She’s been awarded the Presidential Medal of Freedom; she’s won a Pulitzer Prize; her only novel has sold over 30 million copies and it’s been made into an Academy Award winning film.  You would think that Harper Lee, the author of To Kill a Mockingbird, would be raking in the royalties and enjoying her golden years following the huge success of her much beloved book.

But 87 year old Harper Lee has instead found herself in court, in need of her own Atticus Finch. The author has filed a lawsuit in Manhattan against Samuel Pinkus (amongst others), the son-in-law of her former literary agent.

Lee alleges that when her agent fell ill in 2002, Pinkus transferred several of his father’s clients, including her, across to his own company, and became her literary agent.  Lee claims that in 2007, he induced her (by taking advantage of her declining physical health) into assigning the copyright (and associated termination rights) in her book, for no financial gain, to him and a company he controlled.* Although the copyright in To Kill A Mockingbird was re-assigned back to Lee following court action last year, she is suing Pinkus for royalties he’s allegedly still collecting.

Lee says she has no memory of agreeing to give up her rights or signing the agreement. With failing eyesight and hearing, she was living in an assisted living facility at the time after having suffered a stroke.

What exactly was she giving up?

Authors have an exclusive right to make and sell copies of their work, create derivative works, and the right to perform or display their works publicly.

An author can assign or grant an exclusive or non-exclusive licence over one or more of their exclusive rights in copyright.  An author can also choose to restrict the assignment or licence to particular place, or to a particular period of time. An assignment is a transfer of ownership and control of the copyright, in contrast to a licence which is merely permission to do acts that would otherwise infringe copyright.

WWAD? (What would Atticus do?)

Well, an assignment of copyright is a contract, much like any other.  In Australia, we’d be thinking about issues of:

  1. Capacity

Lack of capacity to contract may void an agreement.  There’s no evidence to suggest that Lee’s mental abilities were affected at the time of the purported assignment, although we don’t know the specifics of the circumstances.  Her apparent lack of recollection is something the court would test.

  1.  Absence of consideration

Since no apparent consideration passed from Pinkus to Lee, the assignment may be unenforceable from the outset.

  1. Vitiating factors precluding the formation of the contract such as:

Duress

The assignment may be unenforceable if Pinkus placed illegitimate pressure on Lee, amounting to a compulsion of her will. In determining whether there was illegitimate pressure placed on Lee, the nature of the pressure and the nature of the demand is considered.  The focus is on whether a person’s free consent has been overridden.

Undue Influence

The principal-agent relationship between Lee and Pinkus is a relationship that gives rise to a relationship of trust in equity. Pinkus had a duty to act in the best interests of Lee. This relationship gives rise to a rebuttable presumption that undue influence was exercised on Lee. It could be alternatively established that Pinkus in fact exercised a controlling influence over Lee.

Unconscionable dealing

Lee’s age and ill health might be considered a ‘special disability’. If this disability was so evident to Pinkus to make it unfair or unconscientious that Lee’s assent to the transaction be accepted, unconscionable dealing may be established.

A must-read

In 2006, British librarians ranked To Kill a Mockingbird ahead of the Bible as the one book every adult should read before they die. [Ed: It was the only book on the literature list at school I actually enjoyed]

Therefore, if the interest generated by the case leads to even more readers of this wonderful story, there will be an unintended positive benefit indeed.

* The complaint also alleges that Pinkus avoided paying royalties still owed to his father’s literary company and failed to promote Lee’s copyright in the US and overseas in breach of his fiduciary duties as her agent.