BY:Michael I. Rudell and Neil J. Rosini
Originally published in the Entertainment Law column in the New York Law Journal on April 13, 2018.
Authors who license others to adapt their stories into stage plays often must cede artistic decisions that give shape to the new works. Some authors, however, have sufficient bargaining power to impose at least some restrictions and retain a measure of approval — or at least a right of consultation – over the content of the play. In those instances, should artistic visions subsequently clash, the contractual clauses that govern the extent of the author’s creative control and her remedies in the event of a breach are critical.
The point is illustrated by the action filed last month in U.S. District Court for the Southern District of Alabama concerning a live stage adaptation by Aaron Sorkin of the classic American novel, To Kill a Mockingbird. The plaintiff is Tonja B. Carter as personal representative of the Estate of Nelle Harper Lee, the novel’s author, who died in February, 2016. The defendant is Rudinplay, Inc., producer of the play and a major force on Broadway. With opening night scheduled for December, the Estate accuses the defendant of ignoring restrictions in a 2015 agreement that concern portrayal of novel’s central character, Atticus Finch, and other content.
The result of the suit is likely to hinge on interpretation of a clause in the agreement that both gives the author a right of consultation respecting the content of the script and requires that the play remain consistent with the spirit of the novel and not alter its characters. If the parties are unable to settle and the Estate obtains the declaratory judgment it seeks, the next question is what steps will the Estate take to act on it?
The Rights Agreement
The 2015 agreement between Harper Lee and Rudinplay granted the latter a sole and exclusive option to acquire worldwide rights (subject to some minor limitations) “to create, develop, produce and present a live stage play” that is “based on and using” the novel. The option was subject to the author’s right to approve the playwright, which the agreement characterized as “absolute and unconditional” and “within her sole and unfettered discretion.” (Aaron Sorkin was in fact approved.)
The author’s further rights regarding the content of the script, including “to review the script … and to make comments,” were more ambiguous. The contractual language on which the litigation most likely will turn is this: “[the Author’s comments] 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.” (We will refer to that provision as the “Prohibition.”) Further, if the Author believes that the play violates the Prohibition, “the 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.” The contract also provides that matters concerning the agreement and its “validity, performance or breach” will be governed by New York law.
As alleged in the Estate’s complaint, the Atticus of the novel is a small-town lawyer in Alabama who not only agrees to represent a “poor black man accused of raping a white woman” in a criminal trial — which is courageous enough given the unpopularity in his community of his cause — but also “[stands] up for his client in the face of a lynch mob, and [provides] zealous advocacy at trial” knowing that the jury likely would convict. He is portrayed in the novel at all times as “a model of wisdom [and] integrity.”
The Estate alleges that the play violates the Prohibition in its depiction not only of Atticus and other characters but also the “small Alabama town in the 1930s” where the novel is set and the legal proceedings too. To show Sorkin’s intention to deviate from the novel, it quotes extensively from interviews he gave. For example, Sorkin allegedly said that the main character “becomes Atticus Finch by the end of the play” after starting out “in denial” about the racism of his “neighbors, friends, and the world around him,” and as “an apologist for these people.” Sorkin also allegedly commented that in the play, Atticus moves from “naivete to righteousness” in a manner tied to “today’s social climate” all the while maintaining a “running argument” with the housekeeper, who has a much bigger role in the play than in the novel. And in another article, Sorkin allegedly observed that simply taking the scenes that were written in the novel and dramatizing them “doesn’t work at all.”
Both the Estate’s literary agent and its legal representative allegedly expressed their concerns about the play’s content on several occasions to the producer, Scott Rudin,. More than once, Rudin allegedly offered reassurance such as “the text would evolve,” and no one was “looking to make any wholesale changes … but simply to dramatize the book.” He also allegedly said the Estate’s concerns would be “considered” without committing to make substantial revisions. After Carter repeated certain objections in a March, 2018 letter, the producer’s lawyer denied that the play violated the Prohibition in a written response. He also asserted that if the author thought otherwise, her remedy was to “discuss with [the producer, Rudinplay] … resolutions of any such concerns” and the author was not “the final arbiter” of what conformed to the contractual standard. And in any event, according to the lawyer, it was too late to make the extensive changes requested. Four days later, the Estate filed its complaint.
Content Control and Remedies
The right of a well-established author, like Harper Lee, to approve the playwright of a play (and if a musical, the book writer, the composer, and the lyricist) is not unusual, and neither would be the right to approve the director. But to grant even a well-established author approval rights over content, or, as a fallback, meaningful consultation rights, is far more unusual. One reason is that an established playwright (or in the case of a musical, the composer, book writer and lyricist) in almost all instances would object to it. If the author of an underlying work has any approval right over content, it ordinarily is limited to a treatment of the play written before the script is drafted, and then material deviations from the treatment.
Compared to her right to approve the playwright, which presents a condition precedent to the option, the effect of Lee’s right “to review the script … and to make comments” is vague. Powerful underlying rights holders — especially motion picture studios that own the rights to a motion picture on which a play will be based — sometimes bargain for approval over the draft of the script and even approval over a workshop reading of the script. The risk to the producer can be significant if the studio does not approve of the work and revisions cannot be made to satisfy it.
When content-related provisions are included in an agreement, they should be drafted as specifically as possible to enable a simple determination of whether or not a breach has occurred. In the Mockingbird case, it remains to be seen whether the Prohibition was absolute, as opposed to a subject for discussion, and if so what the phrase “spirit of the novel” signifies. Certainly it didn’t require a transcription from the page; to maintain “spirit” is a different requirement and far more ambiguous. At a high level of abstraction, does “spirit” refer to the theme or the emotional tone of the work, or both? Or at a more concrete level, is it about the finer details of plot and character? Either way, a playwright has numerous ways to modify and adapt a story while retaining its “spirit.”
Further, what does it mean not to “alter” characters in the context of an adaptation? If the same “spirit” is retained, once the meaning is nailed down, does adding a story arc that takes the character to the same end place amount to an “alteration” of the character? On the other hand, if Rudinplay was only required to consider the author’s concerns in good faith, why then was the producer as opposed to the author “afforded an opportunity to discuss … resolutions”? And if the producer was intended to have the last word in a disagreement over any content, why didn’t the agreement so provide?
The Estate’s complaint does not seek an injunction. Instead, it demands declaratory relief confirming the alleged variances and establishing that the producer does not have “final authority to determine whether the Play complies” with the Prohibition. It also demands an award of attorney’s fees (as provided in the agreement), an award of costs, and “additional relief as the Court may deem equitable and just.”
If the Estate succeeds in obtaining a declaratory judgement, will it seek injunctive relief? Unlike most motion picture agreements, the agreement in issue does not include a waiver by the grantor of equitable remedies. Without injunctive relief, what remedy would protect the Estate from loss? How would it prove the damages it would sustain if the play opens with content to which it objects?
This is a complex area but one that is important to authors concerned about the integrity of their works. Clearly, Harper Lee tried to preserve the essence of her novel when she entered into an agreement with Rudinplay. No matter which side wins, the Estate’s suit will determine whether that goal was achieved.