Copyright History: The Strange Case Of A Book Authored By Mark Twain Via A Ouija Board

from the death-strokes dept

Mark Twain can be the subject of fascinating discussion for any number of reasons, but around these parts we talk intellectual property. Some years back, Mike wrote about Twain's support for copyright extensions, including when he even went so far as to advocate for infinite copyright. Well, it turns out that Twain's concept of infinite copyright might have been particularly germane to his legacy, as EFF's Parker Higgins takes us on a delightful stroll, over at Fusion, through the historical copyright case concerning the novel Twain might or might not have written...from beyond the grave.

The year 1917 was apparently a time in some ways even stranger than our own, in which the public was wrapped up in its interest in the occult. It was during that time that an author by the name of Emily Grant Hutchings attempted to publish the latest work of Twain's, entitled Jap Herron. Twain, the pen name of Samuel Clemens, had died in 1910, seven years earlier. So, how did Hutchings get Twain to write this book even as his body decomposed below ground? Why, through a Ouija board, of course!

The novel Jap Herron was published with an introduction by the purported transcriptionist, a journalist and author from St. Louis named Emily Grant Hutchings, about the book’s mystical origins. It came out in the midst of a “spiritualism” craze in the United States; its Bookman review, which noted that it was “unquestionably in Mark Twain’s style,” was titled “Another ‘Ouija Board’ Book.” Jap Herron wasn’t the first novel dictated from beyond the grave, but it had the highest profile “author,” which considerably raised the stakes.

This created a stir for all of the obvious reasons, but it turns out there was an intellectual property angle to the release of the book as well. The estate of Twain simultaneously expressed its skepticism that the book was authored from beyond the mortal coil, but it also insisted that if that were indeed the case then the estate owned the rights to the book and that publishing it ought to have been done through Harper & Brothers, with whom the estate had a contract for all of Twain's works. But copyright wasn't the only concern involved, either.

At the heart of the case were some novel legal questions: Can the law recognize a dead person as the author of a new work? And if so, could Twain’s ghost (or its human mouthpiece), wiggle out of Twain’s agreement with Harper & Brothers to publish all of his books? Finally, even if those copyright hurdles could be cleared, what about using Twain’s pen name, which the publisher held as a registered trademark? (Twain’s legal name was Samuel Clemens.)

This put Hutchings in a bind: using Twain's trademarked name in publishing Jap Herron served as a source identifier for consumers, helping her in that dispute, but doing so meant that the copyright of the book ought then to belong to Twain's estate. Going the opposite route and leaving Twain's authorship out of the claim relieved the copyright concern, but then any use of Twain's name would appear to be trademark infringement. Hutchings apparently tried to walk a fine line in this.

It seems Hutchings and Kennerley made a weak attempt to pursue this middle path by leaving Twain’s name off the cover—but they included his extremely recognizable picture, along with the caption “A Novel From The Ouija Board.” Even that wink-and-nudge act disappears by the book’s introduction, which describes the grueling ouija sessions in detail, and claims there’s no doubt that the novel is “the actual post-mortem work of Samuel L. Clemens.” To go any further in the distancing efforts would, of course, zap much of the appeal of the novel.

Harper & Brothers filed a complaint anyway, including a claim that the publishing of the book would bring harm to Twain's reputation and the value of the trademark on his pen name. Based on reviews at the time of the novel, that claim appears likely to be true.

It would have been interesting to see the results of the case had it gone to trial. Term lengths for copyright, after all, are dependent on a clear delineation between life and death. If death were to no longer be a barrier to authorship, the concept of copyright terms juxtaposed to its purpose of encouraging creative works would be turned on its head. After all, if one could create from death a work for the living, then death ought make no difference on matters of copyright terms.

Sadly, the mortal world never got to see that trial.

Alas, Hutchings and her publisher saw the writing on the wall and didn’t like their odds. Before the case could proceed through litigation, they agreed to pull the book from the shelves. As a result, paper copies from that era are rare and tend to fetch three- and four-figure prices at auction.

The paranormal copyright questions seem to have faded, and now Jap Herron has an immortality of its own: It is widely available online today. There’s no telling how Mark Twain or his publisher would have felt about that development. At press time, Twain did not respond to a request for comment.

So when we think about some of the insane copyright cases we see these days, remember that there once was a dispute over the rights ownership of a novel purportedly authored by Mark Twain from beyond the grave.

Filed Under: copyright, copyright terms, emily grant hutchings, history, jap herron, mark twain, ouija board, samuel clemens, trademark

Mark Twain: Copyright Maximalist Who Also Believed That Nearly All Human Utterances Were Plagiarism?

from the contradiction-or-satire? dept

In copyright circles, Mark Twain's speech to Congress in 1906 is well known as being the point at which he made clear his desire that copyright should be vastly expanded to make sure his kids kept earning money:

My copyrights produce to me annually a good deal more money than I have any use for. But those children of mine have use for that. I can take care of myself as long as I live. I know half a dozen trades, and I can invent a half a dozen more. I can get along. But I like the fifty years' extension, because that benefits my two daughter, who are not as competent to earn a living as I am, because I have carefully raised them as young ladies, who don't know anything and can't do anything. So I hope Congress will extend to them that charity which they have failed to get from me.

He later argues for infinite copyright:

The English idea of copyright, as I found, was different, when I was before the committee of the House of Lords, composed of seven members I should say. The spokesman was a very able man, Lord Thring, a man of great reputation, but he didn't know anything about copyright and publishing. Naturally be didn't, because he hadn't been brought up to this trade. It is only people who have had intimate personal experience with the triumphs and griefs of an occupation who know how to treat it and get what is justly due.

Now that gentleman had no purpose or desire in the world to rob anybody or anything, but this was the proposition--fifty years extension--and he asked me what I thought the limit of copyright ought to be.

"Well," I said, "perpetuity." I thought it ought to last forever.

Some have argued, somewhat convincingly, that Twain as actually doing a somewhat brilliant satire, which not everyone understood. That would be awesome, if true, and there are some hints that it may very well be. However, it does appear that Twain himself was somewhat more conflicted on this particular issue. Siva Vaidhyanathan has an entire chapter (pdf) of his excellent book, Copyrights and Copyrwrongs, devoted to Twain's fluctuating views on copyright. However, he does suggest that later on in life -- from 1898 onward basically -- Twain appeared to be a strong maximalist.

So it's interesting to then discover, via Joe Betsill, that during that same period, Twain argued that "the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism" and that this wasn't a bad thing. The specifics are that Twain was writing a letter to Helen Keller, who a decade earlier (at 12-years of age) had just gone through a controversy in which she was accused of plagiarizing heavily from another book for her own work, The Frost King. Twain wrote to Keller, with whom he was friendly, after learning about the plagiarism accusations:

Oh, dear me, how unspeakably funny and owlishly idiotic and grotesque was that "plagiarism" farce! As if there was much of anything in any human utterance, oral or written, except plagiarism! The kernel, the soul—let us go further and say the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism. For substantially all ideas are second-hand, consciously and unconsciously drawn from a million outside sources, and daily use by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral calibre and his temperament, and which is revealed in characteristics of phrasing. When a great orator makes a great speech you are listening to ten centuries and ten thousand men—but we call it his speech, and really some exceedingly small portion of it is his. But not enough to signify. It is merely a Waterloo. It is Wellington's battle, in some degree, and we call it his; but there are others that contributed. It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a telephone or any other important thing—and the last man gets the credit and we forget the others. He added his little mite—that is all he did. These object lessons should teach us that ninety-nine parts of all things that proceed from the intellect are plagiarisms, pure and simple; and the lesson ought to make us modest. But nothing can do that.

Then why don't we unwittingly reproduce the phrasing of a story, as well as the story itself? It can hardly happen—to the extent of fifty words except in the case of a child; its memory-tablet is not lumbered with impressions, and the actual language can have graving-room there, and preserve the language a year or two, but a grown person's memory-tablet is a palimpsest, with hardly a bare space upon which to engrave a phrase. It must be a very rare thing that a whole page gets so sharply printed on a man's mind, by a single reading, that it will stay long enough to turn up some time or other to be mistaken by him for his own. No doubt we are constantly littering our literature with disconnected sentences borrowed from books at some unremembered time and now imagined to be our own, but that is about the most we can do. In 1866 I read Dr. Holmes's poems, in the Sandwich Islands. A year and a half later I stole his dedication, without knowing it, and used it to dedicate my "Innocents Abroad" with. Then years afterward I was talking with Dr. Holmes about it. He was not an ignorant ass—no, not he; he was not a collection of decayed human turnips, like your "Plagiarism Court;" and so when I said, "I know now where I stole it, but whom did you steal it from," he said, "I don't remember; I only know I stole it from somebody, because I have never originated anything altogether myself, nor met anyone who had."

To think of those solemn donkeys breaking a little child's heart with their ignorant rubbish about plagiarism! I couldn't sleep for blaspheming about it last night. Why, their whole lives, their whole histories, all their learning, all their thoughts, all their opinions were one solid rock of plagiarism, and they didn't know it and never suspected it. A gang of dull and hoary pirates piously setting themselves the task of disciplining and purifying a kitten that they think they've caught filching a chop! Oh, dam—

That was sent in 1903. Yet just three years later, he was arguing to Congress that ideas were property and should remain in the possession of those that created them forever:

So if I could have convinced that gentleman that a book which does consist solely of ideas, from the base to the summit, then that would have been the best argument in the world that it is property, like any other property, and should not be put under the ban of any restriction, but that it should be the property of that man and his heirs forever and ever, just as a butcher shop would be, or--I don't care--anything, I don't care what it is. It all has the same basis. The law should recognize the right of perpetuity in this and every other kind of property.

Now, plagiarism and copyright are not exact equivalents -- though there can (and often is) significant overlap. But it's difficult to see how the same person can reasonably argue both points. Perhaps that lends some credence to the claims that the Congressional hearing was, in fact, satire. Either way, I think I like the 1903 Mark Twain waxing poetically on how all ideas are plagiarism much more than the 1906 Mark Twain whining about how his children are too useless to do anything and need to keep making money from his books long after he's dead.

Filed Under: copying, helen keller, mark twain, plagiarism

Is Mark Twain's 'New' Autobiography Covered By Copyright?

from the wait,-free-sells? dept

PometheeFeu pointed us to the news that Mark Twain's autobiography, to be officially published for the first time 100 years after his death is already looking like it's going to be a best seller. The book comes out on November 15th, but it's already near the top of the bestseller lists on both Amazon and Barnes & Noble thanks to pre-orders. If you weren't aware, Twain (real name Samuel Clemens), wrote this autobiography towards the end of his life, but demanded that it not be published until 100 years after his death (some of it, he demanded be withheld for 500 years). Allegedly, he did this so that he could say what he wanted without worrying about the people he spoke ill of ever finding out. Also, it's not your typical autobiography. Apparently, it was more or less stream of consciousness, concerning whatever he felt like talking about. He would get up in the morning, talk about whatever he felt like, and people working for him would take it all down in dictation.

Now, PrometheeFeu suggested that it was going to be a hit despite a lack of copyright. And while it's sure to be a hit, the folks putting out the book are claiming a brand spanking new copyright on the work:

Autobiography of Mark Twain, Volume 1 Copyright© 2010, 2001 by the Mark Twain Foundation. All Rights Reserved. Transcription, reconstruction, and creation of the texts, introduction, notes, and appendixes Copyright© 2010 by The Regents of the University of California. The Mark Twain Foundation expressly reserves to itself, its successors and assigns, all dramatization rights in every medium, including without limitation, stage, radio, television, motion picture, and public reading rights, in and to the Autobiography of Mark Twain and all other texts by Mark Twain in copyright to the Mark Twain Foundation.

I was thinking about this for a bit, and I'm pretty sure the Foundation is (mostly) wrong. According to the handy-dandy copyright term and public domain chart for the US, unpublished works from authors who died before 1940 are in the public domain. That would indicate that most of the work should be in the public domain. Separately, even if we look at the chart for published works, a work published in 2010 is supposed to be granted copyright for 70 years after the death of the author. We're 100 years after the death of the author -- so, again, it should be public domain.

Of course, it's not that simple. It appears that many segments of the book were published previously, and that could, potentially, put some of those works still under copyright. If I'm understanding things correctly, if the works were published between 1923 and 1963, with a copyright notice, and the copyright was renewed, then the works would get a new copyright at that time, which would last for 95 years. Of course, that would still make the copyright claim of 2010 incorrect. If the works were published between 1964 and 1977 with a copyright notice, then again, we've got a 95 year ticking clock. A quick look through the dates of previous publications, suggest they're all over the place, with bits and pieces published in various places. In other words, it may be a copyright mess.

Also, the book appears to have more than just the text written by Twain. It includes a new introduction, along with explanatory notes, appendixes and commentaries, many of which may likely be able to get a new copyright. So... the answer is that it's probably complicated, but the copyright claim by the Foundation is not accurate and certainly segments of the book are almost certainly in the public domain, despite the claims of the Foundation. Of course, perhaps this is why Clemens/Twain once famously argued for infinite copyright, though many believe he was being satirical at the time, in noting:

My copyrights produce to me annually a good deal more money than I have any use for. But those children of mine have use for that. I can take care of myself as long as I live. I know half a dozen trades, and I can invent a half a dozen more. I can get along. But I like the fifty years' extension, because that benefits my two daughters, who are not as competent to earn a living as I am, because I have carefully raised them as young ladies, who don't know anything and can't do anything. So I hope Congress will extend to them that charity which they have failed to get from me.

Now, all of that said, it is worth pointing out that even though it may be falsely claiming copyright on parts of the book, the Foundation has made the entire work available to read online for free, which is certainly a very cool thing for them to do. So, even if we ignore the copyright kerfuffle part of it, the fact that this book is available, in an authorized manner, for free online and it's also becoming a bestseller in physical format, once again, suggests that you can still sell content that you're giving away for free.

Filed Under: autobiography, copyright, mark twain, public domain