Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 24, Issue 17
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A Copyright Ghost Story by Mark Twain
By Kristyn Webb
Halloween is coming up at the end of this month, and we are celebrating a little early with the spooky copyright story of Jap Herron!
It all began in the year 1917, when medium Emily Grant Hutchings and spiritualist Lola V. Hays supposedly contacted the spirit of Samuel Clemens—better known by his pen name Mark Twain—who died in 1910. Hutchings and Hays claimed that they made contact with the famed author from beyond the grave using a Ouija board, and that he dictated the Jap Herron manuscript to them in the same manner during séances.
New York publisher Mitchell Kennerly had the book printed and advertised it as penned by Twain’s ghost. This paranormal origin story sent shivers down the spine of Twain’s estate, sparking a legal battle over the spectral claims.
Twain’s estate, managed by Harper & Brothers, feared the book was a mere apparition of his legacy rather than an authentic creation and sued for copyright and trademark infringement. They argued that, if Twain had written the book, the copyright would flow to his estate, and that if he had not written the book, the unauthorized use of his name on the book was an attempt to capitalize on Twain’s fame and confuse consumers, and thus, was trademark infringement. This left Kennerly in a position of either standing by the assertion that a ghost had written the book and face the copyright infringement claim or admit that Twain’s spirit had no part in writing the book and face the trademark infringement claim.
In the end, the case was settled out of court, leaving unresolved the eerie question of whether a ghost can hold copyright rights. Kennerly agreed to stop selling Jap Herron and destroyed all remaining copies, but Hutchings never retracted her claims about making contact with Twain’s spirit.
This case remains a ghostly footnote in literary history, reminding us that even beyond the grave, the specter of copyright law looms large. Nowadays, it is rare to find a print copy of Jap Herron haunting bookshelves, but digital copies are available online for some spooky evening reading!
Kristyn Webb is the Group Leader of Fishman Stewart’s Copyright Practice Group, and holds a Master’s Degree in Copyright Law from King’s College London.
Published October 4th, 2024
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