Mockingbird Author Harper Lee Sues Museum Over Trademark
Legendary “To Kill a Mockingbird” author Harper Lee has filed a lawsuit against a museum in the Alabama town the novel was based in for unauthorized use of her name and the name of her book.
The Monroe County Heritage Museum in Monroeville, where the 87-year-old author resides, makes a number of references to Lee and her book, including on merchandise for sale in its gift shop.
“The museum seeks to profit from the unauthorized use of the protected names and trademarks of ‘Harper Lee’ and ‘To Kill A Mockingbird,’” the suit claims. “The town’s desire to capitalize upon the fame of To Kill A Mockingbird is unmistakable: Monroeville’s town logo features an image of a mockingbird and the cupola of the Old County Courthouse, which was the setting for the dramatic trial in To Kill A Mockingbird.”
The 1960 novel, depicting lawyer Atticus Finch attempting to defend a black man from false rape charges in the fictional Alabama town of Maycomb, is one of the most widely read in the world, having sold over 30 million copies in 25 languages.
The lawsuit also claims that Lee attempted to register a trademark for the title “To Kill a Mockingbird” to be used on clothing but the museum opposed the move.
The museum is pushing back. “Every single statement in the lawsuit is either false, meritless, or both,” attorney Matthew I. Goforth said in a statement. “It is sad that Harper Lee’s greedy handlers have seen fit to attack the non-profit museum in her hometown that has been honoring her legacy and the town’s rich history associated with that legacy for over 20 years. Unfortunately for Harper Lee, those handlers are doing nothing but squandering her money with this lawsuit. The museum is squarely within its rights to carry out its mission as it always has.”
This isn’t the only Mockingbird-related litigation in which the author is involved. Earlier this year Lee settled an unrelated suit that alleged that an unscrupulous literary agent had tricked her into signing the book’s copyright over to him.
Free Speech Doctrine
Trademark protections are not absolute and museums have a right to refer to works under certain circumstances.
“The First Amendment free speech doctrine does the best job of protecting the non-permissive use of trademarks in historical and educational contexts, and in expressive contexts generally,” says Ann M. Bartow, a professor at Pace Law School. “The dispute sounds a little bit like Mattel v. MCA, in which the song ‘Barbie Girl’ was found not to infringe or dilute Mattel’s trademark rights in ‘Barbie’ and ‘Ken.’ If what the defendant is doing qualifies as expressive speech, it would not be something trademark rights should impede.”
There’s also a form of fair use doctrine that could potentially work in the museum’s favor. “The so called ‘nominative fair use defense’ protects the ability to use a trademark to refer to a trademark owner or its goods or services for speech related purposes such as reporting, commentary, criticism, parody, and comparative advertising,” Bartow says. “The nominative fair use defense requires: (1) that the trademark owner, good, or service in question must not be readily identifiable without use of the trademark; (2) that the defendant use only as much of the mark as is necessary to identify the trademark owner, good, or service; and (3) the defendant must do nothing that would suggest sponsorship or endorsement by the trademark owner.”
Lee clearly thinks the museum does not meet the standard. “Historical facts belong to the world, but fiction and trademarks are protected by law,” the suit states. “The Museum has steadfastly ignored Ms. Lee’s demands that it cease and desist from its illegal action.”