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Copyright Once Again Hiding Important Cultural Artifacts

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iStock_000005201261_Large-300x196.jpgLast week on NPR’s Fresh Air, I first heard about the publication of the book Barracoon, which sounds fascinating — as is the backstory behind the book. The book was actually written in 1931, based on interviews anthropologist Zora Neale Hurston did with then 86-year-old Cudjo Lewis, then the last known living person to have been brought to America from Africa on a slave ship. In the Fresh Air piece, Maureen Corrigan described the decades-long delay in publishing the book this way:

Hurston’s manuscript has a complicated backstory, but the gist is that the book generated little interest back then from publishers. Only Viking Press was willing to publish it with the stipulation that Hurston change Cudjo’s voice, transforming his dialect speech into the King’s English. Hurston refused and Barracoon languished, known only to scholars until now.

However, over at the Washington Post, Ted Genoways tells a more detailed story that pins the lack of publication on a key factor of copyright law blocking the publication. It turns out that Genoways had come across this work decades ago and tried to get it published back then. But… copyright got in the way. Specifically, he was unable to establish clearly whether or not the work was in the public domain.

The typescript was thin, just over a hundred pages, with a few emendations and additions in Hurston’s handwriting, but it seemed complete and worthy of note. I looked into getting it published — but the rights to the work were unclear. Had the writing been conducted as part of Hurston’s fieldwork for the Federal Writers’ Project — making it a government work-for-hire and public domain? Or was it a separate literary work controlled by her estate? No one seemed to know, and no one was too interested in finding out. Unable to get answers, I eventually gave up on the effort.

As Genoways notes, under any reasonable copyright regime — including the copyright regime that was in place at the time Hurston wrote the book — the book should have gone into the public domain long ago. But, of course, as we’ve detailed many times over the years, rather than enable that culture to reach the masses, Disney had to protect its mouse (which, as Larry Lessig detailed years ago, Disney created by borrowing heavily from copyright-protected works).

It’s mostly due to the Walt Disney Co.’s efforts to protect ownership of a certain cartoon mouse. Over the years, the company has successfully worked to extend copyright restrictions far beyond the limits ever intended by the original authors of America’s intellectual property laws. Under the original Copyright Act of 1790, a work could be protected for 14 years, renewable for another 14-year term if the work’s author was still alive. In time, the maximum copyright grew from 28 years to 56 years and then to 75 years. In 1998, Sonny Bono championed an extension that would protect works created after 1978 for 70 years after the death of the author and the copyright of works created after 1922 to as long as 120 years.

As Genoways notes, it’s surely no coincidence that the focus on Sonny Bono’s copyright extension was to cover works created after 1922. The Walt Disney company was founded in 1923. However, as he notes, this is preventing all sorts of cultural works from reaching the public:

Here, Hurston is the rule rather than the exception. I have a file that I’ve kept over the years of significant unpublished works by well-known writers from the era: William Faulkner, Langston Hughes, William Carlos Williams, Hart Crane, Sherwood Anderson and Weldon Kees, among others. The works aren’t really “lost,” of course, but they are tied up in a legal limbo. Because of the literary reputations of those writers, their unpublished works will eventually see the light of day — whenever their heirs decide that the royalties are spreading a little too thin and there’s money to be made from new works. But other important writers who are little-known or unknown will remain so because they don’t have easily identifiable heirs — or, worse, because self-interested, or even uninterested executors, control their estates.

He also goes into detail on the works of the poet Lola Ridge, whose work was celebrated, but much of it kept from publication. Some works fell into the public domain and were re-released, but there are still multiple volumes tied up by copyright that cannot be released.

And lest you think this is a small problem, I’ll point again to the research of Paul Heald, who has documented the giant hole in our culture created by lengthy copyright terms. Public domain works published prior to 1923 are available. Works in the last few years tends to remain available. Works from the many, many, many decades in between? Not so much:


Every time I see that image again, I am dismayed about what it says about our culture, and how little supporters of our existing copyright system seem to care about what copyright is doing to our culture. Supporters of the existing system regularly exclaim how they are the ones who support culture and creators with their views on extensive copyright protections, yet they run away and hide when people point out things like this, where copyright gets in the way of culture, locks it up and (unfortunately) sometimes throws away the key completely. As Genoways concludes:

Copyright laws rewritten by major corporations to preserve income from nearly century-old creations have all but erased a generation of less famous writers and unknown works by well-known writers. It is an effect that extends the life span of biases that have long silenced female writers, minority writers and working-class writers. “Barracoon,” to return to the original example, was rejected for publication in 1931, because it was deemed too vernacular by Hurston’s editor. Current copyright law unintentionally conspired to unnaturally extend the duration of that wrongheaded judgment for decades. That is why I bridle at the description of works like “Barracoon” as “lost.” They are not lost — they have always been here — but they have repeatedly encountered power structures that block their publication. It’s time for that to change.

Copyright is — according to our Constitution — “to promote the progress of science.” It is difficult to see how locking up a book like Barracoon for all these decades could possibly be seen as accomplishing that purpose.

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