The Mockingbird Next Door: A Parasitic Memoir?

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The Mockingbird Next Door, Marja Mills’ memoir about the “great friendship” she developed with To Kill a Mockingbird’s Harper Lee and her sister, hit bookshelves amid controversy. Lee has released a statement saying that “any book purporting to be with my cooperation is a falsehood.” She even suggests that Mills’ “true mission” in befriending her family was to write this book, a realization that she says left her feeling “hurt, angry, and saddened, but not surprised.”

It’s heartbreaking (no matter how you look at it).

Harper Lee, who published her only novel in 1960, has shied away from the public spotlight for decades. It’s hard to believe that someone with such a reputation for reclusion* would open her door to a journalist like Marja Mills, particularly when, as The Mockingbird Next Door’s advertising materials state, Lee turned away other journalists who have “trekked to [Lee’s] hometown of Monroeville, Alabama.”

For such a reclusive person, though, Lee has been in the headlines quite often lately.

As I discussed in When Our Literary Heroes Become Victims, Lee sued her former agent last year for allegedly breaching his fiduciary duties and manipulating her into signing away the copyright to her classic novel. The case settled a few months later.

She was also in the news for filing a trademark application for the four words in the title of her book. Last fall, with the application still pending, she filed a lawsuit against her hometown museum, a museum dedicated to the area she immortalized in her work, because they were selling clothing and merchandise bearing the words she made famous.

Now we have this public statement about an unauthorized book about her life (and an earlier statement from 2011, when Penguin acquired the Mills’ book). Lee’s version of events suggests that Mills is nothing more than a journalist trying to find fame (and royalties) by exploiting a beloved, elderly literary hero and her centenarian sister. In some ways, Lee’s story is similar to what she said about her former agent and about what she said about her hometown museum, situations that became the basis for litigation.**

In this situation, though, based on what I know from the media reports, I don’t believe Lee has any viable legal claims against Mills and her publisher, Penguin. Lee can’t stop Mills from writing truthfully about her own experiences, about what she saw and heard in her time around Lee and her sister. Even if the book portrays Lee in an unfairly negative light — which I doubt is the case — Lee would still have considerable difficulty prevailing in a defamation suit. Generally speaking, defamation law protects private individuals from untrue accusations more than it protects public individuals, who, like Lee, have a big enough “microphone” to fight defamation in the court of public opinion.

That ‘court of public opinion’ is what Lee is using now to counter what she believes is essentially an unauthorized biography — only the effect of her public statements, which have been picked up by virtually every major news outlet, might actually increase the sales of Mills’ book. Controversy sells, unless it results in the loss of a publishing contract (Remember Paula Deen?). Mills’ publisher released a statement supporting the book, saying, “Mills’ memoir is a labor of love, and Marja Mills has done an extraordinary job. We look forward to sharing her story of the wise and wonderful Lee sisters with readers.”

I had considered reading The Mockingbird Next Door, wanting insight into the author behind one of my favorite novels.*** Not only do I have multiple “soft page” editions of To Kill a Mockingbird, but I also have the recently released “cold metal” e-book version (why did it take so long?).

But, in light of the controversy, I’ll probably never read Mills’ book. Whatever the truth is about how she obtained access to Ms. Lee, even the possibility that Mills exploited Lee and her sister renders The Mockingbird Next Door unpalatable.

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*Really, “reclusivity” should be a word.

**I was actually sympathetic to the hometown Museum because (1) as a legal matter, I think Lee shouldn’t be able to trademark the four words in the title or the use of the title with regard to clothing (the museum initially opposed Lee’s trademark application, but ultimately they withdrew their opposition while settling the lawsuit); and (2) the museum’s public mission is to preserve the area’s history, to which To Kill a Mockingbird is inextricably linked. That’s quite different from Mills’ purported agenda, if Lee’s allegations are true, resulting in a product that is significantly more personal than the museum’s “To Kill a Mockingbird” memorabilia.

***For my thoughts on the novel (rather than on Lee’s recent legal battles), see (1) Revisiting the “Soft Pages” of Harper Lee’s To Kill a Mockingbird, (2) Our Morbid Curiosity: Watching “Poor Devils” (Or Maybe Just “Devils”) on Trial, (3) We Were All Children Once (Even Lawyers).

Harper Lee’s New Lawsuit (Is Someone Taking Advantage of Her?)

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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.

Harper Lee’s Strange Quest to Trademark “To Kill a Mockingbird” and the Persuasive Opposition to It

TKaMB 123Harper Lee, the typically reclusive 87-year-old author of To Kill a Mockingbird, has made headlines twice over the last year by (1) initiating litigation against her former agent and by (2) filing an application to trademark the title of her famous—and only—published work, at least as the title is used on clothing.

Earlier this month, as I’ve discussed previously on this blog, Ms. Lee settled the lawsuit against her former agent, Samuel L. Pinkus. It was a sad case, if the allegations are true, alleging that Mr. Pinkus breached his fiduciary duties and manipulated Ms. Lee into assigning away the copyright to her classic novel (though still providing her some royalties) by taking advantage of the aging author’s declining health.

As for the second item listed above, even though Ms. Lee applied for a trademark of the phrase “To Kill a Mockingbird” on clothing with the U.S. Patent and Trademark Office just over a year ago, articles on it appeared in many media outlets last week, including in The Monroe Journal and The Huffington Post. The Monroe County Heritage Museum in Monroeville, Alabama, which has for years sold T-shirts and souvenirs with “To Kill a Mockingbird” without paying Ms. Lee, filed its opposition to Ms. Lee’s application on August 19, 2013 (available here; it includes pictures of the designs on the shirts).

If the commenters to the Huffington Post article are any indication, many people believe that Ms. Lee deserves a portion of the revenue generated from T-shirts and other souvenirs with the words “To Kill a Mockingbird” on it.

Lee is one of my literary heroes, and I deeply sympathized with her claims against her former agent, but, this time around, I hope either Lee withdraws the trademark application or the Museum defeats it.

Under U.S. law, a trademark “includes any word, name, symbol, or device … used by a … merchant to identify his goods and distinguish them from those manufactured or sold by others.” 15 U.S.C. § 1127. Going back to at least the 1970s, the Trademark Board has held that designs on garments (other than the mark of the garment manufacturer) could be protected as trademarks if the mark signifies to consumers a relationship to a particular merchant. An example of this was In re Paramount Pictures Corp., 213 U.S.P.Q. 1111 (T.T.A.B.1982), which held that the words “Mork & Mindy” were not merely ornamental on t-shirts because they indicated a secondary source of sponsorship, i.e., the television show Mork & Mindy, rather than the manufacturer of the shirts.

“To Kill A Mockingbird” is a bit more generic than “Mork & Mindy” — sure, we all know it to be the book, but the phrase predates the book and has an independent meaning, as compared to “Mork & Mindy.” However, it seems clear that Harper Lee could, in theory, trademark the phrase “To Kill A Mockingbird” as her own, and then show that the use of the phrase on the Museum’s shirts confuses consumers into thinking that Lee sponsored those shirts.

The big problems for Lee, though, are the issues raised in the Museum’s objection to her filing: that the museum has used this phrase on a variety of clothing goods since 1995, that they have owned the www.tokillamockingbird.com domain and operated a website there since 1998, that Lee has resided in the same county as the Museum her whole life, and that she even came to the Museum in 2008.

Legally speaking, the Museum has strong arguments that (1) Lee “abandoned” the use of the mark with regard to the Museum, the website, 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.

Consider the Los Angeles Dodgers (a baseball team for those who don’t know anything about American sports). Prior to 1958, they were the “Brooklyn Dodgers,” then they moved to Los Angeles and didn’t do anything with the name “Brooklyn Dodgers” until 1981, when they started licensing some clothing with “Brooklyn Dodgers” logos. In the late 1980s, a restaurant opened in New York called “The Brooklyn Dodger Sports Bar and Restaurant.” The team sued, claiming trademark infringement, but the federal court held that “[the team’s] failure to utilize the ‘Brooklyn Dodgers’ mark for any significant, commercial trademark use between 1958 and 1981 constituted an abandonment of that mark and dramatically limits the protection to which that mark is entitled since its resumption.” Major League Baseball Properties, Inc. v. Sed Non Olet Denarius, Ltd., 817 F. Supp. 1103 (S.D.N.Y. 1993).

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. You can’t just claim a trademark in a new field of commerce over fifty years after you first used the mark and more than a decade after others have started using it in other fields.

Putting aside the legal arguments, frankly, I think it’s rather odd that Lee would so abruptly change her position on the usage of the title of her book on clothing, and I wonder what effect this change of heart may have on her legacy.

As I said in my coverage of the Faulkner Estate’s legal advocacy to narrow the fair use defense to copyright infringement, authors and their estates have to weigh the benefits of short term gains (in royalties and licensing fees) versus the long term gains of cementing their literary prowess for future generations (by encouraging others, like fanfiction writers and even creators of T-shirts and memorabilia, to spread their name).

While Lee isn’t receiving trademark licensing fees for the merchandise sold by the Museum, she probably benefits from the Museum’s dedication to her work. Many museum visitors go there because they’ve already read To Kill a Mockingbird, but others might be encouraged to read or re-read her work (and buy a copy of it) only after they went to the museum or saw one of those T-shirts on someone walking down the street somewhere else. Perhaps the museum will continue to sell To Kill a Mockingbird souvenirs and T-shirts even if they have to pay Ms. Lee a fee, but that probably depends on how much Lee wants for it. If she asks too much, it may chill references to her work, making it more likely that her currently popular book will lose its relevance in the future (an issue I discussed in a previous post, Preventing Literature from “Disappearing Up its own A-hole”).

Apart from the dollars-and-cents aspect, we can’t ignore the larger context here. This isn’t an author barely scraping by who bumps into a fly-by-night company cashing in on her creative work. It’s one of the most famous and well-compensated authors in America challenging her hometown county museum over what is, by this point, their shared history. Lee holds the copyright to her work, but should she really claim ownership over every aspect of culture related to To Kill a Mockingbird?

*Images above show what my copy of the novel looked like at the end of Roof Beam Reader’s To Kill a Mockingbird read-along in July. You can find my thoughts on Lee’s novel here.

[See the updates on Lee’s quest here: To Kill a Mockingbird vs. I Kill the Mockingbird]