Curtain Up?: Contract Suit and Settlement Precede Broadway Premiere of To Kill a Mockingbird

Rehearsals are underway for the first-ever Broadway production of Harper Lee’s To Kill a Mockingbird, which is set to begin preview performances on November 1, and open officially on December 13 at the Shubert Theater on 44th Street. The play, adapted for the stage by Oscar-winner screenwriter Aaron Sorkin from Lee’s 1960 Pulitzer-winning classic novel, is directed by Tony winner Bartlett Sher and features a starry cast, including Jeff Daniels as Atticus Finch.^[1]

The legal road to Mockingbird’s opening night, though, has been rocky.

Theatrical producer Scott Rudin first acquired the stage adaptation rights to Mockingbird in June 2015.^[2] That fall, Rudin procured Sorkin to write the script, to Lee’s approval.^[3] In the initial contract between Lee and Rudin, the language regarding approvals between Lee (“Author”) and Sorkin (“Playwright”) read as follows:

“Author shall have the absolute and unconditional right to approve the Playwright for the Play. [. . .] Author shall . . . 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.”^[4]

However, on February 19, 2016, mere months after approving Sorkin as the playwright, Lee died.^[5] Her death effectively left the contractual rights of the Author during the adaptation process—including those of approval—to Lee’s estate.

In September 2017, a Broadway production of Mockingbird was announced to the public, as Rudin set the opening date on Broadway on December 13, 2018.^[6] At the time, at least publicly, the adaptation process seemed to be running smoothly.

On February 16, 2018, Tonja B. Carter, executor of Lee’s estate, met with Rudin to discuss issues she had with the script of the play, namely the alterations of several characters—such as Atticus, Calpurnia, Jem, and Scout—and its “depiction of 1930s small-town Alabama.”^[7] The conversation was reportedly “heated.”^[8]

On March 13, 2018, less than a month later, the estate of Lee filed for a declaratory judgment against Rudin.^[9] In a Complaint filed in the U.S. District Court for the Southern District of Alabama, Lee’s estate cited the 2015 contract in arguing that the play “derogates and departs from the spirit of the Novel.”^[10] In response, a lawyer for Rudin said that it was “never expected that the play would merely be the recitation of the novel from the stage.”^[11]

The issue at hand was centrally rooted in contract, stemming from the language in the section on approvals. It is clear in the 2015 contract that Lee had the “absolute and unconditional” ability to approve the adaptation’s playwright (which she did when Rudin selected Sorkin in the fall of 2015).^[12] However, the provision that follows is less precise in laying out her rights of approval. The contract states that Rudin and Sorkin were not to allow their Mockingbird “derogate or depart” from the novel’s spirit “in any manner.”^[13] The issue at hand is what constitutes the “spirit” of a novel? A judge overseeing this case would certainly aim to find the intentions of the parties at the time of contract formation.

Lee’s death in 2016 further complicated the approval process. The 2015 contract provided the following language in the event of creative differences: “If the Author believes the Play does so derogate or depart, or alter characters, Producer will be given notice thereof as soon as possible, and will be afforded an opportunity to discuss with Owner resolution of any such concerns.”^[14]

While it is clear that Lee was given total discretion in the selection of a playwright, the contract does not suggest that she would have prevailed in moments of creative difference if she believed Sorkin’s words “departed from the novel’s spirit.” As Harvard Law professor Rebecca Tushnet puts it, the contract “basically says that if there’s a problem, the parties agree to hear each other out.”^[15] Consequently, the contract essentially gave Lee the role of consultant to the script—not its final arbiter. This provision of the contract shows that Lee’s estate may have over-estimated its creative discretion when deciding to sue Rudin for breach of contract. Rudin was particularly astute to make “notice” and “discussion” the consequence in the event of creative dispute.

In fact, Rudin was so confident that Sorkin’s adaptation was earnestly faithful that on April 16, 2018, he offered to stage a single performance of Sorkin’s script before a judge in an actual courthouse.^[16] This offer came as Rudin countersued Lee’s estate and its executor, Carter, in New York federal court, saying that their suit in Alabama threatened the future of the production, capitalized at $7 million.^[17] Rudin sought at least $10 million in damages.^[18]

The following month, Judge William H. Steele of the U.S. District Court for the Southern District of Alabama ruled that he would not exercise his authority to hear the case brought by Carter and Lee’s estate.^[19] Instead, Steele granted Rudin’s motion to transfer venue to the Southern District of New York, pursuant to Fed. R. Civ. P. 12(b)(2), citing “private-interest factors” and “equitable concerns regarding the timing and circumstances of Carter’s filing of her Complaint in this Forum.”^[20] Judge Analisa Torres then set a trial date of June 4 in the Southern District of New York.^[21]

Three days after Steele’s ruling (which was less than favorable for Carter and Lee’s estate), the litigation concluded. On May 10, 2018, both parties announced that they had “amicably settled,”^[22] placing the first commercial theatrical production of Mockingbird back on track. The parties’ quick journey through litigation to settlement ultimately speaks to the commitment of courts to uphold timely private financial interests, as well as to the paramount importance of good, precise drafting, particularly in entertainment matters.