The Aresan Clan is published four times a week (Tue, Wed, Fri, Sun). You can see what's been written so far collected here. All posts will be posted under the Aresan Clan label. For summaries of the events so far, visit here. See my previous serial Vampire Wares collected here.

Saturday, May 28, 2011

The Eldritch Quagmire of Lovecraft's Copyrights

I had recently been reading through the works that are generally considered part of H. P. Lovecraft's dreamland stories, including "The Case of Charles Dexter Ward," "Nyarlathotep," and "The Dream Quest of Unknown Kadath." When looking for online copies of these works, I stumbled upon the rather tangled copyright questions concerning Lovecraft's works: are any of his stories under copyright, and if so which ones, and if so who owns the copyright. I should say at the outset that I reached no resolution on determining whether Lovecraft's works are in the public domain and believe no resolution is forthcoming.

All of Lovecraft's works entered the public domain in the EU in 2008, since the EU decided that copyright in all cases is merely 70 years after the death of the author and Lovecraft died in 1937. Australia's Gutenberg project has virtually all of his fictional works up, since the works are apparently in the public domain in Australia. But in the US it's more uncertain. Wikisource has an even more complete collection though it notes that some works are under copyright, and there is an extensive wikipedia entry on this question. At the US gutenberg site, the only works available are some early works, and in fact they've deliberately declined to offer any of the later works. similarly, only records works from 1922 and earlier (with the sole exception, so far, of The Shunned House, which first appeared in an amateur press and didn't originally have its copyright registered). You would think copyright would be a moot point since Lovecraft died 74 years ago, but you would be assuming that copyright law actually makes sense. As one Gutenberg staffer says Lovecraft is a rather interesting case.

To start off, any book published prior to 1923 is in the public domain. Some of Lovecraft's early works fall in this time period. But all of his most famous works, including "Call of Cthulhu," "Dreams in the Witch House," "At the Mountains of Madness" and so on were written after 1923. Before 1976, all works had to be registered with the copyright office to avoid falling into the public domain, and many of Lovecraft's works (the ones published in amateur presses) were almost certainly never registered. Additionally, any work published between the years 1923-1963, not only had to have been originally registered, but had to have that copyright renewed sometime between 1950 and 1992 to avoid avoid falling into the public domain. If it was renewed, then it is copyrighted until 95 years after publication. Unfortunately, there's no official database that explicitly lists which works published before 1963 had their copyright renewed. The Copyright Office has an online database of works renewed after 1977, but if the work was renewed from 1950-1977, that requires searching through the copyright office's database of physical paper records. The Stanford library has tried to address this, with their Copyright Renewal Database, which has tried to put all of the renewals into a digital, searchable form. If we just wanted to answer the question, for example, whether the "Call of Cthulhu" is in the public domain we can do searches for "Lovecraft," "Cthulhu" or "Weird Tales" (the publication that it was first published in). The only renewals we find are those of August Derleth and Donald Wandrei, Lovecraft proteges who edited and published several early collections of Lovecraft's works. They registered and renewed the copyrights on some collections they published of Lovecraft's works. But copyrights on such collections normally only cover new material and contributions, namely the arrangement, editing, introductions and any new stories; they wouldn't apply directly to Lovecraft's original work. Thus, if one went back and republished the original Cthulhu story published in Weird Tales in 1928, those copyrights presumably wouldn't apply. And no further evidence of other renewals has been found.

There may be, nonetheless, some exceptions, namely in works originally published posthumously by Darleth and Wandrei. For example, Derleth and Wandrei registered and renewed the copyright to Beyond the Walls of Sleep, in which the "Dream Quest of Unknown Kadath," first appeared and in which "The Case of Charles Dexter Ward," was first published in its complete form. If they held full rights to these works at the time of publication, they may have successfully renewed rights to these works. But with the rest of the stories, there appears to be no evidence of renewal.

Unfortunately, there have been and still are copyright holders that claim the rights. Chris J Karr has a long article detailing the claims of these copyright holders. As he first explains, there are 23 works of Lovecraft that were written prior to 1923 and 15 works that never had their copyright registered, but the remaining 27 works are uncertain. They are claimed to be held by Arkham House Publishers, a publishing house founded by Derleth and Wandrei, and by Lovecraft's reconstituted literary estate.

It is generally believed that Lovecraft retained all rights to his works published from 1926 forward (though we don't have documentation to confirm this). In the period 1923-25, he published a few works in amateur presses like The Tryout that didn't register their copyrights, and six works in Weird Tales, which did register its copyrights. Weird Tales did transfer whatever rights it held to Derleth and Wandrei and Arkham House in 1947, which would probably only include the short stories "The Festival," "The Hound," "The Temple," "The Unnameable," "The Horror at Martin's Beach," and "Under the Pyramids." As already stated, there is no evidence that the copyrights were renewed on these stories.

Of the rights to the remaining 21 works published from 1926-37, that Lovecraft retained rights to, his rights were transferred, upon his death in 1937, to his only heir, his aunt, Annie Gamwell. Gamwell transferred the royalties in her will to Derleth and Wandrei, but the copyrights she held and these were transferred to her heirs, Edna Lewis and Ethel Morrish. Lewis and Morrish subsequently transferred at least some of their rights to Arkham House in an agreement. The problem is that the language of the agreement in which Morrish and Lewis ostensibly gave rights to Derleth and Wandrei is not clear about what rights are being transferred, and many dispute whether copyrights were actually transferred by this agreement. The question is whether granting "the right to publish H. P. Lovecraft's work," and "sell second serial rights" constitutes giving them full copyrights or just amounts to giving them permission to publish and collect the royalties.

All of this would be moot if the copyrights weren't renewed. Even if there is no evidence of renewal, it's possible that when Darleth and Wandrei renewed the copyrights to collections in which Lovecraft's works were republished, this constituted renewal of the copyright on those works; it's also possible renewals were made that have simply not been found. Karr concludes that all of Lovecraft's work are in the public domain, based on arguments used by Arkham House in a much later lawsuit with Wandrei. The lawsuit was over disputed royalties apparently owed to Wandrei. Arkham house used the argument that Wandrei was not owed royalties because he lacked the rights to the relevant works because the copyrights were never renewed. Karr takes this as definitive, since it is the statement of the publishing house itself that the publishing house did not own the rights to any of the works of Lovecraft that might be under copyright. I'm not so confident that Karr is right, since it's entirely possible that Arkham House is mistaken and such a statement in the context of a lawsuit needn't be legally binding, and Karr notes that Arkham house and the reconstituted Lovecraft estate still claim to the own the copyrights (for example, copyright notices of Lovecraft Properties LLC, the reconstituted Lovecraft estate, here and here). But, without any records of renewal, it's about the strongest evidence available.

For my money, I'd say all of Lovecraft's are probably in the public domain (possibly excepting writings published posthumously, such as "Dream Quest of Unknown Kadath" and "The Case of Charles Dexter Ward), but there really is no answer to the question of their copyright status. Were the rights properly renewed? Were they transferred to Arkham House? Copyright law has been stretched so far into the past that lost documentation, orphaned works and uncertainties about ownership become more and more problematic. All we can say is that if someone were to challenge copyright ownership, a court would be able to come to a decision, but the decision could go either way. It's doubtful it'll be worth anyone's time and money to try and resolve this in court, and this makes the situation de facto as if the copyrights still hold, since no one wants to risk getting sued (thought the copyright holders haven't, at least so far been zealous in pursuing their lawsuits). So, long as no one challenges their claim, the persons claiming own the rights, own them by default. And the issue won't really be resolved until 2032 when the last of Lovecraft's works published in his lifetime will enter the public domain (and I'm excluding the few posthumous publications, which appeared as late as 1944), unless there's another copyright extension, which would just push all of this mess forward.

All of this really illustrates the absurdity of copyright law, which only grows more absurd the further copyrights are extended. Today, copyright law covers works published before 1978 for 95 years after their publication and 70 years after the death of the author for works published since 1978. Such a term undermines the original intention of copyright law, namely to encourage the creation of art. Not only do rights devolve to people who have no part in the creation of original works, but the longer the term, the more copyright holders invest in protecting valuable copyrights and the less they invest in creating new copyrightable works. But, just as I said before, assuming that copyright law should actually abide by its purported rationale assumes that copyright law actually makes sense.

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