It’s a Mystery: Author’s Settlement Agreement is Ambiguous
Walter Mosley and Joy Kellman were married for over 13 years. During that time, Mosley commenced his writing career and became famous for, among other works, a series of stories starring a detective named Easy Rawlins, and his sidekick, Mouse. Mosely and Kellman entered into a settlement agreement in tandem with their divorce. At the time, Mosley had written seven Easy Rawlins books and three others, all of which were defined by the parties’ agreement as “Marital Books.” Further, Paragraph 4.1(d) of the parties’ 27-page agreement settling their divorce provided that:
the Wife shall receive 25 percent. . . of any funds. . . paid to the Husband on account of Marital Books/Literary Works. . . in written, verbal and visual communications, whenever produced after the date of execution of this Agreement, including but not limited to future publishing of Marital Books/Literary Works, screenplays. . ., motion picture rights, fiction and non-fiction, magazines, records, tapes (audio and video), disks (audio, video, CD, DVD, computer), theatrical productions of any kind, movies, television, television movies and radio productions, and any spin-off from any of the foregoing, including but not limited to any television series based on Easy Rawlins and Mouse.
In New York County Supreme Court, Kellman has sued Mosley for breach of contract, alleging, among other things, that he breached Paragraph 4.1(d). Kellman claims that Mosley published three new Easy Rawlins novels since the execution of the Agreement, and that, in addition to other projects, a motion picture of one post-divorce title, Little Scarlet, is set to be released. She argues that she has not received her share of the proceeds from these projects. And, she argues that she is entitled to her percentage of the proceeds because she reads Paragraph 4.1(d) as entitling her to 25% of any future books or projects which are based on Easy Rawlins and Mouse, regardless of whether the the new projects are listed as “Marital Books.” She basically claims the right to a percentage of net proceeds from any new works or projects which involve the character Easy Rawlins in any way.
Mosley responds that Kellman is not entitled to a percentage of the earnings on the new books in the Easy Rawlins series that were written post-divorce.
In a recent decision, Supreme Court, New York County (Silbermann, J.) denied Kellman’s motion for partial summary judgment. It held that this provision was “ambiguous as to the extent to which Kellman’s interest follows Mosley’s exploitation of Easy Rawlins in the future works.” The court paid particular attention to the words “fiction and non-fiction” and the meaning of the word “spin off.” Further, the extrinsic evidence offered by Mosley of the drafting process merely offered a different view of the meaning of the contested terms “fiction and non-fiction” and did not clarify the meaning of the contract language.
Kellman v. Mosley (2/22/08, Justice Silbermann).
[Meredith R. Miller]