Sometimes a Great Lawsuit

MiSchelle McMindes and Mike Hagen piled into Hagen's Ford Mustang and drove 325 miles west from Eastern Oregon to see Ken Kesey.

Both had high hopes as they set out from Pendleton to Kesey's farm, about 15 minutes southeast of Eugene.

McMindes was a 26-year-old go-getter from Grand Island, Neb., a brunet beauty-pageant scholarship winner recently turned private eye. She had an idea for a movie about the quintessential Oregon sporting event—the Pendleton Round-Up, a famed annual rodeo that began in 1910. McMindes had spent months researching the Round-Up's history and collecting photographs before teaming up with Hagen, a 46-year-old television and commercial sound engineer in Pendleton.

All they needed was a screenwriter, and Hagen knew just the guy—Kesey. Hagen had been Kesey's fraternity brother at the University of Oregon. And in the 1960s, he was one of Kesey's Merry Pranksters as well as a co-pilot on the LSD-fueled cross-country odyssey that Tom Wolfe chronicled in The Electric Kool-Aid Acid Test. Kesey was a natural to tell the Round-Up story. He was an Oregon literary legend and countercultural icon who knew how to spin a yarn. And he had time on his hands.

They came to him with the tall-but-true tale of how a Nez Percé Indian named Jackson Sundown, a popular black cowboy named George Fletcher (known in 1911 by a derogatory nickname), and a white Tennessee bronco-buster named Jonathan E. Lee Spain competed together during the 1911 Round-Up. A tale long familiar to Pendleton natives, it blended racial enlightenment far ahead of its time, Oregon lore and rodeo hijinks. They called the project Last Go Round.

By January 1984, McMindes and Hagen had what they thought was a deal with Kesey. And nine months later, they had a Kesey script.

Then things got messier than a loose bronco.

Nearly 25 years after their visit—and seven years after Kesey's death—Hagen and McMindes (who changed her name sometime after 1992 to Michele Francis and who modeled, in and out of private-investigator garb, for Playboy in 1987 and 1988) are locked in a federal court battle in Portland. They've been sued by Kesey's 71-year-old widow, Faye, and her four adult children for rights to the screenplay.

On Monday morning, Aug. 25, in a Portland courtroom far from both Pendleton and Kesey's bucolic Pleasant Hill farm, U.S. Magistrate John V. Acosta questioned attorneys for both sides to clarify their positions before he made a ruling or sent the case on to a jury trial. It was the latest development in a case that has already produced dozens of filings and hundreds of pages of depositions weighing more than 10 pounds.

"The fact of the matter is that [Francis and Hagen] never acquired the rights to the screenplay," Kesey family attorney David Aronoff said as Faye Kesey sat quietly behind him. Michele Francis' lawyer, Michael Kratville, struck back: "We got the screenplay, he got paid for it. Done deal."

For all the contentions, the case boils down to this: Faye Kesey is suing Francis and Hagen for the rights to a work of art that hasn't been made yet, a movie that one Hollywood producer estimates could be filmed on a modest budget of $10 million to $12 million. But he says its allure would attract big-name actors because of Kesey's notoriety.

Since 2000, at least three groups of producers—one from Los Angeles, another from Seattle, and Portland's own Wieden & Kennedy ad agency—have toyed with optioning the story. And Francis' attorney, Kratville, tells WW that several Hollywood producers are still awaiting the outcome of the case before buying the movie rights.

"You've got a lot of people in the L.A. area that have some interest in this outcome," he says. "And if that interest didn't exist, or at least if both sides didn't think it existed, I don't think we'd be here. I don't think anyone would fight over just the right to put something on a shelf and say, 'It's ours.'"

On this point at least, there's agreement.

"We did have people interested in doing a screenplay," Faye Kesey said in a deposition on May 8. "And because the other people, namely the defendants, were claiming an interest in the copyright, that made it impossible to go forward."

Among the producers who've shown interest in making a movie of Last Go Round, the project has acquired mythic status.

"If it ever got made, the making of it would be almost as interesting as the story itself," says Los Angeles-based producer Stephen Fromkin, who briefly optioned the script from Francis in 2005. "It's a really crazy intellectual property. It's really amazing how many people have an illusion that they own a piece of it."

For a writer who's been dead since 2001, Ken Kesey's name still carries a hefty shelf life.

On Aug. 19, Tom Wolfe's Electric Kool-Aid Acid Test was reissued to celebrate its 40th anniversary, the first new edition of the book to appear in a decade. Portland director Gus Van Sant is in talks to helm a movie adaptation.

The first biography of Kesey, by Robert Faggen, is scheduled to be published soon by Farrar, Straus & Giroux. Locally, in March, Portland Center Stage director Aaron Posner staged a critically and commercially successful adaptation of Kesey's second novel, Sometimes a Great Notion.

Kesey's posthumous popularity is just one more chapter in a long series of aftershocks that followed an earth-shaking arrival at age 26 to the literary world with One Flew Over the Cuckoo's Nest. He followed that trick with an even better one: putting down the pen and starting a cultural revolution on the road. In 1964, immediately after Sometimes a Great Notion, Kesey recruited his "Merry Pranksters"—characters like Mike "Mal Function" Hagen, Ken "Intrepid Traveler" Babbs and Paula Sundsten (a.k.a. "Gretchen Fetchin the Slime Queen") for a two-month trip that was part movie shoot, part provocative stunt, and the nation's frenzied introduction to the psychedelic age.

Crossing paths with everyone from Hunter S. Thompson to the Hell's Angels and the Grateful Dead, Kesey cemented his status as what Wolfe called a "hipster Christ." Along the way, while trying to edit his 40 hours of bus-trip footage, Kesey caught the movie bug.

"Kesey abandoned prose as 'archaic' and set off to make The Movie," says Mark Christensen, a Los Angeles writer and former WW staffer who's completing a study of Kesey, Timothy Leary and other '60s narcotics gurus titled Acid Christ for Schaffner Press. "He bought into the dream, which is the old cliché of Hollywood: What I really want to do is direct. In other words, he wanted into the movie business! This was in the wave of all that French New Wave shit, where people literally believed the novel was dead, and cinema was going to be the new medium. And Kesey bought that dream."

Then Kesey went home. After a five-month stint in jail for marijuana possession, Kesey moved with Faye into the family-owned 64-acre working dairy farm in Pleasant Hill. For the next two decades, he played host, entertainer and oracle to his many admiring visitors while writing short stories, founding the literary magazine Spit in the Ocean, teaching, and coaching wrestling.

A Stanford grad who'd waxed philosophical with William S. Burroughs and Allen Ginsberg, Kesey was also still an Oregon country boy. Visitors helped paint the bus, chop down trees, spread some hay, milk the cows. On his farm, with his rules, Kesey loved having the "home-court advantage," says Gretchen Douglas, the former Paula Sundsten, the "Gretchen Fetchin" of the bus-trip days. He was the center of attention, a psychedelic Paul Bunyan.

"He could be quite a charming, gracious host, as long as it was understood that he was putting on a performance," says John Tillman, one of those visitors. "He would put anyone who showed up to work."

But Hagen and Francis were different. They came with a project. And if there was anything Kesey's friends say he loved, it was a project—or, as Douglas says he liked to call it, "the current fantasy."

When Francis, Hagen and Kesey talked about their Round-Up story that December of 1983, Kesey dug it. "He was very friendly that day, and very cooperative…and almost childlike," Francis recalls in depositions taken on March 20, 2007, for the lawsuit. "He was so excited about this story."

But Kesey was never one for paperwork. At the peak of his career, Kesey felt he had been burned in negotiations for the movie adaptation of One Flew Over the Cuckoo's Nest. He sued Michael Douglas, Saul Zaentz and other producers for $869,000, and won an undisclosed settlement. The flap left Kesey with a lifelong disdain for the mechanics of Hollywood.

"Ken is a, you know, a kind of rebellious sort. You don't push too hard," Francis said in depositions. "I had been told by Mike Hagen on the way down there that Ken was notorious about refusing to sign contracts and being difficult in business arrangements, that he was very suspicious of any kind of attorneys.… One of the things he always said to me, he and Mike, 'If you can't make a deal on a bar napkin, you can't make a deal.'"

The deal Kesey struck with Francis and Hagen in a follow-up meeting at Kesey's ranch on Jan. 8, 1984, wasn't written on a bar napkin, but it might as well have been. The agreement, which Kesey typed up on personal stationery emblazoned with a picture of his acid-test bus Further, read in its entirety:

Pleasant Hill, OR

January 8, 1984

To Whom it May Concern:

     I have agreed to write a screenplay about bygone rodeo greats Jackson Sundown and Nigger George Fletcher, concerning their historic confrontation at the Pendleton Round Up in 1916 [sic]. The name of the production company that I am writing for is SUNDOWN FLETCHER INC. and the people I am dealing with are Mike Hagen and MiSchelle McMindes.

[signed]

Ken Kesey

With its vague language and no price mentioned for Kesey agreeing to write a screenplay, this letter formed the core of a dispute that would last until Faye Kesey's current lawsuit. Had Kesey drafted a work-for-hire contract, or was he just offering McMindes and Hagen first dibs on shopping around a piece of writing he owned? Immediately, it meant Kesey put aside work on his novel Sailor Song, and Francis and Hagen paid him $5,000, with another $5,000 to come when Kesey finished the script.

By September 1984, Kesey had completed a rewrite and received his second $5,000 from Francis and Hagen, who had created a corporation called Sundown & Fletcher to fund and develop the project.

"A lot of that money went towards a party they put on at the Round-Up," says Tillman, who attended the bash. "That was quite a blowout. There were...people who just drifted through because they knew it was a great, big party." 

The combination of Kesey's relentless ability to self-promote and local newspapermen's interest in a new Oregon-centric Hollywood film got Last Go Round a good bit of buzz in 1984. On Sept. 14, The Oregonian quoted Kesey as claiming that the 1985 Pendleton Round-Up might form the setting of a $10 million feature film with "cowboys, Indians and a story so good it stops the hand midway between the mouth and the popcorn box."

But behind the scenes, there were already problems, according to depositions in Faye Kesey's lawsuit:

Ken Kesey was less than a month into the first draft of his screenplay when his 20-year-old son, Jed, died in a January 1984 van accident on a University of Oregon wrestling trip. Kesey was devastated—and found himself unable to continue work on the screenplay.

Kesey asked Hollywood producer Irby Smith to help with the writing. But Francis says Kesey's behavior had become erratic.

"Rest in peace and bless his soul, I liked Ken, but you never knew which Ken Kesey you were going to meet," Francis says. "I once asked him—I asked him to return the money. He never did. Then we were back on board and we were promoting it and working together, very congenial. Then again it would fall apart again. It was really almost a manic-depressive sort of feeling project during those times."

Gretchen Douglas, the Merry Prankster veteran who continued to maintain contact with Kesey, tells WW that his behavior fit into a lifelong pattern.

"This is Ken in a nutshell," says Douglas, who now runs Island Cove Cafe and Market on Sauvie Island. "As soon as somebody else gets excited and has the potential to do it, his mind explodes, and he's not interested anymore. Because he's not in control. He's a complete control freak."

Then there were rough meetings, like a mid-October 1984 sitdown that Kesey refused to attend. He sent Faye instead. ("He wanted no further involvement," Faye says in depositions.) According to Francis' depositions, Faye Kesey told Francis that she understood the screenplay had been donated to her husband. Francis strongly disagreed, and the meeting devolved from there. "It got shrill, it got real shrill," Francis recalls.

Faye Kesey says in depositions that her husband sent her to tell Francis that Kesey wouldn't sign any contracts. "He thought they weren't experienced," she says. "He thought that the contracts showed a lack of understanding."

Another, bigger problem: It wasn't a good script, either, many of those close to the project said. Francis says the quality was so poor, "I didn't want to send it out."

"They didn't have a shootable screenplay," says Tillman, who was commissioned for rewrites by Katherine Wilson, a Eugene-based agent who marketed the screenplay in the early '90s. "And saying it was 'not good' is putting it mildly. 'Execrable' would be more like it. It might have been an OK movie in the '60s, a Guess Who's Coming to Dinner kind of heartwarming, generational, unity kind of thing."

Francis stopped actively pursuing the project. Wilson optioned the finished script and shopped it around Los Angeles from 1990 to 1994. On March 24, 1994, despite never reaching an ownership agreement with Kesey, Wilson partnered with Francis to file a registration for copyright (a four-to-five-month process that allows legal claim on a work for up to 75 years after the author's death) for the 1984 Last Go Round script anyway. They listed the name of Francis' production company, Sundown & Fletcher, as the author.

But Kesey had already moved on to another version of the Pendleton Round-Up story. In 1994, he and Ken Babbs—his old pranking partner from the acid-test days—turned Last Go Round into what would be Kesey's last novel.

That novel, Last Go Round: A Real Western, also contained a surprise for Francis and Hagen. In the novel's foreword, which simply thanked "MiSchelle McMindes" as a name in a list of acknowledgements, Kesey wrote he'd known the 1911 Pendleton Round-Up story all along.

"I first heard the story from my father when I was fourteen," he wrote. "So my father told it, with the fire crackling and the beans bubbling.... A marvelous yarn."

Ken Kesey never made his Great Western. He died Nov. 10, 2001, at 66.

After his death, Kesey's lawyers transferred copyright of all his writings to his widow, Faye, and his four surviving children. The screenplay for Last Go Round and the novel were on that list, even though Francis and Wilson had filed a copyright for the screenplay seven years earlier.

That discrepancy made Kesey's Last Go Round script a volatile property to shop around in Hollywood, where producers understandably prefer screenplays free and clear of legal entanglements. Complicating matters further, potential producers who were interested in adapting the novel, like Wieden & Kennedy and Seattle-based Shadowcatcher Entertainment, also thought they needed rights to the screenplay, just to be safe.

"We thought it was a stupid idea to take it on, because it was a minefield," says David Skinner, managing partner of Shadowcatcher. "A legal minefield that we did our due diligence on and decided, as much as we love the story, we understood the business well enough to know that this would be a bad business decision.... Our conclusion was, the Kesey family needed to get their house in order before anyone could seriously look at a draft of that particular piece of intellectual property."

On April 21, 2006, Faye Kesey sued Michele Francis, Mike Hagen and Katherine Wilson for the rights to the Last Go Round script. In late 2007, Wilson settled all claims with the Kesey estate. She got $10,000 and the right to pursue a screenplay she had authored, called Blanket of the Sun, which followed the same Round-Up characters but took place five years later. In return, she agreed not to speak to the media about the case.

No one else has signed a nondisclosure clause. But that doesn't keep them from clamming up the moment they hear the phrase Last Go Round.

Faye Kesey still lives on the Pleasant Hill farm, in a tin-roofed barn with a wooden University of Oregon wrestling sign on the front porch and two goats grazing in a nearby pen. When WW visited last week after several phone calls went unreturned, she declined comment. "I'd rather not," she said. "I have to go pick up my grandkids. Maybe some other time."

Hagen lives on the outskirts of Eugene, where he deals with "real estate and rental properties." After initially agreeing to meet with WW reporters, he stopped returning phone calls. No one answered the door at his cabin, where another Ford Mustang was parked outside.

Francis lives in Omaha, Neb., where she founded and runs Light Inc., a company that designs entertainment and political marketing. She responded to calls through her attorney.

On Monday morning, in the Federal Courthouse in Portland, U.S. Magistrate Acosta leafed through a paperback copy of the Last Go Round novel. He asked both sides to clarify their arguments before he considered their motions for summary judgment, which ask a judge to rule in one side's favor without sending the case to a jury.

"As long as there was nothing on the table, your honor, the Keseys were happy to do nothing," said Michele Francis' lawyer, Kratville, who flew in from Omaha. "Once we have a real movie deal on the table, boom! They're out of the weeds, and we're here."

Kesey attorney Aronoff, who arrived from Los Angeles, said Kesey's publication of the novel proved his ownership of the material. "Mr. Kesey did the strongest thing he could do," Aronoff said. "He published the novel. He called their bluff…and, in fact, he said, 'Sue me if you think you own something.' And they didn't."

Judge Acosta said he would "get out a written decision as soon as we can, which is not all that soon." Kratville said he expected that however the judge or a jury ruled, the case would be appealed to the 9th U.S. Circuit Court of Appeals. "I'd be shocked if that wasn't the case," he said. "This is just the kickoff of a very long football game."

A copyright lawyer unaffiliated with the case predicts Francis and Hagen will need to produce more than a one-page agreement with Kesey to win in court.

"My guess is that the Kesey family would be well within their rights to say that, absent an express agreement about who was to get the copyright to the underlying screenplay, the delivery of the manuscript to these people for the sum of $10,000 does not mean that Ken Kesey necessarily parted with the copyright to the work," says Bill Geny, a patent and copyright lawyer in Portland. "Unless the owners of this screenplay can prove that there was agreement that Kesey was selling the copyright along with the manuscript, then they're gonna lose."

Kratville, Francis' lawyer, tells WW his client was already in talks with two Los Angeles-based producers—Stephen Fromkin and Scott Maginnis—before Faye Kesey sued. "I think [they] felt very comfortable that we were the party that they needed to be talking to," he says. Fromkin confirms this, and says he is still interested in the project.

"The money we paid her probably allowed her to hire some lawyers," Fromkin says. "The problem with it is the baggage. It's amazing: There's so many people who think they own it, and there's so many people who really do have some sort of rights to the royalties from the property—be it the Kesey estate, Michele, Mike Hagen—but they all wanted control. The problem is, none of them know how to make a movie."

Shadowcatcher's Skinner, who gave up on Last Go Round about four years ago, doesn't expect to see a movie anytime soon.

"The world loves a good western," he says. "And Kesey you could market. I think it could be wonderful. This is one that we would love to take another crack at sometime, but only if it's free and clear. I don't know that that'll ever happen in my lifetime." 

READ MORE: DOCUMENTS FROM THE KESEY ESTATE BATTLE

Kesey Agreement [JPG]

Shannon Kesey Smith Deposition [PDF]

Faye Kesey Deposition [PDF]

Michele Francis Deposition [PDF]

Katherine Wilson Settlement [PDF]

SEE MORE: TWO KESEY VIDEOS

Ken Kesey in 2001:

Ken Kesey & Jerry Garcia on LSD & Creativity:

This year's Pendleton Round-Up runs Sept. 10 to 13.

At the 1911 Pendleton Round-Up, judges awarded the overall victory to the white bronco-buster Spain, even though fans almost unanimously agreed that Fletcher, an African-American, was the clear champion.

Kesey's 1984 draft of the screenplay is available in records of the suit, listed under 06-540 in U.S. District Court in downtown Portland.

In her depositions, Francis says she express-mailed a copy of Kesey's script to Burt Reynolds: "Burt was part Indian; he wanted to play the Indian." She says Hal Ashby, director of Harold and Maude, took a look at the screenplay and "panned it."

On Sept. 15, 1979, Kesey told Pendleton's East Oregonian newspaper of his interest in writing about the Round-Up. "I thought about doing a novel about it," he said. "But it's so visual it just seems to me that it ought to be a movie.''

Critics greeted the novel of Last Go Round with warm reviews: "A rip-snorter of a yarn [with] a surprising degree of wistful complexity," wrote The New York Times.

The Sundown & Fletcher Corp. solicited the financial support of Kendall Early, a practicing urologist in Pendleton, who forked over $30,000 as an initial investment.

Cuckoo's Nest went on to win five Oscars, including Best Picture, and, in the words of The New York Times, "Mr. Kesey seemed to get less credit than every best boy and gaffer."

Full disclosure: Ellen Rosenblum, wife of WW Publisher Richard Meeker, served as local counsel for Kesey in his suit against the Cuckoo's Nest producers. She declined comment.

WWeek 2015