August Derleth and Donald Wandrei established their "ownership" of Lovecraft copyrights by appealing to three documents: the will of Annie Gamwell, the 1941 agreement between Derleth and Wandrei and Morrish and Lewis, and the 1947 reassignment of copyrights by Weird Tales. While Arkham House used these documents as the foundation for their claims, they refused to provide copies of these documents to skeptics.
While working on an article14 in September of 1972, Lovecraft scholar George Wetzel requested documentary proof from Arkham House about their copyright claims:
... would it be possible to be informed upon the documentary basis (a will, contract, etc.) that the August Derleth Estate claims legal possession of the H.P. Lovecraft literary material, both copyrighted and unpublished?15
Arkham House lawyer Forrest D. Hartmann responded:
It is the policy of the Estate of August Derleth to regard all legal connections with the H.P. Lovecraft literary material as confidential and privileged. Consequently, we will not release the requested information to you as we do not feel that supplying this information will in any way benefit the estate or Arkham House. Moreover, I do not see how this will benefit your present literary efforts.16
Although Arkham House refused to cooperate, Wetzel continued his research on the Lovecraft estate. In November 1972, Wetzel corresponded with both Robert Barlow's surviving brother and J. Warren Thomas. Barlow granted Wetzel the right to quote his brother's letters in the article and Thomas recounted the difficulties he experienced with Derleth when he attempted publish his Lovecraft biography two decades earlier. In January 1976, the Library of Congress sent Wetzel the results of an official search in its records for the story "The Rats in the Walls". The Library of Congress informed Wetzel that it failed to locate any individual renewals for the story, but it did locate a renewal for the issue of Weird Tales in which it was originally published.17
In May 1976, Hartmann learned that Wetzel's article was ready for publication in The Miskatonic and he informed publisher Dirk Mosig that Wetzel's claims about copyrights were inaccurate:
Indeed, there are conflicting theories as to what is covered by copyright and what is not. I mention this to you because of your reference to the Lovecraft story entitled "Imprisoned With The Pharaohs", which I contend is still covered by copyright.18
Later in the letter, he threatened Mosig with a libel suit should Wetzel portray Derleth as having acted improperly while acquiring the Lovecraft rights:
If Mr. Wetzel's article implies that this story is not covered by copyright and that August Derleth was trying to con people into thinking it was, legal action could follow. Those of us involved in Arkham House and the August Derleth Estate do not get very upset about the unauthorized use of Lovecraft material. But this is not the case when Mr. Derleth's integrity is put in question. Thus, I want to put you and Mr. Wetzel on notice that publication will be at your peril, if such publication libels August Derleth's reputation for honesty and integrity.19
The Wetzel incident illustrates the difficulty faced when anyone tried to establish the ownership of the Lovecraft materials. In Wetzel's case, Arkham House began as an uncooperative party and only increased its hostility toward Wetzel and his research. This hostility cumulated in the threat of a libel lawsuit that Hartmann conveyed to Mosig. Arkham House possessed the documents that would support its claim, but it declined to provide the documents' contents as proof of its ownership of the Lovecraft materials.
In a later lawsuit between Donald Wandrei and the estate of August Derleth (discussed below), the documents that Arkham House cited as supporting its claim became a part of the public record when entered as evidence in the lawsuit. Instead of clarifying the situation, these documents provided new sources of confusion.
The relevant portions of Annie Gamwell's will granted Derleth and Wandrei the remainder of the royalties due to her from their first compilation of Lovecraft's work:
SECOND: I give and bequeath to August Derleth and Donald Wandrei, both of Sauk City, Wisconsin, in equal shares, all royalties that I may receive from the book entitled, The Outsider and Others, by H. P. Lovecraft, said book being published by Arkham House, Sauk City, Wisconsin, 1939.
THIRD: All the rest, residue and remainder of my property and estate, real, personal and mixed, of which I shall die seized and possessed, or to which I may be entitled at the time of my decease, including any real estate which I may hereafter acquire, I give and bequeath to my Cousin, Mrs. Roy A. Morrish, of Providence, Rhode Island, and Miss Edna W. Lewis, of Brookline, Massachusetts, to be divided equally between them, their heirs and assigns forever.20
The third portion of this document stipulated that Lewis and Morrish inherit the remainder of Gamwell's property. Since Gamwell did not explicitly designate an inheritor for her nephew's works, any ownership of the Lovecraft works automatically passed to Morrish and Lewis.
A few months after Gamwell's death in 1941 Morrish and Lewis signed an agreement that defined the roles of Derleth and Wandrei in their continued publication of Lovecraft's work:
The undersigned hereby grant you a freehand to further publication of the work of the late H. P. Lovecraft, and also grant to you the earnings from that work to the amount of your expenditures, and also granting you the right to publish H. P. Lovecraft's work, to receive royalties, sell second serial rights, and, if necessary, first serial rights in connection with such publication, to the amount of the expenses incurred in connection with such publication.21
Derleth and Wandrei interpreted this as granting them the full copyright to the Lovecraft stories. However, the document contained no explicit mention of any copyrights, so whether this document was intended to grant full or limited rights is a question that only Morrish or Lewis could answer conclusively.
However, six years later, Derleth and Wandrei convinced Weird Tales that their interpretation was correct. When presented with the Morrish-Lewis agreement, Weird Tales transferred their rights to Derleth and Wandrei:
For value received, we, Weird Tales Magazine published by Short Stories, Inc., of 14 West 49th Street, New York 20, New York, hereby assign to August Derleth and Donald Wandrei, both of Sauk City, Wisconsin, this ninth day of October, 1947, all our interest (with the exception of magazine serial rights according to previous agreement) as registered copyright proprietors in and to the copyrights of the following stories, all by Howard Phillips Lovecraft...22
The absence of mention of Morrish and Lewis in this document suggests that by this point in time, Derleth and Wandrei were confident that they alone controlled Lovecraft's work. Derleth sent his correction to Moskowitz's article in Fantasy Commentator around the same time this agreement was executed. The contrast between his public statements - "my permission to publish is the permission of the four people concerned" - and his private actions is revealing. This is an early instance of Arkham House representatives making one claim in public and acting differently in private.
After signing the 1947 copyright transfer, Derleth and Wandrei finally had a document explicitly assigning them the copyright to Lovecraft's stories (albeit only those published in Weird Tales).
15 Letter from George Wetzel to Forrest D. Hartmann. Sept. 24, 1972.
16 Letter from Forrest D. Hartmann to George Wetzel. Sept. 27, 1972.
17 Library of Congress letter to George Wetzel. Jan. 6, 1976.
18 Letter from Forrest D. Hartmann to Dirk Mosig. Mar. 5, 1976.