My earlier post discussed what we might call the "literary issues" in the current litigation over the Broadway production of To Kill a Mockingbird. I concluded that Aaron Sorkin's proposed script did not derogate "the spirit of the novel" by adding some moral complexity to the character of Atticus Finch. This post offers some thoughts on the actual legal issue arising under the contract, which I have posted here.
The contract between Nelle Harper Lee and Rudinplay is in the form of a letter, executed June 29, 2015. Here is the relevant paragraph:
Approvals. Author shall have the absolute and unconditional right to approve the Playwright for the Play. Such right of approval of Author hereunder shall be a right of prior, written approval, and Author’s exercise of such right shall be within her sole and unfettered discretion. Author shall also have the right to review the script of the Play and to make comments which shall be considered in good faith by the Playwright, and the Play shall not derogate or depart in any manner from the spirit of the Novel nor alter its characters. If the Author believes that the Play does so derogate of deport, or alter characters, Producer will be given notice thereof as soon as possible, and will be afforded an opportunity to discuss with Owner resolutions of any such concerns.
Although I am not a contracts or literary rights lawyer, it certainly appears that this contract draws a sharp distinction between Lee's (and thus the Estate's) "absolute and unconditional right" to approve the playwright, which is within her "sole and unfettered discretion," and her right to "review the script" and "to make comments which shall be considered in good faith by the Playwright." In other words, Lee's unfettered rights were exercised when she approved Aaron Sorkin as the playwright (which is conceded in the complaint). Afterward, she appears to have only the right to make comments that must be considered, by Sorkin, in good faith."
There is no question that the Estate was provided the draft script at multiple stages and that comments were submitted to Sorkin. There is a long letter with proposed changes, attached to the complaint but filed under seal. Given the admitted back and forth, it seems like a heavy lift for the estate to prove that Sorkin failed to consider the comments in good faith (or that the producer failed to discuss "resolutions of any such concerns").
Then again, the lawsuit was filed in the Southern District of Alabama, where the Estate of Harper Lee would seem to have a meaningful home court advantage. Still, the only relief sought is declaratory judgment, rather than an injunction, and it seems unlikely that a federal judge would want to get into the details of rewriting a Broadway script. This is purely speculative, but my guess is that the plaintiff's expectation is only to force settlement discussions that could lead to some modification rather than a broad rewrite of Sorkin's work, much less a rescission of the deal.
So far, the only payment under the contract has been a $100,000 option fee. The real payoff for the estate will be in royalties once the play is produced, so scrapping the deal would be a loss for both parties. And even though To Kill a Mockingbord is an iconic novel, the big audience interest will be created by the Aaron Sorkin script, directed by Bartlett Sher. Killing the current production -- which has not yet been cast -- might well kill the whole idea, as another producer would surely be wary of investing in an ill-fated project.
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