Attentive readers will note that I have not yet made an explicitly concrete claim regarding the copyright status of the stories Arkham House claimed to control for the half century after Lovecraft's death. I summarized and analyzed two hypotheses that purported to answer this question. Neither hypothesis convinced me that it was superior to the other.
The Arkham House hypothesis advanced the theory that Derleth and Wandrei legally gained control of Lovecraft's work with the 1941 Morrish-Lewis agreement and the 1947 Weird Tales agreement. This hypothesis is undermined by the confusion over what rights were granted in both agreements. Did Morrish and Lewis intend for Derleth and Wandrei to hold all rights to the Lovecraft works, or only the rights explicitly mentioned in the agreement? Unless further documents are discovered that can address this intent, this question is unanswerable. Joshi's observation that Lovecraft ceased selling the full rights to his work in 1926 also undermines the Weird Tales agreement. Did Weird Tales actually hold the rights to the forty-six stories that they sold to Derleth and Wandrei? Or could Weird Tales only sell the rights to the works published prior to 1926? Since the original Weird Tales contracts also do not survive in the present, the answer depends upon how much faith a republisher has in the circumstantial evidence Joshi identified.
Joshi presented an attractive hypothesis in H.P. Lovecraft: A Life when he declared that many of the Lovecraft stories were in the public domain as a consequence of the lack of copyright renewals filed on individual works. However, Joshi does not dispute that Weird Tales owned the rights to the six of the stories published before 1926. Furthermore, Joshi does not address the issue of the copyright renewals issued for entire issues of Weird Tales. If Weird Tales owned the copyrights to these six works and sold the rights to Derleth and Wandrei in 1947 before renewing the copyrights to the issues, did those renewals extend to the copyrights purchased by the Arkham House partners? Further complicating Joshi's conclusion are the warnings offered by the Library of Congress in its own published materials - the lack of a copyright renewal is not conclusive proof that a work is part of the public domain.33
In constructing my alternative hypothesis using the court documents from the Wandrei lawsuit, I attempted to avoid addressing unanswerable questions and instead constructed an opposing hypothesis that undermined the foundations of the Arkham House hypothesis. In the briefs and deposition given by Arkham House's manager and attorney, I established that Arkham House itself did not believe that the Weird Tales agreement held any value in the 1970s and that Arkham House believed that those stories were part of the public domain. Since Arkham House is the only party that is likely to object to the unauthorized republication of Lovecraft materials, this hypothesis was crafted to undermine their basic rights to ownership that is necessary to establish and maintain a claim in a copyright lawsuit.
Returning to the fundamental question that motivated this paper, is Lovecraft's fiction a part of the public domain? Since Arkham House successfully maintained the perception of controlling Lovecraft's work prior to the 1978 copyright law revision34, no other party met the statutory requirements of the 1909 copyright law for the works to continue protection into the post-1978 copyright regime that eliminated short renewable terms. When Arkham House abandoned its copyright claims in order to withhold royalties from Wanderi, Lovecraft's fiction effectively entered the public domain.
33 Library of Congress. Circular 22: How to Investigate the Copyright Status of a Work. Washington: GPO, 2004.
34 Congress passed the copyright law revisions in 1976, but they did not become active until 1978.