Court documents unsealed last week reveal just how high the stakes have risen in a literary custody battle over the late novelist Tom Clancy’s most famous offspring — his characters.
In papers filed last month by the Baltimore author’s widow, she argues that his estate owns his two most famous characters — the spy Jack Ryan and former Navy SEAL John T. Clark — as well as more of Clancy’s novels, including some published while the author was married to his first wife.
The amended filing requesting a declaratory judgment was ordered unsealed last week by U.S. District Judge Ellen L. Hollander in Baltimore. It vastly expands the scope of Alexandra M. Clancy’s 2017 complaint seeking control for the estate of the Ryan character and books published after Clancy’s death that were written in his style but authored by other people.
It further pits Clancy’s widow against his first wife, Wanda King, and even against the estate and its lawyers, who argue that the current ownership structure was what the author intended. Though a ruling isn’t expected anytime soon, when it arrives, it could have implications for how the growing fortune of Clancy’s estate gets divided.
When the 2017 complaint was filed, attorneys estimated that the total sum to be divvied up was “in the serious seven figures.” Two years later, that tally has grown exponentially.
“The value of the franchise is going to be enormous,” said attorney Jeffrey E. Nusinov, who represents the widow. “If your question is what the total revenues will be going forward ... I would project it to be in the nine figures.”
Though Clancy died in 2013, his most iconic characters live on.
“Tom Clancy’s Jack Ryan,” a web television series starring John Krasinski in the title role, debuted on Amazon Video on Aug. 31, 2018, and has been renewed for second and third seasons. In addition, Paramount Pictures announced last fall that it’s making films from the two Clancy novels featuring the Clark character: “Without Remorse” and “Rainbow Six.” Actor Michael B. Jordan, who portrayed the villainous Erik Killmonger in “The Black Panther,” will star in both.
Both popular books were published before Clancy got divorced from King in 1999, marrying the former Alexandra Llewellyn later that year.
Alexandra Clancy is endeavoring to undo a complex corporate structure her late husband established, under which he was an employee of a series of companies that owned the books.
While there’s a lot of money at stake, attorney Lansing Palmer, also representing Alexandra Clancy, said that the legal battle is fundamentally about determining ownership.
“Tom Clancy didn’t just write the books,” Palmer said. “He was the decision-maker. I think it’s fair to say that anything that happened with these books during Tom’s lifetime, he intended to control himself.”
Attorneys for the estate and the companies Clancy established disagree.
In court documents, attorney Jerrold Thrope, representing two of the companies, questioned why the ownership of the books and characters is being challenged now, when it has been undisputed for more than three decades.
“Only now, when Ms. Clancy finds it more convenient to attack the work-for-hire status, is there purportedly a dispute,” he wrote in his response.
Hollander’s ruling could have implications not only for current projects but for adaptations not yet even imagined.
“When the original lawsuit was filed in 2017, it was about proceeds from the post-death books,” Nusinov said. “But based on what we have learned since then, this seems to be morphing into a case that could involve assets from books, movies and the internet. Nothing is off the table at this point.”
Technically, King isn’t even listed as a defendant in Alexandra Clancy’s complaint. But she has significant ownership stakes in two business entities that Clancy created in 1985 and 1992: Jack Ryan Enterprises Ltd. and Jack Ryan Limited Partnership.
Also listed as defendants are Rubicon, a corporation owned by Clancy’s estate that the author created in 1995, and the attorney J.W. Thompson Webb, the estate’s personal representative — essentially the individual charged with representing Clancy’s interests.
As things stand now, King, who was married to Clancy for nearly 30 years, gets a large slice of revenue from any proceeds related to works owned by the two companies and the Ryan and Clark characters.
King could be frozen out if the court rules in Alexandra Clancy’s favor. In that scenario, the estate would divide proceeds between its beneficiaries: Alexandra Clancy, her teenage daughter with the writer, and the four adult children of Clancy and King.
The matter hinges on the nature of Clancy’s relationship with the companies, whether he was an employee who, in legal parlance, was “working for hire.”
“There was never a true employer-employee relationship between Tom Clancy and either Jack Ryan entity,” Palmer said. “He never reported to anyone and he controlled all of the writing, including storylines and character development. The entities did not withhold income taxes, Social Security and Medicare from him as is required by law, and they didn’t provide traditional employment benefits such as health care.”
But attorneys for the defendants implied in court documents that the issue is a red herring.
Robert Brennen, the attorney representing Webb and Rubicon, wrote in court documents that Tom Clancy formed the Jack Ryan entities “for tax reasons and to protect himself from direct liability in the event any of the works were found to infringe copyrights of third parties.”
Thrope wrote that with one exception, the books written before the author’s death, “have been treated as works for hire for up to some 30 years without objection from Mr. Clancy or anyone else. … Mr. Clancy consistently represented and guaranteed to book publishers and movie studios that they were works for hire. … Copyright registrations were made as works for hire and they have never been challenged.”
The other key legal issue that Hollander must decide is whether it’s possible to own a major character independent of the novel in which that character appears.
Palmer and Nusinov claim that it is possible under the law. They argue that Clancy created the Ryan character in 1983, a year before the 1984 publication of “The Hunt for Red October.” They cite two early drafts of chapters from “Patriot Games,” published in 1987, unearthed from archives held by the U.S. Naval Institute, which gave the budding novelist his big break by publishing “Red October.”
The chapters are attached to a cover letter dated 1983, Palmer said, and are accompanied by a three pages of typewritten notes in which the author fleshed out Ryan’s biography and the plot for “Patriot Games.”
Palmer thinks that’s important because the cover letter predates the founding of the author’s first business, Jack Ryan Enterprises Ltd., by two years. Under copyright law a character exists from the moment he is created by the author, Palmer said, not the moment that character first appears in a published novel.
“Since an author owns what he creates from the moment it is created, whatever portion of ‘Patriot Games’ Tom wrote before he was ‘employed’ by any of his companies could not have been a work for hire,” Palmer said.
Brennen and Thrope claim characters cannot be owned separately.
“A character that appears within a work, such as a novel, is not itself eligible for copyright registration,” Brennen wrote in an email. “In order to use the copyright law to stop others from using a character from a novel, you must own the copyright registration for the novel. … Thus, one legally cannot own the copyright for a character without owning the copyright registration for the novel.”
Hollander’s ruling on that question could have significant consequences.
If the Jack Ryan character originated in 1983 and Tom Clancy never signed ownership of his creation over to the companies, it could mean that every time Clancy’s original version of Jack Ryan appears in a novel, television series or movie in the future, the proceeds go the beneficiaries of his estate — his widow and five children, but not the companies in which King has a stake.
The complaint focuses on proceeds that will be generated by upcoming projects based on the Jack Ryan and John Clark sagas. The lawsuit does not address whether, if Hollander rules in the widow’s favor, Alexandra Clancy will seek to recover for the estate proceeds from the books published during the author’s three-decade long marriage to King.
“That hasn’t been determined yet,” Palmer said.