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: