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aware, Twain (real name Samuel Clemens), wrote this autobiography towards the end of his life, but demanded that it not be published until 100 years after his death (some of it, he demanded be withheld for 500 years).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 According to the handy-dandy copyright term and public domain chart for the US, unpublished works from authors who died before 1940 are in the public domain.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.


Reader Comments (rss)

(Flattened / Threaded)

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    ChurchHatesTucker (profile), Oct 22nd, 2010 @ 7:08pm

    "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..."

    And I'd be free to sell an annotated version?

    So, the kerfuffle is rather the point, innit?

     

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    Anonymous Coward, Oct 22nd, 2010 @ 8:55pm

    Curious if the original text was written by Samuel Clemens as Samuel Clemens, or as Mark Twain. The latter was his pen name, which may make it a pseudonomyous work for which a term of 120 years after his death (1910 + 120 yrs. = 2030) would pertain. Of course, the additional text added by others to this work would enjoy a full copyright term.

    Pre-Published portions of his original text would have individual terms, depending up when they were published may or may not still have remaining terms.

    The bottom line is that multiple terms likely apply, meaning that this is precisely the type of question that would appear on a law school exam where the professor is a "negat" (an unflattering term used in the military).

    This is just a curory comment that does not take into account any copyright that may be related to Pre-1978 works applicable under the law of a few states that enacted copyright legislation. Until 1978 states were free to accord copyright in unpublished works since under Pre-1978 federal law publication was a necessary condition for federal copyright law to apply.

     

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    Anonymous Coward, Oct 22nd, 2010 @ 9:42pm

    Having read The Onion for years, I can safely say that that statement is almost certainly satire. How ironic would it be if Mark Twain's much-vaunted love of copyright was just sarcasm?

     

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      vivaelamor (profile), Oct 23rd, 2010 @ 1:30pm

      Re:

      "Having read The Onion for years, I can safely say that that statement is almost certainly satire. How ironic would it be if Mark Twain's much-vaunted love of copyright was just sarcasm?"

      While the quote is satire, taken in context it is almost certainly self deprecating humour. He goes on to explain that while the justifications for lengthy copyright may seem absurd that he believed it was inconsequential given how few authors were remembered from forty two years before his speech.

       

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        TtfnJohn (profile), Oct 24th, 2010 @ 8:39am

        Re: Re:

        To place it in other aspects of culture, how many pop bands, singer/songwriters, jazz bands etc are remembered even a year or two after a hit single and certainly not 5 years.

        Or how many tv shows or movies are remembered 5 to 10 years after.

        All of which goes show how, as protection for artists, how ineffective copyright really is.

        Let's remember too, that even The Beatles signed off their copyrights to their compositions to Northern Songs, their recorded performances to EMI and on and on. They didn't make a penny (or farthing) off the various likenesses of themselves or other things that flooded the market in 1963/64 before finally dying down a bit though they've never gone away because they'd signed away rights to all of that too.

        (See George Harriosn's "It's only a Northern Song")

         

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    BruceLD, Oct 22nd, 2010 @ 10:56pm

    Subject

    Copyright or not...I have no desires to read it, but now I just may end up sharing it in PDF form. Gosh I love how copyright laws drive me to do things like this.

     

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    Blatant Coward (profile), Oct 23rd, 2010 @ 3:43am

    "approximately ten file feet of autobiographical documents"

    Gonna need a bigger CD.

     

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    Rose M. Welch (profile), Oct 23rd, 2010 @ 5:24am

    Mark Twain for free!

    :::squee:::

     

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    Anonymous Coward, Oct 23rd, 2010 @ 6:45am

    To coin a phrase 'who don't know anything and can't do anything'

     

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    dave blevins, Oct 23rd, 2010 @ 7:22am

    It may be online for free, but at 1st glance it is a mess !!

     

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    Seth Woodworth, Oct 23rd, 2010 @ 11:47am

    From the copyright page of the Electronic edition:
    All texts by Mark Twain in Autobiography of Mark Twain, Volume 1 have been published previously, by permission of the Mark Twain Foundation, in the Mark Twain Project’s Microfilm Edition of Mark Twain’s Literary Manuscripts Available in the Mark Twain Papers, The Bancroft Library, University of California Berkeley (Berkeley: The Bancroft Library, 2001), and some texts have been published previously in one or more of the following: Albert Bigelow Paine, editor, Mark Twain’s Autobiography (New York: Harper and Brothers, 1924); Bernard DeVoto, editor, Mark Twain in Eruption (New York: Harper and Brothers, 1940); Charles Neider, editor, The Autobiography of Mark Twain, Including Chapters Now Published for the First Time (New York: Harper and Brothers, 1959). Unless otherwise noted, all illustrations are reproduced from original documents in the Mark Twain Papers of The Bancroft Library, University of California, Berkeley.
    I haven't dug through the ramifications of their copyright claims, but it is possible that some of the material in the book has legitimate copyright status.

     

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    Mitch Featherston, Oct 23rd, 2010 @ 12:40pm

    Interesting

    Can't wait to see how this foundation pulls this off. Another stupid situation where the public domain gets kicked to the curb.

     

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    Gregory Magarshak, Oct 23rd, 2010 @ 2:57pm

    Outdated

    It is unfortunate that copyright and patent protections exist in the form they do today. Not only is the span of copyright a complete joke (if things continue as they do now, nothing published after 1940 will ever enter the public domain) but the span of many (if not the majority) of patents is completely unreasonable given the pace of today's innovation.

    Example: software patents. For an industry that moves so quickly, the patent protection, which was once supposed to foster innovation by giving the inventor time to bring his invention to market without worrying about it being stolen, is now used mostly to stifle innovation by patent trolls who do not bring anything to market themselves, but just sit in wait so they can sue someone who does.

    The marketplace brings about authentic business models that may thrive within it when they make sense, but not forever. People have to move on and old industries must give way to new ones through the action of the market. Just as the luddites futilely tried to hold back progress during the industrial revolution, just as the printed newspapers are fighting to survive in a world increasingly dominated by democratized internet news, so too must the industries -- that once depended on copyright protection -- reinvent themselves. The record companies and publishers of the world must realize that with the new technology, the cost of publishing has gone down to pennies. And therefore, affording copyright protection or any other protection is something that may not be in the best interest of society anymore. Is this done to promote the creation of magnificent works of art (which otherwise presumably no one would undertake) or is it done to cater to the lobbying of a select few (e.g. Disney lobbying Congress to keep extending the copyright protection)? Why don't we draft an alternative proposal that fits the current times and let the people decide?

    I have nothing against government protections that make sense. But it seems to me that these days, such long-lived copyrights and patents are doing more harm than good.

     

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    Bengie, Oct 24th, 2010 @ 6:54pm

    Like GNU

    When making a copy right on material that contains public domain works, like gnu, they should allow for the request of the original public domain works separate of the book, and it would be free(in a digital format).

     

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    Anonymous Coward, Oct 25th, 2010 @ 3:46am

    Wow! I don't know what you all complain about!

    A mere 2 paragraphs to explain *some* of the copyright laws that *may* apply to a book written a hundred years ago. Copyright is such a simple thing to use I really don't know why all the people on TechDirt make such a fuss about it.

     

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