* Circuit Judge of the Eleventh Circuit, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 93-4434.

Creig MATTHEWS, et al., Plaintiffs,

Creig Matthews, Plaintiff-Appellant,

v.

Kim WOZENCRAFT, Random House, Inc., Ballantine Books, a Division of Random House,

I nc., the Zanuck Company, and Metro-Goldwyn-Mayer Inc., f/k/a MGM/Pathe Communicat ions

Company, Defendants-Appellees.

March 3, 1994.

Appeal from the United States District Court for the Eastern District of Texas.

Before HENDERSON, * SMITH, and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I.

A.

Prior to 1979, Creig Matthews was an undercover narcotics officer with the Plano, Texas,

police department, in charge of the criminal investigation division. Kim Wozencraft (Kim Ramsey

at the time) was hired as a po lice o fficer. Matthews trained and then worked with her as an

undercover narcotics officer making drug purchases. Both of them used drugs, primarily marijuana

and cocaine, while on the Plano drug assignment.

In August 1978, Matthews was hired by the Tyler, Texas, police department as an undercover

narcotics officer, where he used the aliases "Jim" and "Jim Myers." Early the next year, Wozencraft

joined him in Tyler as an undercover drug officer. Together they conducted a drug investigation that

last ed until April 24, 1979. During this time, they became romantically involved and began living

together.

Their primar y t arget in Tyler was Ken Bora, for whom Matthews worked undercover as a

bartender. After several futile attempts to buy drugs from Bora, Mat t hews and Wozencraft, oninstruction from Tyler police chief Willie Hardy, made a phony "stash" case on Bora.

During the investigation, Matthews and Wozencraft used drugs both to make drug cases and

for personal use, eventually becoming addicted. They informed Hardy of Matthews's drug problem.

He gave them several days off but insisted that they continue with the investigation. At the end of

the Tyler inv est igat io n, Matthews and Wozencraft assembled over 200 drug cases, involving the

arrest of 100 defendants.

At the conclusion of the investigation, Matthews and Wozencraft were attacked by a

shotgun-wielding assailant at Wozencraft's mo bile home. She returned fire and was not seriously

hurt; Matthews was severely wo unded in the arm and leg and was hospitalized for over a month.

After being released from the hospital, Hardy placed them in a house on the outski rts of Tyler. While

there, they were visited by H. Ross Perot, who at the time was serving as chairman of a special crime

commission. Perot moved them to a secure safe-house in the Dallas area and arranged for Matthews

to receive medical treatment for his wounds.

During this time, Matthews and Wozencraft began testifying at the trials of some of the drug

defendants. They falsely denied using drugs during the investigation and falsely testified that they had

bought cocaine from Bora.

Evidence arose of their misconduct. Eventually they confessed, pleaded guilt y t o criminal

informations alleging civil rights violations, and were sentenced to terms in federal prison.

B.

While in prison, Wozencraft, Matthews, and fellow inmate John Rubien signed the contract

at issue in this case (the "Prison Agreement"). Matthews and Wozencraft were married at the time

the contract was formed, and Wozencraft is identified in it as "Kimberly Ramsey Matthews." The

contract specifies that Wozencraft and Rubien were to co-author a book based upon Matthews and

Wozencraft's story about the undercover investigations.

Wozencraft was released from prison in the spring of 1983. She divorced Matthews and

moved to New York City to join Rubien. She already had started writing the book. She described

events in the book, linking them to specific events that had transpired during the investigations. The1 For purposes of reviewing the district court's grant of summary judgment, we will assume that

the Raynor character indeed is based upon Matthews. co-authored book by Wozencraft and Rubien was not finished during the one-year period provided

for by the Prison Agreement.

Wozencraft received a masters degree from Columbia University. Her thesis became the basis

for the book entitled R USH

. She sold her manuscript to Random House and sold the movie rights for

one million dollars.

There is substantial evidence that the character "Jim Raynor" in R USH is based upon Matthews

and that the public recognized him as that character. 1 Nonetheless, the book is labeled as a novel and

states on its copyright page that it "is a work of fiction. Any resemblance its characters may have to

persons living or dead is purely coincidental."

Matthews concedes that the issue raised in R USH

, i.e., corrupti on of law enforcement officers,

is a matter of public concern. His willingness to discuss the book with the media has made him a

public figure. Furthermore, prior to the publication of R U SH , Matthews cooperated with an author

named David Ellsworth in publi s hing S MITH C OUNTY J USTICE

, a non-fiction book detailing

Matthews's life and the events surrounding the Tyler operation.

Matthews has received no compensation for the defendants' use, portrayal, or promotion of

his likeness in the book and movie.

II.

A.

Matthews filed a diversity suit alleging breach of contract, division o f marital asset, and

misappropriation/invasion of privacy agai nst Wozencraft and misappropriation and invasion of privacy

against Random House, Zanuck, and MGM. The defendants filed motions for summary judgment,

which the district court granted.

B.

We review a grant of summary judgment de novo. Hanks v. Transcontinental Gas Pipe Line

Corp., 953 F.2d 996, 997 (5th Cir.1992). Summary judgment is appropriate "if the pleadings,depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law." F E D .R.C IV .P. 56(c). The party seeking summary judgment carries the

burden of demonstrating that there is an absence of evidence to support the non-moving party's case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). After

a proper motion for summary judgment is made, the non-movant must set forth specific facts showing

that there is a genuine issue for trial. Hanks, 953 F.2d at 997.

We begin our determination by consulting the applicable substantive law to determine what

facts and issues are material. K ing v. Chide, 974 F.2d 653, 655-56 (5th Cir.1992). We then review

the evidence relating to those issues, viewing the facts and inferences in the light most favorable to

the non-movant. I

d. If the non-movant sets forth specific facts in support of allegations essential to

his claim, a genuine issue is presented. Celotex, 477 U.S. at 327, 106 S.Ct. at 2554-2555.

C.

The district court granted summary judgment on Matthews's appropri at ion claim because

Texas law does not recognize a cause of action for appropriation of one's life story and because if it

did, there would be an e xception for biographies and "fictionalized biographies." We affirm the

summary judgment.

"One who appropriates to his own use or benefit the name or likeness of another is subject

to liabilit y to the other for invasion of his privacy." R E STATEMENT ( S ECOND ) OF T ORTS (the

"R ESTATEMENT " ) § 652C (1977). S ee also Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719, 722

(Tex.Civ.App.—Eastland 1975, writ ref'd n.r. e.). There are three elements to a misappropriation

claim under Texas law: (i) that the defendant appropriated the plaintiff's name or likeness for the

value associated with it, and not in an incidental manner or for a newsworthy purpose; (ii) that the

plaint iff can be identified from the publication; and (iii) that there was some advantage or benefit to

the defendant. S ee J. H ADLEY E DGAR & J AMES B. S ALES

, T EXAS T ORTS AND R EMEDIES § 53.06[2];

Faloona v. Hustler Magazine, 799 F.2d 1000 (5th Cir.1986), cert. denied, 479 U.S. 1088, 107 S.Ct.

1295, 94 L.Ed.2d 151 (1987). Under this test, Matthews is unable to create any issue of material factas to liability.

There is no question that Matthews can be identified from the publication, at least to the point

of creating a genuine issue of fact as to the identity of the Jim Raynor character. He claims that his

life story was a ppro priated for Wozencraft's commercial benefit. The protection of "name or

likeness" under Texas law, however, does not include a person's life story. If Texas law did protect

such a right, it was not "appropriated." And, even if Matthews could state a claim, Wozencraft would

be protected by an exception in the state tort law.

Tortious liability for appropriation of a name or likeness is intended to protect the value of

an individual's notori ety or skill. Thus, the R E STATEMENT notes, "In order that there may be liabilit y

under the rule stated in this Section, the defendant must have appropriated to his own use or benefit

the reputation, prestige, social or commercial standing, public interest or other values of the plaint iff's

name or likeness." R E STATEMENT § 652C, comment c. The misappropriation tort does not protect

one's name per se; rather, it protects the value associated with that name.

Appropriation of a name or likeness generally becomes actionable when used "to advertise

the defendant's business or product, or for some similar commercial purpose." R E STATEMENT §

652C, comment b. The value of one's likeness is not "appropriated when it is published for purposes

other than taking advantage o f his reputation, prestige, or other value associated with him, for

purposes of publicity.... It is only when the publicity is given for the purpose of appropriating to the

defendant's benefit the commercial or other values associated with the name or the likeness that the

right of privacy is invaded." R ESTATEMENT § 652C, comment d.

There is nothing unique about Matthew's name or likeness that creates value for Wozencraft

to appropriate. She is not "cashing-in" on goodwill associated with his name but is simply converting

factual events that happen to include Matthews into fiction. The use of his name does not provide

value to the book, nor is she using his name to "endorse" the book to the public, because his name

has no independent value. In short, Matthew's life story, while interesting to readers and film-goers,

is not a "name or likeness" for purposes of applying the misappropriation doctrine.

Pro t ecting one's name or likeness from misappropriation is socially beneficial because it2 If the appropriation of an individual's goodwill were left untrammelled, it soon would be

overused, as each user will not consider the externality effect his use will have on others. Each

use of the celebrity's name or face will reduce the value that other users can derive from it. The

use of a name or face, therefore, is analogous to the overuse of a public highway: In deciding

whether to use the road, each user does not consider the increased congestion that his use will

inflict on others. See Frank H. Knight, Some Fallacies in the Interpretation of Social Cost, 38

Q.J. E CON . 582 (1924).

We can ration the use of highways by imposing tolls. See id. We grant celebrities

a property right to ration the use of their names in order to maximize their value over time.

3 The information transmitted is both direct and indirect in nature. It is direct because of any

goodwill (or ill-will) associated with the person's link to the product. Indirect information is

transmitted because the payment by the advertiser to him is an investment in nonsalvageable

capital signaling a commitment to quality by the advertiser. See Benjamin Klein & Keit h B.

Leffler, The Role of Market Forces in Assuring Contractual Performance, 89 J.P OL .E CON . 615,

630-31 (1981). encourages people to develop special skills, which then can be used for commer cial advantage.

Associating one's goodwill with a product transmits valuable information to consumers. Without the

artificial scarcity created by the protecti on of one's liken ess, that likeness would be exploited

commercially until the marginal value of its use is zero. 2

For inst ance, if a well-known public figure's picture could be used freely to endorse

commercial products, the value of his likeness would disappear. Creating artificial scarcity preserves

the value to him, to advertisers who contract for the use of his likeness, and in the end, to consumers,

who receive informat io n fro m t he knowledge that he is being paid to endorse the product. 3 S ee

Kimbrough, 521 S.W.2d at 722 (in which former Texas A & M football star stated valid claim for

misappropriation where his picture was used, over his objection, as part of an advertisement for

Coca-Cola in a football game program).

As Judge Posner writes,

It might seem that creating a property right in such uses would not lead to any so cially

worthwhile investment but would simply enrich already wealthy celebrities. However,

whatever information value a celebrity's endorsement has to consumers will be lost if every

advertiser can use the celebrity's name and picture.... [T]he value of associating the celebrity's

name with a particular product will be diminished if others are permitted to use the name in

association with their products.

R ICHARD A. P OSNER

, E CONOMIC A NALYSIS OF L AW § 3.3, at 43 (4th ed. 1992). The tort of

misappropriation of name or likeness, therefore, creates property rights only where the failure to do4 The social goals misappropriation furthers are identical to those animating the prohibition of

fraud. See, e.g., Moore v. Big Picture Co., 828 F.2d 270, 277 (5th Cir.1987) (misappropriation

occurs when plaintiff's name used by defendant without permission in order to secure a contract);

see also P OSNER , supra, § 4.6, at 109-10 (fraud reduces societal wealth by encouraging

investment in wealth-redistributing, rather than wealth-creating, activity).

5 See W. P AGE K

EETON ET AL

., P ROSSER AND K EETON ON THE L AW OF T ORTS § 117 at 853 (5th

ed. 1984) ("Nor is there any liability [for misappropriation] when the plaintiff's character,

occupation and the general outline of his career, with many incidents in his life, are used as the

basis for a figure in a novel who is still clearly a fictional one."); Hampton v. Guare, 600

N.Y.S.2d 57, 58 (App.Div.1993); Toscani v. Hersey, 271 A.D. 445, 65 N.Y.S.2d 814, 817-18

(1946). so would result in the excessive exploitation of its value. 4

Thus, the term "likeness" includes such things as pictures, National Bank of Commerce v.

Shaklee Corp., 503 F.Supp. 533 (W.D.Tex.1980), drawings; B enavidez v. Anheuser Busch, Inc., 873

F.2d 102 (5th Cir.1989); and the use of a singer's distinctive voice, W aits v. Frito-Lay, Inc., 978 F.2d

1093 (9th Cir.1992), cert. denied,

--- U.S.

----, 113 S.Ct. 1047, 122 L.Ed.2d 355 (1993) (reasoning

that "a voice is as distinctive as a face" and thus cannot be imitated in order to sell a product), that

one could exploit for commercial advantage. If exploitation of this beneficial information were not

limited, its value soon would be dissipated.

The term "likeness" does not include general incidents from a person's life, especially when

fictionalized. 5 The narrative of an individual's life, standing alone, lacks the value of a name or

likeness that the misappropriation tort protects. Unlike the goodwill associated with one's name or

likeness, the facts of an individual's life possess no intrinsic value that will deteri orate with repeated

use. As Posner observes, "If Brand X beer makes money using Celebrity A's picture in its advertising,

competing brands might use the same picture until the picture ceased to have any advertising value

at all. In contrast, the multiple use of a celebrity's photograph by competing newspapers is unlikely

to reduce the value of the photograph to the newspaper-reading public." R I CHARD A. P OSNER

, T HE

E CONOMICS OF J USTICE 258 (2d ed. 1983).

Far from reducing the value of Matthews's story, R USH increased the value, as reflected in

the publication of articles a bo ut Matthews and Wozencraft in N E W Y ORK M AGAZINE

, T HE

W ASHINGTON P OST

, and T HE G UARDIAN

, among others. Similarly, S M ITH C OUNTY J USTI CE , althoughpublished first, did not reduce the sales of R USH

. As there is no fear that any valuable information

provided by the facts of one's life will be reduced by repeated use, the l aw does not forbi d the

"appropriation" of this information.

Further, because most of the material facts a re a matter of public record because of the

highly-publicized trial, it is especially difficult for Matthews to claim that his likeness was unfairly

appropriated, as a name cannot be appropriated by reference to it in connection with the legitimate

mention of public activities. S ee Melvin v. Reid, 112 Cal.App. 285, 297 P. 91, 93 (1931). "No one

has the right to object merely because his name or his appearance is brought before the public, since

neither is in any way a private matter and both are open to public observation." R E STATEMENT §

652C, comment d.

III.

A.

Even if Texas courts recognized a cause of action for misappropriation of events in one's life,

it likely would reco gnize an exception for biographies. As one commentator has written, "Courts

long ago recognized that a celebrity's right of publicity does not preclude others from incorporating

a person's name, feature s o r biography in a literary work, motion picture, news or entertainment

story. Only the use of an individual's identity in advertising infringes on the persona." George M.

Armstrong, Jr., The Reification of Celebrity: Persona as Property, 51 L A .L.R EV

. 443, 467 (1991)

(citing Rogers v. Grimaldi, 695 F.Supp. 112, 121 (S.D.N.Y.19 88), aff'd, 875 F.2d 994 (2d

Cir.1989)); s ee also Frosch v. Grosset & Dunlap, In c., 75 A.D.2d 768, 427 N.Y.S.2d 828, 829

(1980).

B.

Matthews also contends that appropriation can occur through the fictionalized account of

his life. S ee Benavidez v . Anheuser Busch, Inc., 873 F.2d 102, 104 (5th Cir.1989). The cases he

cites, however, do not support his argument, as they apply the "false light" doctrine. In each of them,

(1) the plaint iff's real name was used; (2) false or defamatory statements were made regarding the

plaintiff; and (3) the plaintiff alleged invasion of privacy by false light, not misappropriation.6 It is questionable whether the false light tort is even viable in Texas, and this court has

certified that question to the Texas Supreme Court in Cain v. Hearst Corp., 1 F.3d 345 (5th

Cir.1993) (per curiam), certification accepted (Tex. Feb. 9, 1994) (No. D-4171). By contrast, R USH does not use Matthews's real name, and Matthews admits that all the

material facts are tru e. Thus, assuming he is trying to state a claim under the false light doctrine,

rather than misappropriation, his attempt fails. 6

C.

Even if Matthews has created a genuine issue of material fact on his misappropriation claim,

Wo zencraft is entitled to summary judgment as a matter of law because of free speech and public

domain defenses. Even though the district court did not base its holding upon these grounds, they

can still serve as the basis for affirming. S ee Degan v. Ford Motor Co., 869 F.2d 889, 892 (5th

Cir.1989) (court may ignore any erroneous holding of the district court and affirm judgment on other

grounds); Church of Scientology v. Cazares, 638 F.2d 1272 (5th Cir. Mar. 1981) (same).

1.

While there is no binding authority directly on point, we conclude that Wozencraft's novel

falls within the protecti on of the First Amendment. It is immaterial whether R USH "is viewed as an

historical or a fictional work," Meeropol v. Nizer, 560 F.2d 1061, 1067 (2d Cir.1977), cert. denied,

434 U.S. 101 3, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978), so long as it is not "simply a disguised

commercial advertisement for the sale of goods or servi ces." R ogers v. Grimaldi, 875 F.2d 994,

1004 (2d Cir.1989) (quoting Frosch, 427 N.Y.S.2d at 829). The book and its accompanying

publicity have converted Matthews into a public figure under Gertz v. Robert Welch, Inc., 418 U.S.

323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). "[T]he same standards of constitutional protection apply

to an invasion of privacy as to libel actions." Meeropol, 560 F.2d at 1066.

Accordingly, absent a showing of malice, i.e., a "reckless d isregard for the truth," R U SH is

protected by the First Amendment. S ee Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d

456 (1967). Neither the book nor the movie holds out Matthews in a false light or in an embarrassing

way; thus, his claim is meritless.

R USH is also protected by T EX

. C ONST . art. I, § 8. The Texas Constitution grants broaderprotecti on to speech and press than does the United States Constitution. D avenport v. Garcia, 834

S.W.2d 4, 8 (Tex.1992). The court in D iamond Shamrock Ref. & Mktg. Co. v. Mendez, 844 S.W.2d

198 (Tex.1992), did not specifically address the scope of the appropriation tort, but it suggested that

privacy torts should be construed narrowly. S ee also id. at 205 n. 4 (Gonzalez, J., concurring in part

and dissenting i n part) (noti ng that K imbrough is the only Texas case recognizing the

misappropriation tort). Given this hesitation to expand the scope of the various privacy torts, it is

unlikely that Texas courts would extend the tort t o creat e liability for the fictional portrayal of

Matthews's personal life.

2.

Liabilit y for misappropriation also will not arise when the information in question is in the

publ ic domain, for the public figure no longer has the right to control the dissemination of the

information. S ee Douglass v. Hustler Magazine, 769 F.2d 1128, 1139 (7th Cir.1985), cert. denied,

475 U.S. 1094, 106 S.Ct. 1489, 89 L.Ed.2d 892 (1986); Jenkins v. Dell Publishing Co., 251 F.2d

447, 451 (3d Cir.), cert. denied, 357 U.S. 921, 78 S.Ct. 1362, 2 L.Ed.2d 1365 (1958). "To whatever

degree and whatever connection a man's life ceases to be private before the publica tion under

consideration has been made, to that extent the protecti on is withdrawn...." Samuel D. Warren &

Lewis D. Brandeis, The Right to Privacy, 4 H ARV .L.R EV

. 193, 214-15 (1890). As one court has

commented,

[A] public figure has no exclusive rights to his or her own life story

.... Such life story of the

public figure may legitimately extend, to some reasonable degree, to

... information

concerning the individual, and to facts about him, which are not public.... Thus the life history

of one accused of [crime], together with such heretofore private facts may throw some light

upon what kind of person he is, his possible guilt or innocence, or his reasons for committing

a crime, are a matter of legitimate public interest.

Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899, 919 (1971).

In the time si nce his participation in the Tyler drug investigation and his subsequent

conviction and prison time for his illega l act ivity, Matthews voluntarily submitted to numerous

interviews with the national media. He also cooperated in the publication of S M ITH C OUNTY J USTICE

and testified about his activities in Hardy's criminal trial. All the material facts underlying R U SH were

a matter of public knowledge and were in the public domain.Thus, Matthews becam e a public figure through his activities. The subject matter of his

statements—narcotics officers using drugs, perju ring themselves, and making fraudulent

charges—was a matter of public interest. S ee Trotter v. Jack Anderson Enters., 818 F.2d 431, 434

(5th Cir.1987). Because all of the events were a part of the public domain, defendants were entitled

to their fair use, including their narration in fictionalized form. Douglass, 769 F.2d at 1139.

IV.

Matthews contends that the district court erred by granting summary judgment on his claim

that Wozencraft breached the contract they signed in prison. The district court held that the contract

expired by its own terms o n June 1, 1984; that Matthews presented no evidence that any of the

conditions just ifying extensions of the contract were met; and t hat there were no terms and

conditions in the contract providing for a continuing obligation between Matthews and Wozencraft

after June 1, 1984.

Matthews a rgues that his ownership rights to the "story" and its sale proceeds were

extinguished by the district court. He contends that the court mistakenly treated "the story," i.e., the

events behind R USH

, as the same entity as the "co-authored book" itself. He argues that the Prison

Agreement provides a one -year t erm for the co-authors to complete a book but that, if it was not

completed in one year, he and Wozencraft were to sha re t he proceeds generated by any future

production of "the story."

In construing a contract, we ascertain and give effect to the real intentions of the parties, as

that intention is revealed by the language used in the agreement. D edier v. Grossman, 454 S.W.2d

231, 234-35 (Tex.Civ.App.—Dallas 1970, writ ref'd n.r.e.). The agreement is read in its ent irety.

Greene v. Condor Petroleum Co., 140 S.W.2d 844, 848 (Tex.1940). All of its provisions are

considered and construed together to ascertain the meaning and effect of the instrument. Midland

v. Waller, 430 S.W.2d 473, 478 (Tex.1968).

Each clause or paragraph must be considered with reference to every other, so that the effect

of one provision on the others may be determined. B eaty v. Maritime Assn's-I.L.A. Pension, Welfare

& Vacation Funds, 442 S.W.2d 823, 825 (Tex.Civ.App. —Houston [14th Di st.] 1969, wri t ref'd).This is the "four corners" rule: The ent ire instrument, taken by its four corners, must be read and

considered to determine the true intentions of the parties. I da lou Coop. Cotton Gin v. Gue, 317

S.W.2d 240, 246 (Tex.Civ.App.—Dallas 1958, writ ref'd n.r.e.).

Matthews contends that he and Wozencraft were co-owners of the story in perpetuity and that

they hoped to have a book about the story co-authored within a year. If the book was not written

within a year, they were to share eq ually in any proceeds that might arise from a sale of the story.

Matthews rests this argument on a porti on of the agreement that states that they "are equal partners

in all and every payment of money deriving from the sale of the "story' under the terms of this

agreement." Thus, provisions concerning the co-authored book had a one-year deadline, but

Matthews's owner ship interest in the "story" and in proceeds from its sale is not terminated or

forfeited by the contract's one-year term.

The district court held that the contract expired by it s o wn terms on June 1, 1984,

extinguishing Matthews's ownership and payment rights for the story. We agree. The concluding

sentence of the Agreement states, "This contract shall commence upon June 1, 1983, and shall remain

in force until June 1, 1984." The term "contract" must refer to all rights and obligations established

among the parties, including Wozencraft and Matthews. Thus, after one year, all rights and duties

among the parties expired.

If the co-authored book was not completed within one year, the contract provides that the

"co-authors' work would remain their property ," and "no compensation from any source [would] be

due any party." If the book was not complete, Wozencraft and Matthews had the right to seek other

arrangements for writing and publication of a book. Afterwards, the story became part of the public

domain, denying Matthews compensation for Wozencraft's book.

Matthews argues that the one-year deadline, construed in context, refers only to the time in

which the co-authors were to complete their book. That section is labeled "Publishing and Content,"

and most of the provisions within the section deal with the mechanism for publishing the prospective

book, e.g., selecting an agent and publisher. Matthews contends that the one-year provision creates

a deadline only for the portions of the contract dealing with the publication of the co-authored bookwith Rubien. According to Matthews, the one-year time limit had no effect on any rights established

by the contract with regard to the story.

But the provision

says that the "contract" shall run for one year, implying that the entire

agreement was valid for only one year. Furthermore, the preceding paragraph states, "No changes

or amendments can be made in this agreement without the written approval of all three parties." This

also seems to be a general provision applying to the contract as a whole. Finally, these elements are

the last two paragraphs of the document, implying that they were intended to be "catch-all" provisions

applying to the whole contract and just incidentally are located in the "Publishing and Content"

section.

Furthermore, Matthews's construction of the agreement would be nonsensical . Under his

interpretation, the agreement would grant Matthews a perpetual right to share equally in any proceeds

resulting from the story. It is questionable that the parties would create a contract unlimited in term

and even more unlikely that they would memorialize such a sweeping arrangement in an agreement

as crude as the Prison Agreement. Finally, if Matthews int ended the agreement to have such an

unusual meaning, he should have made this evident. Instead, the alleged perpetual contract with

Wozencraft regarding the story was bundled with the one-year book agreement with Wozencraft and

Rubien.

Matthews's reading also presumably would have given Wozencraft a perpetual right in any

producti on made from Matthews's cooperati on with a third party. Given his collaboration with

Ellsworth in publishing S MITH C OUNTY J US TICE , it is doubtful that he intended to bind himself to

Wozencraft as the sole narrator of the story. Absent evidence that the one-year period identified in

the contra ct did no t apply to the entire document, his claim that the Prison Agreement created

perpetual rights to share equally in the proceeds of the story is untenable.

The contract could be extended if certain requirements were met. For example, one provision

states, "In the event of failure of completion, Benjamin Matthews has the right to grant the co-authors

a period of continuation beyond 15 days, but has no legal obligation to do so." Matthews presented

no evidence that he fulfilled those conditions. No terms and conditions of the "other arrangements"were specified in the Prison Agreement, and no other arrangements were ever reached.

In summary, the Prison Agreement expired of its own terms on June 1, 1984, extinguishing

Matthews's rights at that time. Matthews has not demonstrated that this reading is flawed or that he

extended the contract beyond the one-year period.

V.

Matthews claims that "his ownership rights in the story and proceeds fro m t he sale of the

story, evidenced by the contract were not divided in his div orce and, t herefore, should be divided

under Texas law." See T EX .F AM .C ODE § 3.90. The district court held that because Matthews had

no right to the proceeds under the contract, there was no marital asset to distribute. Matthews

contends that he had ownership rights that should have been distributed in the divorce.

Under Texas law, Matthews's claim is barred by res judicata. Once assets have been divided

in a divorce decree, subsequent suits to divide property are barred. Id. § 3.71; L aw v. Law, 792

S.W.2d 150, 152 (Tex.Civ.App.—Houston [1st Dist.] 1990, writ deni ed). Under T E XAS F AMILY

C ODE § 3.71, a court lacks power to "amend, mo dify, alter, or change the division of property made

or approved in the decree of divorce."

The state court found that Matthews and Wozencraft did not accumulate any property during

their marriage. Any personal property was awarded to the parties in possession. Whatever property

Matthews now claims wa s co mmunit y property, he knew of at the time the divorce decree was

entered. Thus, his complaint about the division of marital property is barred by res judicata.

VI.

Matthews has created no genuine issue of material fact under Texas law. Thus, we AFFIRM

the district court's grant of summary judgment on all claims.