Old, Unpublished Works—Who’s Got the Copyright?

by John Aquino on 04/24/12

 

Ever fantasize about finding an unpublished manuscript by a favorite writer? Have you ever gone through your grandmother’s attic hoping, just hoping, to find a diary by your grandmother’s grandmother that could publish and that would become a best seller?

There’s a story about how Ernest Hemingway and his wife were traveling in France in the 1920s and the suitcase containing all of the short stories he had written up to that time was lost. And unpublished stories by Edgar Allan Poe have sometimes been found in attics up and down the east coast.

If you found the Hemingway suitcase, would you be able to publish the stories? What about the Poe story?

Well, if you found the Hemingway suitcase, you would most likely own the suitcase and the manuscript but not the words on the manuscript. If your ownership in the manuscript was established—as a lost object that you found—you could sell it to a collector. But the Hemingway estate would own the copyright in the work itself and the sole ability to publish it and license or sell the rights.

As for the Poe story—or your great-great grandmother’s diary, for that matter--you would again own the manuscript, but the works themselves would have fallen into the public domain. If you kept them secret, you could be the first one to publish them, but, once published, anyone else could re-publish them.

Why? Before 1976, unpublished works were entitled to perpetual copyright protection. But, when Congress revised the U.S. Copyright Act in 1976, works originally created before January 1, 1978 but not published or registered by that date were automatically brought under the act and given a set period of protection. For works created by authors who died in 1932 or earlier, the works entered the public domain on January 1, 2003. Copyright protection could have been extended to Dec. 31, 2047 by publishing the work in question on or before Dec. 31, 2002. If the author died in 1933 or later, or is still living, the term of copyright in an unpublished work will subsist through the last day of the 70th calendar year after the author's death, whenever that may occur. Congress gave authors’ heirs almost a quarter-century to get their affairs in order. And that time has passed.

So, under current copyright law, a newly discovered manuscript by Ernest Hemingway, who died in 1961, would be protected until 2031—70 years after his death.

What about the old diary? Suppose you found your great-great-grandmother’s diary in the attic. Say it was written between 1807 and 1842. She died in 1866. According to the statute, even though the work was over 150 years old, the diary’s copyright, was not set to expire until Dec. 31, 2002. If you had published the work before Dec. 31, 2002, then its copyright would last until Dec. 31, 2047. If you found the diary today, your great-great grandmother having died in 1866, then the work would be in the public domain.

John Clare’s Copyrights. There is an interesting side story about the old copyright law protecting unpublished works in perpetuity. The British poet John Clare died in 1864 after spending 23 years in an asylum. Only a small fraction of his over 3,000 poems were not published in his lifetime. The publishing company Whitaker reportedly purchased the copyrights to Clare’s works after his death from his widow Patty but his work remained largely unpublished. The agreement between Joseph Whitaker and Clare’s widow was discovered in Whitaker’s offices in 1932 but was destroyed by German bombs in 1940. Nevertheless, in 1965 a University of Massachusetts history professor named Eric Robinson purchased from Whitaker’s “all rights whatsoever” the publishing company possessed in the works of John Clare.

Robinson then claimed that he owned the copyrights of Clare’s unpublished works and that no one else could publish them. Robinson argued that the law governing U.S. and UK copyrights in 1965 provided that unpublished rights existed in perpetuity and that the copyrights he purchased in 1965 remained his until he chose to publish them. After he published them, he claimed, they were protected for 25 years. When other scholars attempted to publish Clare’s works, he threatened litigation.

Many questioned Robinson on the law and the facts. It has been argued that when Joseph Whitaker died he relinquished ownership in Clare’s material to the Petersborough Museum and Northampton Library, however “ownership” was to be understood. And, as noted, the agreement between Whitaker and Patty Clare no longer exists, and so the adequacy of the transfer of ownership of the copyrights cannot be determined.

Robinson published his own editions of some of Clare’s work in the 1980s and 1990s. Scholars complained about his “stranglehold” on Clare’s work in letters to the Times Literary Supplement.

But the Dec. 31, 2002 U.S. copyright deadline came and went, suggesting that unpublished Clare poems were arguably in the public domain; publishers were less afraid of Robinson’s litigation threats; and, gradually, other editions of Clare’s works began to appear, as well as biographies and even a play about Clare.

Kentucky Fried Chicken. Touching again on the difference between owning a manuscript and the copyright of a work, there’s an interesting story about a trade secret case. Of the four types of intellectual property—copyrights, trademarks, patents, and trade secrets—copyrights and patents provide protection for a set number of years and trademarks, trademarks are protected as long as they are in use, and trade secrets are protected forever or at least as long as they are a secret, which requires great diligence on the part of the owner of the trade secret.

Colonel Sanders founded a chain of eateries named Kentucky Fried Chicken that had a secret recipe containing 11 herbs and spices. This recipe reportedly exists as a handwritten note torn from a notebook. It is very well protected.

A few years ago, a young couple bought a house once owned by Sanders and found a notebook that had notes on a recipe that included 11 ingredients. They contacted Kentucky Fried Chicken to see if the notebook was valuable, and the company came down on them with SWAT teams of lawyers demanding the notebook. The couple, fearing that they would never see it again or hear back from the company, refused, and the company filed for injunctive relief. The court asked the couple to give it the notebook, and the court showed it to Kentucky Fried Chicken representatives under the court’s supervision.

Relieved, the representatives told the court that the notebook did not contain the secret recipe for Kentucky Fried Chicken. It looked like Sanders was experimenting on a recipe for stuffing, they said.

The notebook was returned to the couple—for what it was worth.

Copyright 2012 by John T. Aquino. This article does not represent a legal opinion. The opinions are those of the author and are presented for educational purposes.v