The Book of Air and Shadows

Ms. M. showed the fellow in, man with a briefcase. Bulstrode had dressed his portly form in a brownish three-piece suit of well-worn tweeds and wore tortoiseshell spectacles on his little marshmallow of a nose. Worn Burberry draped over arm, good oxblood shoes on his feet and a paisley square in the breast pocket; thin snuff-colored hair moderately long and combed across the scalp, a little vanity there. His face was flushed, up from the neck and across the cheeks. He blinked colorless lashes at me as we shook hands (soft, dampish). I thought “professor” and I was correct: he introduced himself as Andrew Bulstrode, a professor indeed, late of Oxford in the U.K. and visiting at Columbia. Professor Haas good enough to give me your name…
    I sat him and after the usual chat asked what I could do for him. He said he wanted some IP advice. I said he’d come to the right place. Asked if he could put me a hypothetical. I don’t like hypotheticals because when the client talks in hypotheticals it usually means he’s not going to be frank about the real. But I gave him the nod. Suppose, he said, that I discovered a manuscript of a literary work, a lost literary work. Who would own the rights to it? I said, that would depend. Author dead? Yes. Before or after 1933? Before. Heirs or assigns? None. I told him that under the U.S. Copyright Revision Act of 1978, unpublished manuscripts created before January 1, 1978, by authors who died before 1933, became part of the public domain on January 1, 2003. His face fell a little at that, from which I gathered that he had wanted a different answer, such as that what he had discovered might be copyrightable. He asked whether by chance I knew the relevant law obtaining in the United Kingdom, and I was happy to answer that I did, for our firm does a good deal of consultation back and forth across the gray Atlantic. I told him that the U.K. was friendlier to creators than the U.S., to wit: that the author had indefinite common law copyright to unpublished work, and if published or performed, the copyright ran fifty years from first publication or performance. The author being dead in our case, I continued, the copyright would run fifty years from the calendar year in which the provision of the Copyright Act of 1988 came into force, i.e., fifty years from January 1, 1990.
    Here he nodded and asked about ownership-who held the copyright in an unpublished manuscript of a deceased author? I explained that under British law, unless ownership was established by testamentary evidence, such copyright reverted, under U.K. intestacy law, to the Crown. I love saying that, by the way,
the Crown
; the image of Elizabeth II R rubbing her hands in glee as the lucre pours in, corgis yapping around the piles of bright guineas.
    He didn’t like this part either. Surely not, he said. What ever happened to finders keepers? What about possession being nine-tenths of the law?
    To which I answered that these saws were true enough, but also that should he publish or perform such a work he should be prepared to have the Crown come after him, and if he published or performed in the U.S., he might have a hard time defending his copyright from outright piracy; and now would he care to leave the hypothetical and tell me what was going on?
    I said this in a manner that suggested I was about to wish him good day were he not prepared to be more forthcoming. He considered the request for some time in silence, and I observed that sweat beads had accumulated on his forehead and upper lip, although it was cool in my office. At the time I thought he might be ill. It did not occur to me that he was badly frightened.
    I have been in this business long enough to tell when a client is being frank and when not, and Professor Bulstrode was clearly in the latter class. He said he had come into possession (that’s a phrase that always raises my hackles) of documentary evidence, a manuscript from the seventeenth century, a personal letter from a man named Richard Bracegirdle to his wife. He thought this manuscript was genuine, and that it revealed the existence of a certain literary Work, of enormous potential import to scholarship, the existence of which had never been suspected. This manuscript alone was enough to launch a field of study, but to have The Work itself…
    When he said The Work, I heard the capital letters and so I include them here.
    What is The Work? I asked.
    Here he demurred, asking instead about the