Mark Twain's Final Copyright Crusade

Mark Twain’s autobiography is the surprise hit of the publishing world this fall:  “totally the Dad book of the year” exults one bookseller.  The University of California Press, which planned a print run of 7,500, has now printed 275,000 copies, each of which sells for $35 a pop. 

But inquiring minds want to know:  If Twain finished writing his autobiography more than 100 years ago, why is the work still copyrighted?  Didn’t it enter the public domain years ago?  The National Law Journal provides some illuminating answers in a recent article.  Reporter Shari Qualters writes that the last major revision of U.S. copyright law, in 1976, stipulated that copyrights for works created but not published before January 1, 1978, expired on

December 31, 2002.  That means that Mark Twain’s autobiography, even though unpublished, should now be part of the public domain.  It should be free for anyone to use without payment or permission.

So what happened?  Why is the autobiography still copyrighted? 

Several years ago, the Mark Twain Foundation teamed up with the university to get around the intent of the law.  Its ingenious ploy was to publish a three-microfilm set of Twain’s unpublished works in 2001 and sold for $50,000.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  The other two microfilms hold manuscripts and previously unpublished letters written by Twain and members of his immediate family.

Qualters writes:

According to the book’s copyright page, all Mark Twain texts in Autobiography of Mark Twain, 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. That maneuver extends the copyright of the autobiography to Dec. 31, 2047.

The microfilm package was available for sale by 2002, said 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,” Watson said. “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  The university, working under a contract with the foundation, “got published everything that was previously unpublished that they could find,” Watson said.

Watson also said that 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 said.

It appears that the microfilm “publication” of Mark Twain’s autobiography technically qualifies the work for copyright protection even though no one really had practical access to it. 

Notwithstanding this end-run around the intent of the law, a UC Press spokesperson claimed 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.”

Okay, I get it:  A copyright holder’s estate or assignee is entitled to yank something out of the public domain simply because it decides to.  UC Press cites high-minded literary and historical reasons.  No need to dwell on the fact that sales of Twain’s autobiography will produce a huge windfall from a document that rightfully belongs to the public. 

So is the argument that academic presses have a special entitlement to game the usual terms of copyright law because they are doing God's work as academic presses?  Copyright industries frequently inveigh against the “theft” of sharing copyrighted works online, solemnly intoning that “the law is the law.”  So is a theft not a theft when the victim is the public, and not a private copyright holder?

Strangely enough, Samuel Clemens would have smiled at the recent turn of events.  In the years before his death in 1910, Clemens was a fierce copyright maximalist.  In 1906, he testified before a U.S. congressional committee and urged it to extend copyright terms for another fourteen years so that it would last for the lifetime of an author plus fifty years.  “I think that would satisfy any reasonable author, because it would take care of his children,” Clemens said.  “Let the grandchildren take care of themselves.”

Well, thanks to the dark legal arts, Twain's autobiography will be locked up behind copyright, unavailable to be freely used by the public, for a full 137 years past Samuel Clemens' death, until the year 2047.  Even Congress hasn’t had the temerity to extend copyright terms more than 75 years past an author’s death.  The UC Press has.  

(For more on Mark Twain and the history of copyright, see chapter 2 of Siva Vaidhyanathan’s Copyrights and Copywrongs.)