Intellectual Property

'I Done Another Bad Thing': Endless Steinbeck Copyright Litigation Adds New Chapter

This epic battle may finally be over, but only time will tell.

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Most of us who made it a habit to attend our high school english classes know the author John Steinbeck as the scrivener responsible for many canonical classics, such as The Grapes of Wrath and Of Mice and Men. His works are read and cherished the world around and his literary legacy is unimpeachable.

But, to most, his legacy in the courts of these United States has been less examined. Here also, though, has Steinbeck made his mark, as various of his kin have been fighting, as the court puts it, over “his intellectual property for almost half of a century.” The latest chapter arises in the case captioned Kaffage v. Estate of Steinbeck and concerns a challenge at the Ninth Circuit to a Los Angeles jury’s finding that Gail Knight Steinbeck and the estate of Thomas Steinbeck had gone way, way, way east of Eden and were responsible for $5.25 million in compensatory damages and $7.9 million in punitive damages. The damages were to be paid to Elaine Steinbeck’s estate, which prevailed on its claims for slander of title, breach of contract, and tortious interference with economic advantage.

This epic battle between Gail, the first John’s wife (and her estate) and the first John’s sons from a previous marriage (and their offspring and in-laws, referred to collectively herein as “offspring”) has been almost as action packed and dramatic as the travails of George and Lennie, and with almost as many dead mice.

When the first John passed away, he left the copyrights in his works to Gail, his wife, and left some dough but no copyrights to his sons. Per 17 USC 304, one of the termination provisions of the Copyright Act, though, the sons acquired certain copyrights (or copyright-adjacent rights) via the passage of time. To address these rights, Gail and the sons entered into a settlement agreement in 1974 that established their shares of revenues resultant from the Steinbeck copyrights.

As it would happen, a mere two years later the Copyright Act was amended and Section 304 was rewritten in such a way that “no agreement to the contrary” could divest one of their 304 rights. This amendment would serve as a basis for the offspring to challenge the 1974 agreement as an “agreement to the contrary” and negotiate a new compact in1983 that increased their revenue shares.

At this point, it was contemplated that peace would prevail amongst the extended Steinbeck clan. But in litigation, like in life, “some of the things folks do is nice, and some ain’t nice, but that’s as far as any man got a right to say.” The court cites this passage from the Grapes of Wrath in a not-so subtle allusion to the three-decades-plus of court battles that have followed the 1983 agreement.

In 2010, a court in New York conclusively decided that the 1983 agreement was binding on the parties and addressed in toto the copyright and other claims pending before that court. Undeterred, the Steinbeck offspring, as the court laments, “continued spending time and treasure asserting rights courts had already told them they did not have.” In November 2017, the Ninth Circuit held once-and-for-all (or at least attempted to) that the 1983 agreement bound the parties and that the 2010 New York decision confirmed that the offspring held no copyright interests in the Steinbeck works.

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With this win pocketed, Elaine’s estate brought to trial its own claims, arguing to the jury that the Steinbeck offspring had run around town claiming to own the Steinbeck copyrights and had in so doing scuttled numerous potential deals for film remakes and other viable projects. As evidenced by the jury award mentioned above, the decision-makers were convinced that the offspring’s acts damaged Elaine’s estate’s ability to monetize the Steinbeck copyrights.

The Ninth Circuit upheld the compensatory damages against the offspring but vacated the punitive damages because the record was inadequate. It found that Elaine’s estate “failed to meet her burden of placing into the record [‘]meaningful evidence[’] of Gail’s financial condition and ability to pay any punitive damages award sufficient to permit us to conduct the comparative analysis on appeal required by California law.” As such evidence is required by precedent like Kelly v. Haag, 145 Cal.App.4th 910, 52 Cal. Rptr. 3d 126, 130 (2006), the damages award was vacated. This may seem harsh, as the court could have remanded for development of that record, but one can read between the lines of the court’s opinion to ascertain that they want this case to be done, and now.

The opinion minces no words in its decree, mandating that the offspring “must now stop attempting to relitigate” settled matters and “must also stop representing to the marketplace that they have any intellectual property rights or control over John Steinbeck’s works.”

This stern admonishment was warranted because documents produced at trial established that when Elaine’s estate was negotiating film rights for The Grapes of Wrath and East of Eden, the offspring worked to “insert themselves and thwart negotiations” by “riddl[ing them] with lawsuits.” And, the court adroitly notes, “the record stands as persuasive evidence that they made good on the threat.”

The offspring had previously “vowed they will not stop litigating their interests in profiting from John Steinbeck’s literary works until Gail draws her last breath,” and it seems like they meant that which they said. The court, after reciting a Bleak House passage denigrating endless litigation, closes the opinion by hopefully noting that “this dispute is indeed over.” Only time will tell.

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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