This is what I became aware of at a later date when the lawsuit began; Kurosawa Production was receiving an offer at that time from the U.S.Universal Studio, Inc. to remake "The Seven Samurai" as a theater movie. Before that time, Kurosawa Production had once received an offer from a third party to produce a remake film of "The Seven Samurai" and entered into an option agreement (an agreement by which a right is given to execute an official agreement to grant the remake by exercising the option right within the designated time). The official agreement was not, however, entered into because the option right was not exercised. Therefore, this offer from Universal was attractive to Kurosawa Production and they would weigh Toho's proposal with this offer to make a decision.
Toho was asking for ratification of Alciona Agreement, and if Kurosawa Production accepts it, they cannot grant the remaking right to Universal. According to Alciona Agreement, Toho had given Alciona an exclusive right to remake the limitless number of films. Therefore, if the right of Alciona is granted, the remaking of "The Seven Samurai" can be solely done by Alciona. What Kurosawa Production instructed to me was, however, to conceive an idea where the right to grant the remaking right to a third party is reserved and which still satisfies Toho's requests. Toho persistently wanted the ratification and it seemed a virtually impossible task to satisfy their request with a method other than ratification. But if I cannot clear the point, the settlement itself would be impossible and all the time and labor spent until then would be a total waste.
So, my next idea was to analyze why Toho is seeking for ratification and to find out how to remove the anxiety Toho was feeling due to the unauthorized transfer of Alciona Agreement. The first thing Toho may be afraid of is that they would be sued by the joint scenario writers including Akira Kurosawa. That is to say, according to the Tokyo District Court judgement of 1978, the joint scenario writers have the right to make the film of "The Seven Samurai", and the act by Toho's granting the remaking right to a third party (i.e. Alciona) without obtaining consent from the right holder would be subject to a claim for damages by the joint scenario writers. The next thing that Toho should be apprehensive of is a possibility of the joint scenario writers suing against the producer who produced the remake film based on the right Toho granted. In the credit of the U.S. movie "The Magnificent Seven", it is expressly indicated in its credit that the U.S. film "The Magnificent Seven" is a remake of "The Seven Samurai". The following statement is indicated in the so-called screen credit: "This film is based on the Japanese film "The Seven Samurai" produced by Toho Kabushiki Kaisha"), and it was obvious that the right was derived from the right granted to Alciona. Therefore, the joint scenario writers were able to sue the production company of "The Magnificent Seven" for the infringement of copyright, and they could also prohibit any future possible production of a remake film based on the same right. If the joint scenario writers took such action, the producers of the remake film would notice that the right granted to Alciona was a failure from the beginning and it is obvious that they would demand Toho to take the responsibility.
First, I thought that if the joint writers promised they would not sue Toho and they would not sue either of Alciona or the person who obtained the right from Alciona, then most part of Toho's concern would disappear. I told Lawyer M above thoughts and requested him to accept the settlement. Lawyer M, however, persistently demanded ratification and emphasized that if we adopted Kurosawa side's suggestions, there would remain the possibility of being sued by Alciona or its successor. Although I gave him a document that Kurosawa Production is thinking to remake "The Seven Samurai" and thus we cannot ratify in such a way as to make a remake impossible, I was worrying that the situation is far from settlement.
The only way to bring Kurosawa Production's suggestions closer to ratification was to make sure that Kurosawa Production would be responsible for indemnification and keep Toho harmless in case Toho is sued by Alciona or its successor. But if such indemnification becomes necessary, the amount of the damages to be borne by Toho is expected to be large, and so is the risk of Kurosawa Production. I was not enthusiastic about indemnification, but rather interested in ratification in a clear style if we have to take a certain step. On October 31, Mr. I called and told me that an American lawyer of Kurosawa Production has a different opinion and he would have him make a phone call to us. In the morning of November 1, Alan Reburt(?), a Los Angeles attorney called me and said that the right of Alciona no longer existed and he was concerned to make ratification. First of all, according to his survey, Alciona had already been dissolved and it was not clear who had succeeded the rights. In addition, even in case Alciona owns the right to claim for damages against Toho, it is possible that such right has been barred by legal prescription and may not be exercisable. With respect to the first point, I thought that the dissolution of the company may not always cancel the rights and it cannot release the anxiety. With respect to the second point of prescription, it was related to the laws of California State. Although I did not have professional knowledge about them, I couldn't believe that the statute of limitations had run out so easily.
As the problem relating to "The Seven Samurai" was coming to an end, Kurosawa Production was also having a problem relating to "High and Low". The film "High and Low" was released in 1963, directed by Director Akira Kurosawa and produced by Toho. It was based on the scenario written by four writers including Akira Kurosawa. Kurosawa Production had received an offer from Universal Studio to remake the film and was having negotiations with them on behalf of the four writers. If the conclusion by the above-mentioned 1978 Tokyo District Court judgement applies to the relationship between any movies other than "The Seven Samurai" and their scenarios, the writers have the right to make the film and only such writers can grant a remake right. But in case of "High and Low", because the scenario was based on the novel called "King's Ransom" by Evan Hunter (a.k.a. Ed McBain), the original writer's consent was also needed in order to grant the remake right.
Considering from a legal standpoint, the art of film making is quite unique because it cannot be made by only one person like a painter paints a drawing, a musician makes music and a writer writes a novel. To explain it roughly, a producer is needed to make a movie and he collects money, staff, right, and materials. With respect to the staff, the director is appointed first and when the director is decided, a group of people working under him(her) are decided. Such group is usually called in the Japanese film business as Kurosawa Gumi or Obayashi Gumi. Even if they were working with other film makings or TV programs, they would manage to come to the director once an order is given. With respect to the rights, you should study to make sure that you would not use a work the copyright of which is possessed by a third party. If you intend to make a movie based on a third party's literary work, you should first obtain the copyright holder's consent of such work. You may start writing a scenario once the consent is granted. As I described above, a movie is a legally very complicated product where many people participate and various rights are jumbled.
Toho made a contract with Evan Hunter, the author, before producing "High and Low", and according to this contract, Toho was the owner of the right to make film (a right to produce more than one film) from the original novel "King's Ransom". The four scenario writers including Akira Kurosawa made the script of "High and Low" based on the right to make the film granted by Evan Hunter to Toho, but the right to make the film itself remained with Toho. Therefore, in order to grant remake to Universal, the right to make the film from the original should be transferred from Toho to Kurosawa Production.
Toho seemed to have no objection against the transfer of the right to make the film of "King's Ransom", and the consideration for such transfer was almost agreed. But Toho insisted on solving the case together with other matters to be solved and refused to make a separate settlement. Meanwhile, the negotiations between Kurosawa Production and Universal relating to the remake of "The Seven Samurai" made rapid progress and the agreement was almost reached if the problem relating to the original work is settled. Kurosawa Production was receiving an inquiry almost everyday from Universal for the original work right. We could not wait any more. We were forced to reach an early settlement of the problem on "The Seven Samurai" which was the only big obstacle among other settlement conditions.