McFarlin on A Copyright Ignored: Mark Twain, Mary Ann Cord, and the Meaning of Authorship @CumberlandLaw @TheCSUSA

Timothy McFarlin, Cumberland School of Law, is publishing A Copyright Ignored: Mark Twain, Mary Ann Cord, and the Meaning of Authorship in volume 69 of the Journal of the Copyright Society of the U.S.A. Here is the abstract.

Did Mark Twain and the Atlantic infringe a copyright belonging to Mary Ann Cord in the story of how enslavers tore her family apart and how she was ultimately reunited with her youngest son? If so, might that long-ignored infringement be remedied today? In 1874, Cord told Twain the heartrending and astounding story of how her family had been ripped from her, and how she was liberated years later by her youngest, Henry, who had become a soldier for the Union. Twain proceeded to write Cord’s story down from memory, organizing the events chronologically, editing it, and describing how she told it. Twain published this manuscript in the Atlantic Monthly as “A True Story, Repeated Word for Word as I Heard It,” for money, under his name alone. Analyzing the questions above — Was this infringement? Could it still be remedied? — this project unfolds in two parts. This first part, “A Copyright Ignored,” focuses on the thorny threshold issue of copyrightability, arguing that Cord was indeed an author who had a common-law copyright in the words she spoke to Twain. The second part, “A Copyright Restored,” published in the Wisconsin Law Review, tackles the issues of infringement and remedy, arguing that Twain and the Atlantic likely did violate Cord’s rights and, further, that a claim by her descendants may still exist today. In this way, her case may set a vital precedent for righting other longstanding wrongs, particularly those against the Black community. Cord’s case could set precedent in other ways, as well. The same key which unlocks her rights can help open us to a deeper understanding of authorship in copyright law. The answer to whether Cord — who it’s said could neither read nor write and who never claimed to be an author — qualifies as one should tell us about more than just copyright’s past. Contrary to the views of many courts and scholars, I argue here that “authorship is as it does.” It’s not merely a self-conscious enterprise. It need not be limited to people like Twain, Austen, and Hemingway. It’s for everyone, and the law should recognize that.

Download the article from SSRN at the link.