Metropolitan News-Enterprise


Thursday, November 8, 2012


Page 1


C.A. Rejects Suit Over Plan to Turn Book Into Movie


By a MetNews Staff Writer


The Court of Appeal for this district yesterday affirmed the dismissal of a suit by a film producer over a failed attempt to create a film adaptation of a non-fiction book about a historically significant golf match.

MVP Entertainment, Inc. and its president, Robert Frederick, failed to show that attorney Alan Wertheimer had the authority to transfer intellectual property rights belonging to author Mark Frost, Justice Madeleine Flier wrote for Div. Eight.

Flier explained that the Copyright Act requires actual, not merely ostensible, authority for an agent to make such a transfer. Because MVP failed to allege facts showing that Wertheimer had such authority, the justice said, its claims for breach of contract, promissory estoppel, declaratory relief, and negligent misrepresentation cannot survive summary judgment.

Frost’s book, “Match:  The Day the Game of Golf Changed Forever”—about a 1956 meeting between aging professionals Ben Hogan and Bryan Nelson and amateurs Harvie Ward and Ken Venturi, put together on a day’s notice to settle a bet between two millionaires—was published in 2007.

Negotiations Alleged

Frederick alleged that his attorney, William Jacobson, negotiated with Wertheimer in late 2008 and early 2009 in a bid to bring the story to the screen. An earlier Frost book, “The Greatest Game Ever Played: Harry Vardon Francis Ouimet, and the Birth of Modern Golf,” about a 1913 match, was made into a 2005 film by Walt Disney Pictures.

The plaintiff produced an email from Jacobson to Wertheimer proposing certain terms, along with Wertheimer’s email response: “done...thanks! Werth.”

Jacobson sent an agreement in May 2009, but it was never signed. Following a meeting between Frost and Frederick that summer, Frost told Frederick he did not want to turn the book into a movie.

In granting Frost’s motion for summary judgment, Los Angeles Superior Court Judge  Richard A. Stone ruled that the email exchange did not create a contract because there was no showing of actual agency, as required by Sec. 204 of the Copyright Act. The provision states:

“A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” 

Ostensible Authority

The plaintiff argued that even if Wertheimer lacked actual authority to make the deal, he had ostensible authority under California law. But Stone ruled, and the Court of Appeal agreed, that ostensible authority is insufficient where the agreement would transfer ownership of a copyright.

“Assuming Wertheimer had ostensible authority, such authority was insufficient to effectuate a transfer of the copyright in The Match,” Flier wrote. “MVP’s and Jacobson’s belief (whether or not reasonable) that Wertheimer was Frost’s duly authorized agent is irrelevant.”

The lack of evidence of actual authority, the justice went on to say, “defeats all of MVP’s cause of action.” There can be no breach of contract claim when the plaintiff cannot prove an agreement, no promissory estoppel or declaratory relief claim absent a contract that complies with Sec. 204, and no claim of negligent misrepresentation when the purported agent lacked the authority to make the representation in the first place, Flier wrote.

“...Frost’s attempt to cooperate with MVP would be relevant only if the parties’ had a contract under section 204,” the justice explained. And the latter theory cannot stand because MVP fails to identify any conduct by Frost suggesting Wertheimer was Frost’s duly authorized agent.  MVP points out that Frost attended a pitch meeting, sent a box of books, and received a promotional brochure, but none of that conduct suggests that Wertheimer was Frost’s duly authorized agent.”

Attorneys on appeal were Martin D. Singer and Henry L. Self III of Lavely & Singer for the plaintiff and Dale F. Kinsella and Jonathan P. Steinsapir of Kinsella Weitzman Iser Kump & Aldisert for the defendant.

The case is MVP Entertainment, Inc. v. Frost, 12 S.O.S. 5730.


Copyright 2012, Metropolitan News Company