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Copyright lawyers are wondering how the Mark Twain Foundation is claiming a copyright on the first volume of Mark Twain’s autobiography despite its pending publication a century after Twain’s death, far outside the normal protection window for an unpublished work. The copyright for works created but not published before January 1, 1978 — when the Copyright Act of 1976 took effect — expired on Dec. 31, 2002. Twain, an American writer who died in 1910, reportedly wanted to delay publication of his autobiography for 100 years to avoid offending people named in the stream-of-consciousness work. Twain, whose real name was Samuel Clemens, is perhaps best known as the author of The Adventures of Tom Sawyer and Adventures of Huckleberry Finn. The Autobiography of Mark Twain: Volume 1, which was published by the University of California Press, officially goes on sale Nov. 15. Several years ago, the foundation teamed up with the university to get around its copyright dilemma. Its solution? A three-microfilm set that was published in 2001 and sold for $50,000. One microfilm contains the autobiography papers. The other two microfilms hold manuscripts and previously unpublished letters written by Twain and members of his immediate family. According to the book’s copyright page, all Mark Twain texts in Autobiography of Mark Twain, Volume 1 “have been published previously, by permission of the Mark Twain Foundation, in the Mark Twain Project’s Microfilm Edition of Mark Twain’s Literary Manuscripts Available in the Mark Twain Papers, The Bancroft Library, University of California Berkeley (Berkeley: The Bancroft Library, 2001).” The page claims the autobiography has copyrights for 2010 and 2001. That maneuver extends the copyright of the autobiography to Dec. 31, 2047. The microfilm package was available for sale by 2002, said Richard Watson, co-trustee of the foundation and a trusts and estates lawyer at New York-based Chamberlain, Willi, Ouchterloney, & Watson. “It was widely available,” Watson said. “I don’t think it was widely purchased.” The university, working under a contract with the foundation, “got published everything that was previously unpublished that they could find,” Watson said. “[That] includes a great deal of the material in the autobiography,” Watson said. “There may be some words unpublished, but you’d need to parse through it sentence by sentence.” Watson also said that the foundation has retained the film, television and other media rights to Twain’s autobiographical material. “This past week I signed an agreement with an agent in Hollywood to market those rights which I hope will be done,” he said. Aaron Moss, chairman of the litigation group at Los Angeles-based Greenberg Glusker, said the foundation’s approach was creative. Moss wasn’t involved in the agreement. “If the library provided access to the public to view the microfilm or offered it for sale, then that would qualify as a publication under the statute,” Moss said. Moss also said it would be tough to convince a court that the autobiography wasn’t really published because the expensive microfilm set technically complied with the statue, even if it wasn’t truly available to a significant segment of the public. “That would be a tough argument because courts generally tend to treat the forfeiture of copyrights with some reticence,” Moss said. In an e-mailed response to questions about the autobiography’s copyright protection, Laura Cerruti, director of digital content development for the University of California Press, wrote that the press “has a strong public service mission that we must balance against the protection of the property rights, the exercise of which can help with the financial sustainability of expensive research projects.” “The Autobiography project has been years in the making, and proceeds from its sales will help support continued work by the editors,” Cerruti wrote. Sheri Qualters can be contacted at [email protected].

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