Harper Lee, the 87-year-old author of To Kill a Mockingbird, is suing a museum in her hometown of Monroeville, Alabama to stop it from selling souvenirs with her name and the title of her Pulitzer Prize-winning book. The complaint alleges that the museum seeks to capitalize on her fame, and that rather than dedicating itself to the preservation of history, its “primary mission is to trade upon the fictional story, settings and characters that Harper Lee created in To Kill A Mockingbird, and Harper Lee’s own renown as one of the nation’s most celebrated authors.” She asserts many trademark and unfair competition claims, the essence of which is that though “[h]istorical facts belong to the world, […] fiction and trademarks are protected by law.”

This lawsuit comes on the heels of Lee’s application for a trademark of the title of her book, “To Kill a Mockingbird,” or at least as the title appears on clothes. This application is vehemently opposed by the museum, which filed an opposition to the trademark in August. The current lawsuit seems to be an outgrowth of the ongoing spat between Lee and the museum, and might have been filed for use as additional leverage in an ongoing royalties dispute.

The question remains whether “To Kill a Mockingbird” in 2013 is history that belongs to the world, or if it is a trademark that is protected by law. It seems natural to be suspicious of a museum that operates the website of www.tokillamockingbird.com, but legally speaking, the museum has a strong argument that Lee “abandoned” the use of the novel’s title by not objecting to its use by the museum. The museum claims to have sold t-shirts and other souvenirs bearing the novel’s title at the museum since 1995, and operated the website since 1998. Additionally, Lee has lived in the same county as the museum her whole life, and even visited it in 2008.

Assuming that the museum has its facts right, Lee’s road to a trademark claim is a difficult one even in the best-case scenario. It would be odd for the trademark office to grant a trademark to someone who has never sold or licensed a single item of clothes since the novel’s debut a half-century ago and has tolerated a hometown infringer. Trademarks aren’t copyrights; they are intended to be used. “A trademark owner’s failure to exercise appropriate control and supervision over its licensees may result in an abandonment of trademark protection for the licensed mark.” Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1070, 1075 (5th Cir.). At this point, it is hard to imagine that Lee ever possessed the trademark, or that she exercised control sufficient to maintain the trademark.

–Phil Houten

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