Orphan works in practice: 1933

This fall, I’ve finally been reading Testament of Youth, Vera Brittain’s memoir of the years from 1900 (when she was 7 years old) to 1925 (when she was 32). I say finally because this book has been on my to-read list for over a decade. My high-school history teacher recommended it to our class in 2004. (Thank you, Mr. Porter.)

Brittain came from a family of English industrialists (paper manufacturers). Her parents invested in her education, though not quite to the extent she wanted. Nonetheless, she studied on her own after leaving school and gained admission to Oxford for Michaelmas Term 1914. Before she got to campus, war had broken out in Europe. She studied for a year before leaving Oxford to become a Voluntary Aid Detachment nurse, influenced by the military service of her brother, her fiancé, and their friends. Her book is famous for its chronicle of the war years, but that’s by no means the whole story.

I’ve reached fall 1917, and the book has been just as heart-breaking and powerful as you would expect. It’s very much “of its time,” which I think contributes to its power — Brittain is clearly trying to be as honest and accurate as possible. She was writing around 1930 (the book was published in 1933), so she rounded up her old correspondence, her diaries, and earlier memoir drafts, and relied on them heavily. She also gathered materials from her friends and relatives. She was a poet, as was her fiancé, and poetry plays a major role in the book.

At the beginning of the book there is a section titled “Author’s Acknowledgments.”  In many ways it’s a typical acknowledgments section — she thanks the Oxford don who checked a translation from Cicero, she thanks the staff of the Imperial War Museum, and she thanks a friend who provided “much generous help and encouragement.” Earlier in the same paragraph, she thanks the friends and family (or their estates) who have given her permission to quote from their correspondence and to publish their poems.

The next paragraph thanks a list of publishers and agents who “kindly permitt[ed] the use of copyright poems or long quotations,” including one by Rudyard Kipling and another by Rupert Brooke. At the end of that paragraph, she writes:

I also want to express my gratitude to the authors of the poems quoted on p. 122 (from London Opinion) and p. 155 (from the Westminster Gazette), as well as my regret that I was unable to approach them personally, because in the one case the poem was signed only by initials and in the other the long-ago date of publication was unknown.

The London Opinion poem (“A hundred wounded soldiers fill”) is a mocking-bordering-on-misogynist account of the relocation of students from Somerville (Brittain’s college, then all-female) to a building in Oriel, then an all-male college, after Somerville’s own buildings were commandeered by the War Office for use as a hospital. This took place in 1915, so I don’t think it can be the undated poem — it must be the one signed only by initials.

The Westminster Gazette poem is Kathleen Coates’s very sentimental “A Year and a Day.” Brittain’s fiancé copied it out of the newspaper to send to her from France. In the book, she gives the poem’s author and title, and it’s clear from the narrative that she can at least roughly date the letter into which her fiancé copied it. Still, this must be the poem with an unknown “long-ago date of publication.”

Brittain’s note in the acknowledgements, coupled with her publisher’s willingness to publish the memoir, suggest what I would call a “common sense” approach to copyright. I’m glad to see it existed back in 1933, and I like to think it’s making a comeback.

It’s clear that Brittain and her publisher wanted to get copyright clearance for these two poems, as they did for the Kipling poem and the others. It’s also clear that they tried to get that clearance, but they ran into trouble. For the first poem, they could not identify the rightsholder. For the second, they had the name of a likely rightsholder, but they had no way of locating her or determining if she still held the rights. Today, we would call these poems “orphan works” (or “hostage works,” if you’re a Lydia Loren fan).

The process Brittain went through is essentially what’s recommended today. She tried to identify the rightsholders in order to seek permission. When that failed, she decided to use the poems anyway, likely weighing the risk of a lawsuit against the importance of the two poems to her book. And then, she wrote that note in the acknowledgements section. It serves at least two purposes:

  1. First, it is kind. She makes clear her intention to seek permission, and she shows the unidentified rightsholders the same gratitude that she did to the authors and publishers who gave her copyright clearance and to the friends and family who provided their writings. If one of the rightsholders read it, I can’t help but think it would influence them to act kindly in return. It’s easy to underestimate the value of this.
  2. Second, she outlines (albeit briefly) how her search failed and what information she does know. She shares all the background material she has. In doing so, she does a favor for anyone trying to trace these poems in the future, not only from a copyright perspective but from a historical one.

Based on some quick internet research, it seems to me that the rightsholders of these poems never did come forward. Even now, the first poem appears only anonymously, and both poems appear mostly in connection with Testament of Youth. This makes Part II above even more important, because the information Brittain provides in her book is nearly the only information available on these poems. It’s certainly the easiest to access.

For me, this is a nice parable about copyright clearance and orphan works: search diligently, but don’t be afraid to use an orphan work without permission — you may be the one who saves it from the sands of time!


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