The Black Seas of Copyright: The "Donald Wandrei v. The Estate of August Derleth" Hypothesis
An investigation into the copyright status of the H.P. Lovecraft fiction
If a cautious Lovecraft republisher assumed that a court would favor Ruber's interpretation over Joshi's, could the publisher still make a case that Lovecraft's work entered the public domain? Since there is no available direct evidence to support Joshi's conclusion that Lovecraft ceased selling all his rights after 1926, drawing inferences from the information above becomes risky should a court decide that the renewal records for the issues of Weird Tales also applies to the individual contents within.
Fortunately, a third hypothesis exists that draws upon more recent documents submitted in court proceedings. This interpretation allows the concerned publisher to take the conservative position that Wandrei and Derleth owned valid copyrights to Lovecraft's work, but still allows the publisher to conclude that the works effectively entered the public domain.
On July 4, 1971, August Derleth died after a prolonged illness. Donald Wandrei contested Derleth's amended will that only granted Wandrei the copyrights and royalties to the Lovecraft works that were published in both his and Derleth's names. Citing a 1955 agreement between him and Derleth, Wandrei demanded
... all said properties including... all such material used as a basis for all previous Lovecraft books published by Arkham House and bearing the copyright notice of August Derleth and Donald Wandrei, together with all files and records held by the Personal Representatives of the Lovecraft material.23
As evidence, Wandrei presented a contract between him and Derleth drafted after Derleth was wed in 1953. The contract established the following:
First: That said copyrights [listed in the 1947 Weird Tales document] so assigned to them ... shall be governed by this agreement.
Second: That both while living and either after the decease of one shall continue in the complete ownership, including all rights connected therewith in and to said assignments aforesaid.24
Wandrei originally contested the will in 1973 and his suit continued until 1986. During the course of the lawsuit both Wandrei and Arkham House's lawyer Hartmann gave depositions that shed light on the situation regarding the Lovecraft copyrights.
In his court testimony, Donald Wandrei described how he and Derleth acquired the Lovecraft copyrights and how they created the 1955 agreement after Derleth was wed in 1953. Wandrei testified that the purpose of the contract was to guarantee that the surviving member of the two continue to serve as the owner and administrator of the Lovecraft property. Based on this understanding, Wandrei believed that Arkham House was wrongfully withholding from him the Lovecraft materials and the royalties generated by the publication of those properties.
To counter Wandrei's claims to the Lovecraft properties and royalties, Hartmann began pursuing a novel strategy to protect the collected royalties:
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.25
In a later brief, Hartmann continued developing this argument:
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, 1955.26
Until the conclusion of the suit in 1986, Hartmann continued to argue that the public domain status of Lovecraft's work eliminated any claims that Wandrei had to the royalties. Neither side disputed Hartmann's assertion that the Lovecraft materials entered the public domain in the United States. The focus of the lawsuit shifted from questions of copyright to questions of which royalties rightfully belonged to Wandrei. Wandrei eventually won the case in 1986, and after the settlement, he assigned thirty percent of his remaining interest in the Lovecraft materials to his attorney as payment for services rendered.27 In 1987, Donald Wandrei died.
This suit is important because it again highlights the difference between Arkham House's public and private positions regarding the Lovecraft copyrights. In public, Arkham House vigorously claimed ownership and control of the Lovecraft works. However, in private (and in court), it believed that the lack of proper copyright renewals eliminated any exclusive control of the Lovecraft stories and any royalties that could be claimed by owners of those rights. The strength of the Arkham House claim to the Lovecraft materials was based on the Morrish-Lewis agreement and the acquisition of the copyrights in 1947 from Weird Tales. While the court ultimately declined to make any ruling regarding the copyright status of Lovecraft's work, Forrest Hartmann's 1974 testimony in this case effectively destroyed any rights that Arkham House may have held. It would be very difficult for Arkham House to successfully sue anyone for copyright infringement given its former lawyer's (and manager's) testimony.
25 Forrest D. Hartmann testimony. May 23, 1974.
26 Brief filed by Forrest D. Hartmann, (prior to) May 24, 1974.
27 Letter from Donald Wandrei and R.E. Low to April Derleth. April 28, 1987.