Copyright from an Author’s View & Not Just Any Author

I’m one of the many who are caught up in the publication of the Autobiography of Mark Twain Vol. 1. This is occasioned by centenary of his death. It was a codicil of his will that the material for his autobiography be withheld from publication for 100 years after his death.

The Centenary of Twain’s Death and The Autobiography

It’s been a little over 100 years now and the first volume has been released.  It’s being published as a 3 volume set both because of the obvious reason, the volume of his writing (or I should say dictation, but I’ll come to that), and also because of the decision to tell the story of how it was decided to organise and produce the work. This is itself the first 201 pages of volume 1.  And it’s a marvelous combination of sleuthing and dedicated literary analysis. But this post is about copyright, and it is because Twain was deeply conscious of it as a means of providing for his children.

Mark Twain, Artist Unknown, May 1904

Twain wrote about his interest in extending copyright on his books,

The children are all I am interested in; let the grandchildren look our for themselves. (New York Times, 12 Dec., 1906)

At the time copyright law was for 28 years with one extension possible for another 14 years, making for a total of 42 years. He got the idea for extending it from Sir Walter Scott. According to the the 1906 NY Times article,

Scott kept his copyrights alive by publishing new editions with commentaries. The result was that all editions which did not contain the commentaries were a drug on the market; nobody would buy them. Mark Twain is certain that what was done with mere commentaries can be done in a much surer fashion with an autobiography.

The result, he concluded, was the ability to lock up his works, and thereby generate income from them for his children, for a total of 84 years.   According to Wikipedia, the Copyright Term Extension Act (CTEA) of 1998 extended copyright protection for works published prior to January 1, 1978, that would be works like those of Mr. Twain, by an additional 20 years to a total of 95 years from their publication date. That’s not that far our of alignment with what Twain’s original intent was, courtesy of Sir Walter Scott.

Eldred vs. Ashcroft

This drove me back to re-read the context of the famed Eldred vs. Ashcroft case before the US Supreme Court in 2002, and argued before the court by Stanford Law Professor Lawrence Lessig.  That law extended the length of copyrights for an additional 20 years and and strengthened the power of corporations that owned these copyrights.

The case was originally brought by Eldritch Press, a publisher of out of copyright materials online.  They wanted to have access to material that they felt should have come into the public domain were it not for the passage of the Sonny Bono Copyright Extension Act. One of the arguments of those supporting the legal challenge to the act was the assertion that it would be unlikely for artists (writers, painters, etc.) to seek protection via copyright of their work for their heirs 100 years in the future. Struggling artists, this argument asserted, would not forgo creating something today because their heirs 100 years in the future wouldn’t benefit, or would fail to create new artistic work because of this ‘threat’.

When I first read that I thought, of course not!  Why would anyone not create literary or artistic pieces because of the fear that heirs a 100 years from now would no longer get the financial benefits from them?  Well, perhaps not 100 years, but it appears from this latest examination of the private writings and unpublished correspondence of Mark Twain, he certainly was concerned about this. Not that he was thinking about ceasing his writing or failing to contribute further work. He certainly was writing and did construct an extraordinary autobiography via dictation to Josephine Hobby in January of 1906.

Twain Steps Back from Copyright Precipice

He did in fact have concerns about providing for his children and using copyright as the financial means to do so. But even Twain was not looking to lock up artistic works, his or others, for generations. As the chief editor of this extraordinary work, Harriet Elinor Smith wrote in the preface,

It is difficult to know just how serious Clemens was about this scheme [to try and extend his copyright] because it was never put to the test. On 24 December, 1909, in “Closing Words of My Autobiography,” he explained that the

“reason that moved me was a desire to save my copirghts from extinction, so that Jean and Clara would always have a good livelihood from my books after my death….

That tedios long labor was wasted. Last March Congress added fourteen years to the forty-two year term, and so my oldest book has now about fifteen ears to live. I have no use for that addition (I am seventy-four years  old), poor Jean has no use for it now. Clara is happily and propserously married and has no user for it.”

Twain’s motivation was strictly personal and, like any dedicated father, seeking the best for his remaining family. When that was no longer an issue, his interest evaporated.

Free Mickey!

Unfortunately, the current copyright law in the US has more to do with the impact on works owned by corporations than individual authors.  Indeed, the orchestration of the passage of the ill-advisedly named Sono Bono Copyright Extension Act was the Disney Corporation and it’s media brethren. In the late 1990’s they, together with Time Warner, DreamWorks SKG, the Recording Industry Association of America and Sony Corporation, poured $6 million USD into congressional elections to predispose the passage of the act. They were successful.

Hal Plotkin wrote a nice piece about this in the lead up to the Supreme Court case published in SF Gate, noting the very name of the act was absurd as it was a homage to

the pop-singer ex-Cher-partner-turned-politician who had just died after crashing into a tree while skiing stoned on Vicodin and Valium.

You gotta give Disney and their allies credit for shear hubris. Of course the impact of this is mind-boggling.  If a 25 year old artist published or composed something today, in Dec. of 2010, the copyright for that work, based on an a life expectancy from actuarial tables of modern western countries of 80 years, would lock up that work from remixes, mashups or other creative interpretations until the year 2,160.

Culture is built on itself, Plotkin reminds us. The foundations for the future are dearly at risk.


Those interested in following up on Mark Twain should look at the Mark Twain Project

About longpd

I'm a senior scholar at Georgetown University, in CNDLS, a technologist and lapsed evolutionary biologist with an incandescent passion for new modes of seeing and learning.
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