Two hypotheses dominate the discussion of the copyright status of Lovecraft's Weird Tales stories. The simplest hypothesis is that these stories are in the public domain since none of the required renewals to individual stories have ever been located. This was a theory advanced by S.T. Joshi, a prominent Lovecraft scholar.2 In H.P. Lovecraft: A Life, Joshi draws attention to the considerable circumstantial evidence that Lovecraft ceased selling all rights to his stories in 1926, limiting any third-party ownership of the Lovecraft stories to those published between 1923 and 1926. (However, Joshi has since withdrawn support for his original hypothesis.3)
A competing hypothesis is that Arkham House Publishers secured all the necessary copyrights from Lovecraft's heirs and Weird Tales, and that because of these acquisitions, Arkham House alone controls the copyrights to Lovecraft's work. In 2000, Peter Ruber published "The Un-Demonizing of August Derleth". In this essay, the former Arkham House editor summarized the Arkham House hypothesis:
Mrs. Gamwell4 died on January 29, 1941. In her will, she bequeathed all rights and future income from The Outsiders and Others to Derleth and Wandrei. The two residual legatees of Mrs Gamwell's estate ... did not contest Mrs. Gamwell's wishes. They also assigned the publishing rights to all other Lovecraft properties to the two men...
In October 1947, Derleth forwarded notarized copies of these assignments to Dorothy McIlwraith, editor of Weird Tales, and had all copyrights to Lovecraft's work turned over to himself and Donald Wandrei.5
The Arkham House hypothesis depends upon three documents: Annie Gamwell's will, the assignment of all publication rights to Arkham House in a document known as the Morrish-Lewis gift, and the assignment of copyrights from Weird Tales.
Prior to Gamwell's death, Derleth and Wandrei gained de facto control over Lovecraft's work using a variety of methods. In the weeks immediately following Lovecraft's death, Derleth and Wandrei contested the control held by Lovecraft's chosen literary executor, Robert H. Barlow. The struggle over Lovecraft's work became public in 1939, when Le Vombituer published an account of the Barlow and Arkham House dispute.6 Shortly after, Derleth demanded a retraction, claiming, "it is well known that Donald Wandrei and I are in charge of HPL's work"7. After a few years of harassment, Barlow eventually capitulated and began cooperating with Derleth and Wandrei to publish Lovecraft fiction through Arkham House.
In 1941, Annie Gamwell died and her will granted Derleth and Wandrei the remaining royalties due to her from the publication of The Outsider and Others. Gamwell's heirs, Ethel Morrish and Edna Lewis, granted Arkham House "full publication rights" four months later. In 1942, Donald Wandrei was drafted to fight in World War II and Robert Barlow went south to become a professor of archeology at the University of Mexico. Wandrei's army enlistment and Barlow's emigration made Derleth the only active member of the trio. Derleth's control over the Lovecraft stories lasted until his death in 1971.
Derleth's demonstrated his control of the Lovecraft materials in December 1943, when F. Orlin Tremaine sought his permission to publish a couple of Lovecraft paperbacks. With Derleth's consent, Tremaine published The Weird Shadow Over Innsmouth in 1944, and The Dunwich Horror in 1945.8
In a 1947 article published in Fantasy Commentator, Sam Moskowitz reignited the Lovecraft controversy. Moskowitz described an incident where Derleth threatened to sue Corwin Stickney when Derleth discovered that Stickney planned to republish Lovecraft material in a limited posthumous tribute without his permission. Stickney explained to Derleth that he was only publishing twenty-five copies of the tribute. Derleth declined to follow through with his original threat.9 In a letter to the editor published in the next issue, Derleth provided his version of the incident:
First, at no time have I claimed possession of or acquisition of the rights to H.P. Lovecraft's work. Donald Wandrei, R.H. Barlow, the estate of Lovecraft (and, later, of Mrs. Gamwell) and myself have worked in concert; Arkham House has control of the Lovecraft works, working with the estate and Barlow. ... We have never restricted publication of certain of Lovecraft's things, but we have held the line on the stories and on the Weird Tales-copyrighted poems specifically. Third, my permission to publish is the permission of the four people concerned who are mentioned above.10
In the same year as the Moskowitz article, Weird Tales transferred to Derleth and Wandrei the Lovecraft copyrights it held from the period when Lovecraft wrote for the magazine.
In 1950, J. Warren Thomas, a Brown University student, wrote a biographical thesis describing Lovecraft's life using the materials deposited in Brown University's John Hay Library by Robert Barlow and others some decades earlier. With some encouragement, Thomas investigated publishing his biography as a book. Winfield T. Scott, one of Lovecraft's former correspondents and editor of The Providence Journal and Evening Bulletin advised Thomas to seek permission to publish from Arkham House. Derleth replied to Thomas that three votes were required to obtain approval - Derleth's, Barlow's, and Wandrei's. (Morrish and Lewis had apparently ceased to exercise any decision-making power by this point.) Arkham House declined to grant permission, despite Robert Barlow's own encouragement to Thomas several months earlier. After being unable to secure permission from Arkham House, Thomas sought advice from Scott. Scott replied:
Of course the reasonable response to August Derleth is Balls. If only, unfortunately, it were not he who has you by them. And, as you suggest, your chances in that "joint decision" are obviously not worth a dime. I'm sure you are right about HPL: I agree with everything you say; but if the boys won't let you publish, there you are.11
On January 2, 1951, Robert Barlow committed suicide in Mexico. Barlow's suicide left Derleth and Wandrei as the sole remaining managers of the Lovecraft stories. By 1955, Derleth and Wandrei felt sufficiently secure in their ownership of the Lovecraft stories to draft a contract that stipulated that in the event of the death of one or the other, the survivor would become the sole owner of the rights and royalties to the Lovecraft materials. In 1957, Derleth exercised this power to pen "posthumous collaborations" with Lovecraft by including portions of Lovecraft's original text in his own fiction.
In 1966 - nineteen years after his article in Fantasy Commentator - Sam Moskowitz published "Whisperer in the Darkness" as part of a strange fiction compilation. Derleth threatened to sue, but again failed to follow through with his threat.12
On July 4, 1971, August Derleth died and his attorney Forrest D. Hartmann assumed control of his estate and Arkham House. In a letter written on Dec. 20, 1971, Hartmann declared
I wish to advise that anyone who uses H.P. Lovecraft literary material does so at his own risk and peril. These literary rights now reside in the Derleth Estate and we naturally will protect them to the fullest extent possible.13
3 In my more recent correspondences with Joshi, he has stated that he no longer supports his original statement and presently believes that the moral and legal rights to Lovecraft's work belong to the recently reconstituted Lovecraft literary estate. However, he has declined to provide any evidence that contradicts his original statement with respect to the lack of copyright renewals. See the Coda for more information.
4 Annie Gamwell was Lovecraft's aunt and sole surviving family member. Lovecraft's possessions, including the rights to his stories, passed to Gamwell when Lovecraft died in 1937. Related document: Lovecraft's will (1912)
6 Lowndes, Robert W. Le Vombiteur, Vol. 1 No. 2. Feb. 4 1939.
7 Lowndes, Robert W. Le Vombiteur, Vol. 2 No. 8. Apr. 1 1939.
8 Joshi, 636.
9 Moskowitz, Sam. "The Immortal Storm: A History of Science-Fiction Fandom". Fantasy Commentator.Summer 1947.
10 Derleth, August. Letter to the editor. Fantasy Commentator. Fall 1947.
11 Letter from Winfield T. Scott to J. Warren Thomas. Sept. 12, 1950.
12 Joshi, 641.
13 Letter from Forrest D. Hartmann to George Wetzel. Dec. 20, 1971. (This letter was part of George Wetzel's copyright investigation summarized in "Copyright Problems of the Lovecraft Literary Estate".)