How Mark Twain's ghost almost set off the copyright battle of the century

Early rumors of his death may have been grossly exaggerated, but eventually death did come for Mark Twain. For most authors, that moment—that is, the moment of death—is a natural time to stop writing. But in 1917, seven years after Twain’s demise, reports emerged that he had dictated a new novel, via Ouija board, to a receptive medium.

The novel Jap Herron was published with an introduction by the purported transcriptionist, a journalist and author from St. Louis named Emily Grant Hutchings, about the book’s mystical origins. It came out in the midst of a “spiritualism” craze in the United States; its Bookman review, which noted that it was “unquestionably in Mark Twain’s style,” was titled “Another ‘Ouija Board’ Book.” Jap Herron wasn’t the first novel dictated from beyond the grave, but it had the highest profile “author,” which considerably raised the stakes.

Just after Hutchings and her publisher got the book to market, Twain’s estate and his publisher sued to stop it, kicking off one of the more unusual intellectual property cases of the 20th century.

Twain’s estate, while skeptical that the book was really authored by the deceased author, said that, if it were, the estate owned the rights to it and publisher Harper & Brothers had a contract to publish it.

At the heart of the case were some novel legal questions: Can the law recognize a dead person as the author of a new work? And if so, could Twain’s ghost (or its human mouthpiece), wiggle out of Twain’s agreement with Harper & Brothers to publish all of his books? Finally, even if those copyright hurdles could be cleared, what about using Twain’s pen name, which the publisher held as a registered trademark? (Twain’s legal name was Samuel Clemens.)

Unfortunately for Ouija board operator Hutchings and her publisher Mitchell Kennerley, the forces behind those copyright and trademark issues were in direct tension. Trademarks are supposed to help consumers identify the origin of goods, so sticking to the story that the words came directly from Twain’s spirit could strengthen their case. In other words, Hutchings could say she was making a valid use of the mark, because it simply described the true origin of the book. (Today we might call that kind of use a “nominative fair use.”)

But as legal scholar Christina Corcos wrote about the case in a 2010 law review article titled, “Ghostwriters: Spiritualists, Copyright Infringement, and the Right of Publicity,” that put Hutchings and Kennerley in a bind. “If they continued in their claims that Twain was the true author, then they had to defend against the infringement claims,” she wrote.

So the more firmly they insisted Twain himself was behind the work, the more they strengthened the Twain estate’s copyright argument that it, as the owner of all things written by Twain, owned this book, too. And Twain had a deal with Harper & Brothers that gave it the sole rights to publish books by Twain, so Hutchings and her publisher would have to produce credible evidence that he wanted to break that deal in his afterlife.

There was another option for the ghostwriter and publisher: they could separate the book from Twain altogether, removing references to the famous author and marketing it as a new novel by the relative unknown Emily Grant Hutchings.

It seems Hutchings and Kennerley made a weak attempt to pursue this middle path by leaving Twain’s name off the cover—but they included his extremely recognizable picture, along with the caption “A Novel From The Ouija Board.” Even that wink-and-nudge act disappears by the book’s introduction, which describes the grueling ouija sessions in detail, and claims there’s no doubt that the novel is “the actual post-mortem work of Samuel L. Clemens.” To go any further in the distancing efforts would, of course, zap much of the appeal of the novel.

Because without Twain’s name attached, the book was probably not going to sell well; the reviews, after all, weren’t good. A skeptical New York Times reviewer wrote in 1917 that, “If this is the best ‘Mark Twain’ can do by reaching across the barrier, the army of admirers that his works have won for him will all hope that he will hereafter respect the boundary.”

In its complaint, Harper & Brothers played up this fact, arguing that wider circulation of the book would hurt Twain’s reputation.

Meanwhile, there could hardly be a more interesting subject at the heart of a ghost-writing lawsuit than Mark Twain. In life, he was a vociferous, but contradictory, copyright activist. He argued for looser authorial control when he defended his friend Helen Keller against charges of plagiarism, saying, “The kernel, the soul—let us go further and say the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism.”

But just three years later, Twain testified successfully before Congress to rewrite copyright law to extend the length of its terms from a flat 42 years to the entire lifetime of the author plus an additional 50 years. That was a step down from his purported preference of perpetual terms—immortal copyright—but a compromise he deemed acceptable to ensure an inheritance for his daughters. From his characteristically witty testimony:

In a few weeks, or months, or years I shall be out of it. … 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.

What’s more, Twain had written about spiritualism and the afterlife in several of his books. His publisher’s lawyers intended to argue that in his books What Is Man? and The Mysterious Stranger, Twain himself asserted that there was no such thing as life after death.

Given that position, it seems fair to say Twain would have been skeptical of his own ghostly authorship. For those that don’t believe in ghosts, it’s no real stretch to think that somebody—whether it’s Twain’s estate, his publisher, or somehow Twain himself—was wronged by the misrepresentation that this spooky book was a work of Twain’s.

Understanding the strangeness of this saga—essentially a jurisprudential ghost story—requires a little background in the specifics of the laws at hand. In a twist that could have confounded the courtroom the two bodies of law that might address this harm are both entangled with mortality and death.

Death affects copyright law mostly on questions of term length. Thanks to the law Twain lobbied for, copyright terms in his era were set to 50 years after the death of the author. (Today, in the U.S., they’re twenty years longer than that.) If his spirit were deemed to have a copyright interest in a book he dictated via Ouija, it’s hard to imagine how the term of that copyright would be calculated.

Copyright law, though, does not grant one fixed right or privilege. Copyright covers only a specific a bundle of rights—including the right to make copies of a work, or to adapt an old work into a new one. Although many non-legal discussions around copyright and plagiarism center on ideas of fairness or accurate representation, these concepts are, even today, mostly absent from that section of the law.

Sometimes that fact leads aggrieved plaintiffs to turn to other areas of the law, such as the constellation that includes the right of publicity, personality rights, and the right of privacy. A decade after this case, for example, James Joyce used New York state privacy law to try to shut down an unauthorized publication of his book Ulysses, which had been denied copyright in the U.S. for procedural reasons. And just last year, Beyoncé beat a lawsuit from a singer she sampled; the lawsuit didn’t allege copyright infringement, but a civil rights claim that the use and manipulation of the singer’s voice was improper.

The effect of death is stark on privacy rights, which mostly last only during a person’s lifetime. In more recent years California and a few other states have extended certain rights to deceased celebrities. But in the early 20th century, just a few decades after legal scholars first extended the very idea of a right to privacy, Twain’s publisher’s attorneys would not have found much support in the law.

Importantly, cases are decided on both the law and the facts. And any chance of a straightforward legal proceeding on copyright, contracts, and trademark went out the window as the attorneys on both sides, as well as the reporters covering the story, played up the sensational elements of the case. It was trumpeted by the defendant as a tribunal on the question of life after death. “We will put the issue up to the Supreme Court,” the New York Times quotes Kennerley’s lawyer saying. “We will have a final ruling on immortality.”

Had the case proceeded to trial, more theatrics were likely in store. Forget Robin Thicke playing a medley of R&B tunes to a jury; Hutchings may have called the ghost of Mark Twain to the stand. Again, from the New York Times:

[I]t is possible that the Ouija Board will be made to perform in court and that the shade of Mark Twain, or what purports to be his spirit, will undertake to confound Mark Twain, the unbeliever. That Mrs. Hutchings intends to get into communications with that very important witness is an assured point.

Alas, Hutchings and her publisher saw the writing on the wall and didn’t like their odds. Before the case could proceed through litigation, they agreed to pull the book from the shelves. As a result, paper copies from that era are rare and tend to fetch three- and four-figure prices at auction.

The paranormal copyright questions seem to have faded, and now Jap Herron has an immortality of its own: It is widely available online today. There’s no telling how Mark Twain or his publisher would have felt about that development. At press time, Twain did not respond to a request for comment.

This is part of our week-long series on the future of death.

Parker Higgins directs copyright activism at the Electronic Frontier Foundation and writes across the web about the intersection of law and culture. Previously, he was a co-author of the world’s funniest copyright newsletter, Five Useful Articles. In his spare time he builds bots that tweet old watercolors of fruit.