‘Mockingbird’ Copyright Appeal Seeks Rare Arbitration Reversal

Harper Lee’s estate will ask the Seventh Circuit Friday for a rare reversal of an arbitration ruling, arguing that barring it from reclaiming non-Broadway stage rights to her novel “To Kill a Mockingbird” undercuts a core tenant of copyright law.

Dramatic Publishing LLC convinced an arbitrator that the “derivative works exception” to Lee’s termination rights lets it not only keep exploiting its stage adaptation of Lee’s book but also block others from doing the same. Lee’s estate, backed by the US government, argues the arbitrator’s logic—which was upheld by an Illinois district court—misapplies the exception, immunizes an entire subset of grants from termination, and bars any post-termination derivative scripts by anyone.

Termination rights allow creators who sold their works to nullify those grants decades later. They’re meant to let authors and artists reap the benefits of works signed away when their value wasn’t yet known or they had little bargaining power. Lee provided notice in 2011 that she would terminate Dramatic’s 1969 grant of exclusive rights to non-first class dramatizations effective in 2016.

At Friday’s oral argument in Chicago, Lee’s estate will urge the US Court of Appeals for the Seventh Circuit to echo a month-old Second Circuit decision flatly rejecting the arbitrator’s and Dramatic’s interpretation in another “Mockingbird” case. The New York-based panel affirmed that a producer could license Aaron Sorkin’s Broadway adaptation nationally because the derivative works exception preserved only Dramatic’s right to use its own script, not to block Lee or other licensees from exploiting their versions.

In 2015—under substantial pressure, according to the arbitrator—Lee entered an agreement that granted producer Scott Rudin’s company exclusive stage rights, aside from any rights retained by Dramatic. Lee died two months before the termination’s effective date, and Dramatic took Lee’s estate to arbitration in 2019, a year after Rubin’s production of Sorkin’s script debuted. Dramatic won a ruling that it retained the exclusive non-first-class rights that Lee purportedly sold Rudin.

In 2022, Rudin’s company sued Dramatic, arguing it didn’t participate in the arbitration and wasn’t bound by its erroneous finding. It won at the district court and on appeal.

Heavily quoting from the New York federal court “Mockingbird” decision that the Second Circuit later affirmed, Lee’s estate’s brief argued that terminations can end grants of derivative exclusivity. Using the arbitrator’s interpretation, “no rights reverted” to Lee upon her termination, the estate said. That would mean “there can never be an effective termination of an exclusive license for a derivative work.”

Dramatic argued the appeals court lacks a basis to even review the arbitrator’s ruling, which can happen only in limited circumstances.

On the merits, Dramatic rejected the notion that the arbitrator’s interpretation nullified termination rights, arguing instead that the derivative works exception preserves all derivative rights it was granted—including exclusivity.

“Preserving the right to use such pre-termination derivative works under all existing contractual terms does not make the original license or transfer ‘interminable,’” Dramatic said. “What remains is entirely dependent on the terms of the grant.”

Dramatic pointed to the US Supreme Court’s 1985 decision in Music Mills Inc. v. Snyder, which rejected the idea that derivative rights the publisher contracted away reverted along with the original copyright. Dramatic said it contradicts the government’s position that the exception preserves only the right to utilize a derivative, as that case also preserved the pre-existing division of royalties.

But the government’s brief said that case was about collecting royalties on artists’ own derivatives, not exclusive rights allowing them to block new ones. The right to create or authorize new derivatives necessarily returned to the author on termination—otherwise no one could create new derivative works, it said.

“Congress did not render the statutory right to termination self-defeating by transforming the derivative work ‘limitation’ into a sweeping exemption from termination,” the US Justice Department said.

Maxson Mago & Macaulay LLP and TottisLaw represent Dramatic. Bradley Arant Boult Cummings LLP represents the estate.

The case is Dramatic Publishing Co. v. Estate of Nelle Harper Lee, 7th Cir., No. 23-01309.