Not so Fast: The Auction of the Joan Anderson Letter
The Associated Press reported this week that a letter written by Neal Cassady to Jack Kerouac in the 1950’s has been found in a small press archive after having been presumptively lost for sixty years. The letter is significant because Kerouac was inspired to change his writing style after which he wrote his best-selling *On the Road*. Interestingly, the first versions of *On the Road* were written in French, Kerouac’s first language. These French versions have not been published so it is impracticable for me to compare them with the English. This would be an interesting task for Kerouac scholars.
Nevertheless, there is a legal issue surrounding the auction. Doesn’t the letter belong to the Kerouac estate? Kerouac gave it to Allen Ginsberg to try to get it published. Ginsberg sent it to a publisher, but lied and said that a friend of his had dropped the letter into the ocean. The letter should have been returned by the publisher, which went out of business. When he sent the letter to the publisher, Ginsberg was acting as agent for Cassady (or himself) and bailee of the physical letter. Speaking as a lawyer, title to the letter never passed out of Kerouac’s hands unless Kerouac gave it or sold it to Ginsberg. Neither scenario is likely. Kerouac complained bitterly in a Paris Review interview that the letter belonged to him and that Ginsberg should have taken better care of it. This suggests that Ginsberg was a bailee or agent.
But Kerouac did not own all the rights to the letter. The contents of the letter will be the property of the Cassady estate. Cassady had at least one grandchild, so there very well could be living relatives. So the right of publication would be held by Cassady’s heirs. Lest you think that this is insignificant, James Joyce’s heirs prevented many scholars from publishing his letters for years. And a biography which used J.D. Salinger’s letters to Joyce Maynard was forced to redact those letters. The physical letters were put up for auction though, because they belonged to Ms. Maynard. They were purchased by Peter Norton (of Norton Utilities fame, there’s more of a California connection for you) who then gave them back to Salinger. So while Salinger controlled publication, he did not control the physical letters. If Cassidy had no heirs, conceivably Mexican law would apply because he died in Mexico. Was he domiciled there? Was Cassady domiciled anywhere? Property that is owned by a person who dies without heirs is escheated to the state of the deceased’s domicile. But states in the United States cannot hold copyright, at least in the 11th Circuit. If that is the case, the letter would enter the public domain.
A writer who submits a manuscript to a publisher does not surrender ownership of that manuscript to the publishing company absent a specific agreement to the contrary. The fact that the letter was found in the publishing company’s archives does not divest the Kerouac estate of ownership. The passage of time might affect ownership claims, but the letter was believed to have been lost, mainly because Alan Ginsberg lied. Ginsberg was said to have retracted the lie in the 1990’s, but no one has been able to find evidence of the retraction. So the passage of time, commonly called the statute of limitations, would begin to run from the public announcement that the letter had been found.
Complicating matters is the convoluted history of the Kerouac estate. An objective observer might well conclude that Kerouac’s now-deceased daughter Jan was defrauded through the creation of a fraudulent will by Stella Kerouac, and after her death, her family. Whether this letter is covered by the terms of the decision denying Jan Kerouac’s claim, I don’t know. I don’t know if Stella’s heirs have been good literary executors or not. But large amounts of money attract lawyers like vultures to carrion. I have no doubt that as I write this, the Kerouac estate’s lawyer’s are carefully considering their options. They may wait until the auction is completed before attempting to seize the money raised.
I’m a little rusty as to some of these points, but I sense that there is a legal case here unless the parties have already reached tentative agreements.
Update: The San Francisco Chronicle reported today (December 7) that the Kerouac Estate is seeking possession of the letter. Here’s my response to one of the commenters:
Welcome to Al-gul 
For the proposition that “A writer who submits a manuscript to a publisher does not surrender ownership of that manuscript to the publishing company absent a specific agreement to the contrary,” what is your authority for this statement? I’m very curious to know a) what law this is based on and b) if I could potentially see the source firsthand. Is there a case on this point?
George
December 6, 2014 at 4:51 am
You can find answers to your questions by reading “Writer’s Market” and/or the AP Style Guide and Libel Manual. But a simple metaphor might arise if you consider ownership of a painting. If the owner of the painting allows a museum to display it, he/she doesn’t give them rights to own the painting. Even if the owner simply shipped the painting to a museum, hoping for the chance to display it (unsolicited, just as the Cassady letter was when it was sent to a publisher), the museum never owns it and never will own it until the owner of the painting assigns all the rights to the museum, via donation or sale.
When a writer sends a feature story to a magazine, she/he includes a phrase such as “First North American Serial Rights Available,” but never, anywhere in the document, does the writer give those rights away. Publication is offered on speculation, but not decisively. Writers often send multiple submissions of the same story, then choose which magazine will get it after they mull it over. If the creator and copyright-holder chooses one, he/she then gives only the rights stated on the cover page of the story. No movie rights, no foreign translation writes, no commercial rights, no assumption that the document is a work for hire. In a book contract, a publisher will ask for all the rights to the story. The writer then negotiates each one of the rights listed.
Jack expected to get the letter back. Ginsberg expected to get the letter back. Neal did NOT expect to get the letter back. But the publisher never even opened the envelope.
I’d argue, based on that, that publisher didn’t even possess it, nor did he have the right to consider publishing it, since he never knew what was in the envelope. Neither did the music producer. The music producer’s daughter has had the letter for two years. She never, to my knowledge, tried to return it to Kerouac’s estate, nor did she announce, to either estate, that she had property that belonged to them. I think this series of events is clearly a case of bailment and the daughter had no standing in it. Lost and found items are also covered under bailment and death does not void the agreement.
Neal had three legitimate children and at least four illegitimate children. The illegitimate kids have not gotten involved–yet–but it’s his three children by Carolyn who are making the claim that they own the rights as well as the letter itself, which they are calling a “manuscript.” This is a romantic notion and any realistic judge should see that as well, unless he/she’s also under the tow of the cult of celebrity here.
You can read the exchange of letters between Kerouac and Cassady for proof of the fact that it’s a letter and that Jack entrusted it to Allen Ginsberg for evaluation by a publisher. Because of Kerouac’s meticulous habits of saving letters and Neal’s submission to Jack as an advisor and writing coach, the important details are crystal clear.
Trudy Vermaire
December 8, 2014 at 8:36 pm
You might want to listen to the Jerry Cimino’s interview of Gerd Stern on the Beat Museum web site. Gerd was the one whom Allen Ginsberg blamed for losing the letter. Gerd may be the only witness left alive to these events. It seemed pretty clear that in his interaction with the letter, he was treating it as a manuscript. What is the legal status of pieces of paper that have a dual status; i.e., both letter and manuscript? What is clear is that the Casady estate retains publication rights despite whoever ends up with custody of the pieces of paper. It is also clear that since the Kerouac estate administration is based in part on a forged will, there are questions of Equity (legal equity, not fairness) and the application of the clean hands doctrine which makes all of this so interesting from a legal point of view.
mokane
March 9, 2015 at 6:48 pm