This is answered, in part, in the WARHEAD 2001 A.D. section, but here we go into more detail. One knowledgeable person has mentioned that McClory may have a loophole because his original settlement entitled him to “James Bond of the Secret Service”. A wide, liberal interpretation of that phrase could have a dire impact on EON`s franchise. The court has several issues to determine:

Does Sony have the right to make a Bond film?
Do they have the right to make more than one Bond film?
Are they limited to using only material in the “collaboration” scripts, or can they improvise (i.e. the original Warhead script from the 1970s?
Did McClory forfeit his right to make any further Bond films when NSNA was made?
Is Kevin McClory entitled to a percentage of the series` profits?
Does MGM-UA have a legitimate breach-of-trust case against John Calley?
Does Eon`s 1965 agreement with McClory damage their case?
Is the 1983 British Court ruling applicable?
Nobody can say for sure without seeing both sides` pleadings and supplementary material. The quality of legal representation and who tries the case are also crucial factors.

For Kevin McClory`s “percentage” claim to succeed, he would have to prove that his contributions directly helped the series, i.e. that the films prior to Thunderball were unsuccessful, and that the series flourished only by using Thunderball elements. If McClory does own Blofeld and SPECTRE, he could theoretically claim a percentage of profits from, or damages against any EON Bond film (including FYEO) featuring either Blofeld or Spectre. However, several sources make a compelling claim that Kevin McClory did not create Spectre or Blofeld. Given Fleming`s failing health, could EON et al reargue this aspect of the case?

EON/MGM-UA`s lawyers have called the “percentage” claim a novel issue pursued too late (“the law of laches”) and statute barred. “You waited 35 years to pursue this claim?” Such a delay is indefensible.

McClory`s lawyers might be better to argue that EON used plot points and ideas from the collaboration scripts (i.e. stolen weapons in TND; SWLM, FYEO, and GE also have Thunderball related material) and thereby devalued them. McClory might be able to argue that EON incurred the delay by tying his hands and preventing him from getting his own Bond projects off the ground. The three Justice panel in the 1983 British Court decision said as much: “The plaintiffs, the Trustees of the will of Ian Fleming, have been financially aided by Cubby Broccoli since 1978 in their bid to stop the film. The film can not be stopped because the trustees have no right to argue against the original 1963 assignment of the copyright that gave Kevin McClory the film and TV rights to Ian Fleming`s novel Thunderball. There can be no appeal to a higher court – the House of Lords will not hear this case.” Mr Justice Goilding called the continued litigation harassment, and ordered the plaintiffs to pay McClory`s court costs.

I assume that MGM-UA bought NSNA to bolster their claim that all Thunderball related material is now EON`s. There are at least three stumbling blocks. One: The Sony Bond film doesn`t seem to be a remake of NSNA. It`s probably a free adaptation of the original Warhead scripts. Two: the original settlement gave McClory control of the collaboration scripts; EON`s ignominious 1983 defeat in the British courts probably closes this issue. Kevin McClory arguably got a “sweetheart” settlement in 1963. However, because of the 1965 agreement between EON and McClory, the British 1983 ruling was correct. Three: in exchange for the right to make Thunderball under the EON banner, EON only insisted on a 10 year non-exploitation clause (let`s call it the 1965 agreement, even though it was probably done in 1964). EON wrongly assumed that the series would have run its course by the 1970s – this decision more than anything else is to blame for the ongoing EON-McClory saga. Kevin McClory and Sony`s lawyers could argue that EON`s claim is a closed issue, for contractual reasons and because the courts subsequently adjudicated it. To avoid this pitfall, there would have to be an express provision in either California or US civil law that supports EON`s claims. I don`t think an argument that these were British decisions and therefore don`t apply would sway the California courts. The courts generally prefer to avoid jurisdictional conflict.

EON`s lawyers have also argued that any rival series will damage the viability of their own series. I believe they argued this point when they contested NSNA; that film may have subsequently hurt Octopussy`s international box office since both films were released at approximately the same time. Provided that Sony has the right to make Bond films, the courts will not care if they cut into EON`s profits. Such is the fate of the free-market. Nevertheless, I believe that the 1965 agreement specifies that any rival Bond producer who uses McClory property must pay a gratuity to Glidrose and EON.

I`m not sure that a judge would accept the argument that any rival film would be of such sub-standard quality as to damage the credibility and viability of the EON series. He might however rule that Kevin McClory already exercised his right to make his own Bond film with NSNA (even though he had nothing to do with the film, despite his Executive Producer credit), and that any further “remakes” would be unreasonable and unfair to EON, especially if Sony and McClory can`t diverge from the collaboration scripts. To keep remaking the same basic story might damage public interest in James Bond films and would therefore be unfair competition.

It`s unclear if Sony and McClory can diverge from the collaboration scripts. If the collaboration scripts are sufficiently different, McClory et al can argue that they can diverge and make multiple films. The court may rule that Sony has the right to diverge from the scripts, but cannot intrude on anything that EON owns.

Several factors would be examined. Did any past contracts (i.e. the EON-McClory 1965 agreement) or decisions (the 1983 British Court ruling) leave the door open for multiple “remakes”, or did they (directly or implicitly) limit McClory to only one film? Did the 1965 agreement only allow McClory the right to remake Thunderball, or did he keep his existing rights from the 1963 settlement? Last October MGM spokesman Craig Parson conceded that Sony may “have the rights to remake Thunderball and our executives would probably tell Sony to be our guests on that one. But as far as them planning a series, it is our asset and we will not be shy when it comes to planning legal actions to defend it.”

Yet a news article reported that, “MGM claims that a 28-year U.S. copyright term on Fleming`s work had expired and that a renewal of those Oct. 30 brought all of Fleming`s U.S. copyrights — including Thunderball — under the MGM/Danjaq banner.” This seems to be a creative interpretation of copyright law, especially since US copyright on the Fleming novels had already been renewed (i.e. OHMSS in 1991). Copyright cannot be renewed a second time. I`m not aware of anything in US copyright law that supports this argument. Copyright on the books affects only the books, not the films. If true, it would only bar Sony from showing the film in the US.

EON/MGM-UA filed a breach of trust claim against John Calley. For this to succeed, EON et al would have to show that John Calley was privy to confidential material and, I believe, disclosed it to Sony. The confidential material would have to be concrete, not abstract (i.e. dump Dalton, get higher-grade directors, etc). Moreover it would have to be something, that if disclosed, would put EON at a disadvantage and create unfair competition. It seems that MGM-UA may have a stronger case against SONY for the timing of their announcement (when MGM-UA went up for sale) if a judge decides that SONY knew that they had no right to make their own series of Bond films.

One note on the legal system. In Canada, for example, under the Highway Traffic Act, the owner, and not the driver of a car is liable for certain mishaps. In one case, a man`s daughter was involved in a traffic fatality. She was the driver. Her mother – his wife – had been in the passenger seat and was killed. Since he was the owner of the car, he had to sue himself (under Part V of the Family Law Act). The insurance company would have to pay whatever he won. This makes perfect sense. Most laymen would think it ludicrous.