Kesey, LLC v. Francis et al, No. 3:2006cv00540 - Document 93 (D. Or. 2009)
Court Description: OPINION AND ORDER - Signed on 4/3/09, by Magistrate Judge John V. Acosta. (Attachments: Part 2 and Part 3 of Opinion and Order) (See conclusion starting at page 77 and continuing to end of document at page 87.) (peg)
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relationship between the three main characters or of the climax of the story. This seems the sole basis for any personal knowledge Francis may have had regarding Kesey's knowledge ofthe events surrounding the 1911 Pendleton Round-Up. In this context, Francis is offering Kesey's out-of-coUlt statement regarding his knowledge of the characters or climax ofthe story for the truth of the matter asserted - that Kesey was unaware of the factual background of the 1911 Round-Up until after his conversation with Hagen and Fracis. As such, these statements must be evaluated under the hearsay rule and its exceptions. Defendants did not file a brief responding to Plaintiffs objections to Francis's affidavits and, thus, Defendants have not asserted any arguments that the hearsay statements qualify for an exception to the hearsay rule. The most likely basis upon which Kesey's statement could be admitted is an admission by a party opponent, which is not hearsay under Federal Rule of Evidence 801(d)(2). However, Kesey is not named as a plaintiff and, therefore, does not qualify as a party opponent. Plaintiff, the actual opposing party in this action, is a limited liability corporation created by Kesey's heirs for the sole purpose of receiving and holding alliiteraty rights once owned by Kesey, including Kesey's rights to the Screenplay. Accordingly, Plaintiffwould be properly characterized as the successor-in-interest to Kesey's rights in the Screenplay, which rights it received tlu'ough Kesey's heirs. 16 Historically, courts accepted the common law principles ofprivity and allowed an admission by a transferor to be admitted as evidence in litigation involving the transferee. This practice was intenupted by the adoption ofthe current version ofRule 801 (d)(2), which specifically defines which statements are properly classified as admissions and thus, fall outside of the parameters of the 16Kesey died intestate in November, 2001. The assets of his estate, including all of his intellectual property rights, were distributed to Plaintiff pursuant to a COUlt order filed March 10, 2003. Page 31 - OPINION AND ORDER {SIB} hearsay rule. To qualifY as a admission by a party opponent under Rule 801 (d)(2), the statement must be: e capacity or (A) the party's own statement, in either an individual or a representativ or belief in its truth, (B) a statement of which the party has manifested an adoption a statement or (C) a statement by a person authorized by the patty to make t concerning concerning the subject, or (D) a statement by the party's agent or servan the existence a matter within the scope of the agency or employment, made during the course of the relationship, or (E) a statement by a coconspirator of a patty during and in fUltherance of the conspiracy. The majority of the federal COUlts have read this rule literally, determined intend to give the COUlts the ability or discretion to add new categories that the draftsmen did not of admissions, and held that so, the COUlts noted that privity-based admissions are not within the language of the IUle. In doing such admissions may othelwise be admissible under a specific exception to the hearsay rule set fOlth in Rules 803 and 804 or under the residual exception found in Rule 807. Huff, acting as In Huffv . White ,VIotor Corp., 609 F.2d 286,2 89 (7th Cil'. 1979), Helen d a wrongful death action personal representative of the estate of her deceased husband, initiate against the manufacturer of a fuel system whose defective design alleged husband. ly caused the death of her truck which her Huff asselted that the fuel system ruptured and caught fire after the ld eventually died from the husband was driving collided with an overpass support. Huffs husbal severe burns he suffered in the fire. Id. The manufacturer offered the decedent's statement that he lost control of the truck when he by something other than tried to put out a fire on his pant leg, to establish that the fire was caused existed between Huff and a ruptured fuel system. Id. at 290. The manufacturer argued that privity Id. The Seventh Circuit the decedent and that the statement was admissible as all admission. ions generally were accepted rejected this argument. While acknowledging that privity-based admiss Page 32 - OPINION AND ORDER {SIB} by the courts under common law, the court stated that: controlled, [t]he admissibility ofprivity-based admissions in the federal courts is now e rules, ofcourse, by the Federal Rules ofEvidence. A reading ofArticle VIII ofthos admissions are to be the article on hearsay, leads us to conclude that privity-based 803(24) tested for admissibility under the residual exception provided for in Rules (d)(2). Although and 804(b)(5) rather than under the admissions provision, Rule 801 privity-based neither the rules themselves nor the Advisory Committee Notes refer to eration of the admissions, and Congress added nothing on the subject in its consid y atiicle rules, the language of Rule 801 (d)(2) and the general scheme of the hearsa definition of support our conclusion. Privity-based admissions are within the truth of the hearsay, Rule 801 (c), an extra-judicial statement offered "to prove the ions that matter asserted," and are not among the specifically defined kinds of admiss Nor are they despite Rule 801(c) are declared not to be hearsay in Rule 801(d)(2). 803 and covered by any ofthe specific exceptions to the hearsay rule listed in Rules are to be 804. Thus privity-based admissions are not admissible, as such, ifthe rules ts that the read literally. Moreover, the very explicitness of Rule 801(d)(2) sugges categories of admissions draftsmen did not intend to authorize the courts to add new tion are to those stated in the rule. No standard for judicial improvisation or discre 804(b)(5). provided in Rule 801(d)(2), as they are in Rules 803(24) and Id. at 290-9 1. The Sixth Circuit used similar reasoning in excluding statements made offered in an action brought by the trustee ofthe bankrupt corporation. 1158 (6th Cir. 1981). by corporate agents Calhoun v. Baylor, 646 F.2d by The court held that "Rule 801 (d)(2) does not include statements admissible" and then cited predecessors in interest among the types of statements the rule makes Weinstein as support: As one commentator has pointed out, the rule rejects privity as a ground ofadmissibility by making no provision for it. Under the common law rule declarations by a predecessor in title offered against a successor were often admitted. Morgan objected strenuously to this result, arguing that there is no "magic" in privity and pointing out that acceptance of the privity principle leads to dubious distinctions, particularly in bankruptcies. 4 Weinstein's Evidence 801-165 (1979)(citations omitted). Page 33 - OPINION AND ORDE R {SIB} Calhoun, 646 F.2d at 1162-63. ics Services, Inc. Both bankruptcy courts and district courts have followed suit. See Teltron rejects privity as a grounds of v. Anaconda-Ericsson, Inc., 29 B.R. 139, 165 (1983)(Rule 80l(d) (2) recognized as privity-based admission. "Thus, in order to be admissible, statements formerly admissions must fall withing another recognized hearsay exception."); In Re Cornfield, 365 F. Supp. for several types of pmty2d 271, 277 (E.D.N.Y. 2004)("Notably, Rule 80l(d) (2)(A) provides by an agent-but does not oppon ent admissions-such as adoptive admissions, or statements made lly all of the noted treatises include any provis ion concerning privity-based admissions.") Virtua sion as well. See 30B addressing the Federal Rules of Evidence have reached the same conclu NCE § 7019 (Interim ed. MICHAEL H. GRAHAM, FEDERAL PRACTICE AND PROCEDURE: EVIDE B. MUELLER & LAIRD 2000); 2 MCCORMICK ON EVIDENCE § 260 (6th ed. 2006); 4 CHRISTOPER C. KIRKPATRICK, FEDERAL EVIDENCE § 430 (2d ed. 1994). ted by the language This court finds the reasoning discussed above to be logical and suppor of the Rule itself and, therefore, adopts the same. l ? Accordingly, the court finds that the statements not admissible under Rule attributed to Kesey in paragr aph 3 of the First Francis Affidavit are his rights in the Screenplay. 80l(d) (2) as admissions by Plaintiff, Kesey 's successor-in-interest to As to the applicability ofhearsay exceptions under Rule 803 or 804, or the residual except ion 's statement are: 1) presen t found in Rule 807, the only specific exceptions likely to apply to Kesey dicial statements l7This comt recognizes that other courts have admitted a deced ent's extraju nt was a pmty to the action. in actions brought on their behalf by their estate, finding that the decede County Bd. of County See Estate of Shafer, 749 F.2d 1216 (6th Cir. 1984); Phillips v. Grady th o, 942 F.Supp. 72 (D.P.R. Commissioners, 92 Fed. Appx. 692 (10 Cir. 2004); Schroeder v. de Bertol in that a successor-in-interest 1996). This is distinguishable from the case cUlTently before the comt has filed the action, not the personal representative of Kesey 's estate. Page 34 - OPINION AND ORDE R {SIB} 3) statement e of min d found in Rule 803(3); and ression found in Rule 803(1); 2) stat sense imp rsay rule for (1) provides an exception to the hea rest found in 804(b)(3). Rule 803 against inte nt was perceiving or condition made while the declara "describing or explaining an eve nt statements 's stat em ent FED. R. EVID. 803(1) (2008). Ke sey dition, or immediately thereafter." the event or con s not describe n Fletcher, Sundown, and Spa in doe kno w about the relationship betwee tha t he did not s, it does le he was perceiving anything. Thu nt or condition and was not made whi or explain or eve not qualify for this exception. state of s "of the declarant's then existing min d exception applies to statement The state of ing, nt, plan, motive, design, mental feel on, or physical condition (such as inte mind, emotion, sensati memory or bel ief to pro ve the fact but not including a statement of pain, and bodily health) ntification, or terms of tes to the execution, revocation, ide embered or believed unless it rela rem the dec lara nt's mental, Thi s exception applies only where lara nt's wil l." FED. R. EVID. 803(3). dec In the civil context, e the statement is made is at issue. nal, or physical condition at the tim emotio ages. play to prove motive, intent, or dam this exc lus ion generally com es into dleton Rou nd- Up re ofcertain aspects ofthe 1911 Pen Kes ey's statement that he wa s not awa ent was made. sical condition at the time the statem dence of his mental, emotional or phy is not evi ent, it runs rmation at that time and, to tha t ext evidence tha t he lacked certain info It is merely bel ief to "pr ove inst using statements of memory or ul of Rule 803(3)' s prohibition aga squarely afo state of min d statement does not qualify for the embered or believed[.]" Ke sey 's the fact rem exception. wh en the nd in Rul e 804(b)(3) applies only em ent against interest exc ept ion fou The stat declarant is unavailable as a witnes s and allows the admission of: Pag e 35 - OPINION AND OR DE R {SIB} lara nt's its making so far contrmy to the dec statement wh ich was at the tim e of [a] nt to civil or so far ten ded to subject the declara pecuniary or proprietmy interest, or r, tha t claim by the declarant against anothe inal liability, or to render invalid a crim the statement nt's position wo uld not have made a reasonable per son in the declara unless believing it to be true. tim e it ement was against his interests at the s tha t the declarant kno w that the stat The rule require s before was not aware of the background fact Kesey purportedly admitted that he was made. Here, ore the ey wrote the Screenplay, and well bef discussing the Screenplay, before Kes the parties began ement Screenplay. If Kesey made the stat g over wh o owned the rights to the parties began arguin e he contrary to his interests at the tim did not know that his statement was Francis describes, he lify for made it. The statement does not qua the stat em ent aga ins t interest except dual exc ept ion The last possible exception is the resi ion. es: set forth in Rule 807 wh ich provid equivalent d by Rul e 803 or 804 but having A statement not specifically covere , if s, is not excluded by the hearsay rule stantial guarantees of trustworthines circum erial fact; ement is offered as evidence of a mat the court determines that (A) the stat other poi nt for wh ich it is offered tha n any stat em ent is more probative on the (B) the and (C) the procure tln'ough reasonable efforts; evidence wh ich the pro pon ent can served by the interests of jus tice wil l bes t be general pur pos es of these rules and be adm itte d ence. However, a statement may not admission ofthe statement into evid adverse party ponent of it ma kes kno wn to the und er the exception unless the pro wit h a fair hearing to provide the adverse party sufficiently in advance of the trial or ement and pro pon ent 's intention to offer the stat opportunity to prepare to meet it, the e and address of the declarant. the particulars of it, including the nam red mu st be residual exception, the statement offe D. 807 (2008). To qualify for the FED. R. EVl rt which, in this t to the ultimate issue before the cou a material fact - it must be relevan evidence of . ns the literary rights to the Screenplay instance, is the que stio n of who ow ails beh ind did not kno w some ofthe factual det ement at issue is evidence that Kes ey The stat late 1983. vid ed him wit h that information in eenplay until Francis and Hagen pro the plo t of the Scr nd in a por t of Def end ant s' argument, fou relevance of this statement is as sup The only possible Pag e 36 - OPINION AN D OR DE R {SIB} ry jud gm footnote to the ir motion for summa ent , tha t they should, at the least, be considered "a join t concepts of the e of their contribution of the ma in co owner of the screenplay becaus author and at 19 n. 3.) aware." (De ts.' Mot. for Summ. 1. screenplay of wh ich Kesey was not hors wit h "a wo rk prepared by two or mo re aut yright Act defines a "jo int wo rk" as The Cop of a unitary inseparable or interdependent parts t their contributions be merged into the intention tha s eac h held that "jo int authorship require § 101 (2007). The Nin th Circuit has whole." 17 U.S.C. 916 F.2d ution." Ashton-Tate Corp. v. Ross, independently copyrightable contrib author to make an . 17 are entitled to copyright protection 0). Only original works of authorship 516 ,52 1 (9th Cir. 199 ma y copyright facts orid U.S.C. § 102(a)(2007). "No author eas." Harpel' & Row, Publishers, Inc. , 547 (1985). v. Nation Enterprises, 471 U.S. 539 Francis and Hag en's contribution oft 1 Pen dle ton Roundhe tactual information about the 191 Kes ey was aware of the ion. Accordingly, wh eth er or not is not entitled to copyright protect Up ly ideas wit h Francis and ton Rou nd- Up before discussing stO tual background ofthe 1911 Pen dle fac rently before the t to any ofthe claims or arguments cur in December 1983 is not a fact relevan Hag en admissible und er the evidence of a material fact and is not Kes ey's statement is not offered as court. aph 3 of the First refore, Fra nci s's statement in paragr exc ept ion to the hearsay rule. The res idu al down, Fletcher, win g ofthe relationship between Sun idavit tha t Kesey admitted to not kno Francis Aff and does not Hag en in Dec em ber 1983 is hearsay ore his discussions wit h Francis and and Spa in bef statement is objection to the admission of this any hearsay exception. Pla inti ffs qualifY for n from the record sus tain ed and the evidence is stricke . c. par agr aph 5 etings wh ere Paragraph 5 provides "th at in all me Pag e 37 - OPINION AND OR DE R Kesey attended which Affiant estima tes was {SIB} screenplay was owned by at least 30 meetings, the statement was always made by Affiant that the ever disagree with that the corporation and not once in front of these third persons did Kesey foundation and is hearsay, statement." Plaintiff objects to this evidence arguing that it lacks conclusory, vague, and ambiguous. In this paragraph, Francis is offering evidence that Kesey never contra dicted her statement to an assertion that Francis that S&F owned the rights to the Screenplay. If this evidence is limited tion argument is without never heard Kesey disagree with her statement, Plaint iff s lack of founda did merit. Francis clearly has personal knowledge of what she heard or, rather, not hear. However, her statement to a third to the extent Francis is attempting to prove that Kesey never contradicted party outside ofher presence, Francis lacks personal knowledge and the evidence is inadmissible on establish that Kesey even that point. Similarly, Francis lacks the requisite personal knowledge to heard her comment that S&F owned the rights to the Screenplay. s never heard Kesey The court must now consider whether the limited evidence that Franci y is defined as an out-ofcontradict her statement that S&F owned the Screenplay is hearsay. Hearsa 801 defines "statement" as court statement offered to prove the tmth of the matter asserted. Rule "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person is not an oral or written as an asseltion." FED. R. EVID. 80I(a). Clearly, Kesey's failure to act asseltion. The question then becomes whether Kesey's failure to act is "condu ct" which he intended to agree with Franc is's to be an "asseltion." In other words, by not acting, did Kesey intend statement? The Ninth Circuit has held that a criminal defendant's nonverbal condu ct in consummating describing the drug sales a drug transaction was not intended to be an asseltion and that testimony Page 38 - OPINION AND ORDER {SIB} . 1982). Similarly, orres, 682 F.2d 1331, 1335 (9th Cir hearsay. United States v. Astorga-T was not was found dead sts occupying a room where a guest from hotel owners that previous gue testimony that the gas not hearsay and was relevant to prove xide poisoning did not complain was of carbon dio (5th Cir. Cain v. George, 411 F.2d. 572, 573 the source of the carbon monoxide. heater was not F owned ect to Fra nci s's declaration that S& court finds that Kes ey's failure to obj 1969). Here, the rrules re, is not hearsay. The court ove not assertive conduct and, therefo the Screenplay was limited admission of the evidence for the on to this paragraph and allows the Pla inti ffs objecti the ect to her statement that S&F owned that Francis did not hear Kesey obj purpose of showing the etings (for example, wh en and where of Fra nci s's failure to describe the me Screenplay. In light d t) or the context in which she claime o and how many people were presen meetings occurred or wh e wledge that Kesey even heard her stat eenplay, and her lac k ofpersonal kno that S&F owned the Scr value of this evidence play, the relevance and/or probative t S&F owned the rights to the Screen tha ffs assertion tha t the into consideration, as well as Pla inti questionable. The court will take this is ce creates a genuine s, indetelmining whether the eviden ce is conclusory, vague and ambiguou eviden issue of material fact. IS Pla inti ff asserts a hearsay objection to paragraph 8 which reads: from the missing records set forth above t Affiant believes that she had all of Tha discarded when she discarded them. Before she about 1983-4 until about late 1995 1984 who had called her to discuss the documents, she spoke to Irby Smith the ard wit h the t ifh e and/or Kesey ever went forw screenplay and Affiant told him tha inst the corporation files legal action aga 4 screenplay that she would make sure 198 and 18 hearsay objection to paragraphs 16 elis both a lack of foundation and a ISplaintiff ass as suppOli. The ts fi'om Francis's deposition offered nts' Facts and the deposition excerp ofDefenda First Francis Affidavit are equally ffs objections to paragraph 5 of the cOUli's ruling on Pla inti tual statements deposition excerpts that suppOlithe fac to the statements found in Fra nci s's applicable in paragraphs 16 and 18. {SIB} INION AND OR DE R Page 39 - OP t he and Kesey tim e that if Affiant felt tha t way tha them. Irby Sm ith ind icat ed at tha t 4 screenplay. wo uld not go forward wit h the 198 son al t eith er Fra nci s or Sm ith had any per t notes tha t the re is no evidence tha At the outset, the com the h the Screenplay. Consequently, to Ke sey 's inte nt to go fOlward wit kno wle dge wit h regard is not admissible for this pur pos e. wit h regard to the Kes ey's inte nt and stat em ent lacks foundation pla y uld not go forward wit h the Scr een het her Sm ith' s stat em ent tha t he wo The que stio n ofw er Francis is offering the is hearsay raises the issu e of wh eth ed on Fra nci s's thre at ofl ega l acti on bas the Screenplay. Bas ed on did not inte nd to go forw ard wit h em ent to prove tha t Sm ith, in fact, stat is offe red to pro ve offered, it appears tha t the stat em ent tex t in wh ich the stat em ent is being the con ord s because Sm ith felt comfOitable in disc ard ing her rec ct the stat em ent had on Francis. She the effe trut h of the ma tter the evidence is not offe red for the avo id legal action. In tha t context, wan ted to ffs add itio nal the stat em ent on Francis. 19 Pla inti is adm issi ble to sho w the effect of ass erte d and by the cou rt and am big uou s wil l be con side red t the evidence is conclusory, vague, obj ecti ons tha wh en it addresses the pen din g sum ma ry jud gm ent motions. 1, 2008 2. Fra nci s's Aff ida vit sign ed July ida vit" ), 1, 200 8 (the "Se con d Fra nci s Aff 2 of Fra nci s's affidavit sign ed July Par agr aph pro vid es: enplay from the original oft he sec ond draft scre Tha t Aff ian t is the one wh o rec eiv ed ft of the 1984. Tha t this was the second dra Kesey on 01' abo ut Sep tem ber 16, Ken s not recall the red in 1984 to Affiant. Aff ian t doe screenplay wh ich Kes ey had delive and is sur e logo on it wh en Aff ian t received it ond draft con tain ing any copyright sec hav e h'by con tain any suc h log o and did not tha t the first draft del ive red did not ledged tha t he did not em ent to pro ve tha t Sm ith acknow 19IfDefendants hav e offe red the stat Screenplay, oth er wo rds , tha t S& F ow ned the forw ard wit h the Screenplay or, in hav e a right to go ing the ow ner ship ith ma de no representations regard ce is not pro bat ive on tha t issue. Sm the evi den of the Screenplay. {SIB} OP INI ON AN D OR DE R Pag e 40 - t second re was printed prior to delivery of tha Sm ith' s name on it either. This brochu or approve of the pro of of the final screenplay. Tha t Affiant did not see draft of the iant seen ed a copyright logo on it and had Aff version that was printed that contain out. either had it reprinted or crossed it it before it was printed, would have s tion. Francis is describing document evidence asselting tha t it lacks founda Pla inti ffobjects to this se documents. Francis has personal reviewed based on her memOlY of tho that she received and/or e. is qualified to testify on this issu uments and of her memories, and knowledge of these doc ue, ambiguous, and ff also asselts that this evidence is vag intiff's objection is overruled. Pla inti Pla merits of the pending se objections wh en it addresses the levant. The court will consider the irre summmy jud gm ent motions. 200 3. Fra nci s's Affidavit signed July 7, 8 7, 2008 (the "Third 3 of Fra nci s's affidavit signed July Pla inti ff also objects to paragraph Francis Affidavit"), wh ich provides: seen pro of of the brochure tha t Affiant had se newly found materials is the first In tho DD and t pro of is attached hereto as Exhibit before the final copy was made. Tha davit set forth herein. Aff ian t's prior affi orated by reference as if more fully incorp t was sent to er seen the final prin ter' s pro of tha had mentioned that Affiant had nev e of as Exhibit V by Plaintiffu ntil the tim ter and then became what was filed the prin iant now Having now see n this first proof, Aff her second deposition in Ma y 2008. ich re filed by Plaintiff as Exhibit V wh that the pOltion of the final brochu knows the person t 1984 Ken Kesey" was added by contained the reference to "copyrigh chure for the corporation. (Susan Torrey) who designed the bro ed by t the copyright designation was add the statement that Francis kno ws tha Pla inti ff objects to first also objects to the admission of the g that it lacks foundation. Plaintiff Susan Torrey, arguin not produc pro of of the brochure because it was ed during discovelY. st the first pro of of the brochure in a che Francis explains that she discovered in the possession of her ex-husband. Page 41 - OPINION AND OR DE R Nothing in the record casts doubt on that had been this explanation, and the {SIB} the document during ed on Fra nci s's failure to produce overrules Pla inti ff's objection bas com t discovery. ove Fra nci s's statement credits her disc ry and rev iew ofthe first proof, wh ich did not include ed the copyright knowledge that Sus an Torrey add ht designation, for her new-found the copyrig not include The mere fact tha t the first pro of did the second pro of of the brochure. designation to Torrey added s's conclusory statement that Susan designation does not sup por t Fra nci the copyright ncis had absence of other evidence that Fra ignation to the second proof. In the the copyright des tion. stat em ent lacks the requisite founda dge of Sus an Tor rey 's conduct, this personal knowle 20 from the record. tained and the statement is stricken is sus Pla inti ff's objection to this statement 2008 4. Faye Declaration signed June 13, ements contained in Defendants object to numerous stat arily because they are bas 2008 (the "Faye Declaration"), prim Fay e's declaration signed June 13, ed on hearsay statements ofK ese y and ants also object to the admissi lac k the proper foundation. Defend on of exhibits offered thro ugh the Faye Declaration. a. paragraph 3 3 of the Faye Declara Defendants move to strike paragraph s from Kes is based solely on hearsay statement in wri me " and "Ke n's longstanding interest tion in its entirety arguing that it n ey. Defendants cite to the phrases "Ke ting a screenplay" to sup por t this arg articles offered as Exhibit also mo ve to strike the newspaper 2°Plaintiff's additional objection tha began telling ument. Defendants A as double hearsay.21 ot. t the evidence is speculative is mo of Ken Babbs. The their opposition to the declaration 21Defendants ma de this objection in clarity. this tim e merely for the purposes of court is addressing the objection at {SIB} - OPINION AN D OR DE R Pag e 42 to , Ken began telling me of his plans Commencing well ove r 30 years ago ous rodeo ning the Pendleton Round-Up, a fam write a novel or screenplay concer 100 ted in Pendleton, Oregon, for almost petition that has been annually conduc com h a novel eled to the Round-Up to research suc years. As a result, Ken Jiequently trav wed Round-Up in 1979, Ken was intervie enplay. Indeed, while attending the or scre such a spaper about his interest in writing by Pendleton's East Oregonian new 15, t were published in the September lay, which resulted in two articles tha screenp Version" und-Up ... Ke n Kesey Has His Ow n 1979 issue ofthe East Oregonian, "Ro e tion." True and COlTect copies ofthes sey Looking to R- Up for Script Inspira and "Ke these two th as Exhibit "A.,,22 The second of articles are collectively filed herewi conceming that "Th e plot [of Ke n's screenplay articles stated, among other things, down, the [Ken's] admiration of Jackson Sun the Round-Up] could be drawn from ." See Ex. und title in 1916 at the age 01'50 ... Ne z Perce Indian who wo n the all-aro cerning the interest in writing a screenplay con "A. " Because of Ke n's longstanding conducted d the Round-Up many times, had Round-Up, by 1984 Ke n had attende written ly history of the Round-Up and had ensive research concerning the ear ext s in preparation for writing a work. character sketches and story outline agraph is Fay e's statement tha t Kesey hearsay statement included in this par The first possible ff g the Pendleton Round-Up. Pla inti write a novel or screenplay concernin to ld her ofhis plans to in ich hearsay exceptions which it offers this statement or wh rs no explanation of the purpose for offe mig ht apply to the statement. elied in it is that ce literally, the truth of the matter ass Reading the paragraph's first senten statement is not ut the Pendleton Round-Up. The told Faye he intended to write abo Kesey , at the tim e he for another purpose. Whether or not for that purpose, but it is admissible admissible dleton Roundactually intended to write about the Pen described statements to Faye, Kesey made the first discussions t at a time well before Defendants' ements are admissible to show tha Up, his stat e ofa t least nd-Up generally and the significanc ey had knowledge oft he Pendleton Rou wit h him, Kes . In fact, play's and the No vel 's key characters s who ultimately became the Screen one of the person Smith in their ibits referenced by Faye, Babbs and he newspaper articles and all other exh 22T tion of David Aronoff. larations are attached to the declara dec {SIB} ON AND OR DE R Pag e 43 - OPINI , , actually had no statements he made to Faye, Kesey tainly possible tha t at the time of the it is cer could write a alternatively, was not certain that he te anything about the Round-Up or, intent to wri ant about his duced as a play, What is signific could be published as a book or pro story that predated his of the Round-Up and its history that it shows tha t his knowledge statement is ardless of agraph bears out this conclusion: reg h Francis. The remainder of the par discussions wit dge of se statements show Kesey's knowle ious statements in the paragraph, tho the truth of the var x ofthe he three persons who became the cru its history, including at least one oft the Round-Up and 's is admissible as evidence of Ke sey Novel. Accordingly, the statement Screenplay and the Francis. history prior to the discussions with knowledge of the Round-Up and its te to prove that Kesey intended to wri t Pla inti ff is offering this testimony To the extent tha for either the present sense (Rule nd-Up, the statement does not qualify about the Pendleton Rou does not describe or (3)) exceptions. Ke sey 's statement (1)) or the state of min d (Rule 803 803 . Additionally, Kesey's ment for the present sense exception lain an event or condition, a require exp ton Round-Up at tha t interested in writing about the Pendle ement in the late 197 0's tha t he was stat 4 and, therefore, tive in writing the Screenplay in 198 not indicative of Kesey's intent or mo time is n the statement . Finally, the lack ofrelevance betwee qualify for the state ofmind exception does not question ofwho Round-Up in the late 197 0's and the ey's literary interest in the Pendleton about Kes the residual in 1984, prevents the application of copyright to the Screenplay, written owns the or arguments is not relevant to any of the claims eption (Rule 807) as the statement hearsay exc statement to s' objection to the admission of the ore the court. Accordingly Defendant cUll'ently bef tained. dleton Round-Up in the 197 0's is sus was interested in writing about the Pen prove that Kesey this The statement is not inadmissible for Page 44 - OPlNION AND OR DE R purpose. {SIB} Defendants also assert that Fay e's des cription ofK ese y's longstanding inte t of this inte screenplay and his actions in suppor rest in writing a describes how rest are hearsay. Specifically, Faye the RoundKesey traveled to Pendleton to attend Up, conducted background research story outline Up and wrote character sketches and on the Round- duct qualifies s relating to the Round-Up. This con assertion. The ent it was intended by Kesey as an ent" under Rule 801 only to the ext as a "statem ve conduct not intended by Kesey to be asserti t the conduct described by Faye was court finds tha re falls Rule 801. Kesey's conduct therefo s not qualify as a statement under and, therefore, doe outside the hearsay mle. Faye referencin The rest of the paragraph consists of el or screenplay using reporting Kesey' s plans to write a nov g and quoting two newspapers articles the Pendleton Round-Up as a backdr op. published in the Eas t Oregonian on admission of the newspaper articles Defendants object to the ludable as double hearsay based on endants argue that the articles are exc September 15, 1979. Def statements allegedly made by Kesey. Both newspaper articles were written by Bob Crider ofthe Eas t Oregonian . The first aliicle, sion reads: entitled Ken Kes ey Has His Own Ver n put aside thoughts of all that has bee PENDLETON - For the moment, reports, the nd-Up. All the film, the radio written about the Pendleton Rou conversations. ger the 60' s, life experimenter, challen Ken Kesey - the manic Prankster of e Flew "Sometimes a Great Notion" and "On to The Establishment, and author of has a lot t tell his own version. It's a verison tha Over the Cu cko o's Ne st" - wants to ve together for a nts wh ich he hopes to wea of loose ends at the moment, fragme screenplay. what he figured was his sixth RoundKesey was in Pendleton this week for d that in 1953 wit h a trip back to Springfiel Up. He came away from his first one t." initial inspiration for "Cu cko o's Nes included an incident giving him the Page 45 - OPINION AND ORDER {SIB} sell es he' ll have enough material to He 's leaving this one wit h the hop idea for Kesey, who said he feels the ood on a screenplay. It's not a new Hollyw d for any fictional story. rodeo can serve as a good backgroun w el about it," Kesey said in an intervie "AND I THOUGHT about doing a nov ought to be a so visual it jus t seems to me that it wit h the Eas t Oregonian. "Bu t it's ing and e I always kick myself for not com vie. So each year I come back her mo at I mean." ebody in Hollywood, and show wh getting enough pictures to show som t of about 30 minutes of video tape tha This year he' s banking on having use w, was sho KG W Television's "PM Magazine" Bil l Bradbury, director for Por tlan d's shooting. the bones of a plot to be set against this If it works, Kesey said he' ll "make up er money for it, get them to get it togeth op. Go down into Hollywood, get the backdr against this back here next year to shoot a movie wit h actors and movie crew, and be backdrop." to n't absolute dummies. They can 't fail " ... These guys in Hollywood are ing for any kind of plot." recognize this as such a colorful sett cs, moving on from the field of athleti KESEY LED A colorful life after e one ofthe the University of Oregon, to becom where he was a standout wrestler for 1960's. bright young novelists of the early from graying, energized hair springs out Today as he nears the age of 44, his me r sun. from blistering under the Indian Sum the side of a hat that keeps his head smooths· lar fram e,ju st as a soft tone ofvoice se fitting clothes disguise his muscu Loo t. over his wild and free-wheeling pas from er ofthe Merry Pranksters, a group Mo st publicized was his role as lead onto psychedelic drugs and altered the Francisco Bay area that turned heavily the San t of the hment's gospel. Their music was tha consciousness of obeying the establis ison to the nted the ir faces, it was no compar Grateful Dead. Although they pai Kiss, which Kesy mocked. painted faces of tod ay's rock group ey native Mike Hagen, who joined Kes The Pranksters, including Pendleton 4 and set a 1939 bus with Day-Glo colors in 196 at this yea r's Round-Up, painted up e smiles, rk and back to California, raising som upon a cross-country trip to Ne w Yo police stops along the wa y?' but mainly a lot of consternation and he new 23The aliicle continues on page 2A oft Page 46 - OPINION AND OR DE R Plainti spaper. This page was not offered by ff. {SIB} (AronoffDecl. Ex. A at 1.) The second article, which is entitled Kesey Looking to R-Up For Script Information reads: PENDLETON - Should anyone get excited about the prospects ofKen Kesey writing a film script inspired by the Pendleton Round-Up, it should be kept in mind that putting the creative product before an audience is a long process. In an interview this week while attending the Round-Up, Kesey noted that his first inspiration for writing "One Flew over the Cuckoo's Nest" came in 1953, nine years before the novel was published. Two years later, his second novel, "Sometimes a Great Notion," was published. But when he started writing it, he had no idea of the plot. He's been working on another novel for the last 10 years, and the idea of either writing a novel or doing a film on the Round-Up has been kicked around in his mind for a long time. KESEY ACTED AS ifhe was his own interviewer - throwing out questions to himself about what shape the film would take and then answering them in fragments that later could be cemented into a common, but complex, interwoven theme. "When I wrote 'Great Notion,' Kesey said, "I had no idea what the plot was. Ijust moved in there and got ajob logging and started taking notes. And ifthe broth is rich enough, you'll always get a good soup. And there's some good cooking here." To Kesey, the soup is how he perceives the mixture of Indians and their culture, cowboys and townspeople gathered in a region rich in its history. Together they fight the impersonal force of the 20th Century - a force that one is part of, and yet challenges. The impression is what Kesey perceives as the "American Myth." THE PLOT COULD be drawn from his admiration ofJackson Sundown, the Nez Perce Indian who won the all-around title in 1916 at the age of 50; his interpretation of the bulls being to cowboys what Moby Dick was to Captain Ahab; or his impressions of the Silver Saddle bar on S. E. Emigrant. "There are straight cowboys walking in there," Kesey said, "past horses tied to the fenceposts, the lamposts, as these great big muscle-car pickups drive by. Indians walking in and out ofthere. It's an amalgamation ofthe past and the present that's happening here. I'm not sure what the plot is, but the plot has to involve these two periods. Page 47 - OPINION AND ORDER {SIB} as ton Round-Up that Kesey wants to use later turned re point in 1953 that sparked wh at a film backdrop now was a departu traffic back to his home in Springfield, the his first novel. While taking the bus into testing r Celilo Falls, where Indians were pro snarled on the Columbia Highway nea ing lUination oftheir fishing grounds. ction ofThe Dalles Dam and its impend constlU It is, perhaps, ironic that the Pendle gers "some crazy Indian had taken ey said the bus driver told the passen Kes that was road and ran into the grill of a tlUck a knife in his teeth and ran out in the building. And that was the initial (equipment) to the dam they were bringing inspiration of Cu cko o's Nest." g native going against something That incident represented "somethin ve, our ical. And tha t's our myth, our nati predominantly strange and mechan ify it, but all of us are involved in it." American Myth. The Indians person sing, "it was interesting in fi'ont of the "Th at's why," Kesey said without pau a hundred g a scene that could have taken place Silver Saddle last night. Of shootin s on the these big muscle cars with huge tire rs ago, except turning right by it are yea West and this thing out with our tradition ofthe rear end of 'em. Our trying to work tury is our American Myth." still keep our frame in the 20th Cen o a descendant of Jackson Sundown wh His first idea of a plot centers around his stay here isive attitude. An d in the course of comes to the Round-Up "with a der d the whole Westem American trip. An lot about his background, and about lemns a it changes his life." he ling for the Indians for a long time, WHILE KESEY HAS carried his fee l riders Up; the athletic ability of Brahma bul leamed something new at this Roundand the help they give to each other. real inst each other in points, their "Although the y're competing aga gestions to d so there are these guys offering sug competition is against that bull. An t Moby ersonal force. That brings it in to tha h other to help them against this imp eac Dick theme that I'm interested in." 're, Arabs are buying stu ff up. But we "Sure it's the 20th century, sure the ride how to we 've got to offer suggestions about whether we 're Indians or cowboys, the CIA. It's not an. It's not Nixon. It's not that bull to our friend ... It's not hum the Arabs." go against it like Ahab you 'll be e bull is a blUte animal and if you "Th to seek the said, you got to be a little bit morbid defeated. But as (Hermann) Melville tlUth." Page 48 - OPINION AND ORDER {SIB} 2.) (AronoffDecl. Ex. A at rdingly, written assertion." Acco 801 includes an "oral or Rule The term "statement" in article is or "declarant," of the e other than the author, ed by someon newspaper articles offer ge les , 946 d. La re z v. City ofLo s An oo f of the matter asserte fered for the pr considered hearsay if of erred to utable to a third party ref ally, any statement attrib 1991). Addition F.2d 63 0, 64 3 (9th Cil'. or discussed in the articl e is also hearsay. Id. Rules of Rule 805 of the Federal Evidence provides that: le if each part ded un de r the hearsay ru thin hearsay is not exclu ovided Hearsay included wi on to the hearsay rule pr conforms with an excepti ts of the combined statemen in these rules. ntements contained therei icles and the au th or 's sta - the newspaper art The first layer of hearsay an ). This Rule provides set forth in Rule 803(16 document exception qualify for the ancient the ce twenty years or more in a document in existen rule for "[s]tatements exception to the hearsay an en in 1979, well more th paper articles were writt established." The news authenticity of which is at "(p]rinted materials of Evidence provides th 902 of the Federal Rules twenty years ago. Rule e d. R. Evid. 902(6). Th self-authenticating. Fe pers or periodicals" are purpoliing to be newspa der the ancient from the hearsay rule un the articles are excluded the author of statements attributed to the newspaper ents are overruled and ' objections to the statem fendants document exception. De articles are admitted. The co ssibility of th e statem urt no w tums to the admi Both m1icles co ents attributed to Kesey ts made by Kesey to the ntain numerous statemen in the miicles. the extent author of the articles. To t writing a Kesey was talking abou merely to establish that se statements Pl ain tif f is offering the e author, lly said these words to th drop or that Kesey actua d-Up as a back screenplay with the Roun {SIB} Page 49 - OPINION AN D ORDER d are no t hearsay, and of the matter asserted an ing offered for the tlUth the statements are no t be therefore are admissible In its res points to the . ent of tions to its concise statem nse to Defendants' objec po Kesey knew the factua mticles as evidence that material facts, Pl ain tif f 11 Pendleton l underpinnings of the 19 to write the by Ha ge n and Francis fore being approached ur years be Round-Up by 1979, fo the matters e to establish the truth of is no t offering the articl xt, Pl ain tif f Screenplay. In this conte rather that Up was accurate - but ion of the 1911 Roundhistorical rendit asserted - that Ke se y's ents to f is no t offering the statem , in this context, Pl ain tif se facts. Again Kesey was aware of the ssible. no t hearsay and are admi d Ke se y's statements are tter asselted, an prove the truth of the ma establish ntained in the mticles to fering the statements co tif fis of Finally, to the extent Pl ain plots in und-Up, had numerous screenplay about the Ro planning to write a that Kesey was, in fact, ents . In this context, the statem reenplay as early as 1979 research for the sc mind and wa s engaged in and are hearsay. th of the matter asselted offered to prove the tru ts are out-of-coUlt statemen d sey to Faye and determine ents allegedly made by Ke similar statem The COUlt has considered is d. The smne reasoning on and should be exclude for any hearsay excepti that they do no t qualify t icles discussing his inten de to the author of the art ents Kesey allegedly ma applicable to the statem ts' Accordingly, Defendan rly as the late 1970s. elton Round-Up as ea to write about the Pend out the Pendleton Rounds interested in writing ab ts to prove that Kesey wa objection to the statemen r this purpose. ents are inadmissible fo sustained and the statem Up in the 1970s is b. paragraph 4 ety arguing that ye Declaration in its entir ike paragraph 4 of th e Fa str Defendants also move to wi th regard lacks personal knowledge ents ofKesey, that Faye arsay statem it is based solely on the he {SIB} D OR DE R Page 50 - OPINION AN rest in producing the to Francis and Ha gen 's specific inte Screenplay or general experience in 4 was to Faye at a meeting in the fall of 198 picture industry and that anything said mo tion in furtherance of 4 provides: settlement negotiations. Paragraph in all of his research and ideas together In January 1984, Ken started pulling his ject oft lay ("the Screenplay") that is the sub writing the "Last Go Round" screenp our neighbor and Ken initially was assisted by lawsuit. In writing the Screenplay, ctor as a producer and as an assistant dire friend Irby Smith, who had worked good a Copyright productions. Irby later executed on many motion picture and TV of ril 11 ,20 06, a hue and COlTect copy nt, Transfer and Quitclaim dated Ap Assignme ts in the "B, " pursuant to which all of his righ which is filed herewith as Exhibit Go Round" ff. Ke n came up with the title "Last Screenplay were assigned to Plainti gon, on our at our house in Pleasant Hill, Ore for the Screenplay, and he wrote it play, Ken e that Ken was working on the Screen computer. During or about the tim Michele endants Mike Hagen ("Hagen") and on several occasions spoke with def e interested le McMindes) ("Francis") who wer Francis (formerly known as MiShel nded, picture through a company they fou producing the Screenplay as a motion in be an old ("S&F"). Hagen was considered to defendant Sundown & Fletcher Inc. d in ncis. Neither of them was experience ily friend and he introduced us to Fra fam the movie they apparently hoped to break into motion picture film production, but Over author of such works as "On e Fle w ss by using Ke n's reputation as the busine a Great Notion." the Cuckoos Nest" and "Sometimes duct and, therefore, all ofhis research is not assertive con Ke sey 's conduct in pulling together nity to witness Kesey e, as Kes ey's wife, had the opportu a "statement" under Rule 801. Fay not of bot h Kesey and ingly, Faye had personal knowledge the Screenplay wit h Smith. Accord writing e she shared with play in the Pleasant Hill, Oregon, hom s actions while working on the Screen Sm ith' and Kesey spoke al knowledge ofthe fact that Hagen She also likely would have had person Kesey. her and Kesey ily friend, and that Hagen introduced Screenplay, that Hagen was an old fam about the the Screenplay Francis were interested in producing There is no dispute that Hagen and to Francis. ions and found tha t the continuing discuss F. Finally, the cou rt already has through S& lement S&F were not in furtherance of sett between Kesey, Hagen, Francis, and cOlTespondence Pag e 51 - OPINION AN D ORDER {SIB} n Kesey and ce at the meeting betwee r Rule 408. Fa ye 's presen dable unde negotiations and not exclu e conversation knowledge of at least on s that Faye had personal establishe Francis in the fall of 1984 rred at that testify about what occu requisite knowledge to cis and has the between Kesey and Fran meeting. gen nor statement that neither Ha this paragraph is Fa ye 's ent in The inadmissible statem eak into y apparently hoped to br e film production, but the in motion pictur Francis "w as experienced er the works as 'O ne Flew Ov tion as the author of such ing Ke n's reputa the movie business by us dent nce that Faye has indepen tion. ", There is no evide times a Great No Cuckoos Ne st' .and 'Some n or n picture film productio past experience in motio Hagen or Francis's personal knowledge of d is the proper foundation an fore, this statement lacks s information. There where Faye obtained thi inadmissible. For of Paragrap objections to the contents se reasons, Defendants' the the exception of Fa ye 's gen nor Francis had ex statement that neither Ha h 4 are overruled with perience as motion pictur e is evidence contained in th d is stricken. All other proper foundation an producers, which lacks paragraph is admitted. c. paragraph 5 Paragraph 5 provides: ich told a ng the Screenplay, wh of the year 1984 writi st World Ken sp en t m uc h competition for the fir ar, the of the famous real-life fictional account on Round-Up. In that ye g tile at the 1911 Pendlet tin involving two Championship Broncbus s decided in a match up son or "la st go round," wa final competition, black cowboy, and Jack orge Fletcher, a popular Ge Lee Spain. broncbusting veterans, kid named Johnathan E. Indian, and a young white r and Sundown, aN ez Perce experienced by Fletche n deals with the racism by Ke the audience's Th e stOty as recounted s awarded to Spain, and f ing rodeo victOlythat wa final ride, to auction of Sundown, the surpris ed by Fletcher's amazing inspir spontaneous decision, {SIB} D ORDER Page 52 - OPINION AN used to buy for raise $400 that was then ces of Fl etc he r's hat to ryline commemorative pie ain as the victor. The sto t had been awarded to Sp tha hospital room Fletcher the silver saddle er Spain as he visits the ay ective of much [sic] old is told from the persp rely injured in a present-d buster who has been seve bronco nplay is filed of an unconscious young con·ect copy of the Scree competition. A true and Pendleton Round-Up herewith as Exhibit "C." lay speaks arguing that the Screenp paragraph in its entirety ike this Defendants move to str ed into ment that has been enter ed to summarize a docu ss is no t allow for its elf and that a witne be st itted by Plaintiffand is the Screenplay has been subm s. A copy of the evidence. The court agree ingly, R. EVID. 1003. Accord Rules of Evidence. FED. under the Federal evidence of its contents cative of st evidence rule, is dupli reenplay violates the be StOly told in the Sc Fa ye 's summalY of the ike this fendants' mo tio n to str e and unnecessmy. De d is inappropriat the Screenplay itself, an icken. and the paragraph is str its entirety is sustained paragraph in that the of Exhibit C asserting ssion of the tirst page to the admi Defendants also object in delivered to Defendants ge was not on the version o included on th at pa handwritten copyright log version of the Screenplay opportunity to submit a , Defendants ha d every September 1984. First st page of the Screenplay In fact, the copy of the tir o but it did no t do so. without the copyright log ts' logo. Second, Defendan includes the copyright as Page 59 of the Index offered by Defendants avit. Defendants' the Second Francis Aftid adequately presented in ht logo is objection to the copyrig uled. ge of Exhibit C is overr tion to strike the tirst pa mo d. paragraph 6 ba contents of paragraph 6 Defendants' object to the sed on their Rule 408 arg uments - that of settlement ications in furtherance of the parties' commun evidence the paragraph presents d by S&F at Kesey was not employe t Fa ye 's representation th also argue tha negotiations. Defendants {SIB} D OR DE R Pa ge 53 - OPINION AN but ould be a legal conclusion and sh endent fi'eelance writer is was an indep stricken from the record. Paragraph 6 provides: lay, but writing of the [S]creenp ployed by S&F in his ho w Ke n wrote Ken was not em iter - which is precisely by, for independent freelance wr authored it as an at Ken as an employee At no time did S&F tre s. paying Ken a virtually all of his work ployee benefits to Ken, with health care or other em example, providing a business title or position withholding, giving Ken ( he wrote the regular pay check with t~' r that Ken used when hire the office or compute S&F, or providing reenplay was a work for the po sit io n that the Sc taking der which S&F Screenplay. Instead of a written agreement un su ch ancis instead proposed owned by S&F, Fr Screenplay. Although no six-month option in the na $1 0,000 to sought to acquire from Ke uted, S&F paid a total of uent s ever agreed to and exec option agreement wa nuary 1984, and a subseq of $5 ,0 00 was paid in Ja ent and that Irby Ken: First an initial paym 84. In addition, I underst were s made in September 19 payment of $5 ,0 00 wa me that these payments F. Initially, Francis told S& of "Sailor Smith was paid $3,000 by ast Go Round" instead t for Ken to wo rk on "L that made as an inducemen e; later Francis told me rted about the same tim had sta lay that Song," a novel that Ke n th option on the Screenp payment on the six-mon this money was a down Francis later proposed. tiations, gaged in business nego d that the parties were en termine This court already has de e court le 408 does not apply. Th g this period and that Ru gotiations, durin rather then settlement ne ependent tion of Kesey as an ind tion that Fa ye 's descrip fendants' objec wiU take into account De of the addressing the substance iders the evidence while lusion when it cons contractor is a legal conc d the ragraph are ov en ul ed an ants' objections to this pa nt motions. Defend pa rti es ' summalY judgme evidence is admitted. e. paragraph 7 ike the entirety of parag Defendants move to str raph 7, which provides: any other nt granting an option or o d any contract or agreeme Ke n never signe though Ke n signed a "T F, Hagen or Francis. Al d" to S& copy of rights in "L as t Go Roun 1984, a true and correct " letter dated JanualY 8, language conveying the W ho m it M ay Concern ," that letter contains no as Ex. "D its face, which is filed herewith S&F or anyone else. On hts, in the Screenplay to rig copyright, or any other {SIB} D OR DE R Page 54 - OPINION AN . Although y a letter of introduction Co nc em " letter is merel is no t the "T o W ho m it May r" S&F, the word "fo r" iting the Screenplay "fo wa s wr ing on th e the letter states that Ken note that Ke n wa s work . Th e wo rd "fo r" may de hts king an offer to op tio n a grant or transfer of rig "fo r" S& F to consider ma read it or on the Screenplay "fo r" S&F to ver, that Ken wa s working r" does not denote, howe "fo ter contains no or acquire it. Th e word especiaIIy sin ce the let F to ow n the copyright, fo IIo ws : Screenplay "fo r" S& in its entirety, states as copyrights, The letter, mention of Pl ea sa nt Hi!!, OR January 8, 1984 ern: To W ho m it M ay Conc greats lay about bygone rodeo agreed to write a screenp 1h av e nc em in g their er George Fletcher, co 4 n Su nd ow n and Ni gg Jackso 1916.2 Th e ndleton Round-Up in at the Pe historic confrontation SU ND OW N y that I am writing for is the pr od uc tio n compan gen na me of dealing wi th are M ik e Ha C. and the pe op le I am FL ET CH ER IN es. and MischelIe McMind lsi Ke n Kesey Ke n Kesey " o W ho m it M ay Concern did no t consider the "T that S&F ntacted Se e Ex. "D ." It is clear Francis subsequently co of rights to S&F, sin ce nsfer th Ke n whereby letter to constitute a tra propose an agreement wi F in September 1984 to me on be ha lfo fS & lay. n to S& D in the Screenp he wo ul d grant an op tio ion arguments da tio n, and legal conclus st evidence, lack of fo un 8, be Defendants offer Rule 40 ity ha s be en 8 objection to admissibil s paragraph. The Ru le 40 n to strike thi in support of th eir mo tio urt in deciding be considered by the co nclusion ar gu me nt wi ll d the legal co previously rejected, an welI-taken st evidence argument is tions. However, th e be my ju dg me nt mo the merits of the su mm , a copy m it M ay Co nc em " letter contents of th e "T o W ho scription of the wi th regard to Fa ye 's de owledge t Faye lacks personal kn e, an d th e co mt agrees tha tted into evidenc of wh ich ha s be en admi pa tty 16 Round-Up. Ne ith er Round-Up, no t the 19 out the 1911 pancy. 24The Screenplay is ab explanation for the discre ou gh t neither offers an disputes this fact, th {SIB} D OR DE R Pa ge 55 - OPINION AN , , Concern" "To Whom it May gal impact of the of the le n or understanding stains the S& F' s interpretatio of on Rule 408 and su s' objections based Defendant the court ovenules It May tter, Accordingly, le of the "To Whom Fa ye 's description ctions. of foundation obje ghts are evidence and lack best r as a transfer of ri t consider the lette F did no r statement that S& of law cern" letter and he Con dants' conclusion ideration of Defen rs its cons 7. The co m t defe en from Paragraph strick its. uination of the mer ment for its detel1 argu d9 f. paragraphs 8 an strike of their motion to ment in support 408 argu assert their Rule These Defendants again Exhibits E and F, motion to exclude l as their eir entirety, as wel aphs 8 and 9 in th paragr paragraphs provid e: cis sent m e ember 1984, Fran ady g in or about Sept in s that she had alre Specifically, beginn 8. ining to discussion pelta her - in an d other materials l'iage to K en 's brot conespondence an th ster-in-law by mat seeking a six-mon Sue Kesey - my si r which S&F was commenced with t unde e dated a written agreemen ancis's letter to m effOlt to negotiate In palticular, in Fr the Screenplay. follows: option to purchase cis wrote to me as ber 30, 1984, Fran Septem to Sue rs and questions the contract pape direct Since you do the Ken asked m e to ng the Round-Up. iving as here duri begin with you rece Kesey while he w feel that we should Ken I books for you and ation also. agreement inform ce with Sue. This cent corresponden ted es of some re ements from unrela I am sending copi tion/purchase arrang other op iliarizing he rs el f includes copies of the purpose of fam requested for projects that Sue and fOlIDat. with the language ent of wanted 2 1/2 perc e Ken said that he tribut iderable change. A t the Bill Graham e net. That is a cons that s instead of th then negotiate for the producer's gros our agreement and t that in oducers," We will agree to pu e with our "line pr few n we fOlID an allianc he u will receive in a position for Ken w agreement that yo e revised seriously Please consider th e, solicit funds or move forward (i. days. We cannot {SIB} N AND ORDER Page 56 - OPINIO Inc. and agreement between S&F without the fundamental negotiate) more likely we can reach we get an agreement the Ken. The sooner xt Round-Up .. .. our goal of filming the ne that ne as soon as possible. At n get these agreements do tion period I hope we ca $10,000 and begin the op we can write the check for time m Francis 84 letter that I received fro of the September 30, 19 A true and co ne ct copy added). ith as Ex. "E " (emphasis is filed concU1l'ently herew note from Francis dated I received a hand-written tober 3, A few days later, 9. ised agreement dated Oc ed enclosed her proposed rev October 4, 1984 is fil October 4, 1984, which py of the handwritten ct co cis stated 1984. A true and corre en letter to me from Fran Ex. "F." The handwritt uple concurrently herewith as ucer's gross. I have a co /2 1/2 [percent] of prod nt w s has a "[e]nclosed is the agreeme . Also, Carey William ur terms and signatures agreements. Id. investors waiting for yo this as soon as we secure ngs: any interest in discussing production comp provided, among other thi oposed agreement its elf pr (emphases added). The and Sundown & terms you (Ken Kesey) ase of is will confirm the basic Th to the option and purch c agreed upon relative Fletcher, In GO ROUND material entitled LAST in rights to the literary certa wner.") by Ken Kesey (herein "O (herein property) written encing nth option period comm : Buyer is granted a 6 mo 1. OPTION e and ceriain rchase all motion pictur n is :-- --: ., 1984, to pu _- =- _- :-nsideration for the optio in the properiy. The co ancillary rights ,000.00 paid paid January 8, 1984, $5 00.00 total ($5,000.00 ,1984.[)} $20,0 1984,and$1O,000.00paid riod for the September 30, riod for an indefinite pe the may extend the option pe Buyer n & fletcher, Inc., holds OO.OO a month. Sundow amount payment of$l,O option period for that in e right of continuing the exclusiv discontinue the option til both pariies agree to indefinitely un writing. ount of yer will pay Owner the am exercise of the option, Bu 2. Upon dtional [sic] $25,000.00 llars ($50,000.00). An ad of th e Fifty Thousand Do the principal photography upon commencement of will be paid budget of such motion e if the final approved d an first motion pictur and 15 million dollars an tween 10 million dollars picture is be {SIB} D ORDER Page 57 - OPINION AN ot io n dget of the first m final approved bu 0.00 if the eve [sic] 2 additional $50,00 w ne r will also reci ed ollars or more. O iond gross profits reciev picture is 15 milJ red pe r ce nt of the on e hund e. and 1/2 pe r ce nt of said m ot io n pictur e producers from [sic] by th er 4, s sent m e on Octob option that Franci e draft he ne ve r mately, neither th gned by Ken, and See Ex. "F ." Ulti t w ith S& F was si to S&F. r written agreemen t of th e Screenplay 1984, no r any othe ts in th e copyrigh ed hi s righ optioned or convey gotiations ged in business ne parties were enga ed that the court has determin no te d above, th e hs 8 and 9, As ctions to paragrap D ef en da nt s' obje not apply. that Rule 408 does d will be ng this period and duri ence is admitted an elTuled. T he evid d F, are ov ns to Exhibits E an ell as their objectio as w considered by the couti. g. paragraph 10 imarily arguing that it is pr Faye Declaration h 10 of the to strike paragrap Defendants m ov e e N ov el sion of a co py of th object to the admis dants also the Novel. Defen i, and m pt to su m m ar iz e an at te es before th e cout relevant to the issu Novel as ir ok re vi ew of the ew York Times bo ovides: and a N S Paragraph 10 pr article as hearsay? York Times ission o ft he N ew object to the adm fm ih er , began to e friend K en Babbs nd " ce from his longtim assistan title "L as t Go R ou B y 1993, Ken, w ith ch also carried the ay, whi g th e same d on the Screenpl reenplay, recountin write a novel ba se ship me story as the Sc Novel to ld the sa World Champion tition for the first ("the Novel"). T he compe go ro un d" un t of the famous d th e classic "l as t fictionalized ac co ha n to n Round-Up, an the 1911 Pe nd le ndown, and Jo hn at roncbusting title at etcher, Jackson Su B rge Fl Exhibit d competitors Geo dged he re w it h as be tw ee n friends an of the Novel is lo ide and correct copy an d sold nation-w L ee Spain. A true it w as distributed E. in 1994, day on 1 w as pu bl is he d lable to this very "G ." T he [N]ove n it is readily avai and m ed ia attentio States (in fact, sitive public, press ross th e United ac erable po e N ov el d it received consid in its re vi ew of th Amazon.com), an ve New Yo rk Times, el] takes a deep di Fo r example, the ross the nation. Kesey [in the Nov ac at "K en a yarn, 7, 1994, stated th ing a ripsnOlier of published on July th at "a s well as be rved hology" and obse into A m er ci an myt K en Babb. th e declaration of in its objections to ction ti th e hearsay obje l. 2SDefendants as se at this time as wel ess that objection dr {SIB} T he co ut i will ad N AND ORDER Pa ge 58 - O PI N IO ing degree rgetically [in the Novel) has a surpris the history [Ken KeseyJ retells so ene herewith rect copy of this book review is filed of wistful complexity." A true and cor as Ex. "H." to the issues New York Times article are relevant question ofwhether the Novel and the The ry jud gm ent ring the merits of the parties' summa for the court to decide when conside at hand is endants' es article should be admitted over Def question ofwhether the New York Tim motions. The now. hearsay objection must be addressed tten by n Tale as Tall as It Is True and wri York Times article, entitled A Wester The New Christopher Lehmann-Haupt, was pub lished on July 7, 1994. It read: the him by a campfire one night, writes It was "a great yarn" his father told the form of n to "Last Go Round," a history in novelist Ke n Kesey in his introductio bs. The arch by Mr. Kesey's friend Ken Bab a novel written with the aid of rese vy traffic antelope when they ran into the hea Keseys had bee n traveling to hunt inded the , a famous rodeo in Oregon that rem headed for the Pendleton Round Up t. 16, first roundup on the weekend of Sep hor's father of what happened at the aut Kesey pfire tha t night, and it made, as Mr. 1911. He described it over the cam repeats, "a marvelous yarn." that what follows, which is the story of No w this is a pretty big buildup to ashville, participant, Jonathan E. Lee Spain ofN 1911 roundup told by an actual star in ounts for why a certain sense of stra gined by Mr. Kesey. Perhaps this acc as ima William ance, Frank Gotch, the wrestler in pervades the narrative, why, for inst e dleton, Ore., is 'an unbelievably hug troupe Spain meets on the train to Pen Cody's have been ked enough upright like a man to man, or at least something that wal and he description continues: "He was hatless squeezed into a ma n's suit." Spa in's his muscles You could see the machinery of was hairless, not even any eyelashes. scled all the way to this scalp." right through his skin and he was mu y sey 's big buildup may also explain wh The sense ofstrain induced by Mr. Ke dleton, Pen Spain meets after the train arrives in Parson Montanic, the Indian preacher ss to Christianity. As version from drunkenne has undergone such an unusual con kin' en, this whopper goe s,ju st as this stin eone recounts the legend to Spain: "Th som heavens, final sleep, a babe appeared in the scapegrace was sliding down into his up -hot ember. It came down and curled ed as a jay bird and glowing like a red nak it was the g to death. Naturally, Montanic says next to him and kept him from freezin baby Jesus." Page 59 - OPINION AND ORDER {SIB} Mr. Much of "Last go Round" is similarly far-fetched. But then of course cause of the Kesey is writing in the tradition of the tall tale, where anything goes in could be more exaggeratedly fleshing out the myths ofthe American past. And what the stars American in this time ofsensitivity to multiculturalism than a yarn in which Indian and a of a legendary rodeo turn out to be a southern gentleman, a black, an in favor Jewish woman, and in which the villains try to rig the outcome of the show of the white man? first At least you think that Mr. Kesey's tale is a tall one until you come to the outlandish section of photographs in the book. Now it may be true that a few of the ed to have characters in the stOly are not pictured here and must therefore be presum and Jackson been invented by Mr. Kesey. But there are photos of George Fletcher is Frank Sundown, respectively the black man and Indian ofMr. Kesey 's yarn. There There is Gotch, the wrestler, looking almost as gigantic as his prose description. g his flock. Parson Montanic dressed up in ornate Indian regalia and possibly blessin So it gradually becomes clear that as much as Mr. Kesey may be exaggerating ated with events, he is simultaneously unearthing a reality that is not usually associ the frontier. how As it works itselfout, Mr. Kesey 's complex plot does concern itselfw ith would prevail over the people who ran the 1911 roundup did try to rig it so that Spain by the time the black man and the Indian, with whom he had become good friends Spain for his the competition had reached its climax. Buffalo Bill Cody, who wants a black man traveling show, sics his huge wrestler on George Fletcher to make sure won't win the cowboy championship. Go But the details of the story, not its moral, are what captivate in "Last whether they Round." Mr. Kesey is richly informative on the skills of rodeo-riding, ing race, in involve basic broncobusting or such trick events as the backward-rid ow milking, which the contestants mount their horses back to front, or the wild-c which pretty much explains itself. that As Spain puts it at one point in his narrative: "Sundown often remarked and there's there really aint but two basic skills to rodeoing: there's catching holt staying on - ropin' and ridin'. Everything else is just tricks." get Mr. Kesey 's sense of the comically outrageous smlliounts his zeal to disjointing histOly straight. For instance, Gotch, the gigantic wrestler, after cruelly defeats the several lesser rivals, finally meets his match in Preacher Montanic, who finale ofthe bully by securing him with a jaw lock on his posterior. And in the grand himse lf with broncobusting competition, Mr. Kesey manages to keep topping successively more exorbitant contrivances. Page 60 - OPINION AND ORDE R {SIB}
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