In the Prologue of her recent complaint (filed Oct. 10, 2013) against the Monroe County Heritage Museum, Harper Lee asserts through her New York and Alabama lawyers that “[h]istorical facts belong to the world, but fiction and trademarks are protected by law.”
With this lawsuit, Lee asks a federal district court in Alabama to stop the Monroe County Heritage Museum, her hometown museum, from selling merchandise bearing the mark “To Kill a Mockingbird.” This is the title of Lee’s sole published work, which is one of my favorite novels. She also asks the court to force the museum to compensate her for past sales. The complaint portrays the Museum as taking advantage of Lee’s poor health, alleging that the Museum believes that Lee will not police her trademarks in her current condition. (See here for the Complaint).
It’s been a high publicity year for Lee, who was previously known for her reclusiveness. Earlier this year, in When Our Literary Heroes Become Victims, I wrote about Lee’s lawsuit against her former agent, which contained allegations akin to elder financial abuse. Then, Lee’s application with the U.S. Patent & Trademark Office became highly publicized when the Monroe County Heritage Museum filed its opposition in August 2013 (the trademark application is still pending; the recent lawsuit is separate from that application). In Harper Lee’s Strange Quest To Trademark “To Kill a Mockingbird,” I discussed why the museum’s opposition to trademarking this phrase is so persuasive:
Legally speaking, the Museum has strong arguments that (1) Lee “abandoned” the use of the mark with regard to the Museum, the website [www.tokillamockingbird.com], and clothing by not using the mark herself and by not objecting to their use and that (2) many consumers actually identify the use of the mark on clothing as pertaining to the Museum rather than to Lee.
The Museum has said that its use of “To Kill a Mockingbird” on merchandise dates back to 1995. In the response Lee filed to the Museum’s opposition to her trademark application, Lee denies knowing that her local museum had been selling merchandise using these four words for almost twenty years. I find it hard to believe that Lee–or one of the many people who work for her–didn’t know that her hometown museum was featuring the title of her book in their merchandise. Lee even goes so far as to deny the Museum’s claim that she saw the gift shop in 2008, which makes me wonder whether the museum has any pictures of Lee standing there (apparently, the gift shop is right by the entrance).
If the Museum has been selling merchandise bearing the “To Kill a Mockingbird” mark for almost two decades, as they have said, Lee’s silence over the years makes it difficult for her to challenge their use of the phrase now. As I explained in my previous post, “A trademark isn’t like a copyright, which you can sit on forever[.] Trademarks are meant to be used and are limited to the particular goods on which you use them.” Trademarks restrict other people’s usage of something as simple as a word (e.g., “Apple”), and so these rights can’t be granted as broadly as copyright, which prevents others from copying substantial parts of a work, but which typically allows small quotes and other references as fair use (even when used commercially; selling a derivative work for profit might make it more difficult to assert fair use, but it’s not impossible). Trademark rights should be granted only when it will be used.
Lee’s most recent public filing in federal court seems too little, too late. To the extent she ever had a right to trademark the phrase “To Kill A Mockingbird” in merchandise vis-à-vis the Museum, I believe Lee has abandoned it. Yesterday, Max at Litigation and Trial wrote about Lee’s unimpressive complaint, noting how vague she is about when she attempted to assert her trademark. The complaint uses imprecise terms like, “over the years,” “in the past,” and “once.” I can see why her lawyers tried to gloss over the time frame in question, because it’s hard to say which would be worse for Lee’s case: if she knew about the alleged infringement and objected (while still not filing for a trademark herself), or if she knew about the alleged infringement and didn’t object until recently.
Lee’s novel may be fiction, but it is thinly veiled fiction based on the town and county that the Museum represents and serves. Now, more than half a century after its publication, To Kill a Mockingbird is larger than its author. It has become part of the history of Monroeville. To the extent anyone is taking advantage of Lee’s failing health, I’d guess that based on her weak complaint and bizarre trademark quest after all of these years of silence, it probably isn’t the Museum. I agree with Max’s conclusion that, “If the best Lee’s lawyers can come up with is some cease and desist they served in the past few years, after Lee’s stroke, they’re never going to overcome the impression that this fight is driven more by the professionals around Lee than it is by her.”
The only thing I know for sure is that, whatever it is that has catapulted the previously reclusive Lee into the spotlight, it is a very sad and perplexing situation.
*The images show what my copy of To Kill a Mockingbird looked like during a read-along over the summer. See here for my thoughts on the novel.
