Would Your Goodreads Profile Get You Out of Jury Duty? Should It?

As I continue to grapple with To Kill a Mockingbird’s legacy — including whether it’s time for schools to replace it in the curriculum now that Harper Lee’s estate has made it less affordable — I’ve been thinking about what it provides to its readers that other books might not. One lesson I hope readers glean from its pages is that jury duty is vital to our democracy, giving citizens the ability to uphold our nation’s laws and affect the lives of the people who come before the court.

In Mockingbird, Atticus Finch highlights the importance of the jury in the closing argument to his defense of Tom Robinson, an African American man accused of raping a white woman in Lee’s fictionalized 1930s Alabama. He says,

I’m no idealist to believe firmly in the integrity of our courts and in the jury system — that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up. I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. In the name of God, do your duty.

Still, far too many people do everything they can to avoid this duty. Some of those people might even count To Kill a Mockingbird among their favorite books.

Why do people want to avoid jury duty? I’ve been called for jury duty twice and empaneled once (lest there are lawyers out there who think their JD gets them out of their civic duty). It was a fascinating and worthwhile experience. However, I can’t deny that serving on the jury was time-consuming and inconvenient.

Another negative is that jury duty might also be an invasion of a potential juror’s privacy because of what lawyers have to do in order to ensure that their clients receive a fair trial.

Mockingbird’s Tom Robinson did not get a fair trial. His life was in the hands of “twelve reasonable men,” according to Atticus, but “something [came]  between them and reason.” That “something” was racism.

Today, while racism is less apparent then it was in the time period To Kill a Mockingbird depicts, bias still exists, and lawyers have an obligation to root it out. They do this through an investigative process called voir dire, when lawyers and/or the judge question prospective jurors about their backgrounds and beliefs.

Voir dire provides lawyers with the information they need to strike prospective jurors for cause (for example, because the potential juror knows one of the parties personally and thus is unable to render an impartial decision) or by the use of peremptory challenges (because the lawyer has a feeling they’d rather not have that person on the jury).

At times, the questions in voir dire are invasive, such as: Have you or someone close to you suffered the loss of a child? Or, have you or someone close to you been the victim of child sexual abuse? The answers might be relevant to a lawyer if they are, for example, representing someone accused of abuse or murder of a child, but a prospective juror might not feel comfortable providing these answers to complete strangers.

To limit the invasion of privacy, some courts have implemented a number of strategies, including (1) “anonymous juries,” when jurors receive a fictitious name or a number that judges and lawyers use to refer to the person throughout the jury selection process, and (2) questioning each prospective juror individually.

The extent to which lawyers may pry into a prospective juror’s personal history became an issue in Oracle America v. Google, a copyright lawsuit over Android. There, the lawyers for the two parties wanted extended time so they could mine the Internet for information about prospective jurors.

Lawyers’ use of the Internet to research prospective jurors isn’t new.* However, there isn’t much concrete guidance out there about how attorneys should do it. Ideally, they would do it in a way that balances their client’s right to a fair trial with the prospective juror’s right to privacy.

Two weeks ago, the trial judge in Oracle America v. Google issued an order in which he referenced To Kill a Mockingbird to illustrate one of the dangers of permitting lawyers to google prospective jurors (namely, that the research “will facilitate improper personal appeals to particular jurors”):

For example, if a search found that a juror’s favorite book is To Kill a Mockingbird, it wouldn’t be too hard for counsel to construct a copyright jury argument (or a line of expert questions) based on an analogy to that work and to play upon the recent death of Harper Lee, all in an effort to ingratiate himself or herself into the heartstrings of that juror.

That could backfire, though, especially if the lawyer tries to make eye contact with that juror. If I were that juror — and To Kill a Mockingbird is actually one of my favorite books — I’d be completely creeped out by it. The number one rule of “Internet stalking” is to never let the person know you did it!

But I digress. Internet searches tied to the jury selection process are different from the googling a person might do about the new neighbors or the parents of their kids’ friends (not that I’m speaking from personal experience… 😉 ) Potential jurors should definitely know that lawyers will look for their so-called “digital fingerprint.”

In Oracle America v. Google, the judge ended up announcing a procedure he hoped would protect jurors’ privacy while allowing lawyers to do their jobs (if the parties refused to agree to a ban on researching jurors on the Internet): The lawyers must inform the prospective jurors of the extent to which they will search for them on the Internet, limiting the searches to publicly available information and giving the jurors a couple of minutes to adjust their social media privacy settings through their cell phones. The lawyers may not use the information they learn through the Internet to make personal appeals to jurors or use their affiliation with tech companies to research information not otherwise available to the public (such as search histories).**

Generally speaking, this protocol makes sense to me. I don’t mind lawyers performing internet searches for publicly available information about me or other prospective jurors. If I were representing a defendant like a modern-day Tom Robinson, I would want to know whether a prospective juror raves on Goodreads about racist books like The Bell Curve or its more recent iteration, The Triple Package.*** I wouldn’t want them on the jury any more than I would want to empanel the shockingly racist version of Atticus Finch in To Kill a Mockingbird’s sequel early draft, Go Set a Watchman.

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*Jurors, however, are not supposed to google the case or the lawyers involved in it for fear the information they see could inappropriately sway them.

**See the this article (scroll down for the order from the Northern District of California) for additional details.

***Googling a person’s name and “goodreads” will sometimes bring up their goodreads profile. If that’s a problem for you, visit the Goodreads account settings to see what you can do to adjust the privacy level.

What Should Kids Read In School INSTEAD of Harper Lee’s To Kill a Mockingbird?

Raise your hand if you read To Kill a Mockingbird in school.

That’s where many of us first encountered Harper Lee’s iconic novel about a child’s growing awareness of racial injustice in the American South. I read the book when I was a kid for school, and then re-read it two decades later to find that: “Jem is just as brave as I remember, and Scout is as funny and headstrong. Their father is a thoughtful and fair-minded man whose parenting style reflects his legal experience.”

That last line sounds funny now, doesn’t it? With the publication of Go Set a Watchman, we now know that Atticus Finch was an unapologetic bigot. That is, if we believe that Watchman is a sequel to Mockingbird, as Lee’s lawyer claimed it was, rather than the early draft it probably is. As Max from Litigation and Trial said in Despite Go Set a Watchman, Atticus Finch Is Still a Hero:

[M]any classic novels started out with truly bizarre first drafts. In the earliest drafts of Roald Dahl’s Charlie and the Chocolate Factory, several children were sucked into the factory and incorporated into the chocolate bars. The same is true of classic movies: Rocky originally ended with him deliberately throwing the fight. As novelists often say, “the essence of writing is rewriting.” In short, the Atticus of Go Set A Watchman is not the Atticus of To Kill A Mockingbird.

Trying to pass off Watchman as a sequel—possibly even the final installment of a previously unheard of plan for a Mockingbird trilogy—is just one of the many ways the people purporting to represent Lee’s interests have tried to destroy her legacy.

Other efforts include:

• Lee’s strange quest to trademark the words “To Kill a Mockingbird,” thereby squelching references to her work; and
• Lee’s lawsuit against her hometown museum, a non-profit entity that spread interest in her work.

Now, Tonja Carter, Lee’s lawyer, further guts the author’s legacy by putting an end to the mass paperback edition of Mockingbird. This is a move that will likely result in higher royalties for Lee’s heirs at the expense of spreading her work to future fans. As the New Republic explains:

[T]he disappearance of the mass-market edition could have a significant impact on schools. The fact that To Kill a Mockingbird is both so accessible to young readers and so widely taught in America is crucial to its cultural importance… Without a mass-market option, schools will likely be forced to pay higher prices for bulk orders of the trade paperback edition—and given the perilous state of many school budgets, that could very easily lead to it being assigned in fewer schools.”

So, my children might not read it in school like I did, but maybe its disappearance from the curriculum is not such a bad thing. Is it time to move on?

This question reminds me of a discussion I had with MonkeyMoonMachine (also known as Matt Hagemann) in the comments to Vonnegut’s Literary Reputation: Evidence That American Culture Is In Decline.* After noting that classic books might not resonate with newer readers the way they did with their original audiences, he said:

I am disappointed in general in how little the new Common Core K-12 standards emphasize teaching any literature of the last 40 years. Perhaps the standards-makers are afraid of declaring any new works as “classics.” But then again, the standards also ignore most of the lit-crit thinking of the last 40 years, too: there’s no Deconstruction, feminist theory, reader-response, etc.

To Kill a Mockingbird is more than half a century old, and perhaps it’s time to declare a new work a “classic.” I would be particularly interested in something that stirs a sense of social justice in children, as To Kill a Mockingbird does, while being something that To Kill a Mockingbird is not: a book by a person of color about a person of color.

Do you have any recommendations?

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*Speaking of Kurt Vonnegut, I’d like to mention that I often borrow a phrase from him to describe authors’ estates that do everything they can to “disappear up their own assholes, so to speak.” Vonnegut uttered those words in a different context, but I think the sentiment applies to the short-sighted actions of Harper Lee’s estate (as well as to William Faulkner’s and Arthur Conan Doyle’s). There are so many good books to read out there. We should steer clear of any book that a greedy estate is trying to make difficult to obtain.

Is Questioning Harper Lee’s Authorship Sexist?

“Why is it only women who are ever accused of not writing their own books?”

Recently, Glynnis MacNicol asked this question in The Guardian, claiming only women like Harper Lee are accused of perpetrating such lies while simultaneously contradicting herself by admitting that President Obama has been on the receiving end of similar accusations.

As commenters were quick to point out, MacNicol forgot that the President isn’t the only male victim of such attacks. For example, one person (anavidreader) said:

“Point taken obviously. It is profoundly idiotic and speaks to an anxiety about women with authority…That said, *cough* Shakespeare *cough*”

Setting this omission aside, though, MacNicol raises an important issue. Women’s contributions are undervalued in many fields.

• Women are often overlooked for scientific prizes;
• Women may fare better with literary prizes, but only if they’re writing about men or from a male perspective;
• Scientific articles with women listed as the primary author receive fewer citations in comparison to studies with men in that spot; and
• Women hold fewer leadership positions, whether in business or in politics, and are still paid less for equal work.**

We have a pervasive cultural norm that sees women as lacking the intelligence, motivation, and ability to compete with men successfully.

So, yes, I wouldn’t be surprised if female authors are more likely than male authors to be the recipients of criticisms surrounding the authenticity of their work.

In Harper Lee’s case, rumors have swirled for years that others, like Truman Capote, were actually behind her book.

I have never thought someone else was the principal author of To Kill a Mockingbird. However, what I’ve read about the difference between the earlier draft, Go Set a Watchman, and the final product has made me think more about the extent to which heavy editing impacts the authorship of a novel. (See here for a profile of Lee’s editor, Therese von Hohoff Torrey).***

As I wrote in “Killing Our Heroes”: Atticus Finch and Harper Lee:

If Watchman is Lee’s original version of what eventually became To Kill a Mockingbird, I’m left asking the same question Michiko Kakutani raised in the New York Times review: “How did a lumpy tale about a young woman’s grief over her discovery of her father’s bigoted views evolve into a classic coming-of-age story about two children and their devoted widower father?”

To what extent is Mockingbird the product of New York City rather than Monroeville, Alabama?

I’ve always known that Mockingbird was a heavily revised manuscript, but I’ve never known how much of Lee and her hometown remained in the final result. Now, I don’t want to find out.

Remember those people in college who submitted drafts of their papers to their teaching assistant enough times that, after the TA’s comments were incorporated, the TA had effectively written the paper by the end of the process?****

Well, as annoying as I thought those classmates were, I’d still consider them the primary authors of those papers. Their role was instrumental in producing the final product, and I believe the same is true of Harper Lee, even if we assume that New York City editors had a heavy influence on the town in Alabama we see in To Kill a Mockingbird. What masterpiece doesn’t go through many rounds of revision? What masterpiece is really the result of only one influence?

The same would be true of books by men, especially those published at a time when agents and editors didn’t simply throw promising, but imperfect, manuscripts into the trash.

New “stylometric” research seems to support Harper Lee’s claim to authorship. Without getting into the math, two professors in Poland used statistics to compare the 100-650 most frequently used words in Watchman and Mockingbird with each other and with works from several Southern authors, including Capote, Faulkner, and Welty.

The most basic form of that analysis showed that Watchman and Mockingbird were more closely related to each other than to any of the other books compared. The more interesting part to me, however, is the second analysis performed by the professors that still showed Watchman and Mockingbird to be related, but showed a rather large difference between their styles — a much larger difference than that seen between, say, any of Eudora Welty’s books included in the analysis, or any of Faulkner’s books after 1930.

The professors themselves recognized “a more heterogeneous pattern” for Mockingbird than Watchman, in that the latter shared similarities largely with Capote (with a modest similarity to Faulkner), whereas the former had more balanced similarities to Capote, Faulkner, Welty, and O’Connor. To me, that transformation indicates the work of a skilled and learned editor.

Maybe we never needed research to tell us Lee is the author of both Watchman and Mockingbird. That’s what MacNicol seems to be saying when she labels questions about Lee’s authorship as “sexist.”

Lee’s gender likely plays a role in these beliefs, but so do the mysteries surrounding her, from her reclusive behavior and dearth of additional publications to the differences between Watchman and the classic coming-of-age story it became. For these reasons, questions about Mockingbird might be more reasonable than they otherwise appear.

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*The image: My copies of To Kill a Mockingbird. It’s one of my favorite novels.

**Of course, examples of the discrepancy between the treatment of women and men are too numerous to recount here (but please feel free to leave additional examples in the comments!).

***Thank you to Vickie Lester of Beguiling Hollywood for sending me the article about Lee’s editor!

****That wasn’t you in college, right? 😉

Should Harper Lee’s Lawyer Be Investigated?

UPDATE (3/15/15): Via Huffington Post, “On Thursday, the Alabama Securities Commission said it had closed its investigation into an unspecified complaint of elder abuse, first reported by The New York Times, tied to the publication of Lee’s second novel. ‘We made a determination that Ms. Lee, based on our interview with her, was aware that her book was going to be published,’ said Joseph Borg, who heads the commission. ‘She wanted it to be published. She made it quite clear she did.'” That’s good news!

UPDATE (3/12/15): The State of Alabama is investigating the allegations of elder abuse. My hope is that they’ll find that Harper Lee is doing well and has the mental capacity to consent to the publication of her second novel. According to the New York Times, one person familiar with the investigation has indicated that “Ms. Lee appeared capable of understanding questions and provided cogent answers to investigators.”

Does anyone talk to Harper Lee other than her lawyer, Tonja Carter?*

Not even her editor talks to her directly. As the LA Times reported:

Her editor, Hugh Van Dusen, told New York Magazine that even he doesn’t speak to Lee directly. “She’s getting progressively deafer and more blind, and that’s where things stand. I don’t hear from her…. I think we do all our dealing through her lawyer, Tonja. It’s easier for the lawyer to go see her in the nursing home and say ‘HarperCollins would like to do this and do that’ and get her permission. That’s the only reason nobody’s in touch with her. I’m told it’s very difficult to talk to her.”

I’ve been disturbed by the extreme degree of Lee’s isolation ever since I saw HarperCollins’ press release about its acquisition of the American rights to Lee’s purported To Kill a Mockingbird “sequel,” Go Set a Watchman, a half-century old manuscript that Lee’s lawyer suddenly discovered.

In this press release, HarperCollins quotes Lee as saying, “I hadn’t realized it had survived, so was surprised and delighted when my dear friend and lawyer Tonja Carter discovered it.”

Considering that Carter seems to be Lee’s only contact with the outside world, I wonder if Lee really called her a “dear friend” or whether Carter just wrote that herself. It’s creepy, isn’t it?

I’ve already discussed my skepticism about the origin of this manuscript. It sounds more like an earlier draft of To Kill a Mockingbird, not a separate novel, but who knows. I wouldn’t be surprised if what HarperCollins ultimately publishes is a heavily ghost-written update to whatever Lee had originally written decades ago.

There’s an even bigger question about whether this novel, even if its origin is authentic, should be published at all. Lee had 50+ years to publish it herself, and now we’re supposed to believe that she’s suddenly had a change of heart? We’re also supposed to believe that this change of heart coincides with her declining health?

On this blog, I’ve often expressed my concern about Lee’s headline-grabbing interactions with the legal system because they are all based on allegations that someone has taken advantage of Lee’s health for their own personal gain.

Now the question is whether her own lawyer is also taking advantage of her.

Is Carter committing elder abuse, which is defined under Alabama law as “the maltreatment of an older person, age 60 or above”? It includes material exploitation: “The unauthorized use of funds or any resources of an elderly individual or the misuse of power of attorney or representative payee status for one’s own advantage or profit. Examples include stealing jewelry or other property and obtaining the elderly person’s signature for transfer of property or for a will through duress or coercion.”  Code of Ala. § 38-9D-2  (2014).

Is Carter’s representation of Lee a breach of her ethical duties as a lawyer under Alabama’s Rules of Professional Conduct (Rule 1.14)? This is a topic Max explored today over at Litigation & Trial.

I am reluctant to suggest that Alabama authorities and the bar association conduct investigations that may invade Ms. Lee’s privacy, but Lee’s lawyer and “dear friend” (cough, cough) can’t simply allay the public’s concerns by speaking to the media on her own to say how offended she is by the speculation. Apparently, Lee is also “hurt” by the claims that she’s been pressured into publishing this novel, but all of those statements also come from… you guessed it… Tonja Carter.

I certainly won’t be reading Go Set a Watchman until I know that buying a copy isn’t supporting the exploitation of one of my favorite authors. I’m not saying Harper Lee needs to give a television interview, but, under these suspicious circumstances, surely it cannot be that burdensome or unreasonable to allow a physician (with a HIPAA waiver & possibly a guardian for Lee?)  or someone whose job or relationship with Lee does not depend on the good graces of Carter — to see her and tell the world that she’s okay.

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*This New York Times article (raised in the comments below by Jim) quotes a handful of people who have talked to Lee. It’s helpful to hear these perspectives, though there is no indication of whether any of these individuals are connected to Tonja Carter. Let’s hope Lee is truly doing well. There are many 88-year-olds who are. The concerns here are based on a few facts, including that (1) Lee has previously alleged in lawsuits against her former agent and her hometown museum that others have taken advantage of her declining health; (2) she is publishing a book contrary to her decades-old views on the matter; and (3) her lawyer, who is her primary connection to the world, strictly controls access to her.

Can We Trust Harper Lee’s New Watchman? (Can She?)

UPDATE (3/15/15): Via Huffington Post, “On Thursday, the Alabama Securities Commission said it had closed its investigation into an unspecified complaint of elder abuse, first reported by The New York Times, tied to the publication of Lee’s second novel. ‘We made a determination that Ms. Lee, based on our interview with her, was aware that her book was going to be published,’ said Joseph Borg, who heads the commission. ‘She wanted it to be published. She made it quite clear she did.'” That’s good news!

UPDATE (3/12/15): The State of Alabama is investigating the allegations of elder abuse. My hope is that they’ll find that Harper Lee is doing well and has the mental capacity to consent to the publication of her second novel. According to the New York Times, one person familiar with the investigation has indicated that “Ms. Lee appeared capable of understanding questions and provided cogent answers to investigators.”

Against the advice of my lawyer, I’m going to talk about Harper Lee’s new novel, Go Set a Watchman, which HarperCollins plans to release in July 2015 amid controversy, a word that may as well be synonymous with “Harper Lee” these days.

By “my lawyer,” I mean my husband, whose practice includes defamation cases. He was joking when he told me to avoid discussing Harper Lee. He thinks I’ve discussed her enough already on this blog. 😉

Joking aside, virtually everything we know about Lee comes from her lawyers or from the lawsuits she’s filed. In 2013, she sued her former agent, Samuel L. Pinkus, for breach of fiduciary duty (among other claims), which I wrote about in When Our Literary Heroes Become Victims.

Later that same year, Lee filed a questionable trademark application and then sued her hometown museum over unauthorized merchandise bearing the title of her book. The trademark was eventually granted when the museum agreed to withdraw its opposition to settle the lawsuit.

I don’t have a problem with Lee using the legal system to vindicate her rights. Indeed, I feel a tremendous affinity for her, given the impact To Kill a Mockingbird (1960) had on my life. As I said in We Were All Children Once (Even Lawyers), one of three posts I wrote while revisiting the middle grade novel as an adult: “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 an early literary experience that helped fashion my sense of justice. It gave me a greater understanding of our progress — and our remaining shortfalls — as a society in terms of racial equality.

Like many literary fans, I want to know more about the woman behind one of my favorite novels. However, the controversy surrounding Marja Mills’ “parasitic memoir” featuring Lee, The Mockingbird Next Door, dissuaded me from prying into Lee’s life by reading an unauthorized book. It was particularly disturbing when Lee released a statement in 2014 about Mills’ memoir that said: “any book purporting to be with my cooperation is a falsehood.”

As I wrote then, “Whatever the truth is about how [Ms. Mills] obtained access to Ms. Lee, even the possibility that Mills exploited Lee and her sister renders The Mockingbird Next Door unpalatable.”

Notably, all three of the above incidents revolved around allegations that someone or something had taken advantage of the octogenarian’s failing health. Now she’s back in the news again, and we’re supposed to believe that one of America’s most famously publicity-averse authors is “delighted” that a book she never tried to publish before is going to press.

As the story goes: Lee wrote Go Set a Watchman before she wrote her Pulitzer Prize winning To Kill a Mockingbird. Her editor at the time suggested she rewrite it from Scout’s viewpoint as a child, and the original manuscript (which features Scout as an adult) was lost.

Apparently, Lee has said that she was “surprised and delighted when [her] dear friend and lawyer Tonja Carter discovered it.” Lee’s lawyer had previously been her sister Alice, who died in November at age 103.

So her new lawyer “discovered” the half-century-old story out of the blue, and Lee was “delighted” to publish a book she had kept under wraps that whole time? That sounds a lot like the limelight-grabbing discoveries the Faulkner Estate kept making. It’s possible these fortuitous discoveries are entirely true, but it’s just hard to believe that no one ever found them before.

In Lee’s case, even if the story of Carter’s discovery is wholly accurate, there’s a question about whether Lee has really consented to its publication. It’s curious that she didn’t seek its publication closer to the time her first novel won the Pulitzer Prize.

Has Lee’s outlook on publicity changed? Or is it her mental competence that’s changed? As her lawsuits against Pinkus and others based on incompetence suggest, Lee’s ability to consent to publication at this stage in her life is suspicious. Multiple people in Monroeville who know her personally have raised allegations that Lee was manipulated into the decision.

In yet another statement this week via her lawyer (of course), Lee has now revealed that To Kill a Mockingbird was intended to be a trilogy, of which the middle book was never written — for now, at least. What’s the bet that someone connected to Lee will soon “stumble” on it?

Obviously, as only a casual observer of Lee’s public life, I don’t know what’s really going on. All I do know is that whatever it is, it’s fishy — and very, very sad.

The Mockingbird Next Door: A Parasitic Memoir?

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).

To Kill A Mockingbird vs. I Kill The Mockingbird

[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.”).