Is Mark Twain's 'New' Autobiography Covered By Copyright? | Techdirt

Is Mark Twain's 'New' Autobiography Covered By Copyright?

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aware, Twain (real name Samuel Clemens), wrote this autobiography towards the end of his life, but demanded that it not be published until 100 years after his death (some of it, he demanded be withheld for 500 years).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 According to the handy-dandy copyright term and public domain chart for the US, unpublished works from authors who died before 1940 are in the public domain.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

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