To Kill A Mockingbird vs. I Kill The Mockingbird

The Mockingbird Is Dead Either Way_Misfortune of Knowing Blog

[UPDATE: It looks like Lee and the Museum have settled again. The stipulation of dismissal appeared on the docket two days after I published this post. The terms of the settlement are undisclosed. I’m glad to see this case end (assuming they go through with the settlement this time), but the issue remains about whether authors can or should control the culture related to their novels.]

What is the best way to encourage teenagers to read a book?

It’s to tell them they can’t read it, of course. That’s exactly what eighth graders Lucy, Michael, and Elena decide to do in Paul Acampora’s I Kill the Mockingbird to increase the popularity of Lucy’s favorite book, Harper Lee’s To Kill a Mockingbird (1960). Their stealth campaign to “turn To Kill a Mockingbird into forbidden fruit” is a fun story for young readers that touches on serious topics, such as censorship and mortality, without losing its light feel. It’s ideal for middle grade readers, particularly those who have already read Harper Lee’s classic.

Just like Lucy, I love To Kill a Mockingbird. Not only do I have a heavily marked-up paper copy, but I’ve also pre-ordered the e-book version,which will finally be available on July 8th (What took it so long?!). I look forward to reading it again, even though I re-read it last summer as part of a read-along.

As I said about To Kill a Mockingbird back then in We Were All Children Once (Even Lawyers):

Like many lawyers, I count this novel among the influences that eventually led me to law school and to my public interest legal career. It was a pleasure to revisit Lee’s words, which encouraged me to reminisce about my childhood and to evaluate whether my own sense of justice has remained true to who I am. I look forward to discussing this novel with my daughters someday. They don’t want to be lawyers, but we’ll see if they change their minds after meeting Atticus.

It’s an influential novel that has retained its popularity for the last fifty years. As a 2014 Harris Poll showed, To Kill a Mockingbird is one of America’s favorite books. It’s even more popular than it was in 2008. Part of this enduring popularity likely comes from cultural references like Acampora’s novel and the exhibits and merchandise at the Monroe County Heritage Museum in Lee’s hometown.

Then there are Harper Lee’s lawsuits, which seem to be a particularly effective way of bringing attention to a book–at least in the short term. In 2013, Lee sued her former agent for allegedly breaching his fiduciary duty and assigning away the copyright to her only novel. Later that same year, after filing a trademark application, Lee sued her hometown museum because they were selling clothing and merchandise bearing the four words in the title of her book.

Harper Lee’s Lawsuit Against Her Hometown Museum:

In her lawsuit (here’s the complaint), Harper Lee alleged that the Museum’s use of “To Kill A Mockingbird” on clothing and memorabilia violated federal trademark laws, Alabama trademark laws, and the common law in a variety of ways, constituting “unfair competition,” “dilution,” and “cybersquatting.”

The Museum asked the Court to dismiss the case for three main reasons:(1) that the Museum had been selling that merchandise for 18 years, and so the statute of limitations had run (that’s the deadline for filing lawsuits); (2) that Lee had been aware of the Museum’s activities for years and thus had implicitly consented to the sales; and (3) that Lee did not have a federal trademark for merchandise (because the trademark office had denied her application), and her copyright interest in the book was not enough to give her the right to control how the title was used in other types of products.

In February 2014, after the Court refused to dismiss the case, Lee and the Museum apparently settled it. In late May of this year, though, Lee asked the Court to reopen the case. A trial is set for November.

The Implications of Lee’s Lawsuit On Other References To Her Novel:

Taking Lee’s lawyers’ arguments at face value, there is a potential threat to books like Acampora’s I Kill the Mockingbird, which has a title that is similar to the title of Lee’s novel. In a hypothetical case (that I hope would never happen!), Lee would only need to file a short complaint alleging that Acampora’s title and book are “confusingly similar to the plaintiff’s mark, such that there was a likelihood of confusion for consumers as to the proper origin of the goods [or services] created by the defendant’s use of the name.” I’m loosely paraphasing a quote that appears in Harper Lee’s brief (on page 7).

If the Court agrees with the argument Lee’s lawyers have made against the Museum that To Kill A Mockingbird is “eligible for protection under § 43(a) of the Lanham Act,”* Lee can go after anyone selling a book or merchandise with a name arguably similar to To Kill A Mockingbird, much the same way as NIKE and Coca-Cola can go after anyone using a similar product name. Even Susan G. Komen — a breast cancer charity — has mercilessly protected its trademark on “for the cure” (a pretty generic phrase, in my opinion) by going after charities with similar names.

It may seem like a stretch that Harper Lee would go after authors who choose titles “too similar” to hers, but who would’ve thought she’d go after the hometown museum dedicated to promoting the culture related to her novel after so many years of her tacit approval?

Conclusion:

If the Court allows Harper Lee to control the culture related to her novel, it would not only be a threat to writers who want to pay homage to her important book, but it would also be a threat to her legacy. As I said in my analysis of the Faulkner Estate’s lawsuit over a short paraphrase of a William Faulkner quote in Woody Allen’s Midnight in Paris, “[A] litigious nature could chill future references to the author, thus ending the free advertising and possibly hastening the speed with which the public will lose interest in [the] work.”

In the long run, Harper Lee’s lawsuit against her hometown museum could be a nail in the coffin of her book. Let’s hope that doesn’t turn out to be the case.

Check out these reviews of Paul Acampora’s I Kill the Mockingbird:

  • April at The Steadfast Reader: “This is a sweet middle grade level coming of age story. I was drawn into it by the fact that I do adore Harper Lee’s classic novel To Kill A Mockingbird. What I really liked about this novel was that it is very well written and it manages to bring middle grade literature into 2014.”
  • Monika at A Lovely Bookshelf on the Wall: “This is a fun, smart read with sweet characters who obviously care about each other deeply, and it is chock full of moments that will resonate with fellow book lovers.”

*Lee’s lawyers cite Sugar Busters LLC v. Brennan, 177 F.3d 258 (5th Cir. 1999) (“The rights in book titles are afforded appropriate protection under the law of unfair competition. If the title of such a single work has acquired secondary meaning, the holder of the rights to that title may prevent the use of the same or confusingly similar titles by other authors.”).

27 thoughts on “To Kill A Mockingbird vs. I Kill The Mockingbird

  1. Pingback: What Should Kids Read In School INSTEAD of Harper Lee’s To Kill a Mockingbird? | The Misfortune Of Knowing

  2. Pingback: The Mockingbird Next Door: A Parasitic Memoir? | The Misfortune Of Knowing

  3. Pingback: Harper Lee’s Strange Quest to Trademark “To Kill a Mockingbird” and the Persuasive Opposition to It | The Misfortune Of Knowing

  4. Great thoughts on Lee and To Kill A Mockingbird. This is horrible to admit, especially as a book lover, but I barely remember the story. I read it back in middle school, as most students do, and I remember despising the book. I would fall asleep reading chapters after school, and I remember placing all the blame on the author (not on my naive understanding of the book). Your discussions on Harper Lee have made me really want to settle back in and revisit this read as an adult. I picked up a copy recently, but still haven’t opened it up. Did you enjoy it more as a child/teen, or an adult?

    1. I think a lot of children dislike it, and I don’t even think Lucy (from I Kill the Mockingbird) understands it very well. I remember thinking Atticus was such an inspiration, but I didn’t really understand the novel until I had learned more about civil rights history. I hope you’ll pick it up again. If you do, let me know what you think!

  5. This is so interesting and sad. Harper Lee has always been fascinating to me as she put herself and her story out there and then seems to be spending the rest of her life trying to take herself and her book back out of the spotlight. It would be tragic to prevent people from paying tribute to the book that has touched so many readers.

    1. Yes, it would be tragic if Harper Lee or her estate went after people who reference her work. It’s heartening that the Trademark Office actually denied her application, but the case still goes on. It’s just so strange that she would pursue her hometown museum after so many years of silence. Thanks for the comment!

  6. I always learn new things when I read your posts about copyright laws. It probably was very different from the Lee situation, but somehow this post made me think about an article I recently read about the estate of some singer–and I think that his descendents were tying to limit the licensing of products with his image.

  7. Literary Feline

    This whole story makes me sad. After all this time, it really does make one wonder who may be in the back row directing the author’s movements–or is it all of her making. What happened so late in the history of the book to make her feel this is a necessary move?

    I hope I Kill the Mockingbird isn’t touched by this as it sounds like a delightful book.

    1. It makes me sad too! It’s hard to believe that someone who stayed out of the spotlight for so long–someone who had visited the museum years ago (after they had started making the products)–would take these kinds of actions so late in her career. Maybe she (or her estate) will never go after authors who use similar titles to To Kill a Mockingbird, but anything is possible if the museum loses this case.

      Thanks for commenting!

  8. Wow. I wonder why she is all up in arms now. As an author, I struggle to title my stories and poems. And there are so many books out there with the same or similar titles. How does one decide when a book title cannot be used every again?

    On the one hand, I’d hate for people to maliciously steal my title and make money off of it. But I’d be flattered and excited if other authors were referencing my book, playing with my words, etc…

    1. Yeah, it’s odd that she would put herself in the spotlight now. In my opinion, To Kill a Mockingbird is a title of a book, but not a brand. It’s four words that actually predated her. I could understand why she might not want T-shirts made with title of her book on it, but she didn’t do anything about it for 18 years (you can’t just sit on a trademark claim for years) and the museum’s intent isn’t malicious. Their mission is preserve the culture on which Lee based her book. Maybe Lee (or, in the future, her estate) won’t go after authors who use similar titles to To Kill a Mockingbird, but she certainly could if the Court decides against the museum. The cases Gherkin mentioned in his/her comment below suggest that stranger things have happened.

      Thanks for stopping by!

  9. I think too all this fuss is going to have such a negative effect on her book and her as an author. Whoever started this crusade may be in for something they did not bargain. Maybe I Kill a Mockingbird is close, but it still is not the same. The hypothetical may happen. I agree with you telling a child not to read a book has the opposite effect. But that could get kids that don’t read into reading.

    1. I just think this whole situation is so sad. Harper Lee is one of my favorite authors, and I can’t help but wonder why she decided to file a lawsuit against her hometown museum after all these years. These kinds of trademark cases really worry me. It might affect much more than just the museum (which is bad enough on its own).

    1. Thanks, Monika! It does seem so strange that she would sue her hometown museum (one that has been dedicated to preserving the culture related to her novel) after all of these years. I hope that her litigious efforts end here, but I’m pessimistic about it. Thanks for reviewing I Kill the Mockingbird. I bought it after reading your review.

  10. Given the litigious nature of whoever controls Lee’s assets now, the situation is disconcerting. Seems to me good odds of ending up like “60 Years Later: Coming Through the Rye” or at least “The Wind Done Gone.”

    “The Wind Done Gone” was a retelling of Gone With The Wind, but told by one of the slaves on Scarlett’s plantation. The book deliberately avoided using the same character names and location names as the original, and the social commentary was pretty obvious, but Margaret Mitchell’s estate sued anyway. They won an injunction, which was eventually vacated on appeal, and after that the publisher made a donation of some unspecified amount to Morehouse College in exchange for the estate dropping the appeal, a rather bizarre outcome that seemed to me an admission of defeat by Mitchell’s estate, though one with a spiteful parting shot dressed up as charity. The book is still out there with “The Unauthorized Parody” written on the cover.

    “60 Years Later: Coming Through the Rye,” involved “Mr. C,” who was admittedly supposed to be Holden Caulfield, reconsidered in present times as a 76-year-old man on the run from a nursing home, who eventually ends up going to meet J.D. Salinger himself. The book was apparently initially presented as an unauthorized sequel, then, after the lawsuit was filed, as a parody or satire. A federal court enjoined the publication in the U.S., though I think you can get it shipped from the U.K.

    Both of those examples are, to me, cause for pessimism. “The Wind Done Gone” sort-of won in the end, but only after a bunch of litigation and after paying money to settle it, albeit to a third party. “Coming Through The Rye” lost entirely in the U.S. Suing an author for commenting on you and your book sounds like something a “phony” would do, but the courts allow it and authors (and their heirs) have no qualms doing it.

    1. Thanks for mentioning 60 Years Later: Coming Through the Rye and The Wind Done Gone. Sometimes I feel like chicken little when I talk about the implications of expansive copyright and trademark cases, but it’s a real threat to those of us who believe in a free exchange of ideas.

  11. I’m starting to wonder if Ms Lee is losing it mentally. Why do all this stuff now? Either way, she’ll be dead soon; it amazes me she would waste time and energy suing him, her, and them when she should be enjoying the remainder her life and the fact she’s leaving something so wonderful behind. Enough negative press will taint the book, which would be a terrible shame.

    1. It’s just such a sad situation. I don’t understand why Harper Lee would file this litigation against her hometown museum after so much time. It’s definitely odd. I don’t know if she’s getting that much negative press about it, though. I think most people assume that the museum is taking advantage of Ms. Lee when I really don’t think that’s the case. Her novel is part of the culture they are designed to promote and preserve. What might imperil the future popularity of her book is the threat of litigation anyone who references the title of her work might be under if the court determines that the title of her novel is a merchandising mark like Nike or Coca-Cola.

    2. Seems to me we don’t need to wonder as to whether she is losing it mentally, because, as I recall, that was the whole basis of her suit against her agent. It’s more than a little suspicious that someone can go half a century as a recluse and then suddenly turn into a litigation machine.

      In terms of the ongoing case against the museum, there’s still a chance that the court will get rid of it. The briefing submitted by the museum was rather poor, and I can understand why the judge was upset with them and so just let the case go into discovery. They barely raised one of the biggest issues: how Lee can continue with a suit over a trademark the trademark office rejected. It’s one thing to file suit over a mark that either was never filed or has not yet been granted, but it’s quite another to file suit when the trademark office already denied trademark status.

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