“You can’t choose family” is more than just a useful mantra for those who have suffered through yet another Thanksgiving feast with tablemates not of their own choosing. It is a reminder, particularly for those of a creative bent, that when it comes to the financial aspects of their artistic output, success can breed familial dissension just as much as it can provide a measure of financial comfort to one’s heirs. While those creative types fortunate enough to have found financial success may prefer not to focus on their respective financial legacies, there is no doubt that the people they have left behind will be quite concerned about receiving their share of the spoils. It is unsurprising, therefore, to see the heirs of one of the 20th century’s most beloved authors embroiled in litigation over the right to control and exploit their ancestor’s acclaimed literary works.
As stories go, John Steinbeck’s “Of Mice and Men” is as intense as it comes. Filled with both physical and emotional loss, the book remains a staple of high school English literature classes — with good reason. Young readers, as well as adults who (re)encounter the book, are confronted with a fictional reality that mirrors our own, at least with respect to the emotional messiness of interpersonal relationships. The story may be set in the Dust Bowl-era, but the book’s exploration of the facades that people construct around even the most intimate of friendships is timeless. Even those without an appetite to read the novella can get a taste of its emotional power by watching the theater version of the story, such as the National Theatre’s recent adaptation that garnered much critical acclaim.
Steinbeck’s novel is punctuated by intense and sudden moments of conflict and physical violence, carried forward by an undercurrent of tension generated by the emotional violence each character seems capable of inflicting on those closest to them. In yet another example of art mirroring life, Steinbeck’s own progeny and loved ones have been split asunder by disputes around the author’s estate — going back to a 1983 settlement agreement that ended an earlier dispute around how Steinbeck’s heirs would handle both royalties from his works, as well as the right to exploit them going forward. Just last week, the Ninth Circuit affirmed the dismissal of yet another lawsuit brought by certain of Steinbeck’s grandchildren, which claimed that Steinbeck’s step-daughter cut them out of royalties from the “Of Mice and Men” revival. The Ninth Circuit, however, upheld the lower court’s decision to dismiss that case, agreeing with the lower court that the issues presented had been previously decided in the step-daughter’s favor pursuant to the 1983 settlement agreement, and were thus barred under the doctrine of claim preclusion.
The messiness of the entire situation around Steinbeck’s estate presents a cautionary tale for other IP creators interested in having their heirs enjoy — rather than perpetually fight over — the proverbial fruits of their artistic labor. In Steinbeck’s case, his efforts were stymied by the complicated family dynamics that existed at the time of his death in 1968. Perhaps in an effort to take care of everyone, Steinbeck had effectively split his literary estate, bequeathing the income and rights to some of his works to his surviving (third) wife. The rights to his other works were left to his two surviving sons, born from an earlier marriage. Conflict ensured, particularly surrounding the royalties generated by copyrighted works renewed after Steinbeck’s death. Eventually, the 1983 settlement agreement was reached, which saw the two sons provide Steinbeck’s widow full control over the exploitation of all of Steinbeck’s works, in exchange for higher royalty payments.
Even though Steinbeck’s widow died in 2003, and the two sons died in 1991 and 2016, respectively, additional surviving members have taken up the fight. As the recent staging of “Of Mice and Men” has proven, Steinbeck’s works continue to exhibit revenue-generation potential, providing grist for legal claims seeking a piece of the proceeds thrown off by the ongoing public interest in his work. At the same time, courts are loath to disturb settlement agreements negotiated in good-faith and reached under the advice of counsel, making the 1983 settlement agreement a significant asset for the widow’s heirs with respect to the right to exploit Steinbeck’s works.
In fact, the suit around “Of Mice and Men” filed by Steinbeck’s grandchildren can be seen as an attempt to gain leverage over Steinbeck’s step-daughter (heir to Steinbeck’s widow) with respect to her tampering lawsuit against Steinbeck’s grandchildren. In the latter case, the step-daughter was awarded $13 million for alleged tampering by one of Steinbeck’s sons and his wife around the potential adaptation of two other Steinbeck classics, “The Grapes of Wrath” and “East of Eden.” Here again, the 1983 settlement agreement was key in the jury’s determination that Steinbeck’s heirs had violated the rights of his widow. That case is heading for appeal.
While the legal machinations are interesting, there are two salient points for IP holders to recognize regarding these decades-long legal disputes. First, the importance of not signing a settlement agreement without being fully prepared to release your claims against the counter-party — especially since any settlement agreement will thereafter become the critical fulcrum for any future legal decision around the disputed IP. In short, if you are not sure, don’t sign. Better to have no agreement at all than to sign one that will only lead to further litigation.
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Second, it is critical that IP owners recognize that bequeathing financial rights to those works can be a messy business. Particularly when the family dynamics are such that a spirit of cooperation is unlikely to exist. In Steinbeck’s case, it is clear that leaving valuable rights with a widow, ostensibly at the expense of his flesh-and-blood offspring, was a major cause of friction going forward. Compounding the problem was the failure to appoint an unbiased neutral to actually administer the estate, and pay out the royalties to the family members at arms-length. Furthermore, Steinbeck’s failure to fully split up his copyright estate, which led to competing claims over royalties from the same works, also made things worse. At the same time, it is clear that the author tried his best to ensure that each branch of his family tree would get something after his passing.
Ultimately, IP holders are best served seeking experienced counsel when it comes to the treatment of their IP after their passing. For every Steinbeck family feud, there are countervailing examples of families (the Bob Marley estate is a prime example) that have successfully navigated the challenges of managing a sizable IP legacy. At bottom, the ongoing legal disputes amongst Steinbeck’s heirs are also a potent reminder that drama and tragedy are not limited to the pages of a book. Especially when the underlying art remains as potent financially as it did during its creator’s lifetime.
Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.