All the great lit­er­a­ture trapped in le­gal limbo

Blame Mickey Mouse for the late ar­rival of Zora Neale Hurston’s book, ar­gues critic Ted Genoways

The Washington Post Sunday - - OUTLOOK - Twitter: @TedGenoways Ted Genoways is the au­thor of “This Blessed Earth: A Year in the Life of an Amer­i­can Fam­ily Farm.”

On Tues­day, Amis­tad Press, a di­vi­sion of HarperCollins, re­leased Zora Neale Hurston’s long-un­pub­lished first book, “Bar­ra­coon: The Story of the Last ‘Black Cargo,’ ” edited by Deborah G. Plant. An ex­tended in­ter­view with the last sur­viv­ing man taken aboard a slave ship to the United States, it offers a glimpse into the long legacy of slav­ery. In late April, Vul­ture pub­lished ex­cerpts from the book, which the web­site said had “lan­guished in a vault” since 1931. I’m thrilled by the pub­li­ca­tion of Hurston’s short book on such an im­por­tant sub­ject, but I wish we could stop talk­ing about un­pub­lished manuscripts in such terms. In many cases, it’s not, as such lan­guage sug­gests, schol­arly ne­glect that hides these works from the pub­lic eye. In­stead, the trou­ble be­gins with oner­ous and ex­ces­sive copy­right pro­tec­tions — pro­tec­tions that are meant to profit the Walt Disney Co. and other huge cor­po­ra­tions more than to en­rich our un­der­stand­ing of Amer­i­can lit­er­a­ture.

It’s a prob­lem I’ve come to know well. Over the years, I’ve brought out — as a scholar or an edi­tor — pre­vi­ously un­pub­lished work by Walt Whit­man, Mark Twain, Robert Frost, Jack Lon­don, Paul Lau­rence Dun­bar and Ezra Pound, as well as a group of Hurston’s writ­ings, edited by Pa­mala Borde­lon. When I was se­lect­ing from the Hurston materials that Borde­lon had col­lected, now nearly 20 years ago, I also ob­tained a copy of the type­script of “Bar­ra­coon” from the Smith­so­nian archives. I knew about the type­script from read­ing Robert E. He­men­way’s de­scrip­tion of it in “Zora Neale Hurston: A Literary Bi­og­ra­phy,” which was pub­lished in 1977. The type­script was thin, just over 100 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 done as part of Hurston’s field­work for the Fed­eral Writ­ers’ Project — making it a gov­ern­ment work-forhire 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.

Now, ac­cord­ing to the Vul­ture in­tro­duc­tion, the Zora Neale Hurston Trust has new literary rep­re­sen­ta­tion that was able to clear up the ques­tions of rights, and is in­ter­ested in get­ting un­pub­lished works into print and mon­e­tiz­ing those archives. That’s great, from a reader’s per­spec­tive, but it also re­veals a larger prob­lem where schol­ar­ship of lit­er­a­ture that falls roughly be­tween World Wars I and II is con­cerned. It’s mostly due to the Walt Disney Co.’s ef­forts to pro­tect its own­er­ship of a cer­tain car­toon mouse.

Over the years, the com­pany has suc­cess­fully lob­bied to ex­tend copy­right re­stric­tions far be­yond the lim­its in­tended by the orig­i­nal au­thors of Amer­ica’s in­tel­lec­tual-property laws. Un­der the Copy­right Act of 1790, a work could be pro­tected for 14 years, re­new­able for an­other 14-year term if the au­thor was still alive. In time, the max­i­mum copy­right grew from 28 years to 56 years and then to 75 years. Rep. Sonny Bono helped champion a 1998 ex­ten­sion that pro­tects works cre­ated af­ter 1978 for 70 years af­ter the death of the au­thor, and works cre­ated af­ter 1922 for as long as 120 years.

This has been ben­e­fi­cial for Disney — which, not co­in­ci­den­tally, was founded in 1923 — but less so for the rep­u­ta­tions of au­thors who pro­duced im­por­tant work from the 1920s to the 1950s, partly be­cause they’re more likely to be de­ceased. Be­cause copy­right law be­came such a tan­gle, many of these works have truly lan­guished. Here, Hurston is the rule rather than the ex­cep­tion. I’ve kept a file over the years con­tain­ing copies 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. If copy­right laws weren’t so re­stric­tive, more of these works would be in the pub­lic do­main and could be pub­lished. No­tably, that’s true of “Bar­ra­coon,” which was cre­ated in 1931, mean­ing that un­der ear­lier copy­right law, it could have been freely re­leased as early as 1987.

Take, for ex­am­ple, the case of Lola Ridge. In 2011, for­mer U.S. poet lau­re­ate Robert Pin­sky, in a column for Slate, called Ridge “a ter­rific poet” and, more than that, “an early Mod­ernist, rad­i­cal in her politics, and an ar­dent fem­i­nist.” She was, by his es­ti­ma­tion, a link be­tween Wil­liam Blake and Crane, but Ridge’s po­ems had mostly been out of print for nearly 70 years, in part be­cause her body of work strad­dled the 1923 di­vide be­tween pub­lic-do­main works and works con­trolled by copy­right — and be­cause, for 40 years, the ex­ecu­tor of Ridge’s es­tate claimed to be work­ing on a vol­ume of col­lected po­ems as well as a bi­og­ra­phy, so she was un­will­ing to let any other schol­ars lay claim to the work. In 2007, Daniel Tobin pub­lished a slim vol­ume of Ridge’s pub­lic-do­main po­ems. Nearly a decade later, enough time had passed that Ridge had been dead for 70 years, making it pos­si­ble for Terese Svo­boda to pub­lish Ridge’s cor­re­spon­dence as part of her mag­is­te­rial bi­og­ra­phy. Now, Tobin has re­leased an ex­panded edi­tion of Ridge’s po­ems, in­clud­ing those from a vol­ume pub­lished in 1927 (now pub­lic do­main), along with un­pub­lished ju­ve­nilia. But the last two books pub­lished dur­ing Ridge’s life­time, “Fire­head” (1929) and “Dance of Fire” (1935), re­main tied up. The ef­fect is a slow-drip re­dis­cov­ery, which has largely ham­pered ef­forts to re­store Ridge to her right­ful place in the canon.

Copy­right laws rewrit­ten by ma­jor cor­po­ra­tions to pre­serve in­come from nearly cen­tu­ry­old cre­ations have all but erased a gen­er­a­tion of less-fa­mous writ­ers and un­known works by well-known writ­ers. It is an ef­fect that pro­longs the life span of bi­ases that have long si­lenced fe­male writ­ers, mi­nor­ity writ­ers and work­ing-class writ­ers. “Bar­ra­coon,” for ex­am­ple, was re­jected for pub­li­ca­tion in 1931 be­cause it was deemed too ver­nac­u­lar by Hurston’s edi­tor. Copy­right law un­in­ten­tion­ally ex­tended 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.


Au­thor Zora Neale Hurston and an uniden­ti­fied man in Belle Glade, Fla., 1935. Hurston did field­work for the Fed­eral Writ­ers’ Project, part of the Works Progress Ad­min­is­tra­tion.

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