How Copyright Was Secured for Mark Twain Autobiography

Copyright lawyers are wondering how the Mark Twain Foundation is claiming a copyright on the first volume of Mark Twain's newly released autobiography despite its publication a century after the author's death, far outside the normal protection window for an unpublished work.

The copyright for works created but not published before Jan. 1, 1978 ' when the Copyright Act of 1976 took effect ' first began expiring on Dec. 31, 2002. The Autobiography of Mark Twain: Volume 1, which was published by the University of California Press, officially went on sale last month. Two other volumes will follow in the next few years.

Several years ago, the foundation teamed up with the university to get around its copyright dilemma. The solution? A three-microfilm set that was published in 2001 and sold for $50,000. One microfilm contains the autobiography papers. The other two microfilms hold manuscripts and previously unpublished letters written by Twain and members of his immediate family.

According to the copyright page of the 760-page Autobiography of Mark Twain: Volume 1, all Mark Twain texts in 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).” The page claims the autobiography has copyrights for 2010 and 2001. Under the provisions of the 1976 Copyright Act, the 2001 maneuver extended the copyright of the autobiography to Dec. 31, 2047.

The microfilm package was available for sale by 2002, says Richard Watson, co-trustee of the foundation and a trusts and estates lawyer at New York-based Chamberlain, Willi, Ouchterloney & Watson. “It was widely available. I don't think it was widely purchased.” The university, working under a contract with the foundation, “got published everything that was previously unpublished that they could find,” Watson says.

“[That] includes a great deal of the material in the autobiography,” he notes. “There may be some words unpublished, but you'd need to parse through it sentence by sentence.” Watson also says the foundation has retained the film, television and other media rights to Twain's autobiographical material. “This past week I signed an agreement with an agent in Hollywood to market those rights which I hope will be done,” he says.

Aaron Moss, chairman of the litigation group at Los Angeles-based Greenberg Glusker, observed that the foundation's approach was creative. Moss was not involved in the agreement.

“If the library provided access to the public to view the microfilm or offered it for sale, then that would qualify as a publication under the statute,” Moss says. He also says it would be tough to convince a court that the autobiography was not really published, because the expensive microfilm set technically complied with the statute, even if it was not truly available to a significant segment of the public. “That would be a tough argument because courts generally tend to treat the forfeiture of copyrights with some reticence,” Moss says.

In an e-mailed response to questions about the Twain autobiography's copyright protection, Laura Cerruti, director of digital content development for the University of California Press, wrote that the press “has a strong public service mission that we must balance against the protection of the property rights, the exercise of which can help with the financial sustainability of expensive research projects.”

The Autobiography project has been years in the making, and proceeds from its sales will help support continued work by the editors, Cerruti wrote.

Copyright lawyers are wondering how the Mark Twain Foundation is claiming a copyright on the first volume of Mark Twain's newly released autobiography despite its publication a century after the author's death, far outside the normal protection window for an unpublished work.

The copyright for works created but not published before Jan. 1, 1978 ' when the Copyright Act of 1976 took effect ' first began expiring on Dec. 31, 2002. The Autobiography of Mark Twain: Volume 1, which was published by the University of California Press, officially went on sale last month. Two other volumes will follow in the next few years.

Several years ago, the foundation teamed up with the university to get around its copyright dilemma. The solution? A three-microfilm set that was published in 2001 and sold for $50,000. One microfilm contains the autobiography papers. The other two microfilms hold manuscripts and previously unpublished letters written by Twain and members of his immediate family.

According to the copyright page of the 760-page Autobiography of Mark Twain: Volume 1, all Mark Twain texts in 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).” The page claims the autobiography has copyrights for 2010 and 2001. Under the provisions of the 1976 Copyright Act, the 2001 maneuver extended the copyright of the autobiography to Dec. 31, 2047.

The microfilm package was available for sale by 2002, says Richard Watson, co-trustee of the foundation and a trusts and estates lawyer at New York-based Chamberlain, Willi, Ouchterloney & Watson. “It was widely available. I don't think it was widely purchased.” The university, working under a contract with the foundation, “got published everything that was previously unpublished that they could find,” Watson says.

“[That] includes a great deal of the material in the autobiography,” he notes. “There may be some words unpublished, but you'd need to parse through it sentence by sentence.” Watson also says the foundation has retained the film, television and other media rights to Twain's autobiographical material. “This past week I signed an agreement with an agent in Hollywood to market those rights which I hope will be done,” he says.

Aaron Moss, chairman of the litigation group at Los Angeles-based Greenberg Glusker, observed that the foundation's approach was creative. Moss was not involved in the agreement.

“If the library provided access to the public to view the microfilm or offered it for sale, then that would qualify as a publication under the statute,” Moss says. He also says it would be tough to convince a court that the autobiography was not really published, because the expensive microfilm set technically complied with the statute, even if it was not truly available to a significant segment of the public. “That would be a tough argument because courts generally tend to treat the forfeiture of copyrights with some reticence,” Moss says.

In an e-mailed response to questions about the Twain autobiography's copyright protection, Laura Cerruti, director of digital content development for the University of California Press, wrote that the press “has a strong public service mission that we must balance against the protection of the property rights, the exercise of which can help with the financial sustainability of expensive research projects.”

The Autobiography project has been years in the making, and proceeds from its sales will help support continued work by the editors, Cerruti wrote.