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Interactive: You Are The Jury - Case 3 | Author Of To Kill A Mockingbird Files Two Lawsuits

Updated on August 19, 2015
Source

Update: Release of Digital Audiobook and E-book July 8, 2014

In 2006 in a missive with Oprah Winfrey, Harper Lee wrote that she was not a fan of digital technology.

"Can you imagine curling up in bed to read a computer? Weeping for Anna Karenina and being terrified by Hannibal Lecter, entering the heart of darkness with Mistah Kurtz, having Holden Caulfield ring you up,” she wrote. “Some things should happen on soft pages, not cold metal.”

As much as she is a traditional "hold a book in your hand" kind of lady, she has finally consented to her publisher HarperCollins (formerly Lippincott) to allow an e-book and a digital audiobook of her novel To Kill A Mockingbird to be released on July 8th, 2014.

Although I do believe I've seen copies of her book on audiotape in some obscure second hand bookshop, this announcement leads me to believe they were of the homemade variety for Mockingbird lovers to share the book with others.

Harper Lee is all for making her book available in as many formats as possible so that everyone can enjoy her book, in whatever way they choose to read. If that happens to be on a computer, Nook, Kindle or other digital device, she is willing to move along with the times. This is a big step for a book that has been in print for over 50 years and is as popular today as it was within a year of publication.

"I'm still old-fashioned. I love dusty old books and libraries," Lee said. "This is Mockingbird for a new generation."

Source: CNN

Harper Lee

in 1960's, doing research for Truman Capote's book "In Cold Blood"
in 1960's, doing research for Truman Capote's book "In Cold Blood"
2007 Presidential Medal of Freedom celebration
2007 Presidential Medal of Freedom celebration
Do not copy. This is an original article by Rachael O'Halloran and is copyright protected
Do not copy. This is an original article by Rachael O'Halloran and is copyright protected

1 - The basis for the lawsuit

Published May 14, 2014

In a little departure from my previous Interactive Jury Copyright hubs, this article is not only about Copyright Infringement. It involves Trademark Infringement and, in my opinion, is a classic case of Elder Abuse, although I have only seen one or two websites mention it and have yet to see a Complaint filed in regard to it.

Besides being unusual, what brings this case to our attention is that the person at the center is Harper Lee, the Pulitzer Prize winning author of the 1960 book "To Kill A Mockingbird." Harper Lee is a woman who dropped out of the limelight after about three years of press junkets and book signings due to the stress and media misrepresentation of her statements.

The parties involved in each case have settled out of court with most of the terms undisclosed. What little I have learned have been garnered from news reports, not from court documents unless otherwise indicated.

This case is presented here for informational and educational purposes to make all authors aware that even in the 21st century, if a literary agent could get away with this behavior once, it could happen again.

Copyright infringement - Due to the infirmities and residual health effects of a stroke, Harper Lee was swindled out of her copyright for her book To Kill A Mockingbird, the royalties of all publishing and licensing, and foreign publishing rights. The agent did not act in good faith or with her best interests in mind. The literary agent went on to further take advantage of Harper Lee with continued abuse of her financial accounts to the tune of $1.5 million per year in royalties. This lawsuit was filed in court May 2013.

Trademark Infringement - Harper Lee is suing a museum in her Alabama hometown where, for years, she contributed financially, and with autographed book copies and movie memorabilia. The not-for-profit Monroe County Heritage Museum, located in the Courthouse which is the setting for the novel, ignored many Cease and Desist letters over the past twenty plus years.

Even after notification, they continued to use her name, her book and trademark to imprint on items to sell in their gift shop. Lee cites ongoing infringement of capitalizing on their famous resident's name and products for promotion of events ( such as her name in the headline advertising community theater stage plays {at $50 per ticket!}, museum showings of the movie and readings of the book), without permission or compensation back to her. Link at end of this article.

The lawsuit also alleges continuing infringement on identical or very similar trademark owned by Lee in order to capitalize on her local citizenship, bring in tourists and bring attention to their Harper Lee exhibit.

Fair use has been brought up in this case by the museum. They allege that they had to use Harper Lee's image, book, and historical roots in order to promote the museum, the events, the gift shop items and more.

Harper Lee didn't see it that way.

This lawsuit was filed in court May 3, 2013, hereafter referred to as Complaint.

While her physical confinement, short term memory loss and physcial infirmities may have been the catalyst that drew these people to take advantage of her, the museum litigants didn't count on her sharp long term memory skills recalling all of their past misdeeds.

2005

Photo of Harper Lee in 2005 by Stephen Shugerman/Getty Images.
Photo of Harper Lee in 2005 by Stephen Shugerman/Getty Images.

Who was watching out for Harper Lee's best interests?

In 2007, Tonja Carter had only been out of law school a year, and employed at Alice Lee's law firm for most of that time, performing primarily trust and probate work.

However, given they were supposed to be looking out for Harper Lee, it doesn't sound like Harper Lee's legal counsel was aware that Sam Pinkus was making routine trips to Harper Lee's nursing home to get her to sign questionable documents.

It wasn't until Pinkus had wore out his welcome by continually dropping in unannounced that Harper Lee ordered the facility's management to bar his admittance into the nursing home.

By then the damage had been done. Harper Lee had been unknowingly duped into signing over her copyright to Sam Pinkus and his VMI Corporation with a 2007 Purported Assignment of Copyright document.

It would not be detected for over four years until 2011 when Sam Pinkus duped Harper Lee out of her signature a second time to transfer the copyright and funds out of VMI's name and into his newly created shell company, Philologus Procurator, Inc. because there was heavy heat from M & O connecting him with stealing it.

2007

Presidential Medal of Freedom in 2007
Presidential Medal of Freedom in 2007 | Source

Rachael O'Halloran's Trivial Thoughts for the Trivia Minded Reader™

ƒ "To Kill A Mockingbird," published in 1960 was based on events in Harper Lee's hometown that occurred when she was ten years old. The mockingbird is on the town's logo and on the cupola of the Courthouse, where her story takes place. The book still sells 750,000 copies per year bringing in more than $1.5 million in royalties to the author each year.

ƒ To Kill A Mockingbird is the one and only novel Harper Lee ever completed and published. She wrote essays and short stories, helped to do research on other authors' projects but never published another novel.

ƒ Harper Lee worked for BOAC airlines, took a year off from her job with the generous support of friends and wrote her book. It took her nearly two years to edit and find a publisher. When it was in printing, the publisher said he didn't think it would sell because of the racial undertones and subject matter.

ƒ Several books have been written about Harper Lee, none of them authorized. She wrote very intense letters to newspapers to let people know the authors did not have her permission and the biographies were not authorized, no matter what the authors said to the contrary! One author rented a house next door and cozied up for a year, then wrote a tell all book, for which Harper and Alice Lee both said she never asked permission, never said who she was and most of the book was not true.

ƒ Gregory Peck played Atticus Finch in the movie version of Harper Lee's "To Kill A Mockingbird." He won the only Academy Award of his whole career for Best Actor in 1962 for his role in this movie.

  • The movie version is almost verbatim of the book version - a rarity in Hollywood who usually takes creative license with most novels adapted for the screen.
  • If you haven't read the book, please either get a copy from the library or hit one of the online booksellers. It is available everywhere because it's never been out of print.

ƒ The last name of Finch of Gregory Peck's character is also Harper Lee's mother's maiden name. His character is based on her father who was a lawyer. After this case was over, he gave up trial law.

ƒ Harper Lee's family lawyer is her sister Alice, who was 14 years older than she. Alice Lee celebrated her 102nd birthday in 2014 and still practices law at the family law firm started by her father in Monroeville, Alabama.

ƒ The original manuscript "To Kill A Mockingbird" is safely stored in the Monroeville Bank vault and Alice Lee's law firm is conveniently located on the upper floor of the bank building.

ƒ There are videos on this page and links to other pages which will give you the background of the book, the author and the movie if you are not acquainted with the subject matter.

ƒ Harper Lee was awarded the Presidential Medal of Freedom in November 2007 by President George Bush. By then she had already been unknowingly swindled out of her copyright.

  • A tidbit that might not be known by many: Harper Lee admired and trusted Sam Pinkus enough to represent her, that she gave him her 2007 Presidential Medal of Freedom. I wonder if he sold it. :(

ƒ Harper and Truman Capote lived next door to one another and were childhood friends until he moved away at age 8. They renewed their friendship when Harper Lee lived in New York while writing her book.

ƒ After Harper Lee won the Pulitzer Prize in 1961, her friendship with Truman Capote, (who never won the Prize), started to change until they were estranged in the 1970s.

ƒ Harper Lee dropped out of the limelight of book signings and traveling junkets, when her opinions were misrepresented by the press. She was and is an intensely private person and she was not willing to continue with the rigorous commitment requirements of promoting a book with the press twisting her words.

ƒ Truman Capote's real name was Truman Streckfus Persons. He died in 1984 at the age of 59. His book "In Cold Blood" was made into a movie. Harper Lee did his research for the story and the book took nearly 4 years to complete.

Why Harper Lee never published another book.

Quoting Harper Lee's close friend, Reverend Dr. Thomas Lane Butts, on what she told him regarding why she never wrote another book:

"Two reasons: one, I wouldn't go through the pressure and publicity I went through with To Kill a Mockingbird for any amount of money. Second, I have said what I wanted to say and I will not say it again."

2 - Copyright lawsuit. The Facts

For over 40 years, up until 2002, the then 76 year old Harper Lee's literary interests had been represented by literary agent and attorney Eugene Winick of the literary agency Mackintosh & Otis (M & O) in New York City. Most literary agents either are attorneys or have extensive legal background.

Winick handled all her publishing contracts - foreign and domestic, translations and licensing, negotiations and royalties. He maintained foreign accounts in other countries so that she would be paid there, then transferred the funds from foreign accounts into her American accounts, deducting his commission.

In other words, he saw to it that she was well taken care of in a fair manner.

Harper Lee's family lawyer of record is her older sister Alice Lee, who retired at the age of 99, but still drops in at the law offices now and then. She celebrated her 102nd birthday in early April 2014. (Update: Alice Lee died in November 2014 at age 102).

(Nelle) Harper Lee, who just turned 88 on April 28, 2014 is fourteen years younger than Alice and is the youngest of four children.

In mid-2002, Mr. Winick, age 82, became ill and left the firm, no longer in a position to represent Harper Lee's interests.

  • His son-in-law, attorney and literary agent Samuel Pinkus, was also employed by M & O at that time and he continued to service Mr. Winick's clients. He is married to Leigh Ann Winick Pinkus, Eugene's daughter, a detail which will come up again in this article.

Sam Pinkus wasn't exactly on the up and up.

Taking advantage of Eugene Winick's illness, the very sly Sam Pinkus decided to pull a fast one by funneling some of M & O's authors (and their royalties) to his brand new company - Veritas Media (VMI).

As literary agent and attorney, on behalf of authors, Pinkus renewed and negotiated authors' foreign and domestic licensing and publishing agreements. Using his VMI Corporation, he then diverted the royalties and commissions which were siphoned from the authors' accounts into accounts for shell companies which he created.

This took income away from the authors, but also from the M & O, the literary agency. Each time he transferred funds from one company bank account to another (because each new company needed their own bank account), he signed for the transfers himself. No author signature was obtained and that meant the author was not alerted.

  • Pinkus, as an employee of M & O, was bound by his position to deposit all fees and commissions to M & O for the firm's clients he represented, minus his own commission. This was not done for most of his tenure of employment, certainly not for the five years after Mr. Winick left M & O's employ from 2002 to 2007.

Five years later, in 2007 M & O eventually found out about his illegal activities which involved several authors, namely the Joy Of Cooking (family estate), author Mary Higgins Clark and author Harper Lee whose names appear in court documents. Pinkus also kept the John Steinbeck (Of Mice And Men) estate, whose son Thomas Steinbeck is heir and administrator of his estate.

  • For nearly 30 years, Eugene Winick and in later years son-in-law Sam Pinkus conspired with Steinbeck's third wife and widow to keep John Steinbeck's natural children (heirs) from profiting from the intellectual properties of Steinbeck. In ten years, that amount was $45 million as of 2004. Alas, that is a story for another day and another article. But suffice it to say that Pinkus had a good teacher in Winick who talked the Steinbeck heirs into signing over a power of attorney to him so he could manage the estate and transactions without consulting them at every turn. I would speculate that the Steinbeck conspiracy was a dry run for Pinkus before he took advantage of Harper Lee.

M & O brought a lawsuit against Pinkus for his activities against several authors while Pinkus was part of M & O. The lawsuit was filed in 2002 and didn't get inside a courtroom until 2007.

In 2007, Pinkus was fired from M & O. The court ordered him to release the clients he took back to M & O, but he kept Harper Lee. It is not clear from court documents if this was with or without M & O's knowledge or if there was paperwork filed to show she had made a change in agent.

However, Pinkus had bigger problems if he wanted to keep any of the funds he had been siphoning.

His wife (Leigh Ann Winick Pinkus), and his lawyer, Gerald Posner, who was also a reporter-journalist, along with five unnamed entities were listed as either President, Director, or Agent on most of the companies. Court documents assume all were either Pinkus, his wife or Posner.

It took another five years for the court to make a judgment decision - from 2007 to 2012. A lot of damage was done in those five years, namely to Harper Lee's rights and financial management.

In a 2012 court judgment, M & O won their case for restitution of commissions and the return of their clients' royalties. At this point, that is all M & O knew about his activities. They did not learn of the rest until it broke on the national news.

M & O's judgment was for $779,780.34. It was money they didn't have a prayer of ever seeing because Pinkus had no intention of paying.

Contemplating the court judgment, Pinkus started moving money around so that he and his VMI Corporation wouldn't have to pay all that judgment money to M & O. Sam Pinkus created several more foreign corporations so any money he gained from acting as literary agent and negotiations on behalf of any clients would not go into VMI's accounts in New York where M & O would be able to collect the restitution.

Swindling Harper Lee

After M & O filed their lawsuit in 2007, unbeknownst to them, Sam Pinkus did the unthinkable to Harper Lee.

He took advantage of her bad vision, misrepresented paperwork for her to sign and swindled her out of the copyright to her book and thus, all the royalties of book and trademark agreements. The news wires called it To Steal A Mockingbird because no one could believe a trusted literary agent and attorney would do such a thing.

  • For a book to be published and sold in the foreign countries, the literary agent negotiates the foreign rights to the book which will allow the book to be published (or translated as the case may be), sending royalties and commissions back to the author (usually in an account set up in that country which is later moved to US), with the agent taking a percentage. The negotiations are supposed to be done in the best interests of the author, not in the best interests of the literary agent. Sam Pinkus skipped the first part and benefited greatly by the second part for five more years.

Also earlier in 2007, Harper Lee had a mild stroke which affected her mobility so that was confined to a wheelchair in the assisted living section of a Monroeville, Alabama nursing home facility. For six years prior, her vision was nearing toward blindness from macular degeneration and her hearing wasn't much better, but her memory and mental capabilities were in prime condition for woman her age.

For years, she had maintained a New York residence for part of the year and for the remainder, she lived in Monroeville, Alabama with her sister, Alice Lee, who had her own health issues.

Alice Lee became deaf at around 80 years of age (around 1992), relying on lip reading to understand communications both socially and in her law practice. Because of her deafness, Alice often had another associate in her law firm help with or take over attending to her sister's legal needs.

  • Because Pinkus was Mr. Winick's son-in-law and already working for M & O literary agency, Alice Lee and Harper Lee trusted Sam Pinkus to legally look out for Harper Lee's best interests of renewing foreign publishing rights and making sure her royalties were paid to her. So, whatever he asked Harper Lee to sign, she did. Because of the change in agent representation, the fact that no one read anything they were signing (or had someone read it to them) is amazing.

The word "assign" in this case means to transfer, to give away - usually without money changing hands; a gift.

Because she couldn't travel to New York anymore, Sam Pinkus had visited Harper Lee's nursing home in Alabama many times since 2002 to get her signature on documents, always to transfer money from one foreign account to another, release forms and other agreements, etc.

On May 5, 2007 at her nursing home, still taking advantage of Harper Lee's residual stroke infirmities, Sam Pinkus put a document referred to in the court Complaint as "2007 Purported Assignment of Copyright" in front of her for her signature.

Unknowingly, by signing it, she had assigned to him and to his company, VMI Corporation, the copyright for her book, along with the foreign and domestic publishing royalties and trademark licensing, plus all her royalties and interests in the movie "To Kill A Mockingbird," including memorabilia rights.

  • The document was never notarized.

The second time Pinkus needed Lee's signature was on April 11, 2011 because he had created a new company and needed make some changes. Also the copyright assignation had to be re-assigned and that required her signature again.

So, he needed to pull another fast one.

One of Alice Lee's newly graduated law partners, Tonja Carter, who was also a notary public, assisted Harper Lee in a different legal matter of setting up a trust. When they were done, they were to remain at the Atmore Hotel in Escambia County, Alabama to meet Sam Pinkus because he said he needed to obtain signatures for more documents which required notarization.

  • The location of the meeting was well noted in court documents. Sam Pinkus would later alter the notarized document changing the location from the Atmore Hotel in Escambia County, Alabama to Harper Lee's home address in Monroe County, where she had not lived in some years.
  • Pinkus wanted Ms. Carter, as notary public, to witness documents Harper Lee was to sign as a show of legitimacy. The document was another Assignment of Copyright (2011), to change the Copyright assignment from Pinkus and VMI Corporation and to assign it to Pinkus and his newest shell company, Philologus Procurator, Inc., listing him as president. His friend Gerald Posner, an attorney and reporter, incorporated it for him and filed paperwork showing Posner's Miami Florida address as its location.
  • Pinkus needed to divert VMI's ownership of the copyright and royalties because his VMI Corporation was under scrutiny from the M & O court judgment and other legal issues he was facing with his shell companies. Each time he created a new company, he had to get creative with the paperwork and whatever holdings that company was handling.
  • Knowing a document would never be notarized with inaccuracies, Pinkus - after the fact - changed the dates and address on Harper Lee's document to say it was signed at Harper Lee's home in Monroe County when it was at the Atmore Hotel.

I still don't know why that was so important after reading more than 70 pages of court documents at least three times. But evidently it was, and that's why I'm a nurse and not a lawyer.

In Harper Lee's May 3, 2013 court transcript, there buried in the long list of charges, shows that Pinkus was charged with altering the Assignment of Copyright document regarding the location and the dates. (Page 13 of complaint).

Tonja Carter, trusting attorney Sam Pinkus as Harper Lee's literary agent, never read it before signing and notarizing it and neither did Harper Lee with her bad vision. She trusted others to read for her. Tonja Carter never stamped the date on the notarization (required); she left it blank. It was a sloppy mistake and should have nullified the document, if and when it would be challenged in court. No one did.

This would leave the way clear for Pinkus to backdate the document to February 9, 2011 so that he would be able to conduct other shady business in Harper Lee's name for deals he had in the works long before the document had been actually been signed. He was negotiating the foreign language translation rights in countries that had not yet published the book. New countries had no track record, so the prices could be set by Pinkus for any amount he wanted. Countries who renewed their contracts had set prices in place and they couldn't be fudged. New countries were ripe for the picking.

Years later, in 2012, Harper Lee said she has no memory of Pinkus telling her she was signing a re-affirmation document in 2007 or of him telling her she was signing a re-affirmation again in 2011. She said she never would have assigned her copyright away to anyone.

Conspiracy

Sam Pinkus wasn't in this scam alone. He had lots of help, including his lawyer and also his wife, Mrs. Leigh Ann Winick Pinkus, daughter of the former literary agent Eugene Winick. She was president of two of his shell companies.

Each company needed a name on it, to be chief financial officer (CFO) and each person needed to be aware of what Pinkus was doing to funnel the money. To that end, there were a list of names listed as accomplices on the Complaint involved in scamming Harper Lee, with Samuel Pinkus at the top of the list since he was president on most of the shell companies and created each shell company.

There were more than eight names on the Complaint and each one had a part in keeping documents, money and information away from Harper Lee and her lawyer, Alice Lee.

  • The Complaint shows that Pinkus also prepared "to whom it may concern" letters (starting in October 2008) that he duped Harper Lee into signing which were sent to foreign subagents with instructions that VMI was her representative and that they should send any missives relating to her to only Pinkus at VMI. The letters also said they should not give any info about her or her book to anyone including M & O without her permission. At that point M & O had filed their lawsuit against him the year before, but it wouldn't be until 2012 before a decision came down.

  • In November 2011, Pinkus closed all Harper Lee's bank accounts in the United Kingdom. With Harper Lee's newly signed Assignment of Copyright document from April 11, 2011 in his possession, he had all royalty checks sent to his new Miami Florida company Philologus Procurator, in care of Sam Pinkus.

After ten months of trying to get a copy of the April 2011 Purported Assignment of Copyright from Pinkus, Harper Lee finally received it in February 2012 and that is when they learned about the first 2007 document which signed away her copyright.

When Tonja Carter saw what Pinkus had done, she demanded him to reassign the copyrights back to Harper Lee. While waiting for him to do that (which took nearly a year by the way) Carter saw the various deals he had made and the royalty funds that had not come to Harper Lee.

Alice Lee and Tonja Carter contacted an attorney in New York, Gloria C Phares, of the firm PATTERSON BELKNAP WEBB & TYLER LLP

Harper Lee (through Ms Phares) filed a lawsuit in May 2013 to have Pinkus turn over all commissions he has received from book sales and other revenue since 2007 to Harper Lee, and that her copyright be reassigned back to her. At $1.5 million per year just in United States, the royalties over the years numbered in the millions.

3 - Copyright Infringement - The Settlement

In May 2013, the lawsuit between Sam Pinkus and Harper Lee was settled out of court.

The terms of the settlement have not been disclosed.

In past litigation VMI was ordered to pay M & O $212,161.87 in connection with commissions. The court ordered VMI to pay $1,688,064.68 royalties earned on Nelle Harper Lee's To Kill A Mockingbird. There were settlements with Mary Higgins Clark and another undisclosed settlement between Pinkus and Harper Lee.

Here is what NBC News reported about the copyright infringement case

Hoping for a little public encouragement

“I never expected any sort of success with Mockingbird.

I was hoping for a quick and merciful death at the hands of the reviewers but, at the same time, I sort of hoped someone would like it enough to give me encouragement. Public encouragement.

I hoped for a little, as I said, but I got rather a whole lot, and in some ways this was just about as frightening as the quick, merciful death I'd expected.”

—Harper Lee, quoted in Newquist, 1964

3- Trademark Infringement - Litigation

Reading the court documents is an exercise in brazenness on the part of the museum. Talk about taking advantage of the good nature of a best selling author who just happened to be the town's most prominent citizen!

Each step along the way, the museum has agreed to stop committing a certain infringement only if Harper Lee would concede permission on certain points in the museum's best interest in promoting their historical value or fundraising events. She wrote an essay for one edition of the book and she made a personal appearance to a library reading, but none in the last 12 years. As soon as she saw that this was a game to the museum to keep capitalizing on her name value as a citizen of the town, she stopped giving permissions and started issuing Cease and Desist letters.

The museum went before the Trademark Trials and Appeals Board of the Patent and Trademark Office (Opp. No. 91212081) to protest Harper Lee's re-application for federal registration of her trademark TO KILL A MOCKINGBIRD.

The Complaint and Exhibits show that the museum is guilty of producing reproductions of merchandise using Harper Lee's registered trademark TO KILL A MOCKINGBIRD for selling in Alabama, thereby blurring and diminishing her trademark and misrepresenting to the public that she condoned and supported the sale of the merchandise.

Not that she needed it, but she sued for a piece of the museum's 20 year long profit of merchandising her name and trademark and to pay her attorney's fees.

2- Trademark Infringement. The Facts

This is a paraphrase of the October 2013 Complaint filed in an Alabama District Court.

Harper Lee filed a lawsuit against the Monroe County Heritage Museum in her hometown of Monroeville, Alabama for unauthorized use of her name, her reputation and notoriety and the name of her book on merchandise in its gift shop and promotional events.

The museum (Defendant) also created a website using the book title tokillamockingbird.com (which, as a result of this lawsuit, now redirects to the museum's website using their own name.)

The Complaint reads: As used by the Defendant, the words, terms and name “TO KILL A MOCKINGBIRD” and “HARPER LEE” are identical to or confusingly similar to the Plaintiff’s names. The Defendant selected and uses the TO KILL A MOCKINGBIRD and HARPER LEE marks and names with knowledge of Plaintiff’s TO KILL A MOCKINGBIRD and HARPER LEE marks and names, and the valuable goodwill and business reputation associated therewith, with intent to confuse, mislead and deceive the public into believing Defendant’s goods come from Plaintiff or are in some manner associated with or endorsed by Plaintiff."

She has a point. How many times have you purchased something with a famous person's name (trademark, book, or movie) imprinted on an object and thought to yourself, "I bet he gets a piece of the price per item." It is a natural assumption when we see a famous name associated with a product.

Harper Lee's lawyers alleged that the museum is riding on her coattails by using her trademarks to sell unlicensed Mockingbird-related merchandise, which is anything from t-shirts to "Mockingbird Lemonaid Mix."

She asked that the museum stop infringing on her trademarks and for an unspecified amount in damages.

The attorney for the museum, Matthew I. Goforth said in a statement that all Harper Lee's allegation in the Complaint are false. Then he turned around and said that the museum is just trying to support education and historic preservation.

At the end of the session, he played the greed and old age card saying: "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.”

In court documents, Harper Lee showed where in the past the museum's infringing actions extended to once publishing a "Calpurnia's Cookbook" to trade on the fictional character in her book, but withdrew it from publication after a Cease and Desist demand from Harper Lee.

Other times, the museum would create trinkets with logos and themes, but backed down when Harper Lee wrote a letter to object. The museum "grudgingly complied to stop infringing" then would turn around and ask permission to continue the same practice. This went on over 20 years.

Harper Lee's attorney contends that the museum apparently "believes that Harper Lee lacks desire to police her trademarks due to her poor health and therefore the museum seeks to take advantage" of her condition and intellectual property."

Harper Lee contends that the museum had "a bad faith intent to profit from TO
KILL A MOCKINGBIRD's trademark."

The museum is alleging "Fair Use" of Harper Lee's name and book title, as well as promoting her as a citizen of the town in association with selling their tangible goods, such as clothing, bags, towels, linens, magnets, memo pads, ornaments, glass ware, plastic/acrylic tumbler glasses, seat cushions, car decals, coasters, bookmarks, teacher’s instructional guides, fans, postcards and beverage covers. All are imprinted with either Harper Lee's name, likeness, home, or book title or characters.

In this case, Fair Use would be only the mention of her name and product as it pertains to the books, stage productions, but not in the selling of their tangible goods. There is no good faith effort and the court construed this as a malicious way to capitalize on Harper Lee.

When Harper Lee's representative went to re-register her trademark after getting it back from Sam Pinkus, the museum filed an injunction to disallow her to file a trademark, saying she couldn't possibly own a trademark on her name or her book. They knew they had a lot of merchandise with logos,etc. but they had not filed for a trademark for it either. Harper Lee was refiling to have hers reinstated after it had been swindled from her, so that her name would be on it and not Sam Pinkus or any of his company names. She did the same thing with her copyright to make sure her name was on it.

All of Harper Lee's Cease and Desist letters in the trademark matter were ignored by the museum. A lawsuit was filed October 23, 2013.

The museum then cited laches against Harper Lee which the judge dismissed, finding in favor of Harper Lee.

Laches is waiting long past the three year statute of limitations to file a lawsuit against an infringer. The law gives each copyright holder 3 years from the time they KNOW of or NOTICE the infringement. The museum had been infringing for over 20 years and in their argument said Ms Lee should have brought the lawsuit 17 years ago when it was within the 3 year statute of limitations.

The judge said that because Harper Lee is the unmistakable owner of her name, her book, her trademark and has copyrights for those trademarks on file, the defense of laches is moot and dismissed.

As a point of information for any author reading this: If you find your work has been infringed, or your copyright stolen, or anything that will require you to file a civil lawsuit, you must register the work (s) in the US Copyright Office in order to be able to sue. Even though your work is copyrighted from the moment you create it, you must have a hard copy on file at the US Copyright Office in order to file a lawsuit. Statute of limitations is 5 years for criminal lawsuit and 3 years for civil lawsuit as stated at the above link.

Trademark Infringement - Settlement

On February 19, 2014 the two parties agreed to settle this lawsuit and the terms have not been disclosed but it appears from the museum's website that Harper Lee merchandising is still going on.

The website using the book title tokillamockingbird.com previously now redirects the user to http://www.monroecountymuseum.org.

The museum still uses Harper Lee, her biography and the backstory of how the book setting came to be in the town of Monroeville, Alabama.

One can probably assume the settlement didn't amount to much because, as you can see from the link, the museum sells tickets to their production of To Kill A Mockingbird for $50 per ticket; a meal with the cast is $100.

A nostalgic and quite entertaining look at how others view Scout.

References

Complaint and Judgment for M & O, June 2012 - Filed in 2007, Judgment in 2012. Pinkus ordered to pay back $779,780.34. Author breakdown on page 18

News item - Harper Lee files suit against agent Sam Pinkus

Complaint - Harper Lee vs Samuel Pinkus - October 2013 - settled out of court.

Monroe County Museum website showing what Harper Lee was talking about with promotional tactics. Since this is still going on, one can only assume that part of the settlement was in favor of the Museum continuing to exhibit and use Harper Lee's name and book in promotions.

Gerald Posner Plagarism scandal - he plagarized "Why America Slept" and "Secrets of the Kingdom.

Harper Lee Settles Lawsuit with Monroe County Museum

Final thoughts

This lawsuit is a sad commentary not only on how people have no regard for the law and our rights as copyright holders, but also no regard for the elderly.

When trusted attorneys and literary agents who are meant to be looking out for our best interests are the wolves in sheep's clothing, however will we recognize the good guys?

Your thoughts are welcomed.

Do Not Copy

© May 17, 2014 Rachael O'Halloran

© 2014 Rachael O'Halloran

Comments

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  • bravewarrior profile image

    Shauna L Bowling 2 years ago from Central Florida

    Rachael, once again you've done a brilliant job of presenting an injustice. I hadn't heard about this case. It's just appalling, in my opinion. To take advantage of an elderly person all in the name of financial gain is just flat out wrong. I'm glad Harper Lee got her copyrights back. Did Pinkus really think he could get away with this? Unbelievable!

  • RachaelOhalloran profile image
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    Rachael O'Halloran 2 years ago from United States

    #bravewarrior - isn't that amazing how people can be so unscrupulous? And to think she relied on her sister and a new associate who really dropped the ball. The words "Retraining" and "retire" comes to mind here in regard to Tonja and Alice, respectively. Thanks for reading.

  • travmaj profile image

    travmaj 2 years ago from australia

    Strikes me Ageism is alive and well. I hadn't heard of this case before. Lee would naturally trust Pinkus and associates. Such a terrible injustice. How stressful for Lee to have to deal with all this. To Kill a Mockingbird is a powerful book and film embraced by generations. For the author to be treated in this way is shameful.

  • FlourishAnyway profile image

    FlourishAnyway 2 years ago from USA

    May hell rain down on the swindlers who took advantage of this woman's age, disability, terrible counsel or lack thereof, and isolation in a nursing home.

  • DDE profile image

    Devika Primić 2 years ago from Dubrovnik, Croatia

    You certainly have a way of introducing such interesting hubs. Here again you surprised me with another of your greater hubs. My first time of reading about this case and so much of thought you put in to this hub.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 2 years ago from United States

    #DDE, I don't know where you find the time to come by my articles each week! Thank you so much for your kindness and visits.

    Rachael

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    Rachael O'Halloran 2 years ago from United States

    #FlourishAnyway, Wasn't this incredible in today's day and age? This article was especially disturbing to write because of the obvious elder abuse and because I work with the elderly in my occupation. The fact that Harper Lee triumphed in both cases reinforces my hope that justice can be served when slimeballs like Pinkus do terrible things like this. Just think if what goes around, comes around why may be in store for him. hmm.

    Thanks for reading,

    Rachael

  • RachaelOhalloran profile image
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    Rachael O'Halloran 2 years ago from United States

    #travmaj - It is very shameful and I think settling this out of court was being too good to him. He should have cooled his heels in jail for a little while to learn his lesson.

    People of his ilk will go on to do this again to some other client and one can only hope they are as sharp as Harper Lee or have good people watching out for them.

    Thank you for reading,

    Rachael

  • vkwok profile image

    Victor W. Kwok 2 years ago from Hawaii

    To think that a fellow writer, and a reputable one at that must endure such injustice. Thanks for sharing this case with us, Rachael.

  • Jackie Lynnley profile image

    Jackie Lynnley 2 years ago from The Beautiful South

    What an interesting case; I had no idea she was even alive and her sister a lawyer and still working, can't wait to tell my husband about that!

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 2 years ago from United States

    #vkwok, Taking advantage of the elderly is bad and I hope the paybacks are just as bad when he becomes elderly too. Thank you for reading and commenting.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 2 years ago from United States

    #Jackie Lynnley

    It is amazing that her sister is still working at 102 and even more amazing that Harper Lee has been able to keep her private life private.

    I don't know that I would be able to write only one book and quit. I think I have about 4 or 5 in me screaming to get out. But I can understand her thing about doing the publicity tours for 2 1/2 years.

    I can see how that might have gotten to her, especially given the content of her book and the types of questions she got from reporters and "journalists."

    I wouldn't be able to handle getting hit with lots of questions about a book I wrote either, especially if I'm supposed to be signing my name and not getting into chapter and verse about why I wrote something one way or the ins and outs of characters. I'd have to think about that part some more. I'm pretty shy that way. lol

    Thank you for reading and commenting,

    Rachael

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