Case 1:22-cv-10147 Document 1 Filed 11/30/22 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`ATTICUS LIMITED LIABILITY COMPANY,
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`Case No.:
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`COMPLAINT
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`Plaintiff,
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`-against-
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`THE DRAMATIC PUBLISHING COMPANY,
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`Defendant,
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`and
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`AARON SORKIN,
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` Involuntary Party/Nominal Defendant.
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`Plaintiff Atticus Limited Liability Company (“Atticus”), by and through its counsel Loeb
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`& Loeb LLP, as and for its Complaint against Defendant Dramatic Publishing Company (“DPC”)
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`and Involuntary Party/Nominal Defendant Aaron Sorkin (“Sorkin”), alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`Atticus and Aaron Sorkin are, respectively, the production company and playwright
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`responsible for the Broadway adaptation of To Kill a Mockingbird, one of the highest-grossing
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`plays in Broadway history (the “Sorkin Play”), based on the Harper Lee novel that was recently
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`voted in a New York Times survey to be the best book of the past 125 years and has for decades
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`been required reading for virtually every student in the United States. This action arises out of
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`DPC’s erroneous claim that the acclaimed Aaron Sorkin adaptation cannot be staged by any
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`regional, local or community theaters, colleges, high schools, churches, clubs or any other amateur
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`groups anywhere in the United States, including performances via a planned non-Equity tour that
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`will bring the Sorkin Play to theaters across the country.
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`22886021
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`Case 1:22-cv-10147 Document 1 Filed 11/30/22 Page 2 of 14
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`2.
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`DPC’s claim is based upon its copyright ownership to a prior stage adaptation of
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`the novel written by its then-President Christopher Sergel (the “Sergel Play”), and a 1969 grant by
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`Harper Lee that conferred DPC with exclusive rights to stage so-called “stock” and “amateur”
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`productions of the novel. In April 2011, Ms. Lee, through her counsel, served a notice pursuant
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`to the Copyright Act’s termination provision (17 U.S.C. § 304(c)), unequivocally terminating
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`DPC’s exclusive rights to stage such productions as of April 2016, subject to DPC’s continuing
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`nonexclusive rights to stage and license the Sergel Play. Thereafter, Ms. Lee granted a license to
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`Atticus’s predecessor-in-interest to create and present, among other types of performances, stock
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`and amateur productions of a new adaptation of the novel—i.e., the Sorkin Play.
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`3.
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`Accordingly, amateur organizations in the United States are now able to obtain
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`licenses for and stage productions of both the Sorkin Play and the Sergel Play. DPC contends
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`otherwise, based on a reading of the Copyright Act’s termination provision that defies all logic
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`(and the English language), but that a single arbitrator in a separate proceeding has held to be
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`reflective of Congress’s intent: that exclusive grants of copyright interests are interminable. That
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`is obviously wrong. See 17 U.S.C. § 304(c) (“the exclusive or nonexclusive grant of a transfer or
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`license of the renewal copyright or any right under it, executed before January 1, 1978, … is subject
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`to termination under the following conditions …”). Indeed, in the 40-plus years since authors’
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`termination rights were enshrined in the Copyright Act of 1976, no court has ever held—or even
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`implied—that an exclusive license lasts in perpetuity following a valid termination.
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`4.
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`Whatever the effect of this erroneous ruling as between the actual parties to the
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`arbitration—DPC and the Estate of Harper Lee—it has no relevance to Atticus or Sorkin, neither
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`of whom were parties thereto, and both of whom acquired their rights to write and produce the
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`Sorkin Play years before the erroneous ruling was issued. Pursuant to these rights, and by
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`operation of U.S. copyright law, regional and community theaters, as well as countless high
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`schools and colleges, have the ability to license and perform the Sorkin Play. DPC’s position—
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`based on a complete misreading of Copyright Act by a single arbitrator in a private arbitration—
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`would deprive all of these entities of that opportunity, despite none of them having been parties to
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`the arbitration either, and limit the pool of theatergoers able to enjoy the Sorkin Play to only those
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`fortunate enough to see it on Broadway, the West End or in other so-called “first-class”
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`productions.
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`5.
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`DPC’s position—that it continues to maintain “worldwide exclusive rights to all
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`non-first-class theater or stage rights in To Kill a Mockingbird”1 (emphasis added)—has
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`necessitated this action, seeking declaratory judgment that Atticus and Sorkin have the right, along
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`with DPC, to stage and license their respective adaptations of the cherished Harper Lee novel in
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`regional and local theaters in the United States.
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`THE PARTIES
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`6.
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`Plaintiff Atticus Limited Liability Company is a New York limited liability
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`company with its principal place of business in New York, New York.
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`7.
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`Upon information and belief, Defendant Dramatic Publishing Company is an
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`Illinois corporation with its principal place of business in Woodstock, Illinois.
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`8.
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`Involuntary Party/Nominal Defendant Aaron Sorkin is a natural person who, upon
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`information and belief, resides in Los Angeles, California. By virtue of Sorkin’s copyright
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`ownership of the Sorkin Play, Sorkin is a necessary party to this action, and has been joined in this
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`action pursuant to Fed. R. Civ. P. 19(a) following due request that he join this action as a plaintiff.
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`1 See https://www.dramaticpublishing.com/updated-to-kill-a-mockingbird-statement.
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`JURISDICTION AND VENUE
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`9.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and
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`1338(a), as this case arises under the Copyright Act, 17 U.S.C. § 101 et seq., and the declaratory
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`relief sought herein requires an interpretation of the Copyright Act.
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`10.
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`The Court has personal jurisdiction over DPC and Sorkin because, among other
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`things, each of them may be found in New York, does systematic and continuous business in New
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`York and/or has performed acts directed at New York which give rise to this action, including,
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`without limitation, staging, licensing and/or attempting to stage or license the Sergel Play and the
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`Sorkin Play, respectively, for production in New York.
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`11.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and 1400(a).
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`FACTUAL ALLEGATIONS
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`THE TERMINATION OF DPC’S EXCLUSIVE LICENSE
`PURSUANT TO THE COPYRIGHT ACT’S PLAIN TERMS
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`Since its publication in 1960, Harper Lee’s To Kill a Mockingbird (the “Novel”)—
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`12.
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`the winner of the Pulitzer Prize in 1961—has become one of the most cherished novels in
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`American literature. So widely read and appreciated is the Novel that, in a December 2021 New
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`York Times survey of its readers (https://www.nytimes.com/interactive/2021/12/28/books/best-
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`book-winners.html), it was voted the “Best Book of the Past 125 Years” over other acclaimed
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`novels such as J.R.R. Tolkien’s Fellowship of the Ring, George Orwell’s 1984, and Toni
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`Morrison’s Beloved.
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`13.
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`In 1969, Lee entered into an agreement with DPC (the “DPC Grant”) granting DPC
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`exclusive “amateur acting rights” in the Novel, defined in relevant part as “all performance rights
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`for little theatres, community theatres and/or drama associations, colleges, universities, high school
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`and other school groups, churches, clubs and other amateur organizations or groups therein or
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`connected therewith, together with all stock, repertoire, lyceum and Chautauqua performances
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`whether any or all of the abovementioned performances are given by paid and/or unpaid actors,
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`but shall not include Broadway production rights nor first-class professional road and/or first-class
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`touring production rights” (collectively, “Stock and Amateur Productions”).
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`14.
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`DPC subsequently commissioned the Sergel Play. In the decades since it was
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`written, DPC has licensed the Sergel Play for Stock and Amateur Productions throughout the
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`United States, including in theaters throughout New York.
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`15.
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`In April 2011, Lee served a notice of termination on DPC pursuant to Section
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`304(c) of the Copyright Act, 17 U.S.C. § 304(c).
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`16.
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`This provision of the Copyright Act confers authors and their heirs with the right
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`to terminate any “exclusive or nonexclusive” copyright grant that, like the 1969 DPC Grant, was
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`executed before 1978. An author’s right of termination is absolute and inalienable, and “may be
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`effected notwithstanding any agreement to the contrary.” 17 U.S.C. § 304(c)(5). In other words,
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`as courts in this and every other Circuit have explained, “the clear Congressional purpose behind
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`§ 304(c) was to prevent authors from waiving their termination right by contract.” Marvel
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`Characters v. Simon, 310 F.3d 280, 290 (2d Cir. 2002).
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`17.
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`And, in light of its purpose to allow authors to recapture copyright ownership in
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`their works, this termination right of course applies to any “transfer of copyright ownership,”
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`including exclusive licenses like the DPC Grant. See 17 U.S.C. § 101 (“A ‘transfer of copyright
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`ownership’ is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or
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`hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether
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`or not it is limited in time or place of effect, but not including a nonexclusive license.”).
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`18.
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`Notwithstanding the termination of the DPC Grant, the Copyright Act permits DPC
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`to continue to exploit the Sergel Play for the purposes set forth in the DPC Grant, pursuant to the
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`so-called “Derivative Works Exception.” See 17 U.S.C. § 304(c)(6)(A) (“a derivative work
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`prepared under authority of the grant [of a license] before its termination may continue to be
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`utilized under the terms of the grant after its termination”).
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`19.
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`However, the transfer of copyright ownership effected by the DPC Grant—i.e. the
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`exclusive right to create and perform Stock and Amateur Productions adapted from the Novel—
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`was unquestionably terminated as a matter of unambiguous federal copyright law. The Copyright
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`Office agrees. See https://www.copyright.gov/recordation/termination.html (“A derivative work
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`prepared pursuant to a grant before its termination may continue to be utilized under the terms of
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`the grant after its termination, but the post-termination rights … to prepare new derivative works
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`revert to the authors or their heirs”).
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`ATTICUS’S AND SORKIN’S RIGHTS TO THE SORKIN PLAY
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`By agreement dated June 29, 2015 (the “No Ice Grant”), Harper Lee granted to No
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`20.
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`Ice, Inc. (f/k/a Rudinplay, Inc.) the exclusive stage rights to the Novel for purposes of creating a
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`new derivative stage adaptation.
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`21.
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`In light of DPC’s continuing post-termination right to exploit the Sergel Play in
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`Stock and Amateur Productions, however, the No Ice Grant provided that the rights to Stock and
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`Amateur Productions conferred thereby would be nonexclusive:
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`Producer acknowledges that pursuant to an agreement (the “Prior Agreement”)
`dated June 26, 1969 between Author and The Dramatic Publishing Company
`(“DPC”), Author granted DPC the right to create a play (the “Prior Adaptation”)
`based on the Novel, and to exploit the amateur acting rights (as defined in the Prior
`Agreement) in the Prior Adaptation. Author represents that it has terminated the
`Prior Agreement effective April 26, 2016. Producer acknowledges that,
`notwithstanding such termination, the amateur acting rights to the Prior Adaptation
`can continue to be exploited following such termination under the terms of the Prior
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`Agreement on a non-exclusive basis in the United States, and on an exclusive basis
`elsewhere. The rights granted hereunder shall be subject to the rights granted under
`the Prior Agreement, as limited by such termination.
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`22.
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`The consideration paid by No Ice was thus expressly given in exchange for the right
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`to exploit, on a nonexclusive basis, the stage rights to Stock and Amateur Productions that had
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`been the subject of the DPC Grant, together with the other exclusive stage rights set forth in the
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`No Ice Grant.
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`23.
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`No Ice thereafter engaged Sorkin, one of the leading theater, film and television
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`writers in America, as the playwright for this new derivative stage adaptation of the Novel. Sorkin
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`is well-known and widely acclaimed for his work, having won multiple Academy Awards, Golden
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`Globe Awards, Emmy Awards and other recognitions for critically and commercially successful
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`works like The Social Network, Molly’s Game, Steve Jobs, Moneyball, The American President,
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`A Few Good Men and The West Wing.
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`24.
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`Accordingly, No Ice and Sorkin entered into an agreement dated January 19, 2017,
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`consisting of the Approved Production Contract for Plays (a form agreement promulgated by the
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`Dramatists Guild of America) and a rider amending and supplementing its standard terms
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`(collectively, the “Sorkin Agreement”).
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`25.
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`As set forth in the Sorkin Agreement, Sorkin is the “sole and exclusive Author,
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`owner and the copyright proprietor of the [Sorkin] Play and of all rights of every kind or nature
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`therein.”
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`26.
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`Pursuant to the Sorkin Agreement, certain copyright interests with respect to the
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`Sorkin Play were granted to No Ice, including the exclusive right to produce and present the
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`following categories of productions:
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`•
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`“First Class Performances,” defined to include “live stage productions of the
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`[Sorkin] Play on the speaking stage, … under Producer’s own management, in a
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`regular evening bill in a first class theatre in a first class manner, with a first class
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`cast and a first class director,” as well as “first class ‘bus and truck’ tours of the
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`Play”;
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`•
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`“Off-Broadway Performances,” defined as “performances of the [Sorkin] Play in
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`theatres which are classified as Off-Broadway pursuant to the Actors Equity
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`Association Agreement Governing Employment Off-Broadway, as that agreement
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`may be amended from time to time”;2 and
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`•
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`“Second Class Performances,” defined as “all performances of the Play other than
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`Stock, Amateur and Ancillary Performances . . . , Off-Broadway Performances . . .
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`, and First Class Performances and Developmental (i.e., ‘workshop’) Productions,”
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`as well as “second class ‘bus and truck’ tours of the [Sorkin] Play, including
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`without limitation non-Equity tours” (emphasis added).
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`27.
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`No Ice, in its capacity as producer, is further entitled to financial participations from
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`the exploitation of “Subsidiary Rights,” defined to include “Stock Performances,” “Amateur
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`Performances,” and “Ancillary Performances.” In that regard, Sorkin is obligated to “use best
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`efforts to exploit the [Sorkin] Play for [such] Subsidiary Rights purposes.”
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`28.
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`By agreement dated December 12, 2018, No Ice assigned all of the foregoing rights
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`to Atticus, including all relevant rights previously held by No Ice pursuant to the No Ice Grant and
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`the Sorkin Agreement. Accordingly, Atticus holds the exclusive rights to produce, inter alia,
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`Equity and non-Equity tours, as well as financial participations in Stock, Amateur and Ancillary
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`Performances that Sorkin is obligated to use best efforts to exploit.
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`2 Actors’ Equity Association is the labor union representing American actors and stage
`managers in the theater industry. See https://www.actorsequity.org/.
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`29.
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`The production of the Sorkin Play premiered at the Shubert Theatre on Broadway
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`in December 2018. In addition to lending Sorkin’s unique voice throughout his adaptation of the
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`Novel, the Sorkin Play incorporates various structural and narrative changes, including, for
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`example, introducing the climactic trial of Tom Robinson at the outset of the story and returning
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`to it at intervals throughout the play; offering narration through three disparate characters rather
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`than through Scout alone; and giving Tom and Calpurnia, the Novel’s two primary Black
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`characters, more prominent roles and greater agency. In short, other than elements derived from
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`the underlying Novel, the Sorkin Play is markedly different from the Sergel Play, which hews far
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`more closely to the structure of the Novel.
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`30.
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`The Sorkin Play received near-universal acclaim following its premiere. The New
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`York Times, for example, called Sorkin’s changes “effective, exhilarating even,” and the Los
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`Angeles Times lauded the Sorkin Play as “provocatively fresh.”3 The production was so successful
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`that it garnered nine Tony Award nominations (and one win), and, after mere months, became one
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`of the highest-grossing plays in Broadway history.
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`31.
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`The success of the Broadway production has spawned numerous opportunities to
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`exploit the Sorkin Play, including, for example, a West End production currently running at
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`London’s famed Gielgud Theatre, as well as tours and sit-down productions throughout the United
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`States. Among these are a planned non-Equity tour that will visit a multitude of theaters
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`throughout the country and, separately, an offer by Samuel French, a Concord Theatricals
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`Company, to license the stock and amateur rights so as to allow an untold number of other local
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`3 See https://www.nytimes.com/2018/12/13/theater/to-kill-a-mockingbird-review-jeff-
`daniels.html;
`https://www.latimes.com/entertainment/arts/theater/reviews/la-et-cm-to-kill-
`mockingbird-broadway-review-20181213-story.html.
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`and community theaters, colleges, high schools, churches and drama clubs to stage their own
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`performances of the acclaimed Aaron Sorkin adaptation.
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`DPC’S RELIANCE ON AN ARBITRAL AWARD TO
`WRONGLY CLAIM EXCLUSIVE RIGHTS TO PRESENT
`NON-FIRST CLASS STAGE PRODUCTIONS OF THE NOVEL
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`On or about February 3, 2022, DPC issued a press release claiming that, pursuant
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`32.
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`to an award issued in a single-person arbitration against the Estate of Harper Lee, DPC “has
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`worldwide exclusive rights to all non-first-class theater or stage rights in To Kill a Mockingbird.”
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`(See https://www.dramaticpublishing.com/updated-to-kill-a-mockingbird-statement).
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` This
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`pronouncement is accompanied by a link to a “Final Award of Arbitrator,” dated January 28, 2022,
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`and attaching an “Interim Award of Arbitrator (Corrected),” dated October 21, 2021.
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`33.
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`According to this “Interim Award,” notwithstanding Harper Lee’s termination of
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`the DPC Grant, the Arbitrator ruled:
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`•
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`“The terms of the original grant in the 1969 Agreement [i.e., the DPC
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`Grant] survive termination. Under the 1969 Agreement, Dramatic has
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`worldwide exclusive rights to all non-first-class theater or stage rights
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`in To Kill a Mockingbird (‘non-first-class rights’) and has all rights under
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`the Agreement that provide for Dramatic to enjoy the full exercise of all
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`non-first-class theater or stage rights.” (Interim Award at 6, ¶ 10) (emphasis
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`added).
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`•
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`“The [Harper Lee] Estate … shall be enjoined from (i) licensing or granting
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`any third party, including, but not limited to, Scott Rudin (‘Rudin’) and
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`Rudinplay, Inc., Atticus LLC, any other entity owned, controlled or
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`operated by Scott Rudin, and any entity assigned or licensed rights from
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`Rudinplay (collectively referred to herein as ‘Rudinplay Affiliates’), any
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`non-first-class stage rights in To Kill a Mockingbird; [and] (iii)
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`encouraging, inducing, assisting, approving or consenting to Rudin’s or
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`Rudinplay Affiliates’ wrongful licensing of Rudinplay’s version of To Kill
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`a Mockingbird for any non-first-class production throughout the world ….”
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`(Id. at 6, ¶ 13).
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`34.
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`In sum, the Interim Award purported to rule that authors such as Harper Lee have
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`no right to terminate grants of exclusive rights under the Copyright Act, and went so far as to
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`actively enjoin Harper Lee’s heirs from exploiting the rights she had recaptured by her April 2011
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`termination notice. This of course is contrary to the plain and unambiguous language of the
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`Copyright Act’s termination provisions, its fundamental purpose in permitting authors to terminate
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`exclusive grants, and uniform decisional authority across all federal jurisdictions giving effect to
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`its purpose and language.
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`35.
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`The Interim Award further purported to adjudicate the rights of Atticus, its
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`predecessor-in-interest No Ice, and No Ice’s President Scott Rudin (collectively referred to as
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`“Rudin”)—none of whom were parties to the arbitration—concluding that “Rudin has no stock
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`and amateur rights for live theatrical productions of [To Kill a Mockingbird].”
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`36.
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`This is directly at odds with the No Ice Grant, in which Harper Lee, years before
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`the issuance of this arbitral award, represented that DPC’s rights to exploit the Sergel Play for
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`Stock and Amateur Productions was on a “non-exclusive basis” only, and expressly granted No
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`Ice all other stage rights to exploit a dramatic adaptation of the Novel (i.e., the Sorkin Play)—
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`including for Stock and Amateur Productions.
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`37.
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`DPC’s reliance on this arbitral award, and its publicly stated intent to exploit and
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`enforce these purportedly “exclusive” rights, has threatened and jeopardized Atticus’s ability to
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`exploit its production rights to the Sorkin Play, including for Second-Class Performances (as
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`defined in the Sorkin Agreement) like the non-Equity tour that will bring the Sorkin Play to theaters
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`around the country.
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`38.
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`It has also precluded the consummation of the agreement with Samuel French to
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`present the Sorkin Play to a much larger swath of local, community, university and high school
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`theatergoers to whom DPC wrongly claims to have the sole right to present a dramatic adaption of
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`one of the most cherished works of American literature.
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`FIRST CLAIM
`(Declaratory Judgment)
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`39.
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`Atticus incorporates by reference each of the allegations set forth in the preceding
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`paragraphs of this Complaint as though set forth fully herein.
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`40.
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`Pursuant to the Sorkin Agreement, Atticus and/or Sorkin hold the exclusive right
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`to present Second-Class, Stock, Amateur and Ancillary Performances (as those terms are defined
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`in the Sorkin Agreement) of the Sorkin Play derived from the Novel.
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`41.
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`DPC claims that it holds the “exclusive” rights to present all “non-first-class”
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`productions derived from the Novel, pursuant to the arbitral award issued in a proceeding to which
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`neither Atticus nor Sorkin were party.
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`42.
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`An actual and justiciable controversy has arisen and now exists between Atticus
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`and Sorkin, on the one hand, and DPC, on the other hand, regarding whether DPC owns exclusive
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`rights to present “non-first class” productions of any derivative work based on the Novel or, as
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`Atticus contends, that Atticus and Sorkin have sufficient rights to present such productions of the
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`Sorkin Play, for which Atticus has no adequate remedy at law.
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`43.
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`As a result of the foregoing, a declaration is necessary and appropriate because a
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`substantial controversy exists between the parties having adverse legal interests as to their
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`respective rights to derivative stage adaptations of the Novel—namely, the Sergel Play and the
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`Sorkin Play. The dispute is of sufficient immediacy and reality to warrant the issuance of a
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`declaratory judgment.
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`44.
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`Declaratory judgment in this action would serve a useful purpose in clarifying and
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`settling the respective rights and obligations of the parties and would finalize the controversy by
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`according Atticus relief from uncertainty and insecurity with respect to non-first class productions
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`of the Sorkin Play.
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`45.
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`Atticus thus requests declaratory judgment that: (1) Atticus and Sorkin have the
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`right, in relation to DPC, to present any and all Second-Class, Stock, Amateur and Ancillary
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`Performances (as those terms are defined in the Sorkin Agreement) of the Sorkin Play in the United
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`States; and (2) any such productions of the Sorkin Play have not infringed and could not infringe
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`any purported copyright interest DPC claims to hold to the Novel.
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`DEMAND FOR A JURY TRIAL
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`Plaintiff hereby requests a jury trial upon the claims and matters so triable.
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`PRAYER FOR RELIEF
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`WHEREFORE, Atticus respectfully requests judgment as follows:
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`a)
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`Adjudging and declaring that: (1) Atticus and Sorkin have the right, in relation to
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`DPC, to present any and all Second-Class, Stock, Amateur and Ancillary
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`Performances (as those terms are defined in the Sorkin Agreement) of the Sorkin
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`Play in the United States; and (2) any such productions of the Sorkin Play have not
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`Case 1:22-cv-10147 Document 1 Filed 11/30/22 Page 14 of 14
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`infringed and could not infringe any purported copyright interest DPC claims to
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`hold to the Novel.
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`b)
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`c)
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`Awarding Atticus its costs and reasonable attorneys’ fees; and
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`Awarding such other and further relief as this Court deems just and proper.
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`Dated: November 30, 2022
`New York, New York
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`LOEB & LOEB LLP
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`.
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`By:
`/s/ Jonathan Zavin
`Jonathan Zavin
`Wook Hwang
`Frank D. D’Angelo
`345 Park Avenue
`New York, New York 10154
`Tel: (212) 407-4000
`Fax: (212) 407-4990
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`Attorneys for Atticus Limited Liability Company
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