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.