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We Asked 7 Lawyers to Untangle the Broadway Fight Over ‘To Kill a Mockingbird’

Harper Lee was a literary celebrity. Aaron Sorkin is a screenwriting superstar. And now the two — by proxy — are locked in a battle over who should shape the content in Sorkin’s stage adaptation of Lee’s famous novel, “To Kill a Mockingbird.”

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We Asked 7 Lawyers to Untangle the Broadway Fight Over ‘To Kill a Mockingbird’
By
MICHAEL PAULSON
and
ALEXANDRA ALTER, New York Times

Harper Lee was a literary celebrity. Aaron Sorkin is a screenwriting superstar. And now the two — by proxy — are locked in a battle over who should shape the content in Sorkin’s stage adaptation of Lee’s famous novel, “To Kill a Mockingbird.”

Lee, before she died, agreed to allow Sorkin to write the adaptation. But there was one key condition: His play could not “derogate or depart in any manner from the spirit of the novel, nor alter its characters.”

And therein lies the problem. It’s impossible to know what Lee would make of Sorkin’s script. But her longtime lawyer has read a draft, and is unhappy.

Earlier this month, Lee’s estate sued Sorkin’s producer over the project, alleging that Atticus Finch is too mean, Scout and Jem are too old, and Calpurnia is too opinionated, among other issues. A lawyer for the producer, Scott Rudin, countered that it was “never expected that the play would merely be the recitation of the novel from the stage,” and that the script doesn’t depart from the spirit of the novel.

At stake is how a new generation will encounter one of the 20th Century’s most famous American stories. The Sorkin version is scheduled to open on Broadway in December, and, if successful, could ultimately be produced around the country and beyond.

So what happens now? The two sides could settle the dispute. Or the case could go to trial. In the meantime, we asked seven lawyers with relevant expertise to help us untangle the thicket — how much change is permissible, and who gets to decide whether the script crosses that line?

“This case involves two titans of creative expression — Harper Lee wrote an American masterpiece, and Aaron Sorkin is using his unique skills to bring it to the stage,” said Joshua Simmons, a partner at Kirkland & Ellis. “The thrust of the case is whether the integrity of Lee’s novel has been compromised, or the play is a faithful adaptation within the scope of the producers’ rights.”

Here is how our panel of lawyers looked at key issues in the case:

The play is not supposed to depart from “the spirit of the novel” nor “alter its characters.” What does that mean for the playwright’s ability to interpret and change source material?
The language of the contract that is at issue — “the play shall not derogate or depart in any manner from the spirit of the novel nor alter its characters” (emphasis added) — could be interpreted in a limiting manner in the Lee estate’s favor, but the underlying concepts “spirit of the novel” and what it means to “alter” a character are themselves ambiguous. Interpreting this provision strictly arguably could bar the addition of a new major character, which the letter seems to allege has taken place, but it also could be interpreted more broadly to allow for changes that are consistent with the spirit of the novel and meaning that existing characters’ natures cannot be changed. It is quite possible that the parties had different understandings and it is no wonder that a dispute has turned to litigation.

— Cheryl Davis, general counsel of the Authors Guild

Does “spirit” have a definite and precise meaning, or could there be a difference of opinion as to what is “the spirit” of the novel? I do not think that a dictionary definition of “spirit” will resolve that question. Similarly, the contract states that the characters should not be altered. In its pre-action letter, Harper Lee’s estate repeatedly states that the characters “would never have” and “would not have” done numerous things; unless as a matter of historical fact the characters would not have done something (because it had not yet occurred at the time when the novel takes place or when it was written), who is to say what a creature of fiction “would never have” or “would not have” done? The person who created those characters, Harper Lee, is dead.

— Jordan Greenberger, intellectual property lawyer

My own sense, having read the complaint, is that it includes a mix of valid concerns about anachronism and character arcs with highly contestable interpretations, ones we have no real way to know whether Lee would have shared. One might disagree, for example, about exactly how black men and women who “knew their place” (as the letter describes both Calpurnia and Tom) would behave and speak in light of that knowledge, especially where the audience is not having its experience filtered through the perceptions of a young white girl. ["To Kill a Mockingbird” is narrated by Atticus’ daughter, Scout.]

— Rebecca Tushnet, professor of First Amendment law, Harvard Law School

Lee retained the “absolute and unconditional right” to approve the choice of playwright, but her control over the script is more ambiguous — the agreement says only that if she has concerns (or, since she has since died, if her estate does) the producer is to be notified, and there should be “an opportunity to discuss." Under the terms of the contract, can the estate demand changes to the script?

The provision gives the author (in effect, now the estate) absolute approval rights only over the selection of the playwright. Thereafter the author’s role seems primarily advisory.

—Jane Ginsburg, professor of literary and artistic property law, Columbia Law School

The relevant clause is very clear that Lee had the absolute, unfettered discretion to approve or disapprove a playwright, whether or not her choices were reasonable. The very next sentence is about the interpretation of the characters once the playwright was selected, and its language, in contrast, is not particularly prescriptive; it basically says that if there’s a problem, the parties agree to hear each other out. The contrast in language suggests to me that Lee’s control over interpretation was loaded onto the choice of a playwright. Of course that leaves the estate feeling betrayed, but because this question is about fidelity of interpretation, the contract was always going to leave at least one party vulnerable to the creative decisions of the other.

— Rebecca Tushnet, professor of First Amendment law, Harvard Law School

Does it matter that Sorkin is a known quantity?

If the parties included an express right of approval for the playwright, why did they not similarly include an express right of approval for the script? Further, by approving Aaron Sorkin as the playwright, did Harper Lee expect that the script would include Sorkin’s unique voice?

— Jordan Greenberger, intellectual property lawyer

The estate’s reading of the contract to give it extensive control over the script is perplexing because one would wonder why a playwright of the stature the estate seeks would agree to the constraints the estate says the agreement imposes. Exercising its absolute right to approve the selection of the playwright, the estate approved Aaron Sorkin; the estate has now identified numerous alleged departures from the novel in the way the characters in the play express themselves, but is it really surprising that Sorkin would filter the 1930s Alabama story through what the estate seems to perceive as an anachronistic contemporary New York sensibility?

— Jane Ginsburg, professor of literary and artistic property law, Columbia Law School

Who will win? There is no agreement among the lawyers we consulted about which side has the upper hand.

This is not a frivolous lawsuit, and barring settlement, Rudin and Sorkin should lose. According to facts set out by the Lee estate, the stage play in its current draft undeniably alters several of the central characters. (Beyond recognition? No. But that’s not the standard in the contract.) Though Rudin’s lawyer has argued to the contrary, the precise language of the contract is reasonably clear that if the stage play ultimately alters the characters, the deal is off.

— Barton Beebe, professor of intellectual property law, NYU School of Law

Between the contract language and the customs in the theater industry, I believe that the producers will be allowed to modernize and adapt “Mockingbird” to today’s generation and the play will not need to mimic the novel.

— Dave Rein, lawyer at Erickson Kernell IP and chairman of the Literary Works Committee, American Bar Association

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