One of the more interesting aspects of this history is the changing roster of the group who were publicly advertised as the owners and managers of the copyrights during the decades following Lovecraft's death. In his 1947 correction to Moskowitz's Fantasy Commentator articles, Derleth claimed that he was only one of four parties exercising control over Lovecraft's work. During his correspondence with J. Warren Thomas about authorizing the publication of Thomas' biography, Derleth claimed that three votes were needed to authorize the publishing of Thomas' book. After Robert Barlow's suicide a year later, only Derleth and Wandrei remained to control the publication of Lovecraft's materials.
In 1955, Derleth and Wandrei formalized the succession of ownership of the Lovecraft materials in the situation that one of them died. Control was to transfer to the survivor, and upon his death, the rights were to pass to the Wisconsin State Historical Society. Given Derleth and Wandrei's aggressiveness in usurping control of Lovecraft's materials in the late 1930s and 1940s, the next chapter in the story of the Lovecraft copyrights is somewhat poetic.
Upon Derleth's death, the control of the Lovecraft materials did not pass to Wandrei as specified in the 1955 agreement, but passed to someone else instead. In his essay on August Derleth, Peter Ruber distanced modern-day Arkham House from its former lawyer and manager, Hartmann:
Early in 1974 Wandrei withdrew his offer to buy Arkham House because he suspected what his heart had already told him: Hartmann had no intention of letting him buy Arkham House. Hartmann was in the seat of power and planned to do whatever he pleased, when it pleased him. Wandrei feared Hartmann's continued control of the Derleth estate and Arkham House, was a dodge to guarantee extra fees for himself, and that Derleth's children would be the ultimate victims.28
Donald Wandrei did not receive ownership of the Lovecraft properties after Derleth's death, but instead inherited twelve years of disagreement and frustration in the form of his lawsuit against the Derleth estate. Judge Hill reached an initial decision in 197429, but Hartmann managed to prolong the case until its ultimate settlement in 1986. According to Ruber, the story ended well for Arkham House: Derleth's daughter came of age and fired Hartmann after learning the truth about Wandrei lawsuit. Hartmann's control of the Lovecraft materials (and the rest of Arkham House) ended and Derleth's daughter took the reigns of the publishing company.
April Derleth was lucky in that she ultimately ended up with control of her father's literary estate. Lovecraft and Gamwell's heirs were not so fortunate.
While Derleth and Wandrei's actions did much to obscure the true facts of the matter, copyright law itself was a significant source of confusion. Unfortunately, this confusion was not limited to the untrained layman. Judge Sverre Roang made an astute observation in a 1984 ruling on the Derleth-Wandrei case:
There are times, of course, when the facts on copyright law are not kind enough to permit a quick favorable answer. ... Other times, there will not be favorable answers even after an exhaustive research; and there are occasions - undoubtedly even those with expertise in this area - will confront, when no one knows this answer with a comfortable degree of certainty until a court is compelled to select one. An experienced baseball umpire, Bill Klem, while purporting to talk about baseball summed up some copyright issues this way: "some things are balls, some things are strikes, and some things aren't nothin' till I call 'em".30
Forrest Hartmann often used this confusion to reinforce his warnings to Lovecraft scholars:
In the first place, you should bear in mind that copyright law is not a place for amateurs. The copyright law is complex and there are many aspects of it that are far from clear. Indeed, there are conflicting theories as to what is covered by copyright and what is not.31
This is not limited to American copyright law prior to 1978 - this obscurity survives in the current statutes. However, the continual extension of copyright terms allows this mischief to be practiced much longer than an initial twenty- eight year term. A copyright term lasting ninety-five years allows much more time to elapse between the drafting of the original agreements between the authors and publishers and the time when an interested party investigates the status of the work. Before Lovecraft died, he penned a document titled "Instructions in Case of Decease" where he established the particulars of his literary estate.32 Had this document survived to be used in the application of Lovecraft's will, the history of the control of his work might have been completely different.
28 Ruber, 26.
29 Hill, Judge Harlan M. "Memorandum decision: In the matter of the estate of August W. Derleth, deceased". Dec. 24, 1974.
30 Roang, Judge Sverre. "Memorandum decision: In the matter of the estate of August W. Derleth, deceased". Apr. 11, 1984.
31 Forrest D. Hartmann letter to Dirk Mosig. Mar. 5, 1976.
32 Joshi, 633.