The camera pans from left to right as James Bond coolly strolls into the bustling Nassau Casino.
The shot lasts about four seconds, yet it’s the only glimpse you’ll get of a man who some 007 aficionados consider one of the most persistent Bond nemeses in the British super-spy’s 51-year history.
The man wears a fake mustache and blows cigarette smoke in the foreground of this entrance sequence about halfway through “Thunderball,” Bond’s fourth film, released in 1965.
The tuxedoed smoker is at most a curious-looking afterthought in the setup for a more memorable scene: The evil and eye-patched No. 2, seated at a poker table between Domino, this film’s Bond girl, and a white-haired older woman with thick black glasses. Sean Connery strolls up, defeats No. 2 in baccarat, then takes Domino for a dance, which concludes — in classic 007 fashion — with Bond asking where she is sleeping that night.
But the mustachioed man’s role in James Bond lore is much larger than this fleeting cameo.
His name is Kevin McClory. He’s officially the producer of “Thunderball” and a co-writer with Ian Fleming and Jack Whittingham of the story about an evil organization stealing nuclear warheads. It was supposed to be the basis for the first Bond film.
Then a dispute happened. And disputes kept happening.
For 50 years, McClory fought Bond’s movie-studio stewards — mostly in court — over the right to make Bond films. It is an intriguing history of litigation replete with little-known Bond trivia.
In 1965, 5-year-old Bill Kane was just one of the movie-goers who didn’t notice McClory but nonetheless helped “Thunderball” rake in $63.6 million in ticket sales, according to Box Office Mojo — to this day, it’s one of the top-grossing Bond films when adjusting for inflation.
The movie, with underwater special effects scenes that won it the second Academy Award for a Bond flick, was the first feature film Kane ever saw, a Saturday matinee at the Palace Theater in Gary, Ind., with his two sisters and mother.
“I just remember it made a huge impact on me — the huge screen and the underwater scenes,” said Kane, now a Chicago partner at the nearly 900-lawyer firm BakerHostetler.
“That sparked my interest in scuba diving, and I dive today. … And like everyone, I think, growing up in the ’60s or ’70s, I enjoyed James Bond. He kind of died out a little bit in the ’70s with Roger Moore, but certainly all those movies in the ’60s, every young boy loved them. It was fun stuff.”
That awestruck boy never could have guessed that, in a bit of Bond-like good fortune nearly 50 years later, he would get a phone call from McClory’s estate, asking him to help put an end to a long-running international feud and, in the process, craft a kind of redemption story for the spurned co-creator of Bond’s movie-screen persona.
It is the kind of assignment that will remind lawyers of the best parts of Big Law — the chance to shape the outcome of newsmaking cases that impact the biggest companies and, in this case, one of the most popular movie characters of all time.
For their eyes only
In November, Metro-Goldwyn-Mayer Inc. and Danjaq LLC, the distributor and the longstanding production company for Bond films, put out a one-sentence news release heralding the “amicable conclusion (to) the legal and business disputes that have arisen periodically for over 50 years.”
The companies agreed to an undisclosed settlement to acquire “all of the rights and interests” to James Bond held by the family and estate of the late McClory, who died in 2006 at the age of 80, just days after the release of “Casino Royale,” the first Bond movie featuring Daniel Craig in the lead role.
BakerHostetler partner Bill Kane at the bar in the Tortoise Club, 350 N. State St.
Photo by Lisa Predko.
On the bottom of the release was a reference to BakerHostetler, Kane and his law firm partner Adam Skilken, who represented McClory’s estate.
The law firm also put out its own release, which featured a quote attributed to Kane. He was the only person involved in the negotiations to say anything publicly: “The 50-year intellectual property row involving James Bond was settled because of a great deal of hard work by the attorneys for the Estate of Kevin McClory, MGM and Danjaq and will benefit James Bond film fans throughout the world.”
While there are some strong clues hinting to what aspects of the Bond films McClory owned rights to, it has never been confirmed what intellectual property actually traded hands as part of the settlement.
That confirmation will likely only happen if any upcoming Bond films incorporate some of the iconic characters or plot lines that McClory is widely believed to have owned, such as the global terrorist organization SPECTRE and its cat-stroking evil mastermind, Ernst Stavro Blofeld.
Or perhaps the Bond owners will finally recognize “Never Say Never Again” — the second film featuring James Bond that McClory produced, released after a legal battle in 1983 — as an official Bond film. Danjaq says there have been 23 films. But the character has appeared in 25, including a comedic take on “Casino Royale” released in 1967.
Kane — a former Illinois assistant attorney general and now a litigator who represents clients in the entertainment and financial industries — won’t comment on any part of the settlement or speculate about its impact. MGM declined to comment for this story. Danjaq did not respond to an e-mail requesting comment.
But a historical narrative of the long-running litigation, developed through an interview with Kane and research into Bond’s legal past, creates an account that questions the debonair hero’s cinematic origin story — a tale that concludes with a last-second escape hatch that Kane found — which may, or may not, have helped broker a deal.
You only live twice — on screen and in hard cover
Ian Fleming — the name you’ll recognize from the films’ iconic opening titles — published his first James Bond book, “Casino Royale,” in 1953. He published six more books — including “Dr. No,” “From Russia With Love” and a number of others that were eventually turned into films — between then and 1961.
That’s the year he published “Thunderball” as a book and sparked a lawsuit that McClory filed in England.
Actress Shirley MacLaine laughs while dining with Kevin McClory, a British film producer, at a Rome restaurant in 1960. For years, McClory fought producers of the James Bond movie franchise over who created aspects of the film character.
Photo from The Associated Press.
McClory had approached Fleming some years earlier about turning Fleming’s British super spy — who had a penchant for foiling Soviet-era communist plots — into a movie star. Fleming agreed and he, McClory and writer-for-hire Jack Whittingham completed the scripts for “Thunderball,” initially titled “Latitude 78,” in late 1959.
McClory sued, essentially for plagiarism, when Fleming published the “Thunderball” book without crediting him.
Fleming had already agreed to a deal with Albert R. “Cubby” Broccoli to make “Thunderball” the first Bond movie. But when the lawsuit hit, they scuttled those plans and instead produced “Dr. No,” which was released in 1963.
Fleming settled the lawsuit with McClory that same year after admitting at trial that he had plagiarized McClory’s scripts. The settlement gave McClory the rights to produce “Thunderball,” which he did, teaming up with Broccoli as a producer in 1965.
Importantly, McClory would later argue that there are a number of differences in the scripts he co-authored and Fleming’s original novels. Those differences, he would say, provide him rights to more than just “Thunderball.” He long believed they allowed him to create new Bond films.
The differences between book and script include the villainous Blofeld and his crime syndicate SPECTRE (SPecial Executive for Counter-intelligence, Terrorism, Revenge and Extortion). They are not Soviet communists but instead mercenaries of terror who, in “Thunderball,” discuss kidnapping politicians for ransom and selling Chinese drugs to Americans before laying out their master plan to hijack nuclear bombs and demand $280 million to not blow up a major American or British city.
While SPECTRE appears in the movie “Dr. No,” it does not show up in Fleming’s novel of the same name, which was published before he collaborated on the “Thunderball” scripts. “Thunderball” is the first novel with a reference to SPECTRE.
“Fleming’s mindset was more in the Cold War — everyone’s mindset was,” Kane said. “Whereas the McClory thoughts and creativity that came into the original scripts was it was Bond against the world. And it was Bond against the world, and he would save the world in the last 60 seconds while holding a cute girl on his side, typically.”
McClory also claimed that Fleming’s novel Bond had a personality that differed from the one in films, which he would later claim rights to.
There is some evidence to support this claim. For instance, the Bond in the original books did not have an eye for women like the Bond in “Thunderball,” who can be assumed to have been with three or four different female characters throughout the movie. The Bond in the original novels is sometimes said to be morose or brooding. In “Casino Royale,” for instance, after a character whom Bond appears to love turns out to be a double-agent and kills herself, Bond coldly says: “The bitch is dead.”
Even the official 007 website acknowledges a difference. It describes Timothy Dalton as being “remembered as the actor who (channeled) the more ruthless, hard-edged James Bond found in Ian Fleming’s original novels.”
Controversy over the supposed difference between a literary and cinematic Bond has arisen in other litigation, including a lawsuit MGM filed against Honda for a TV ad that it claimed infringed Bond copyrights.
In that 1995 case, Honda argued that because Bond had appeared in “Thunderball” and the first “Casino Royale” — two films MGM held no copyrights in — that the movie studio could not claim exclusive rights to the character. To counter, MGM responded that there was, in fact, a difference between the book Bond and the one who had appeared on screen under its ownership, at that point, 16 times. MGM claimed the rights to the Bond in their movies; not the one who appeared elsewhere.
It was a stance that seemed to bolster McClory’s argument. Nevertheless, the movie studio staked that claim in order to successfully support its California federal court case contending that Bond, the movie character, was copyrightable.
“To the extent that copyright law only protects original expression, not ideas, (MGM’s) argument is that the James Bond character as developed in the sixteen films (excluding “Thunderball” and the first “Casino Royale”) is the copyrighted work at issue, not the James Bond character generally,” wrote then-U.S. District Judge David V. Kenyon, who concluded that Bond was copyrightable, leading to a settlement of the parties and the commercial being scrapped.
Never say never again
McClory was far from finished with Broccoli and Danjaq after the release of “Thunderball.”
As part of his original settlement with Fleming, who died in 1963, McClory had to wait 10 years before producing another Bond film. When that time drew near, McClory approached Broccoli, whose family still produces the current Bond movies, about collaborating.
Sean Connery on the set of “Thunderball,” the 1965 film that was fourth in the Bond franchise. Kevin McClory co-wrote the script for the movie, which was originally planned as the super-spy’s big-screen debut.
Photo from The Associated Press.
Broccoli promptly turned him down. It was at this point, Kane said, that the relationship turned sour. Producers of “The Spy Who Loved Me” sought to reintroduce SPECTRE and Blofeld, but McClory and Sean Connery (as a plaintiff who had co-authored another script with McClory) filed a lawsuit in England in 1976 to enjoin them. McClory couldn’t make a Bond film, so Danjaq couldn’t use McClory’s characters, the thinking goes.
The lawsuit was settled, but Blofeld didn’t appear in that movie — or any other since.
Shortly after that, McClory attempted to put his rights to use again and went into pre-production on another Bond movie. He convinced Sean Connery, a longtime friend, to come out of retirement and begin filming “Never Say Never Again.” The title of the movie, as the rumor goes, results from Connery’s wife’s quip to “never say never” when told about McClory’s offer.
Fleming’s estate sued in England in 1978 to stop production of the movie.
“The big dispute was: What rights did McClory have that he gained from that 1963 settlement?” Kane said. “Because there was an assignment of interest and the assignment had certain rights that were given to McClory, and how expansive those rights were was in dispute.
“It was the position of the Fleming estate that he did not have the right to do anything but one picture, which was ‘Thunderball.’ McClory had the position that he had the right to make Bond in toto,” meaning in its entirety.
A British judge sided with McClory at a preliminary injunction hearing, which was later confirmed by an appeals court. The judge ruled McClory had the right to make Bond pictures — arguably, Kane said, equally as much as Paramount and Fleming.
It was the mustachioed man’s third win in a row, all on English soil.
“Never Say Never Again” opened five months after “Octopussy” in 1983. It was the first and only time Bond went against Bond in the box office in the same year, and Roger Moore edged out his predecessor Connery; “Octopussy” grossed about $170 million compared to $140 million for “Never Say Never Again.”
McClory’s second film does lack some of the signature Bond appeal, including the opening animation in which Bond shoots a gun into the camera and fake blood spills down. It does not feature the 007 logo nor his famous pistol, the Walther PPK.
But McClory wasn’t done there. He, Len Deighton and Connery wrote a script called “Warhead” and planned to make a third Bond film, which would be loosely based on the “Thunderball” scripts. They scrapped those plans after a lawsuit was threatened.
“A lot of what you’ll read over the years is McClory only had the rights to remake ‘Thunderball,’” said Kane, who added that public perception considers “Never Say Never Again” a remake of “Thunderball.”
“If you look at the legal cases, he had broader rights than that. But he walked the line on ‘Never Say Never Again,’ which I think benefited his case.”
McClory only wins thrice
McClory received what many still consider a crippling blow to his legal rights in the only U.S.-based litigation he was involved in.
The final case was filed in the Central District of California in January 1998, this time with Danjaq as the plaintiff. The company sued Sony Corp., Columbia Pictures and McClory after the erstwhile Bond-producer entered into an agreement with Sony that would allow it to use McClory’s rights to create a new Bond film. The Hollywood trade publication Variety reported Sony paid $2 million in the deal. At the time, Sony said it believed McClory’s rights allowed it to produce new Bond movies.
But a federal trial court judge sided with Danjaq at a preliminary injunction hearing, enjoining Sony from making Bond pictures in July that year. The decision was affirmed by the 9th U.S. Circuit Court of Appeals.
In a complex settlement that, according to news reports, resulted in Sony netting $5 million, Sony agreed not to produce a Bond film and was dismissed from the lawsuit with prejudice.
Crucially, though, McClory was dismissed without prejudice from that initial portion of the trial, which was over the extent of his rights.
He carried on with a counterclaim of copyright infringement — asserting prior Bond movies infringed his rights — and he sought a cut of the profits from those previously released films.
He also made other, more familiar contentions: That he possessed the rights to both the novel “Thunderball,” the materials developed during the writing of the initial “Thunderball” script and the rights to the “cinematic James Bond” character, SPECTRE, Blofeld and the theme of nuclear blackmail.
Following a bench trial that McClory failed to attend, a district court judge ruled against him. McClory appealed.
The West Coast-based 9th Circuit affirmed the ruling in favor of Danjaq, stating that McClory had waited 21 to 36 years (depending on the movie) between knowing of Danjaq’s purported infringement and taking any legal action to stop it.
In doing so, the court said his claim was barred by the legal concept of laches. In short, laches means a copyright holder must bring a claim of infringement without delay, assuming there is no reasonable reason to delay and there is evidence that the delay harms the defendant’s case.
In any event, the appeals court did not consider the question about his rights to make Bond, just whether he had waited too long to enforce his rights.
Kane said he disagrees with the 9th Circuit’s 2001 ruling. He believes laches should not be applied in the context of a copyright claim. Laches, he said, is an equitable remedy provided by a judge, while copyrights have a statutory remedy spelled out by Congress to renew the statute of limitations for three years after every instance of infringement.
“The statute as written really calls for (with) every wrongful publication, the author has three years to do something about it. If they don’t, then they lose their rights,” Kane said. “What the 9th Circuit did, which is an aberration from the other circuits, is said, ‘We’re going to ignore the three-year rule and just say we think you waited too long. Sorry, Charlie, you’re out of luck.’”
As of May 19, the U.S. Supreme Court in large part agreed with Kane.
That question — whether laches should apply to a copyright claim — was ruled on by the high court in a case involving Martin Scorsese’s 1980 film “Raging Bull,” Paula Petrella v. Metro-Goldwyn-Mayer Inc., No. 12-1315.
In a 6-3 ruling, the court rejected the 9th Circuit’s view that laches forever barred a damages claim for copyright infringement.
“Nothing in this [c]ourt’s precedent suggests a doctrine of such sweep,” Justice Ruth Bader Ginsburg wrote for the majority. “Quite the contrary, we have never applied laches to bar in their entirety claims for discrete wrongs occurring within a federally prescribed limitations period.”
Settlements are forever
The 9th Circuit’s ruling — even if the Supreme Court later said the rationale was misguided — was a tough blow for McClory.
Still, he never believed his rights were vanquished.
After his 2001 loss in the appellate court, advertisements in Hollywood trade publications, such as Screen magazine, offered for sale “rights to make films based on the material which created … ‘Thunderball,’ produced and co-written by Kevin McClory.”
While the advertisements directed interested buyers to a person in Holland, it seems quite clear McClory thought his rights were worth something.
After his death, his estate asked Kane to find out.
And that is when Kane discovered an escape hatch: A previously overlooked fact that might have unlocked those rights’ value.
Cue Bond’s theme music.
Kane discovered a procedural misstep in the aftermath of the Sony settlement: No motion was ever filed to enter a final judgment against McClory on the merits of his copyright claims.
The court had ruled against him on a preliminary injunction, but no motion was entered making it permanent. Instead, you’ll remember, he was dismissed without prejudice and, as they say, that was that.
In Kane’s mind, the court never officially answered the question of how extensive McClory’s rights were. While Sony was dismissed with prejudice from that aspect of the case, McClory was not. And the 9th Circuit ruling, on laches, meant he could not enforce his rights, which is a different question from whether he could use them himself.
To Kane, it was as if the whole case never happened. Like a bad ending in a movie — certainly not a Bond movie — when you realize the whole thing was a dream.
“He never really lost,” Kane said. “He never did lose in California.”
Kane declined to discuss whether or how his finding contributed to the settlement announced in November.
Arthur Gollwitzer, a litigation partner with an IP focus at Michael Best & Friedrich who reviewed the case for Chicago Lawyer, agreed with Kane’s interpretation of the litigation.
“The merits of his copyright claim haven’t been adjudicated,” Gollwitzer said. “What has been adjudicated is that he can’t successfully sue (Danjaq and MGM). The only question is whether his estate could do something annoying like write their own Bond movie or somehow profit from the Bond name.”
Theoretically, Gollwitzer said, McClory’s estate could have gone into preproduction for a new Bond film — which almost certainly would have meant another round of litigation and the potential for more bad press or, perhaps, a harmful ruling on the rights to Bond’s cinematic origin story.
Gollwitzer raised another question that sheds light on MGM’s potential settlement thinking: “Did they have a plot in mind for the next movie where they don’t want to deal with (McClory)?” Bond fans will have to wait and see.
But that — plans to use SPECTRE or Blofeld in an upcoming film — wasn’t the only potential spear Kane could have used to apply settlement pressure.
Kane said he believed McClory’s rights remained valid outside America; U.S. copyright laws don’t extend beyond its borders. And McClory had always been successful asserting his rights in England.
The international market is a growing money-maker for Bond films. “Skyfall,” the first Bond film since “Thunderball” to win an Academy Award, made $804 million outside the U.S. market, almost three-fourths of its more than $1 billion total haul.
“So not only were his rights obviously still in existence outside the U.S. borders, my view and my analysis was they also existed here,” Kane said.
And a third domino fell McClory’s way in May, when the Supreme Court reversed the 9th Circuit’s laches ruling.
While the November settlement Kane brokered means the ruling won’t impact the Bond franchise, it could have been an important poker chip at the settlement table. As the named defendant, MGM was aware of the “Raging Bull” case, as well as the impact a loss could have on its other franchises.
Had the settlement never happened, the Supreme Court would have handed McClory’s estate a variety of new legal lifelines, according to Gollwitzer, the attorney who reviewed the case.
In that ruling, an heir to a copyright to the original “Raging Bull” script was allowed to file a lawsuit claiming damages from copyright infringement for a three-year period dating back from 2006. The court noted that a copyright infringement claim opens up a three-year “look-back” period for the plaintiff to seek a cut of the money made from the distribution of “Raging Bull.”
For McClory, laches would have been off the table as a defense for MGM. The question would have been — once again — what rights he held and how much he could have profited from that.
He could assert his claim to the “cinematic Bond,” for instance, and file a lawsuit when a new Bond hits the screen, Gollwitzer said. A more difficult path might have been to sue MGM in order to seek profits related to the distribution of Bond films from the past three years.
“The more likely scenario is MGM (would be) afraid that (the McClory estate) would restart the whole case again — whether it’s under the SPECTRE or the whole James Bond copyright claim — the next time there’s a movie debut,” Gollwitzer said.
“That definitely seems to explain why MGM might give him something to put this to rest. I think this very well may have been part of that settlement calculus.”
From a personal perspective, Kane said he enjoyed the research on the case — which included poring over documents from English and American courts as well as original correspondence from the time. And the lawyers involved in the dispute from start to finish were top-notch litigators, he said.
“It was very interesting to read the briefs, to read the legal history and to actually see some of the oral arguments that were presented in the English courts and how they were presented,” Kane said.
“And then to come in when there was 60 seconds left on the clock and save the world. That was fascinating.”
Even lawyers, it turns out, dream of being Bond.