some banking for a while, but he was recruited to the British Naval Intelligence just prior to World War II starting. When the war ended, he retired to Jamaica where he built a house called Golden Eye, which might sound-
Rusty Close (13:52):
Sounds familiar.
Austin Padgett (13:52):
Yeah, and started writing full-time. That's where he created the Bond character and the first novel, Casino Royale. Keep that in mind. Here's our first pit stop. Rusty, are you aware of the Bond film, Casino Royale, with Daniel Craig in it? It was made in 2006.
Rusty Close (14:11):
I think so. Is that the one with the scene of Daniel Craig coming out of the water?
Austin Padgett (14:17):
Yes.
Rusty Close (14:17):
He's got on the bathing suit much like the one I wear.
Austin Padgett (14:21):
Right, yeah. Rippling abs?
Rusty Close (14:22):
Yeah.
Austin Padgett (14:23):
Yeah.
Rusty Close (14:24):
It's seared into my memory and often evokes the way I look coming out of the pool.
Austin Padgett (14:29):
I hear that. I can imagine it easily. I think that's right. I'll have to go back and look. Here's the weird part. You might be expecting like, that was his first book, but we're way down the line a number of movies that have happened.
Rusty Close (14:44):
Way down the line.
Austin Padgett (14:45):
Yeah. The reason that is, and we'll cover this more later too, we'll tie it all up a little later. But the reason is Fleming had sold the rights to that novel to an actor named Gregory Ratoff. There are allegations that this guy stole money from some producers in Egypt, and when he fled the country, made a deal with himself that if he made it out of the country, he would use some of the money to purchase rights to the first book he read a review of. That book happened to be Casino Royale by Ian Fleming.
Rusty Close (15:18):
Okay, so fleeing the country or stealing the money from producers, that didn't have anything to do with Casino Royale. He was stealing money from producers, fleeing the country. Then he read a review of the book, then he bought the rights.
Austin Padgett (15:34):
Yeah. Kind of like he makes a deal with God. If you can just get me out of this, I will invest in whatever. I mean, it doesn't really make a whole lot of sense, but this is the tale that is told. I should tell you, we're going to have a lot of tales that have been told when it comes to the creation of any Bond franchise product. Disclaimer here, I don't know the actual veracity of all this stuff, but you will read it in books, you'll see it online, and it's too juicy not to include.
Rusty Close (15:58):
If it's in a book or if it's online, I take it as gospel truth. Proceed accordingly.
Austin Padgett (16:04):
Right, exactly. What could go wrong? Ratoff commissions the script, but he never makes the film because he thought the character of Bond was just unbelievable. I believe there's a quote that he thinks it was “stupid”. He dies in 1960 without making the film, and his widow sells the rights to his talent agent named Charles Feldman. Feldman couldn't work out a deal with the official Bond film creators, and I'll get to them in just a minute. So, he made a satire instead called Casino Royale. This is our first non-canonical Bond film, and it's 1967's Casino Royale, but it's not truly a Bond. It's a satire. It's a send-up.
Rusty Close (16:45):
Sure. So, 1960 is when he passed away. Had there been a Bond film by then?
Austin Padgett (16:54):
Yes. There have been multiple Bond films by then.
Rusty Close (16:56):
Okay, got it.
Austin Padgett (16:56):
1961 is your marker for when the Bond franchise in true starts.
Rusty Close (17:02):
Okay.
Austin Padgett (17:03):
But let's head back to the 1950s for a second with Fleming. He had already written several Bond novels and started working with an Irish film producer named Kevin McClory and a screenwriter named Jack Whittingham. It's got Fleming, McClory and Whittingham on this original Bond screenplay and the project was called Longitude 78 West. Never got made. Fleming, though, likes the material so much he just can't let it die. He takes the ideas from those screenplay drafts that include a villain organization called Spectre and its leader, Ernst Blofeld. That's the guy who strokes the white cat, famously gets some Inspector Gadget send-ups of that as well along the way. That's right. Then he turns them into this 1961 novel called Thunderball, but he did not credit McClory or Wittingham in it. McClory sues. The case settles in 1963, and I'm hammering these dates because the sequence is going to come up in just a second.
(18:12):
1961, you get the book Thunderball. 1963, they settle this dispute between themselves. I mean, they're heading to trial. This is in the UK. They're getting ready, but they settle it, and Fleming gets to keep publishing the novel as part of the settlement, but McClory walks away with the rights in the film to Thunderball. Kind of tuck that away. We've gone through a couple of instances. We have Casino Royale, and we have Thunderball. Those are going to be kind of our outliers. Now I need to introduce you to a group called Eon Productions. It's Eon with a capital EON, which stands for Everything or Nothing. Yeah, it was formed by Albert Broccoli. I won't do the Italian pronunciation. Everyone called him Cubby, so I'm just going to call him Cubby.
Rusty Close (18:59):
Cubby Broccoli.
Austin Padgett (19:00):
Exactly. It's Cubby and a guy named Harry Saltzman. Let me give you some background on these guys. Cubby grows up in Queens. He got into film by taking a trip to visit family in Los Angeles who worked in the industry. I think it's one of his cousins. He takes to it and he starts working low level jobs on Howard Hughes's film – and I'm talking about that Howard Hughes. I didn't realize he was a huge film producer. Common knowledge, but true. I just hadn't ever run into that before.
Rusty Close (19:27):
Have you not seen the Leo movie? I mean, you would've figured all this out.
Austin Padgett (19:31):
For sure. I should have paid more attention.
Rusty Close (19:33):
You were focused more on his airplane career, right? The Spruce Goose, I think.
Austin Padgett (19:38):
Exactly. Yeah. The inventorship and kind of the maniac financing of everything.
Rusty Close (19:42):
Which I think was wooden, if I'm not mistaken. Could really dig in on that.
Austin Padgett (19:46):
Maybe that's a future episode.
Rusty Close (19:48):
Wooden airplanes, yeah.
Austin Padgett (19:49):
It turns out Cubby had been interested in the Bond movie rights for some time, but he's in this other business partnership that just couldn't work it out between them to go get them. That business partnership dissolves, and he's finally made free to pursue the Bond franchise. Then he discovers that Fleming has already made a deal with this guy named Harry Saltzman who had an option with just 28 days left to act.
Rusty Close (20:18):
This is separate altogether from the other two that we've already talked, Casino Royale and Thunderball. Is this more just generally the Bond universe, like everything that's not in those two?
Austin Padgett (20:30):
Correct. This is going to be, except for the first book, this is going to be all of Fleming's books and future books.
Rusty Close (20:38):
Okay.
Austin Padgett (20:39):
It's going to be an encompassing deal.
Rusty Close (20:41):
This is a big one.
Austin Padgett (20:42):
Yes, this is the one. Saltzman has purchased the six-month option on it and has 28 days left. Before we get there, let me tell you about Saltzman. He's an interesting character himself as is like everybody in this whole thing. He reportedly runs away with the circus in early life. World War II, he's part of the precursor to the CIA, specifically the psychological warfare division.
Rusty Close (21:12):
Interesting. Okay.
Austin Padgett (21:13):
Yeah, yeah. After the war, he becomes a serious film producer. As part of his project portfolio, he pays Fleming fifty grand for the six months extension or sorry, option, on the Bond novels – excluding Casino Royale, of course – but couldn't interest a major film company during this time. We come to the point where he's got 28 days left on this option. He meets Cubby. Well, Rusty, before we get there, tell us what an option is.
Rusty Close (21:41):
In the way I understand it, you're buying yourself a period of time where you're the one who has more or less an exclusive right to someone else's content. You're going to take it and do something with it. I always think of it as an option license, where there's this period of time where the rights holder is not going to negotiate with anyone else. I'm not necessarily doing anything with these rights during that time, but I'm the one who has the opportunity to do something with them during that time.
Austin Padgett (22:14):
That's exactly right. Yeah. So, Fleming has given Saltzman this six-month time period in which he can exclusively go shop and find somebody to partner with and make some movies and if he doesn't, it all goes back to Fleming, and they start again. Maybe he can find somebody else to partner with or extend the option. Maybe that's -
Rusty Close (22:34):
Sure, which often happens. Yeah.
Austin Padgett (22:35):
Yeah, for sure. Cubby comes into the picture with this 28 days left. He's a hustler, just from reading about this guy. Saltzman has these rights, but he has no studio deal. Cubby has studio relationships, but no rights. It's a perfect marriage. A mutual friend introduces them. I guess there's a first date and within days they strike up this partnership and they create Eon productions. Cubby then walks into United Artists and in 45 minutes, as the story goes, closes a deal for six Bond films.
Rusty Close (23:08):
Okay. So, Fleming's the author, he's the one who created Bond, gives an option to Saltzman.
Austin Padgett:
That's right.
Rusty Close:
Saltzman's not having a ton of luck. Saltzman partners up with Cubby. Cubby goes to the studio, hammers out a deal for six Bond films.
Austin Padgett (23:27):
Six of them. That's right.
Rusty Close:
Okay. Yeah. All right.
Austin Padgett:
They get started. To give you an idea about timing, Cubby meets with the head of United Artists on June 20th, 1961. On June 28th, eight days later, United Artists confirms that they are going to bring these films to the silver screen.
Rusty Close (23:48):
Okay.
Austin Padgett (23:48):
That timing's important because 1961 is important to us, as we established earlier, because Fleming publishes Thunderball then. When he does that, if you go back to the previous character, Kevin McClory, who wrote the screenplay, and they get in a lawsuit. McClory sues. EON is putting together its production and financing deal for the movie rights for the novels. They need to make their first movie. They want it to be Thunderball. It's a great story. It's got nuclear weapons, underwater action, iconic villain organization called Spectre. Everything you would want in a Bond film. There's just one problem. The Thunderball story came out of the screenplay that Fleming had co-written with McClory and Whittingham. The rights to Thunderball are right now in ‘61 sitting in a courtroom in London and Eon can't go near it. Kind of classic story of like, you know when we do due diligence projects, and all of a sudden we see the red flags come up of like, "Hey, this one's actually under litigation or there's been a cease and desist letter." There's a periphery that comes around that type of property.
Rusty Close (24:57):
If we just think about this in the most basic terms, there are other books that wouldn't have caused this issue. We can't use Spectre. We can't use the sort of storyline from Thunderball and some of the characters that came about in Longitude 78 West, but we could still use Bond. We can still use Fleming's other books.
Austin Padgett (25:19):
That's right, and that's what they do. They land on Dr. No, which has a Jamaica location. If you've seen it, it's hard to watch it with modern eyes. It has the Three Blind Mice reference. I don't know if you've seen it lately. I've done a rewatch of all the Bond films, but they're all streaming on the same platform now. There's no legal drama attached to that one. That becomes the first Bond film premiering in London on October 5th, 1962. While audiences are watching Sean Connery walk into the casino for the first time and say “Bond, James Bond,” McClory and Fleming are still heading towards a courtroom showdown that will not be resolved for another year on the Thunderball aspect. In 1963, you have From Russia with Love comes out. That's the second film, and they chose this novel as a follow-up.
(26:09):
I'll give you this nugget, partly because President Kennedy had named it among his 10 favorite books in Life Magazine. Here's another weird side note to this Kennedy connection. Turns out to be a little haunting, probably the last film he sees. Kennedy is given a special screening of the film at the White House on November 20th, 1963, just two days before he heads to Dallas on that fateful day. All right. Let's talk about Thunderball because we've hit some issues. We're now three movies into the series. We’ve got Dr. No and from Russia with Love are our first two. Both have tied in Spectre, the Blofeld villain story arc. They have these things in them if you go back and watch them.
Rusty Close (26:57):
Okay. That sounds like a problem.
Austin Padgett (26:59):
Yeah. They're not in the novels of those titles.
Rusty Close (27:02):
Yeah. Yeah. Okay.
Austin Padgett (27:03):
There's another organization that Fleming is using, but they like it so much that they put it into these films. Right. But these things in the books, they first appear in Thunderball, which is the problem for McClory. Interestingly, there's really no dispute about those organizations or anything that I've seen coming out of those first two films, but you've kind of built this atmosphere around this. The third film has kind of a side story where it's an independent villain. It's not a Spectre thing. But you've had two of your three movies already that have Spectre and have kind of this story arc with an archvillain type of thing going on. Eon is looking at the available material from Ian Fleming and Thunderball looks really good. At this point, McClory owns the film rights because the lawsuit is settled. He has the rights to Thunderball, and Eon has basically two choices.
(27:56):
They can skip Thunderball entirely and just move on to another novel, or they can make a deal with McClory to use the story, and they choose the deal, which is how we get the Thunderball film made as the fourth film in the Bond franchise. The arrangement they reach is essentially this, that McClory gets sole producer credit on Thunderball. If you watch it, his name's right up front on the title credits and at the end. You always get the double credit; it's kind of in the old films. He gets his credit, Cubby and Saltzman stepped back to executive producer credits, and in exchange, McClory agrees not to make any further adaptations of Thunderball, the story that is, for 10 years after the film's release. There's that caveat in there, which is going to play an important role for us in just a second.
(28:47):
Eon thinks this is a reasonable trade off. They could make Thunderball, keep the franchise going, and by the time 10 years is up, they've probably made all the movies that they're going to make. It seems to be their mindset from what I've read. You can see how that was a miscalculation.
Rusty Close (29:03):
A minor one, yes.
Austin Padgett (29:04):
Yeah. Let's pause here. Anything we can learn from a miscalculation like that.
Rusty Close (29:10):
I think a lot of times with a lot of the stuff we talk about, it's hard to see into the future. It's hard to see that we're going to go from movies that show up in the movie theater and then maybe show up on TV. Then we've got home video and then we've got DVDs and blu-rays and then we've got streaming and there's no way anybody could have predicted all of this stuff. I mean, maybe a little bit, but before it comes about, we've got issues with music that's in movies and licensing and all of that stuff. It's just, I'm sure at the time, this is ‘63, right? Somewhere in there? 10 years seemed like an eternity. They're probably looking at the film industry in 1953 and going, "Yeah, man, nobody cares about that stuff anymore." 10 years should be plenty of time.
(29:57):
It's just hard to project and they think they're making a good deal.
Austin Padgett (30:00):
It is so hard to go back and second guess now that you know, what are the commercial circumstances at the point in time? But it's something for us to keep in mind when we're talking about this stuff of trying to see into the future somewhat and anticipate the potential problems. That's part of our job as counselors, but I won't tell you that that was an unreasonable business decision.
Rusty Close (30:24):
It's so easy for people to look back and go, "Oh my God, you people are idiots. How could you agree to this?”, whatever. You can never just, even if you had the agreement in front of you, you could never understand the circumstances and the personalities and all of those considerations that led to them getting to, "Okay, fine, we'll do 10 years." And who knows?
Austin Padgett (30:45):
Yeah, for sure. As you would expect, the 10-year clock runs out in 1975, and by this time we've had a total of nine Bond films from Eon.
Rusty Close (30:56):
Okay.
Austin Padgett (30:57):
After Thunderball, you have You Only Live Twice, On Her Majesty’s Secret Service, Diamonds Are Forever, Live and Let Die, and The Man with the Golden Gun. The franchise is booming. Connery has come and gone. George Lazenby had his one film, way underrated, great film. I think it's one of my favorite Bond films. Roger Moore is now at the helm as 007. I should ask, Rusty, are you a Bond guy? Are you into it?
Rusty Close (31:22):
I wish I could say I was. I don't even know that I've seen more than three or four of them. It was just never something that I found my way into. Although I liked spy stories and things of that nature, so it seems like it'd be up my alley.
Austin Padgett (31:35):
Yeah, yeah. Give it a whirl maybe. I will tell you, going back and starting at the beginning, it is tough because the early films, it's just like watching any older film. Once you have modern cinema coming at you, it's tough to go back. I mean, it feels more like watching a play because of the pace and the sets and all that sort of stuff. But it really is groundbreaking, like movie making at the time with the locations they're at, the type of technology they're trying to conjure up. The underwater sequences in Thunderball are incredible. I mean, they probably kill way too many sharks in real life for anybody's taste.
Rusty Close (32:09):
PETA wasn't quite keeping close enough eye.
Austin Padgett (32:11):
I mean, it is wild. There are a lot of, clearly they just killed a shark and they're putting it on film. It's a lot. I guess it's part of the territory. You kind of have to take it or leave it. Yeah, they're worth revisiting every once in a while, at least for the historical – particularly like Thunderball, now knowing with this ... Let's get back to it. Well, let's get back to it. I'll tell you more about the story. Maybe that'll interest you in watching it. McClory, this 10-year time period is run, and McClory immediately starts developing a new Bond film called Warhead. He brings it to, of all people, Sean Connery, who had previously played Bond six times. He was in the five first movies and he actually comes back later for one more at the behest of Eon. He's been in movies, but he's going to co-write Warhead with McClory.
(33:02):
In this movie, Spectre would blow up New York City using robots, nuclear arm tanks and the sewers under Wall Street. It's a much grander and larger scope story than Thunderball.
Rusty Close (33:15):
Ambitious.
Austin Padgett (33:16):
Right. Eon sues McClory, arguing that the Warhead script goes far beyond that of that Thunderball the story permits. Because Eon has all these other Bond rights, all he has are the rights to Bond in that universe within the story of Thunderball, is the argument. We should probably back up for one second, and because we talked about joint works, and when you think about Ian Fleming, McClory writing the film script together that will ultimately become the Thunderball movie, it seems that Ian Fleming should have been able to do what he wanted to do and only owe an accounting. There are some factors though that come into this. One, it's taking place in the UK, which from what I gathered has a very similar structure, but there's a deep frowning on the fact that Fleming left off McClory and Whittingham's name on the book.
(34:14):
Other part of this is that we never got the arguments fleshed out at trial because they settle it before the verdict is made. We don't have an official order as to the copyright aspect on that joint authorship piece. In candor, Fleming is not doing well. Reportedly, he smokes a lot of cigarettes a day for extended period of time in his life. He's approaching death. He doesn't know that quite yet, but he's not doing well. There are probably a lot of factors going to this settlement to just, let's just get done with this thing. That's where we're at. But when you think about it under US law, it should have probably gone that Fleming has rights as a co-author of this script and is able to take it to Eon and say, "You can do this. The problem you should know is that we owe an accounting to McClory and Whittingham probably." The two of them could also go and license these things.
(35:06):
Probably what happens at that point is Eon tries to bring them into the fold and get a whole package deal done so that there's no extent rights that are out there just so that another Thunderball can be made and get scooped.
Rusty Close (35:17):
I assume you have to get down in the weeds where, okay, well, Fleming created Bond. So as far as Bond goes in these stories, you guys don't really have any rights in that. Conversely, you guys came up with the idea of Spectre. As far as Spectre goes, I mean, does it get that far down or is it truly ... I'm trying to figure out where the lines are drawn in terms of what they have equal rights to.
Austin Padgett (35:46):
Yeah, and that's where this Eon lawsuit is important is because all McClory has, all that was subject of that initial lawsuit between McClory and Fleming, are the rights to Thunderball and the Thunderball script. Though the Bond universe exists, it is necessarily put in by Fleming into the Thunderball script. Then they all come together with the specific plot and the plot devices and all these other items that are kind of known as the Spectre Blofeld, the items that are becoming important to the franchise, but are only in that Thunderball script as the initial creation point. The issue with joint authorship is you really can't start delving out unless you do it by contract – who created what? Because the entire point of joint authorship is that you intended it to be one thing all together and that your default rule is you all own it in equal proportion.
(36:46):
There might be some circumstances and equitable procedures that a court may take to divvy it out percentage-wise differently, but the whole thing is going to be owned as tenants in common where if you and I created something and you only contributed 10% of the work product, you still have that 50% ownership share basically, and you have 100% of being able to go and exploit it. That's the weird part about joint authorship. It's our important legal concept for the day, but it's super better and sexier to talk about Bond.
Rusty Close (37:16):
Yeah, and I'm just trying to, I think in my mind, imagine the broader universe that's not just this one story. You can think about, okay, well, here's this one narrative and we can kind of get our heads around everyone equally owning that. But once you start spinning it out and, okay, well now Spectre's doing this and this is their grand crime plan for this next caper and figuring out, okay, well, that's not what was happening in the story we all agreed on. Where do we figure out who is able to use that? Who's able to...
Austin Padgett (37:57):
Yeah. It's a complicated concept. It just, this is the reason they need a contract. We'll get there. There's a good ending to this story. It's just a great model. Eon sues, arguing that Warhead goes far beyond Thunderball and they win on that narrow point. McClory could only adapt the original Thunderball, that story, and not expand it into new territory.
Rusty Close (38:20):
Okay. That’s that point. Yeah.
Austin Padgett (38:21):
This decision. Yeah. That's what eventually produces a film called Never Say Never Again, which stays really close to the original Thunderball story, precisely because the courts forced McClory to stay in that lane. That is our second non-canonical Bond film, and it stars Sean Connery as Bond, but it is not an Eon production. It is McClory's film.
Rusty Close (38:45):
Okay. So, Never Say Never Again is a Bond film, but it's not a canonical Bond film.
Austin Padgett (38:51):
Correct. Yeah. If you watch it, it does not have the gun entrance, like the da, da, da, da, that kind of stuff. No, it does not share the same type of music. It tries to create some of the similar affect. It has a long title song too, but it's not the same.
Rusty Close (39:06):
It’s not necessarily a retelling of Thunderball though, is it? I mean, it's-
Austin Padgett (39:11):
It is.
Rusty Close (39:12):
It almost is. Okay, got it.
Austin Padgett (39:13):
It's different from their first Thunderball film, like the movie called Thunderball, because that has more ... They were able to exploit it more because they have all these rights to the whole Bond universe that Fleming has created, whereas McClory only has rights to the Thunderball script.
Rusty Close (39:29):
Okay, so it has to go back and be similar to his original. You got to go back back in time.
Austin Padgett:
That's right.
Rusty Close:
I gotcha. Okay. I gotcha.
Austin Padgett (39:39):
That's the weird juncture here. You’ve got Never Say Never Again, which is basically the true Thunderball.
Rusty Close (39:44):
Which is the true Thunderball. Whereas Thunderball is more of an expansion, includes more of the universe, but it uses the title. Okay, that makes sense.
Austin Padgett (39:54):
But you watch them back to back, you'll see very similar story elements.
Rusty Close (39:58):
I gotcha. Okay.
Austin Padgett (40:00):
So, in 1983, you have what is called the Battle of the Bonds. You have McClory has released Never Say Never Again, and Eon releases Octopussy.
Rusty Close (40:09):
Okay.
Austin Padgett (40:09):
The only year in film history where you have two Bond films in theaters simultaneously. The two films could not have been more different in terms of production. Eon's films are well-oiled machine at this point. There's some infamous stories on the other side about the dysfunction of McClory's Never Say Never Again. Those issues make the production fall behind actually. Ultimately Eon gets its films to theaters first, which gives them an advantage in the so-called Battle of the Bonds and Eon couldn't resist a petty move during the sequence. When Never Say Never Again opens in the UK in December of 1983, Eon officially announces their next Bond film on the same day. Just to kind of stir up the market a little. That’s not going to be our last petty note. I'll give you another in just a second as we're closing down.
(40:59):
As for the result, Eon grosses 187.5 million on a budget of 27.5. McClory grosses 160 million, but it cost him 36 million to make. Both films very profitable.
Rusty Close (41:13):
Yeah, not a flop by any stretch.
Austin Padgett (41:14):
But Eon wins based on the points. But I will tell you that on that year, Never Say Never Again had a bigger opening weekend because it's the return of Sean Connery to the role. You had a lot of people interested. There's a lot of splash.
Rusty Close (41:28):
Roger Moore was in Octopussy?
Austin Padgett (41:30):
That's correct. Yeah. McClory keeps threatening to make more Bond films. Eon sues to stop him, and because McClory owns, he argues that he owns Spectrum Blowfeld, the franchise’s most iconic villains, Eon literally can't use them in movies for decades.
Rusty Close (41:51):
Would McClory just be more or less retelling, what is it? Thunderball over and over? I mean, just-
Austin Padgett (41:58):
I think that must be the gist. I don't know what the actual threat would've been, but there were multiple of these suits and a lot of letter campaigns trying to stop this type of activity from happening because you had multiple people owning different rights to the same character franchise. If you want a really petty move, here's the big one. The one that really turned me on to this whole story is that if you watch For Your Eyes Only, in Bond films, there's usually an opening sequence where there's kind of this side mission. Sometimes it'll tie into the whole thing, but oftentimes not. It's just kind of giving you cool explosions and stuff. You've got an opening scene where Bond, who's played by Timothy Dalton in this one, drops this Blofeld-esque character. It's clearly designed to be a Blofeld kind of character into ... He takes him up in a helicopter and drops him into a smokestack.
(42:53):
It seems there's no other reason for it, but to kind of draw a line in the sand and be like, "Take that, McClory." We'll wrap this up. In 1997, another company buys McClory's rights and announces it's going to start making its own Bond films. Eon sues again, and the company eventually settles out and gives up all the Bond claims. This is the interesting part because it wasn't until 2013 that McClory's heirs finally sold the Thunderball rights back to Eon. Within a year, Eon announced Spectre as the title of Bond number 24. The 24th Bond film is named Spectre. That's kind of the highlight of getting all these rights finally in is that you can now exploit the whole thing. They've got everything at this point. Blofeld returns to the original franchise for the first time in over 30 years. It's played by Christoph Waltz.
(43:49):
To tie it all together, the company that bought McClory's rights in the late '90s was also holding Ratoff's rights in Casino Royale. They had two rights at the time. If you remember, Ratoff was the guy who was going to make the – ended up, his manager made the satirical film. As part of the settlement, Eon gets the rights to Casino Royale as well. We've got all the novels now and all of the scripts and all the rights are back with Eon, which finally allows Eon to make a serious non-satirical film adaptation of the Casino Royale novel as well, which you get in 2006 with Daniel Craig, your lookalike for all intents and purposes.
Rusty Close (44:28):
Correct.
Austin Padgett (44:28):
Now Eon holds all the rights in the Bond character and stories. There are 25 films at this point that are considered canon, and you have these two non-canonical films that we discussed. It took 52 years from 1961 to 2013 to fully reassemble would have been a unified property from the beginning had you kind of approached it in that way. That's the story, Rusty. Any takeaways?
Rusty Close (44:54):
I mean, it makes me think, I think there's a similar situation in the Silence of the Lambs universe where certain characters can be in certain movies, certain characters can be in certain TV shows, but not all of them at once. That might be a good exploration of these similar concepts to see how that came about, where things got chopped up in that way. But like we always say, man, just put it in a contract and we'll avoid all of this stuff.
Austin Padgett (45:26):
For sure. Yeah. The main reason for that is joint authorship and joint ownership are crazy. It's a wild time and it's very fact specific and never ends well. Eventually something goes sour and particularly when things start going well with the property, all of a sudden things don't go well between the business partners. It never marries up right, it seems. Just something to think through. Also, we talked about this hard to do, but trying to anticipate the value of property and plan accordingly. I think that's it, unless you have anything else, Rusty.
Rusty Close (45:58):
I mean, that's exactly it. It's unintended consequences and it's un-anticipatable consequences that always occur. That's even if you are trying to do it in contracts, right? You're not just relying on the defaults. You have all this stuff that you still can't anticipate. You negotiate for 10 years and you shouldn't negotiate. I don't even know. What do you say? Is it 50? Is it 100 years? It's hard to say, but yeah, that's a good one. I'm going to have to go back and watch some Bond movies. I don't know that I can find 25 movies worth of time, but we'll see what I can do.
Austin Padgett (46:32):
I'll send you a list of the top 10 for the focus on, right? Well, thanks to everyone for listening. Be sure to like, subscribe, leave us five stars, wherever you get your podcast. We're building something here, folks, and as Golden Globes or bust, come with us on the journey. But remember this, whether it's shaken or stirred, there's No Infringement Intended.
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