Necessity knows no law, and Kurosawa production decided to promise Toho to indemnify in case any lawsuit is raised against Toho. I prepared a draft document and several exchanges regarding the expressions were made and the final agreement relating to the remake of "The Seven Samurai" was as follows:
Akira Kurosawa, Kabushiki Kaisha Kurosawa Production ("Kurosawa") and Toho Kabushiki Kaisha ("Toho") agree as follows regarding the remake right concerning "Shichinin no Samurai".
Toho hereby admits that it has granted the remake right of "Shichinin no Samurai" to Alciona Productions, Inc.("Alciona") pursuant to an agreement dated September 1958 without obtaining consents from Akira Kurosawa, Hideo Oguni and Shinobu Hashimoto, holders of the copyright to the screenplay of the said picture (the "Subject Act").
Akira Kurosawa and Kurosawa Production agree as follows subject to Toho paying the amount provided for in Article 3 hereinbelow:
(1) Akira Kurosawa and Kurosawa Production shall not raise any objection to nor enforce any claim against Toho with respect to the Subject Act.
(2) In case Alciona or its successors and assignees should produce a remake motion picture of "Shichinin no Samurai" pursuant to the above agreement, Akira Kurosawa and Kurosawa Production shall not raise any objection to the production of such motion picture.
(3) If Alciona or its successors and assignees should raise any objection against Toho due to the Subject Act, Akira Kurosawa and Kurosawa Production shall be fully responsible for settlement thereof and agree to hold Toho harmless.
(4) Akira Kurosawa and Kurosawa Production guarantee that Hideo Oguni and Shinobu Hashimoto abide by the conditions in (1) and (2) above.
In consideration for the promises made under Article 2 above, Toho agrees to pay Akira Kurosawa a sum of \10,000,000 by February 29, 1990.
February 1, 1990
Toho Kabushiki Kaisha
No part of this Agreement indicates ratification of the unauthorized transfer from Toho to Alciona. Article 2 of the Agreement, however, seems to specify in detail the effects which may arise as a result of ratification. Actually, the only point of the Article 2 which is not deemed as ratification was whether or not Kurosawa Production may remake "The Severn Samurai" by itself (or through a third party). The differences of understanding on this point would later bring up a lawsuit.
Lawyer M took a look at the draft I had submitted and said "It's OK for the most part" although there was no word of ratification which he had requested. During the discussions afterwards I recognized that Lawyer M considered this Article 2 as ratification. My idea was to reject ratification in general but to make a provision that gives the effect closest to ratification, so it was far from my expectation that such Article was interpreted as ratification. This provision, however, intended to give the maximum protection to Toho so I thought as for Toho it may have an effect equal to ratification. Therefore, I didn't dare correct the misunderstanding of Lawyer M. From the standpoint of lawyer's ethics, if the other party is not a legal professional, you should tell that person that he/she has wrongly taken the meaning of a provision. But in this case, the other party of mine was a great lawyer who has far more experiences than me and it is quite rude to teach such a person how to understand a written agreement. By writing this way, it may sound as if I were making negotiations on calculation, but I was not grasping the situations correctly. My understanding was that as long as Kurosawa Production decided to indemnify Toho, it should have given up an idea of either remaking "The Seven Samurai" by itself or granting such right to a third party. The reason why I felt so was that if Kurosawa Production makes such remake by itself, Alciona or the third party who received the right from Alciona would probably make a protest against Toho claiming the infringement by Kurosawa Production on their rights when they ought to have an exclusive right to remake "The Seven Samurai". Against such claim, Toho would not dare to protest (refute?). As long as Kurosawa Production promised to indemnify for Toho, Toho would pay the damages to such party suffered from the damage and would claim Kurosawa Production the whole amount of such damages. My thought was that it is obvious that Kurosawa Production would not want such results so they would most likely give up the idea of remaking by itself.
The problem related to "The Seven Samurai" was solved and an agreement was made with respect to the problem of the original work right of "High and Low", so I started to make a draft of the settlement agreement from the late November. During the time, Toho offered to make a settlement with respect to the problem of secondary use of Kurosawa works at the same time. Akira Kurosawa made 21 films with Toho from "Judo Saga" to "Kagemusha", but because there was no agreement on secondary use of these works, Toho could not videoize them. A secondary use means to utilize a motion picture originally made for theatrical release for another media such as TV or video, and consent from the scenario writer and/or the director is needed for that purpose. Toho's opinion was that even if we ask Kurosawa Production to give us the consent, it is difficult to obtain it because Kurosawa Production demands more royalty than what Toho normally pays to other directors or scenario writers. But the royalty normally paid by Toho is merely a minimum amount, and as Akira Kurosawa who wished to improve the positions of film creators including directors, scenario writers, etc., it was not easy for him to make a compromise. There were several exchanges of opinions with respect to the royalty amount, but Toho did not make a concession after all, and an agreement was reached with the minimum fee of the agreements entered by the Scenario Writers' Association and by the Film Directors' Association respectively. At a later day, disputes which arose from this agreement and became a lawsuit.
A settlement agreement between Kurosawa Production and Toho was executed as of February 1, 1990. Later on, Toho's announcement of videoizing 21 Akira Kurosawa works produced by Toho was happy news for movie fans. It seemed as if peace had come back finally to Kurosawa and Toho.