Excerpted From: Timothy J. McFarlin, A Copyright Restored: Mark Twain, Mary Ann Cord, and How to Right a Longstanding Wrong, 2023 Wisconsin Law Review 45 (2023) (337 Footnotes) (Full Document)

TimothyJMcFarlin.jpegPicture, if you will, a person sitting down at her desk, morning coffee in hand, scanning the day's news. She clicks on an eye-catching link. It leads to an article about how, in 1874, Mark Twain wrote down a story he heard from Mary Ann Cord, who worked as a cook for his sister-in-law. Cord's story told of the tragic and astounding things she experienced while enslaved. Twain published it in the Atlantic as “A True Story, Repeated Word for Word as I Heard It,” with credit and compensation to him alone.

The article argues that this publication likely infringed a common-law copyright belonging to Cord. Moreover, given the legal intricacies at play, the article suggests that Cord's descendants may still have a viable claim today. It mentions that Leon Washington Condol, who died in 1986, is Cord's last known descendant, at least that the author has discovered so far.

The reader stops mid-sip, sets the coffee down, and slowly leans back in her chair. Condol is her grandfather. Cord, she realizes, is her ancestor.

This present-day revelation has not yet happened. In fact, it may never come to pass. Condol's death may have ended Cord's bloodline. But that line is not yet fully charted. As in my hypothetical above, someone reading this Article, or my prior one on the copyrightability of Cord's story, could come forward with proof of ancestry. If that happens, what then?

What would be the descendant's rights? The Atlantic, as I write these words, continues to publish Cord's words, as used by Twain, on its website. Could her descendant successfully bring a claim? Even if Cord had a copyright in her words, as I've previously argued, did Twain and the Atlantic's use constitute infringement? And if it did, is it too late to address now?

If it's not too late, what would be the proper remedy? Money damages paid to Cord's descendants by the Twain Foundation and the Atlantic? An injunction ordering a take-down of the infringing content? An order that Cord be credited as an author? One, none, or all of the above?

I grapple with these questions here, and not just for their own sake. In some ways, Cord's case appears unique--its age is extreme, and cases of copyright in the spoken word are rare--but in other ways it exemplifies a trend. More and more cold cases of copyright infringement are heating up. These include a forty-three-year-old claim brought in 2014 against Led Zeppelin, as well as recent claims from descendants and other relatives seeking control over the copyrights in the many-decades-old photography of Vivian Maier and Mike Disfarmer.

Given a pivotal U.S. Supreme Court decision reviving a forty-six-year-old infringement claim against the film Raging Bull, allowing a scriptwriter's heir to sue based on the 1980 film's rerelease on DVD and Blu-Ray, such disputes will likely multiply in the coming years. This is true, first, for older copyrights like Led Zeppelin's “Stairway to Heaven” and ones dating back much further. But it's also true for the copyrights of today and tomorrow, given their extensive duration under current federal law.

For example, the copyright in this article should last seventy years beyond my death. So, if I live to eighty, the copyright will persist until 2130. Now let's say someone copies from it in 2023, and I'm aware of the copying, but for whatever reason I don't sue. Then, in 2129, the copyist's work is republished. Under the rule announced by Petrella, as detailed below, my heirs could bring a timely infringement claim as late as 2132, one hundred nine years after this article's creation and alleged infringement, as well as seventy-two years after I've shuffled off this mortal coil (likely long after the alleged infringer has, as well). Perhaps I orally consented to the copying back in 2023? No one in 2132 can ask me or the copyist about it--we are long gone--but Petrella in essence says, “No matter; the claim must be decided.” And absent Congressional amendment, Petrella is likely to remain good law. Its holding was endorsed by a six-to-three majority of the Court and reaffirmed in its reasoning by a seven-to-one majority in 2017.

In this light, the long timespan in Cord's case looks less like a historical anomaly and more akin to the tough cases ahead. So, the issues discussed here-- specifically, problems of consent, fair use, estoppel, laches, abandonment, escheat, the statute of limitations, and adverse possession in a case where the original parties are long-gone--should be instructive for the future of cold-case copyright litigation.

Cord's case, moreover, may help forge a path for other authors and their descendants to achieve previously denied acknowledgment and compensation. Members of the Black community in particular have struggled to obtain recognition for works they or their ancestors authored but were appropriated by others. And beyond copyright, others are coming forward and seeking remedies for longstanding wrongs relating to discrimination, including recent high-profile lawsuits by victims of the 1921 Tulsa Race Massacre and by a descendant of enslaved persons against Harvard University. Cord's case, then, connects to efforts to identify, investigate, and redress such situations. It may inspire more.

Showing, first, that the effort is justified here, Part I argues that Twain and the Atlantic likely infringed Cord's copyright, despite potential defenses of consent, co-authorship, and fair use. Part II discusses whether that copyright could still exist today, despite the statute of limitations and the doctrines of estoppel, laches, abandonment, and adverse possession. Last, Part III considers how the Atlantic and the Twain Foundation might move forward, as well as how Cord's case, and its use of state common law, may help chart a course to right other longstanding wrongs.

[. . .]

Irony, in the sense of “a contradictory outcome of events as if in mockery of the promise and fitness of things,” is a literary device with which Mark Twain was intimately familiar. Here, at the intersection of life, literature, and the law, he has presented us with yet another deep irony. In writing of how enslavers separated Mary Ann Cord from her family, Twain himself separated Cord from her story. That story ended with an astounding reunion. Might we, today, bring about another?

The Atlantic and the Twain Foundation have an opportunity to do so. As argued in this project, first in “A Copyright Ignored” and now here in “A Copyright Restored,” Cord likely had a common-law copyright that Mark Twain and the Atlantic likely infringed and which may still exist today. Twain and his publisher could have done as many others in that time had done and given Cord credit, or at least compensation, for using her words. That they did not does not, in my view, reduce the literary power of “A True Story,” but it does leave a wrong in search of a remedy.

What might that remedy look like? A search for Cord's descendants, marshalling the investigative journalism of the Atlantic and the resources of the Twain Foundation, would seem a logical first step. From there, ideally in consultation with any living descendants, the Atlantic and the Twain Foundation could recognize Cord as an author of, not just an inspiration for, “A True Story.” Beyond that, these institutions could consider what further remedies--such as monetary compensation--are feasible. Further, even if Cord's lineage has ended, a scholarship in her name, perhaps relating to the study of Black and women authors, could be appropriate. These ideas are certainly not meant as exclusive, but they can hopefully help start the process of restoration.

That a court could use its common-law authority to order such restoration, as courts are beginning to do in similar cases, should help motivate the Atlantic and the Twain Foundation to begin this process, but it should not be the only motivation. While we can't right every longstanding wrong, that doesn't mean we can right none. When one arises, as it has here, and when the evidence allows for a sound present-day evaluation, as I think it does here, the parties involved will hopefully themselves reflect on what steps they can proactively take, today, to help make it right.

Associate Professor, Samford University--Cumberland School of Law