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NOV
8
2 YEARS

Appeals Court Rules 'Twin Peaks' Author Didn't Give Up Film Rights to Book

Why a dealmaker who writes, "Done, thanks!" hasn't necessarily closed a deal.

Film rights to the bestselling book, The Match: The Day the Game of Golf Changed Forever, could be back on the market after a California appellate court ruling on Wednesday.

The book was authored by Twin Peaks co-creator Mark Frost and told the story of two millionaires, Eddie Lowery and George Coleman, who made an off-the-cut bet in 1956 that set off a golfing duel between golf legends Ben Hogan and Byron Nelson and two top amateurs, Harvie Ward and Ken Venturi.

Frost sold film rights to his work to MVP Productions -- or did he?

That's been the question in three lawsuits over the past few years, which has suspended any film adaptation of Frost's book.

The dispute raised these questions: When is a deal a deal? Do transactional lawyers have authority to transfer a copyright in negotiating film rights? And in the course of bargaining, if the attorneys don't have such authority, might there be any misrepresentations made?

After the book came out in 2007, MVP and its president Robert Frederick expressed interest in obtaining rights.

In 2008, the parties' lawyers began negotiating. On April 30, 2009, William Jacobson, the attorney representing MVP, proposed certain terms and stated, "Let me know if this is okay and we'll send paperwork..." Alan Wertheimer, representing Frost, responded, "done....thanks!"

But in the summer of 2009, Frost met Frederick and decided he did not want MVP to be the one to make the film. Allegedly, Frost felt MVP's execs were "dishonest" about their industry experience.

MVP felt that the deal had already been made, which set off a chain of litigation. First, Frost sought a declaratory judgment in federal court. Then, MVP filed a lawsuit for breach of contract, promissory estoppel and negligent misrepresentation in California state court. Then, Frost went back to federal court claiming that MVP has infringed the copyright on his book in its investment literature, plus violated both his trademarks and publicity rights.

Ultimately, the state lawsuit became the venue where the action was adjudicated. Frost prevailed on summary judgment, and on Wednesday, again scored victory on appeal.

According to the latest ruling, it is undisputed that Wertheimer didn't have actual authority to transfer the copyright in The Match, but MVP argued there was a triable issue whether he had "ostensible authority," roughly meaning that appearances were made so as to lead others into believing the presence of a true authority.

But the appeals court says it doesn't matter. The only thing that matters is actual authority, which only comes through a writing signed by the copyright owner. This way, authors are ensured of not giving away copyright inadvertently. According to the ruling, "Assuming Wertheimer had ostensible authority, such authority was insufficient to effectuate a transfer of the copyright in The Match."

The appeals court goes onto say that the misrepresentation claim won't survive either "because MVP fails to identify any conduct by Frost suggesting Wertheimer was Frost's duly authorized agent."

Here's the ruling.

MVP was represented by Marty Singer and Henry Self at Lavely & Singer. Frost was represented by Dale Kinsella and Jonathan Steinsapir at Kinsella Weitzman.

As for the fate of a potential film, we hear that Frost has delayed re-selling rights until the resolution of this case. Fore!

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner