Find me a southern lawyer that says she was not influenced by Atticus Finch in To Kill a Mockingbird, and I’ll show you a lawyer that does not bill for her time. I have enthusiastically devoured the book many times throughout the years. As a girl, I related to mischievous Scout enacting plays to pass the time while growing up in small-town Alabama. Even now, I hope I have developed more into Atticus-like tenacity fighting for fair treatment of artists and their creative works. I guess that is why when I uncovered this recent Trademark filing I was less than pleased. As of the writing/posting of this blog post, I cannot find where this is being reported on in any media source. Pull up a chair, pour yourself a glass of sweet tea (or an adult beverage if you prefer) and lean in real close. I’ve got an intellectual property tale that could only come from the deep South.
Author and Alabama celebrity, Harper Lee, filed an intent to use trademark registration with the United States Trademark Office for the phrase To Kill a Mockingbird in September of last year. The application for registration, which can be found here, states that the phrase will be tied to “clothing for men, women and children, namely t-shirts, hats and jackets.” Meaning, Ms. Lee plans to use the title of her book as a trademark associated with clothing. I guess it is to gain revenue from merchandise sales, which can be a quite lucrative stream.
The trademark was examined by an examining attorney at the U.S. Trademark Office and found no problems with Lee’s application. As is customary with all trademarks seeking registration, the trademark To Kill a Mockingbird was published for opposition in January of this year. Once a trademark is published for opposition, any party may file documents with the United States Trademark Office and “oppose” the mark being registered. If the mark receives no opposition, it is then deemed registered after publication for opposition.
Seems fair and should be smooth sailing for Lee. She wrote the story To Kill a Mockingbird. The characters were created by Lee, in a fictional town in Alabama, with descriptions and artistic expression. The title of the book was original to this story by Lee. All signs point to the intellectual property rights, copyright in the book and trademark in the title all belonging to Lee.
This is where this southern tale gets interesting. Ms. Lee did receive opposition for the trademark she filed, and the villain in this southern tale is from a surprising source. Take a moment and click on this LINK or type in your web-browser www.tokillamockingbird.com. It takes you to Monroe County Alabama’s website for the Monroe County Museum. Great southern foreshadowing tells you that the group that opposes Lee having her trademark in the title of her book To Kill a Mockingbird is none other than the Monroe County Heritage Museum, Inc.
The Monroe County Museum encourages patrons to “Visit us and discover the heart of To Kill a Mockingbird.” The website boasts Harper Lee’s heritage as a native to Monroe County Alabama. It states that the fictional town of Maycomb is a destination for visitors to Monroe County. It also has photos of the museum exhibits dedicated to Lee and her childhood friend Truman Capote.
In their opposition to Lee’s registration of the trademark, The Monroe County Heritage Museum alleges that they would be “damaged by the registration” of the mark To Kill a Mockingbird. The museum also claims opposition because they have been “engaged in the sale of clothing and gift shop items under the mark To Kill a Mockingbird … and various mockingbird design marks.” The museum continues their opposition by stating they have been doing so since 1995 and they have owned the domain name with the same name since 1998. Finally, the museum states that because Lee has knowledge of the gift shop selling the goods with the To Kill a Mockingbird trademark on them then Lee’s application for the mark is fraud to the U.S. Trademark Office. You can find the complete opposition and the brief filed by Monroe County Heritage Museum’s attorneys by going here.
The basis of the museum’s arguments rest on their claims that they decided to use the title to Lee’s book first on merchandise and therefore have rights in the trademark. And, not only do they have rights, but are stopping Lee from asserting hers. The biggest problem for me is that IF the Museum is successful, theoretically they could own, manage and make money off of the trademark/name indefinitely. Unlike a copyright which eventually expires and enters into the public domain, a trademark can last forever.
From simply reading the paperwork that is filed, I can only opine that the reason a trademark was just now filed by Lee is that she is tired of the Monroe County Heritage Museum using the title of her book as their website destination and profiting from merchandise sales linked with her creative product. As well she should be. It was her original work, her created intellectual property and the heritage museum is using her creative work to attract people to Monroe County Alabama. Regardless of whether she asserted her rights, it seems something less than southern hospitality to simply adopt the title of her book, place it on souvenirs and sell the items without any credit or profits going to Lee.
The Heritage Museum could have saved themselves a great deal of time and heartache if they simply developed their own marketing campaign. A more creative solution was attainable that would celebrate Lee, her work, her friend Capote and the legacy she leaves in Monroe County. Was appropriating and using the title of the book she creatively penned necessary? Surely there are other creative people in this community besides Lee.
It should also be noted that Lee is in another battle of intellectual property rights dealing with the copyright in her book with the same title. You can read about that separate lawsuit dealing only with copyright from Vanity Fair earlier this year in the article To Steal a Mockingbird. It is sad that Lee must fight so hard for what originated in her heart and brain. Would anyone ever have any real reason to visit the Monroe County Museum, but for the international acclaim Lee brought to that sleepy little part of the country? I cannot help but wonder what would Atticus Finch think of the Monroe County Museum’s actions.
What do you think? Did Lee give up her rights to the title of her book since she did not register the trademark? Does the county of Monroe Alabama have a valid claim to use the creativity of someone else? Legally even if they can, do you think they should? Share your thoughts in the comment section below!
UPDATE Saturday – 09.21.2013 After writing my blog post and publishing it on Sept. 5, I thought this was an important story that was not being told. I shared the post with The Birmingham News newspaper, Montgomery Advertiser newspaper, ABC 33/40 in Birmingham via email, as well as the post was retweeted numerous times. I even received a response back from The Birmingham News that they would look into it. Associated Press writer from Alabama, Phillip Rawls, wrote a story for the Associated Press fifteen days later on Sept. 20 that has now been picked up by numerous national media groups.
I’m glad this legal battle is getting the attention it deserves. Maybe my nerd tendencies of reviewing the U.S. trademark registry in order to help with insomnia has, perhaps, helped with bringing about some type of good?
The AP story credits the Monroe Journal as first breaking the story.
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- Mockingbird Author Harper Lee Sues Museum Over Trademark (blogs.lawyers.com)
- Harper Lee Puts Southern Town’s Gift Shop on Trial (online.wsj.com)