Does Copyright Manipulation Distort Our Perspectives on Civil War History?

By Philip Leigh · Originally published August 2017 · p. 15

According to Steve Schlackman’s “How Mickey Mouse Keeps Changing Copyright Law” in the Feb. 15, 2014 edition of Art Law Journal, copyrights last far too long because The Walt Disney Company regularly convinces the Federal government to extend them to protect their trademarks. This is a problem for students of the Civil War era because the works of many historians from 1923 to about 1970 are out of print and unavailable in the public domain. Moreover, historians of that period often came to different—sometimes contrary— conclusions to those of more recent authors. One example is the changing perspective on the Republican Party’s motivation for advocating black suffrage in the South after the Civil War. Earlier historians generally admit that the party was probably as much concerned about using the voting block to retain power in Washington as it was in the intrinsic merit of racial equality. In contrast, modern historians generally minimize, or ignore, the political power factor. Since many out-of-print books published between 1923 and 1970 remain under copyright there is only a dwindling supply of used copies available. Some are in such short supply that the prices are painfully high. A good example is Philip S. Foner’s Business & Slavery: The New York Merchants and the Irrepressible Conflict. It was originally published in 1941 and the copyright was renewed in 1968. Since the renewal means it will not be out of copyright until 2036, the best price for a used copy at Amazon is $160. There are two reasons Philip Foner’s book should interest students of the Civil War: First, he was Eric Foner’s uncle. Eric is one of the leading present day Civil War era historians who predominantly emphasize the centrality of slavery as the cause of the war. He often cites the protection of slavery in the “Declaration of Causes” for secession provided by five deep South states to make his point. Yet any declaration of secession’s causes fails to explain why the Northern states simply did not let the Southerners depart peaceably. If the Northern states wanted to be divorced from slavery, why not just let the South leave? Eric admits that he does not know how to answer that question and further claims that no historian has been able to answer it. The second reason Philip Foner’s book should interest us is its focus on the very question that his more famous nephew mostly ignores. In short, it argues that New York merchants had greater reasons to be concerned about the adverse economic impact of Southern secession than freedom for slaves. Even after South Carolina seceded, they urged Lincoln to compromise the Republican Party plank intended to prevent the spread of slavery into the territorial regions of the country, but Lincoln refused. In short, the chief reason the New York merchants chose to support the war was to avoid the economic consequences of Southern secession and not to free the slaves. The original 1790 Copyright Act provided for a 14-year term which was renewable for one additional 14-year term. When Mickey Mouse came on the scene in 1928, copyright duration was 28 years with a 28-year renewal, which would have required his copyright to expire in 1984. Then, in 1976 Congress overhauled the copyright act providing Mickey seventy-five years of protection until 2003. As the 2003 deadline approached, a new copyright act was adopted in 1998 that gives Mickey protection until 2023. Schlackman’s article noted above concludes there is a high correlation between Mickey’s copyright deadlines and revisions to extend the deadlines for all copyrights. Philip Leigh contributed twenty-four articles to The New York Times Disunion blog, which commemorated the Civil War Sesquicentennial. Westholme Publishing has released four of his Civil War books, which are distributed through the University of Chicago Press. A fifth, Southern Reconstruction, will be released in May 2017. Southern Reconstruction (2017) The Confederacy at Flood Tide (2016) Lee’s Lost Dispatch and Other Civil War Controversies (2015) Trading With the Enemy (2014) Co. Aytch: Illustrated and Annotated (2013) Phil has lectured a various Civil War forums, including the 23rd Annual Sarasota Conference of the Civil War Education Association in 2015 and assorted Civil War Roundtables. He also ghostwrites biographies and memoirs for wealthy senior citizens for a fee. He holds a Bachelor of Science in Electrical Engineering from Florida Institute of Technology and an MBA from Northwestern University.