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
On Tuesday, Amistad Press, a division of HarperCollins, released Zora Neale Hurston’s long-unpublished first book, “Barracoon: The Story of the Last ‘Black Cargo,’ ” edited by Deborah G. Plant.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by the publication of Hurston’s short book on such an important subject, but I wish we could stop talking about unpublished manuscripts in such terms.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 Over the years, I’ve brought out — as a scholar or an editor — previously unpublished work by Walt Whitman, Mark Twain, Robert Frost, Jack London, Paul Laurence Dunbar and Ezra Pound, as well as a group of Hurston’s writings, edited by Pamala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.