Three defendants accused of duping Harper Lee out of the copyright to To Kill a Mockingbird bolstered their legal team this week when a federal judge in Manhattan allowed Pepper Hamilton IP cochair Vincent Carissimi to represent them in the litigation.
Carissimi entered the case following a Tuesday ruling by U.S. district court judge Robert Sweet that the Pepper Hamilton partner, who is licensed to practice in Pennsylvania, but not New York, could serve as counsel for the defendants pro hac vice.
Sweet's ruling comes some three months after Lee, 87, sued literary agent Samuel Pinkus; Pinkus’s wife, Leigh Ann Winick; and onetime Cravath, Swaine & Moore associate-turned-investigative journalist Gerald Posner for allegedly exploiting the author’s infirmities to assign the Pulitzer Prize–winning novel’s copyright to Pinkus and a company he controlled.
The defendants have yet to file a formal response to Lee's complaint and have requested two extensions to do so. Their response is now due to be filed with the court on August 16. Both Carissimi and Patterson Belknap Webb & Tyler IP partner Gloria Phares, who is representing Lee in the matter, declined to comment when contacted by The Am Law Daily.
In her complaint [PDF], Lee states that in carrying out the alleged scheme, Pinkus—the son-in-law of the author’s longtime agent, Eugene Winick—“ignored his agent’s duty of loyalty and diligence . . . and neglected his obligation to act at all times in her interest.”
According to the complaint, the series of events that ultimately led the reclusive author to file the suit began in 2002. It was then, Lee claims, that Pinkus took advantage of Eugene Winick’s own failing health to launch a literary agency, Veritas Media Inc., with clients pilfered from his father-in-law’s agency, McIntosh & Otis. Lee was among those clients.
It wasn’t until 2007, though, that Lee—who lives in an assisted-living facility in Monroeville, Alabama—says she signed away the rights to the only novel she ever published and the film based on it. According to the complaint, the assignment of copyright came during a meeting with Pinkus in the nursing home Lee was living in after suffering a stroke. Lee says she has no memory of the event.
With the copyright in hand, Lee claims, Pinkus used various shell companies to manage the royalties generated by the book and movie and to collect commissions. Helping him carry out the scheme, the author alleges, were Pinkus's wife, who served as president of one of the companies, and Posner, who helped incorporate and operate another. (The revenue in question is not insubstantial. Publisher HarperCollins says it continues to sell 750,000 copies of To Kill a Mockingbird each year, generating annual royalties of roughly $1.5 million.)
Though Pinkus restored the copyright to Lee in 2012, Lee maintains that the reassignment is legally dubious and allows Pinkus's companies to continue receiving commissions related to the book. In her suit, Lee seeks to clearly regain the copyright assignment and to ensure that neither Pinkus nor any of his companies receive any future To Kill A Mockingbird–related revenue. Lee also seeks any commissions earned by any company started by Pinkus since 2007. (Lee does not allege in the complaint, as many media outlets have reported, that the defendants deprived her of any royalties. Rather, she claims that the royalties would have been greater had Pinkus acted as a more effective agent.)
McIntosh & Otis followed Lee's complaint by filing one of its own against the same three defendants in New York state court in June. According to that complaint, Pinkus created Veritas secretly while Eugene Winick was ill. When M&O discovered Veritas’s existence, according to that complaint, the parties entered mediation to ensure that the agency received the appropriate commissions from works written by authors represented by Veritas, including Lee, Mary Higgins Clark, and novelist Noah Gordon. M&O's lawyers, Frankfurt Kurnit Klein & Selz partner Toby Butterfield and associate Andrew Ungberg, allege that the same shell companies Lee names in her suit prevented Eugene Winick's literary agency from collecting commissions that had been promised during the mediation.
Represented by Pepper Hamilton litigation partner Ruth Harlow, Pinkus has filed a motion to dismiss the M&O suit, which he labels "its own work of fiction." The motion to dismiss [PDF] makes several references to Lee's complaint, including a footnote related to the 2012 copyright reassignment that states, "Ms. Lee's assignment of the Mockingbird copyright specifically retained to her 'all rights to any revenue, financial benefit, royalties, or any benefit whatsoever derived from the exploitation of the property, now or in the future.' The inconvenient real facts make for a much less interesting story." Harlow and her client also say in the motion that M&O should also sue Lee, given that she is asking Pinkus, Winick, and Posner for some of the same commissions M&O is claiming as its own.
Posner—who left Cravath to launch a writing career and whose 1994 book on the assassination of President John F. Kennedy, Case Closed, was a 1994 Pultizer Prize finalist—is no stranger to intellectual property disputes. Formerly The Daily Beast's chief investigative reporter, Posner left the publication in 2010 after acknowledging committing plagiarism in four articles. According to Lee's complaint, after his Daily Beast career ended, Posner, a registered lawyer in New York, helped Pinkus incorporate one of the entities that managed some of the To Kill A Mockingbird royalties and bungled business transactions with foreign literary agents.