I knew when I wrote my post speculating as to what is the oldest work still protected by copyright in the U.S. that I was likely to get it wrong. Copyright is just too complicated for anyone to get right the first time around…
In the original post, I noted that the oldest work “would … have to have been published under the authority of the copyright owner (most likely, the estate of the author).” One correspondent noted that this could be a foreign estate, which is true. The earliest example of a foreign estate still exerting copyright of which I am aware is the contested ownership of the copyright in the works of John Clare (1793-1864). The Adams works are still earlier, however, so unless someone can identify another estate, we need to look at John Adams for the earliest copyrighted work.
Another correspondent asked the very reasonable question: “Does the Massachusetts Historical Society (MHS) hold the copyright for ALL Adams letters, or just the ones in their possession? Was it a case of the surviving heirs bequeathing them the rights to all unpublished material?” The dedication page for the diary notes that the deed of gift of 4 April 1956 gave custody of the papers “written, accumulated, and preserved over a span of three centuries by the Adams family of Massachusetts” to the MHS. I assumed that the MHS had acquired the literary rights to the diary since it had been “written” by a member of the Adams family, though not “accumulated” or “preserved” by them. The question from my correspondent, however, made me realize that the gift could have been more constrained. I needed to dig deeper.
Fortunately, the deed of gift transferring the papers and their copyright to the MHS was printed in Life Magazine in 1956, and Google has digitized all of Life. You can see the document here. The brief document states that the Trust transferred to the MHS literary rights and copyrights in “all manuscripts letters, letter-books, documents, public and private, diaries and other material belonging to the said Trust and now located on the premises of the said Society…” (emphasis mine). My correspondent was correct: only copyright in material in the possession of the MHS was transferred to them; copyright in diaries and letters found in other repositories would have remained with the Adams family.
What does this mean for the copyright status of the 1753 diary published in 1966? There are two options:
1. It was published without the formal authorization of the Adams Family. I can’t find any acknowledgement in the volume that the Adams family authorized its publication. Publication for copyright purposes had to occur under the authority of the copyright owner. If it was lacking, the work remained unpublished (for copyright purposes) and would have entered the public domain on 1 January 2003.
2. Alternatively, we could assume that it was published with the authority of the copyright owner – but ask if the copyright notice was adequate. A technical reading of the 1909 Copyright Act would suggest that a preexisting work (in this case, the 1753 diary) would enter the public domain unless there were separate notices for both the preexisting work and the derivative work (the edited version produced by MHS) when the copyright in the two works was owned by different rightsholders. Failure to abide by copyright notice requirements would have forfeited the Adams family’s copyright in the diary.
My best guess now is that the 1753 diary is in the public domain. The search for the oldest copyrighted works goes on, but must await another posting.