Tuesday, April 04, 2023

H.P. Lovecraft vs. The Public Domain

The other day I had a conversation via text with my friend Ben about the legal status of the Lovecraft copyrights. As one does. That caused me to go down a rabbit hole that led to this article, and made a couple of other forks.

1) The "estate" of Lovecraft, Lovecraft Properties LLC, who tried to get publishers and authors to acknowledge them as rights holders to Lovecraft's works had been dissolved by the state of Rhode Island in 2007. A collection of Lovecraft's works I have from 2009, and published by Barnes & Noble, acknowledged the estate, as did a few other works around the same time.

And internet search found the registration with Rhode Island, and that the registration was ended by the state for not following the rules (without stating what rules were violated). The best I can ascertain is that they didn't do a required annual filing with the state of Rhode Island. This could be because I don't think they were ever very successful at getting anyone to pay them for the rights to Lovecraft's works.

2) In a lawsuit filed by Donald Wandrei in 1973, contesting the will of August Derleth and the ownership of the rights held by Arkham House because they hadn't been paying Wandrei royalties on the various Lovecraft books they had published, the lawyer for Arkham House and Derleth took a unique approach to why they didn't pay any royalties to Wandrei: no one had ever actually renewed the copyrights to Lovecraft's works, so that meant it had all lapsed into the public domain. Because of this, Wandrei had no rights that required the payment of royalties from Arkham House.

The fact that a lawyer said this in a courtroom is pretty amazing:

Insofar as the copyrights are concerned, I can testify that there are no renewal copyrights for any of the H.P. Lovecraft stories that were signed on October 9, 1947 to August Derleth and Donald Wandrei.


Moreover, Lovecraft died in 1937 and while he left a will, the evidence will show that none of Lovecraft's copyrights were renewed. The forty-six (46) Lovecraft stories contained in Exhibit "B" were not renewed by the assignees nor could they do so under the copyright law. Thus all of the stories are now in the public domain with the result that there are no rights contained or effective under the agreement between Donald Wandrei and August Derleth, dated November 8, 1955.

So, from 1973 until 1986 (when Wandrei finally won his lawsuit against Arkham House) the lawyer for Arkham House argued that Lovecraft's works had in fact lapsed into the public domain. Despite this, Arkham House publicly claimed ownership of the rights to Lovecraft's works during this time, to get fees and licensing money.

For nearly the entire part of the second half of the 20th century, people argued about the copyright status of Lovecraft's work, while no one knew that the lawyers for Arkham House/Derleth's estate made these arguments in a courtroom. The judge declaring Lovecraft's works in the public domain would have been outside of the scope of the trail, so I am not surprised that there was no ruling on that. But, considering how intellectual property rights have to be fairly rigorously defended most of the time, I am really surprised that the legal representative of a company that otherwise vigorously defended these rights would say something like this in a public record. It doesn't really make any sense, but I am not a lawyer.

I had read up on all of this over the years, and never once before now had I seen a reference to Wandrei's suit, or Arkham House's defense that the rights had lapsed. Even Joshi's writing on the subject of the copyright status of Lovecraft's works didn't mention this, and I find it hard to believe that he wouldn't have known.

Originally I wrote this up as a post on my Facebook page, but I figured it deserved a more public sharing so I rewrote it a bit for this blog post. Nothing is this post should be considered to be legal advice, but it does contain links that you likely could run past an actual lawyer for actual legal advice.

In case you're wondering, this link is what my friend sent me that started my tumble down the rabbit hole of H.P. Lovecraft vs. The Public Domain.