Thursday, June 15, 2017

Update on the post-publication fate of Formosa Betrayed

About seven years ago I wrote about some of the theories going around regarding what happened to George H. Kerr's Formosa Betrayed after it was published in 1966 (copyright 1965). To summarize, the book was reprinted by Da Capo Press in 1976 in a more expensive "library edition." Some in the Taiwan Independence Movement believe that the book's copyright was somehow acquired by the KMT or some of its members/supporters. Kerr, for his part, was convinced that China scholar John King Fairbank persuaded Houghton Mifflin to sell the copyright to Da Capo Press because Fairbank was pro-China and wanted to marginalize Kerr's pro-Taiwan book.

As I said then, the idea that the KMT bought the copyright doesn't seem reasonable because if they wanted to suppress Formosa Betrayed, it doesn't make sense that they would go to the trouble of putting out a library edition (especially since they're also accused of having their "professional students" in the US steal the book from libraries). Kerr's belief that Fairbank would go to the trouble of convincing Houghton Mifflin to make a deal with Da Capo doesn't make sense for similar reasons.

After going through more of the records in the GHK collection at the Okinawa Prefectural Archives, I've come to the conclusion that Houghton Mifflin never "sold" the copyright of Formosa Betrayed to Da Capo (or the KMT or anyone else); they merely gave Da Capo permission to reprint the book in a library edition, probably because H-M had no intention of making new printings themselves (sales had declined by 1976). In fact, the Da Capo edition assigns the copyright to Kerr.

Here's the language of the relevant parts of the contract between H-M and Da Capo*:
AGREEMENT made this 25th day of February 1976 between DA CAPO PRESS, INC., ... hereinafter referred to as The Publisher, and Houghton Mifflin Company, ... hereinafter referred to as the Proprietor, concerning a work entitled:
hereinafter referred to as the Work.
Now, therefore, for and in consideration of their mutual promises and for other valuable consideration, receipt whereof is hereby acknowledged, the parties hereto agree as follows:
1. Proprietor warrants that it is the sole owner of the Work and of all rights granted to the Publisher under this agreement and that the book does not infringe upon any statutory or other copyright, or any right of others whatsoever; also that the book contains no matter which is contrary to law. ...
2. Proprietor hereby grants to the Publisher the sole and exclusive right for the term hereinafter stated [five years, stated in point 3] to publish and sell a hardcover edition of the Work in the English language throughout the United States, its dependencies and possessions, and Canada, and non-exclusively in the Open Market exclusive of the British Commonwealth as presently constituted including the Republics of South Africa and Eire.
9. The Publisher agrees to print on the copyright page of each book the copyright notices as contained in the Proprietor's edition and any new copyright information alsong with the phrase, "reprinted by special arrangement with Houghton Mifflin Company."
10. All rights not specifically mentioned herein remain the property of the Proprietor.  
I'm not a copyright lawyer, but it looks to me as though Houghton Mifflin is keeping the copyright, not selling it to Da Capo.

I'm not sure, though, why the copyright on the Da Capo edition (see the link above) is in Kerr's name. I don't seem to have a copy of Kerr's contract with Houghton Mifflin, so I can't check it to see what they agreed to concerning the copyright ownership. However, the 1965 Catalog of Copyright Entries lists the copyright as belonging to Kerr:

I didn't find any copyright entry for Kerr's Formosa Betrayed after 1965. Nevertheless, after finding out about the deal that Houghton Mifflin had made with Da Capo, Kerr wrote to H-M on 10 May 1982, asking to have "all rights and interests" to Formosa Betrayed reverted to him, as allowed by his contract with the publisher.* Kerr wrote that he had not been notified of the agreement that H-M had made with Da Capo "until months after it had been concluded." After hearing from Da Capo in 1976 and receiving a copy of their edition in 1977, Kerr "heard nothing further on the status of the book" from Da Capo, but after he wrote to them in 1981, he received a check for $29.25 in royalties from H-M based on the sale of 13 copies of the book. As Kerr wrote, "Total sales of thirteen copies over a period of seven years can hardly be considered satisfactory to anyone concerned." Kerr then received another royalty statement in September, 1982 that indicated that seven more Da Capo Press editions had been sold in the previous six months.

As I wrote above, I'm no expert in copyright law, but I wonder if Kerr needed to do all this. Is it possible that he lost possible royalties (no matter how small) by having the rights reverted to him?

*Source of the contract and Kerr's letter to H-M: George H. Kerr papers, Okinawa Prefectural Archives.

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