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


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  • identicon
    Anonymous Coward, 3 Mar 2016 @ 8:38am

    Not written about copyright, but still applicable

    "Often, the less there is to justify a traditional custom, the harder it is to get rid of it." - Mark Twain (from Tom Sawyer)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Mar 2016 @ 8:42am

    Still less insane than the Happy Birthday copyright case.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Mar 2016 @ 8:46am

    Is there any reason NOT to dick-punch every single person involved in the copyright "industry", with the possible exception of the originators?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Mar 2016 @ 9:06am

      Re:

      Why are we not dick-punching the fucking bastards that let them have their super-ultra-fuckingstupid-extensions?

      Congress needs the dick-punch before the industry gets theirs.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Mar 2016 @ 9:21am

    Huh???

    ...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...

    So an author creates a work while living but specifies that it is only released and published after they die. (And this does happen.) We already debate copyright terms continuing after an author's death, should works published after an author's death not receive copyright at all?

    The system is a mess no matter which way you look at it.

    reply to this | link to this | view in chronology ]

  • icon
    yankinwaoz (profile), 3 Mar 2016 @ 9:48am

    Trademark... not copyright

    This is clearly a trademark issue. Not a copyright issue. Hutchings attempted to publish a book using Twain's good name. That is clearly trademark infringement. It would confuse customers

    Twain's estate would have no copyright claim. Hutchings wrote the book. Its her book and she has the copyright on it (Or whoever she assigned to the copyright too).

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Mar 2016 @ 12:54pm

      Re: Trademark... not copyright

      Hutchings wrote the book. Its her book and she has the copyright on it (Or whoever she assigned to the copyright too).


      I agree that Twain didn't write the book from the grave and therefore doesn't have copyright. However, if she's going to be claiming that Twain wrote the book, that should be construed as a deliberate abandonment of her copyright, since she is saying that someone else wrote it.

      On the other hand... if someone publishes something anonymously and they deny writing it, I wouldn't want to deny them the copyright, so maybe there's something wrong with my thinking here.

      Maybe she just should have been prosecuted for fraud. She was claiming something about her book which was not true, in order to get people to buy it.

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 3 Mar 2016 @ 10:00am

    See, see???? That's why copyright should last for eternity. How will the dead have enough incentive to create without it? - Delusional Troll

    Expect zombie Michael Jackson compositions to start popping up anytime.

    reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 3 Mar 2016 @ 11:56am

    Awesome

    You know the most awesome thing about Clemens? He was a close personal friend of Tesla. In fact, one of the most famous pictures of Clemens is him in Tesla's laboratory. Clemens once broached the idea of making power armor for the military, but while Tesla was confident he could make it, he was leery of putting that much power in the hands of any government. Tesla always did have more morals than many other scientists of the time. Certainly a LOT more than Edison.

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 3 Mar 2016 @ 12:18pm

    >This is clearly a trademark issue. Not a copyright issue. Hutchings attempted to publish a book using Twain's good name. That is clearly trademark infringement. It would confuse customers. Twain's estate would have no copyright claim. Hutchings wrote the book. Its her book and she has the copyright on it (Or whoever she assigned to the copyright too).

    This, exactly. Whatever we think of Twain providing for his family after his death (or just his money-grubbing nephews?) this is the essence. For a certain time afterwards, your "work" continues to be your property. Trademark means nobody can get rich by appropriating your reputation. It's why I can't start a Starbucks or McDonalds restaurant 9without paying, and permission) and it's why someone can't pretend Mark Twain wrote a book he clearly didn't.

    (I'm wondering how long it would take to 'discover" a book on the Ouija board letter by letter. 100,000 words, industry standard 5 letters a word, say a quick 3 seconds per letter... That's almost 2 months at 8 hours a day steady ouija'ing.)

    The problem isn't copyright or trademark, the problem is why a term that used to be "30 years after death" now needs to be 90 years. It's scary to think a book like "To Kill A Mockingbird", written in 1960, will not be public domain until 2106 (if ever). It makes a holdover like Happy Birthday from 1893 seem trivial by duration.

    reply to this | link to this | view in chronology ]

  • icon
    Monday (profile), 4 Mar 2016 @ 11:26am

    I've seen this before...

    Emily Grant Hutchings should have used a Top Hat; told everyone the there were magic cards in it; professed to "Translate" those magic cards, and she would have created a cult following for the old author's new book... problem solved - with tax exempt status.

    reply to this | link to this | view in chronology ]


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