There comes a time in the
life of a writer, unless you are JK Rowling of course, when you have to accept
that the book you’ve been working on for a really long time and which you were
counting on for both personal and financial gain, might not actually get
published.
It’s a really unpleasant
moment and it happened to me a few weeks ago while I was still basking in the
euphoria of having finally finished writing My Dear Elsie, the
non-fiction book I’ve been writing on and off since 2012.
The book is based on a
collection of old letters and postcards I found in the back of my late mother’s
wardrobe and they are not just any old letters and postcards. They were written
to my maternal grandmother by a friend of hers called Ethel North who was
employed as lady’s maid to Lady Winifred Burghclere, the sister of the 5th Earl of Carnarvon, from 1919 to 1933.
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| George Herbert, 5th Earl of Carnarvon (Public Domain) |
Ethel travelled all over the
world with Lady Burghclere, including to Egypt where they were shown around the tomb of Tutankhamun by Howard Carter who, along with the 5th Earl, had discovered the tomb of the boy Pharaoh in 1922.
The letters are full of fascinating stories
about life as a domestic servant, foreign travel in the heyday of the steamship
and gossip about “celebrities” of the period such as King Edward VIII and Sir
Winston Churchill. You can find out more about them here:
https://ladyburghclereandethel.com
As soon as I discovered Ethel’s
letters and started reading them, I knew I had discovered something really
special. My intention was to get them published in book form as I felt strongly
that I wanted to share Ethel’s fascinating story with the rest of the world and
this seemed to be the best way of doing it.
Unfortunately, I was already
several years into the project when I found out that the law on copyright
infringement applies to old, unpublished letters in exactly the same way as it
does to other “creative” work such as art, literature or music. In
other words, although I own the actual physical letters and postcards, I don’t
own the copyright or “intellectual property” on them. That still belongs to
Ethel, the original writer of the letters and as she has only been dead since
1960, she retains the copyright, or at least her estate does, until 70 years
after her death. That means they won’t be in “the public domain” until after
2030.
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| Ethel in Egypt |
However, there are some
exceptions to this law and until very recently, I was under the assumption that
I was covered by one of these exceptions. This is something referred to as
“criticism, review and new reporting” and allows for relevant sections of
copyrighted works to be reprinted for comment.
Unfortunately, the key word
here is “reprinted” as I have now discovered that the exemption does not apply
to unpublished works (such as personal letters) and is also not intended
to cover use of a whole work, only extracts, and I am using at least 90 per
cent of Ethel’s letters in my book.
Ironically, it was the
reporter who wrote a feature on Ethel’s letters for The Mail on
Sunday newspaper who convinced me that I was covered by this exemption. The paper recently lost a high court privacy case concerning publication
in the paper of extracts of a “personal and private” unpublished letter that
the Duchess of Sussex, Meghan Markle, had written to her estranged father.
https://www.theguardian.com/uk-news/2021/feb/11/meghan-markle-father-duchess-sussex-mail-on-sunday-wins
Although the judge’s decision
was mainly concerned with the alleged breach of privacy, he also ruled that the
paper had infringed Meghan’s copyright having “copied a large and important
proportion of the work’s original literary content”. In other words, he did not
accept that the publication of the letter was covered by the “criticism, review
and new reporting” exemption.
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| One of Ethel's letters to my grandmother |
Of course, I am well aware
that publishing Ethel’s letters is a very different proposition from publishing
a personal letter from a prominent member of the Royal Family. Nevertheless,
I’ve decided I can’t go ahead with publishing the book until I have done all I
can to obtain permission from the copyright holders.
I am already in contact with
one of them and they have kindly agreed to try and get in touch with the others
(there are about half a dozen altogether as far as I can work out) and in the
meantime, I can only sit back and wait. The book is finished, the illustrations
are more or less resourced and I am ready to go. But will I end up actually
being able to publish it? Only time will tell.
