Atticus Corp. v. Carter
| Decision Date | 19 August 2022 |
| Docket Number | CIVIL ACTION 1:22-00059-KD-MU |
| Parties | ATTICUS CORPORATION, et al., Petitioners, v. TONJA B. CARTER, as Personal Representative of the ESTATE OF NELLE HARPER LEE, and HARPER LEE, LLC, a limited liability company, Respondents. |
| Court | U.S. District Court — Southern District of Alabama |
This matter is before the Court on a Petition to Confirm Arbitration Award under the Federal Arbitration Act 9 U.S.C. §§ 1-16, filed by Atticus Corporation Hannah C. Pakula and Boardwalk Productions (Docs. 1, 6 (SEALED)); and the Response of Tonja B. Carter as Personal Representative of the Estate of Nelle Harper Lee and Harper Lee LLC (Doc. 15). The Petition is unopposed. (Doc. 15 at 2).
Petitioners Atticus Corporation (Atticus), Hannah C. Pakula (H. Pakula) and Boardwalk Productions (Boardwalk) seek an order from this Court under the Federal Arbitration Act, 9 U.S.C. § 9, to confirm the January 20, 2022 Final Arbitration Award upon the parties' consent, rendered in arbitration before the American Arbitration Association and its duly appointed Arbitrator Richard H. Silberberg, Esq. (Doc. 1-2), and entry of judgment thereon pursuant to 9 U.S.C. § 13. The Final Arbitration Award for which confirmation is sought involved the interpretation and application of the 1976 Copyright Act, 17 U.S.C. § 304(c)(6)(E), to grant certain rights in the late Nelle Harper Lee's literary works. (Doc. 1 at 3).
Petitioners are the successors to Robert Mulligan (Mulligan), Alan J. Pakula (A. Pakula) and Gregory Peck (Peck) (Creators/Producers), who together directed, produced, and/or starred in the December 1962 acclaimed motion picture “To Kill a Mockingbird” (the TKAM motion picture). (Id. at 4). Mulligan and Pakula agreed to produce the motion picture following negotiations with Nelle Harper Lee (Lee), author of the famous novel published in 1960 “To Kill a Mockingbird” (the TKAM novel) (collectively with the TKAM motion picture) as set out in an April 3, 1961 Motion Picture Option Agreement between Mulligan, Pakula, and Lee (the 1961 Agreement). (Id.; Doc. 1-1 (the 1961 Agreement)). Pursuant to the 1961 Agreement, Lee granted Mulligan and Pakula certain rights with regard to the TKAM novel and the TKAM motion picture, including certain rights regarding any TKAM sequel that Lee might write or publish. (Doc. 1 at 4).
On June 4, 2008, Lee executed and served on the Petitioners a “Notice of Termination of Transfer” that sought to exercise United States Copyright termination rights, pursuant to 17 U.S.C. § 304(c), with respect to the 1961 Agreement as amended (2008 Termination Notice). (Id. at 4). That same day, Lee executed a “Grant of Certain Literary Property Rights in Novel” to the Producers (2008 Grant). (Id. at 45). On July 14, 2015, Lee, through her publisher, published a novel entitled “Go Set A Watchman,” U.S. copyright registration number TX0008083672 (the GSAW novel), with Lee as the original copyright claimant, which features many of the characters and themes from TKAM later in life. (Doc. 1 at 5). Also on this date, Lee executed and served a second “Notice of Termination of Transfer” on the Producers that sought to terminate, pursuant to 17 U.S.C. § 304(c), the 1961 Agreement as amended (2015 Termination Notice). (Id.) On August 24, 2015, Lee submitted to the American Arbitration Association and served on the Producers a Demand for Arbitration designated Case No. 01 0004 7377 (Arbitration Proceeding), seeking a declaration that by reason of her 2015 Termination Notice, the Producers “do not own or otherwise possess any right to or interest in the TKAM Novel;” or alternatively, that any such rights would terminate in 2017. (Id.) Lee also sought a declaration that the Producers “do not own or otherwise possess any right to or interest in [Lee's] novel “Go Set a Watchman” (GSAW novel). (Id.) On October 7, 2015, the Producers submitted and served on Lee an Answer and Counterclaims in the Arbitration Proceeding.
(Id.) On November 17, 2015, Silberberg was appointed as the arbitrator. (Doc. 1-2). On February 19, 2016, Lee died, and her interests in TKAM, GSAW, and the Arbitration Proceeding passed to the Estate as Lee's successor-in-interest. (Id. at 6).
On February 29, 2016, Lee's Will was filed in the Probate Court of Monroe County, Alabama (Lee's Will) and a Probate proceeding was initiated (Probate Proceeding) by which Tonja B. Carter (Carter) was appointed as Personal Representative of Lee's estate. (Doc. 1 at 6). Carter is serving as the duly acting and qualified Personal Representative of Lee's Estate. (Id.)
Pursuant to Lee's Will, Section 6.2 defines “Literary Property” to include all rights, title, and interest in and to the TKAM and GSAW novels, and any and all other literary works and properties of any kind and nature written or created by Lee, whether alone or in collaboration with others. (Doc. 1 at 6). Article 7, paragraph (14) of Lee's Will provides that in the event any Literary Property is a part of Lee's probate estate, Carter is specifically authorized to create an LLC of which Lee's probate estate is the sole owner and to contribute any part (or all) of Lee's Literary Property to such LLC. (Id.) Pursuant to that authorization, Carter created Harper Lee, LLC on April 25, 2016, and contributed and assigned to the LLC Lee and the Estate's interests in the rights that are the subject of the Arbitration Proceeding. (Id.)
On June 18, 2018, arbitrator Silberberg issued a Partial Final Award in which he ruled that the 2008 Grant superseded and replaced the grants made by Lee to the Producers in the 1961 Agreement as amended, and that the 2008 Grant conveyed certain rights in TKAM to the Producers. (Id. at 7; Doc. 1-3). Further issues were outlined for continued proceedings if the Parties to the Arbitration Proceeding so desired. (Doc. 1 at 7). Following issuance of the Partial Final Award, the parties engaged in settlement negotiations, and eventually agreed to settle all claims submitted to the Arbitration Proceeding through a settlement agreement reached on December 23, 2021. (Id.) The Settlement Agreement and Mutual Release expressly provided that the Agreement itself, along with the earlier Partial Final Award, would constitute the Final Arbitration Award. (Id.; Doc. 1-4 at 6-22).
On January 20, 2022, the Final Arbitration Award Upon Consent of the Parties issued by the American Arbitration Association and the Arbitrator, expressly incorporating the December 23, 2021 Settlement Agreement and June 18, 2018 Partial Final Award, as collectively constituting the Final Award. The 2008 Grant is Exhibit 2 to the Final Award. (Doc. 1-4 at 1-5 (Final Arbitration Award); Doc. 1-4 at 6-66 (Settlement Agreement)). Of note, Paragraph 13 of the Settlement Agreement provides that the Agreement, and the Final Award into which it is incorporated, may be confirmed in this Court, pursuant to 9 U.S.C. § 9 and that the parties will object to such confirmation:
... This Agreement and the Partial Final Award it references shall be the Final Arbitration Award rendered by the arbitrator in this arbitration. Once the arbitrator renders a Final Arbitration Award pursuant to this arbitration as provided herein, the Parties agree that at any time within one year after the award is made, any Party to the arbitration may apply to the United States District Court for the Southern District of Alabama for an order confirming the award pursuant to 9 U.S.C.§ 9, and further agree that no Party will object to such confirmation of the arbitration award as a judgment. The Parties acknowledge that their mutual acceptance of this Agreement is conditional on said arbitrator's entry of an arbitration award as described herein.
The Final Arbitration Award Upon Consent of the Parties has not been vacated under 9 U.S.C. § 10 or modified or corrected under 9 U.S.C. § 11. On February 9, 2002, pursuant to 9 U.S.C. § 9, Petitioners filed the present Petition to Confirm within one (1) year of the date of the Arbitration Award. In the Petition, Petitioners seek confirmation of the arbitration award per 9 U.S.C. § 9, and request that a judgment be entered under the Federal Arbitration Act, 9 U.S.C. § 13. (Doc. 1). On February 23, 2002, the Respondents filed a response, stating there was no opposition per Paragraph 13 of the Settlement Agreement and the binding arbitration. (Doc. 15).[1]
Petitioners seek an order from this Court under the Federal Arbitration Act (FAA), 9 U.S.C. § 9, confirming the January 20, 2022 Final Arbitration Award Upon Consent of the Parties (Final Award) as well as and a judgment thereon pursuant to 9 U.S.C. § 13.
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