March 13 Wednesday – Sam’s notebook: “2 p.m., U.S. Court Rooms, Jno. Shields, examiner, Post office” [NB 44 TS 7].

Sam Clemens testified before US Commissioner John Shields on a lawsuit brought by Rudyard Kipling against R.F. Fenno, publishers. The New York Times, Mar. 14, p.3, headlined that Mark Twain was a witness and smoked and testified.

MARK TWAIN A WITNESS

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Summoned in Rudyard Kipling’s Suit Against Publishers.

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THE HUMORIST NOT PLEASED

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He Smokes at Commissioner Shields’s

Invitation and Then Testifies About

Copyright Questions

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Mark Twain was again hunted down and corralled as a witness yesterday, and was plied with questions by a number of inquisitors. His appearance this time was before United States Commissioner Shields in a hearing on a suit brought last November by Rudyard Kipling against R. F. Fenno & Co., publishers, alleging infringement of the copyright law. Mr. Clemens appeared as a witness for the plaintiff in the action, having been summoned by A. T. Gurlitz, Mr. Kipling’s counsel, and he did not seem to be highly delighted at having been singled out as an expert on copyright questions. The hearing took place in Commissioner Shield’s private office, and nearly all those present were directly concerned in the question at issue.

Mr. Clemens was first questioned as to his technical knowledge of the trade mark used by Rudyard Kipling’s publishers to identify his works. To nearly all of these questions Lawyer Rives, counsel for the defendants, objected.

“They don’t seem to want me to talk at all,” said the witness hopelessly.

Then Commissioner Shields took pity on him and offered him a cigar. It looked like a pretty good cigar, but the witness regarded it doubtfully. Then he looked at the plaintiff’s counsel and then at the defendant’s counsel. Then, waving his hand deprecatingly, he said:

“No, no, I guess I’d better not take it. They would object, I know, and it’s too good a cigar to have to refuse.”

On the assurance that there would be no objection, however, Mr. Clemens took the cigar, lit it, and adjusting a pair of steel-rimmed eye glasses, leaned back in his chair and puffed contentedly.

“Now, I’m ready to meet all objections,” he said.

What is known as the “Outward-Bound” edition of Kipling’s works was shown to him, and he was asked if he recognized any mark or trade mark used by Mr. Kipling. He pointed out the elephant’s head on all three volumes. A ten-volume edition of Kipling’s works published by the defendant company was then shown to him, and in answer to questions he said the volumes contained different stories from those in the “Outward Bound” edition.

“Have you written in your career?” asked Mr. Gurlitz.

“Oh, yes. A number of stories and the like.”

“Have you later collected the same and hand them published in book form?”:

“Yes.”

“Give me some of the titles used by you.”

“Oh, there were a number of them. I don’t recall just this minute. The first, I guess, was ‘Sketches, New and Old,’ The White Elephant,’ and—well, that’s enough, isn’t it?”

The witness was told that he need not enumerate more, and then we went on to say positively, in answer to questions, that the titles under which his books were published were selected by him.

“Consider,” said Mr. Gurlitz, “a book of stories of an author, arranged and published under a title selected by an author. Do you consider that that could reasonably and generally be regarded as a book written by that author?”

“I should say yes,” replied Mr. Clemens, positively.

“Do you consider that another publisher than the one bringing out such a book would have any right to issue a similar volume?”

“What’s that? Give me that again,” said the witness, waving his hands about his head and blowing out a great cloud of smoke. The question was repeated.

“No. That wouldn’t be square. Nothing square about such things.” “What would you call such an act?”

“It might be called—piracy,” said the witness.

“Would you call it counterfeiting a book?”

“Yes, I think so—decidedly.”

“A manufacturer putting up soap, beer, whisky and the like under the label used by another manufacturer would be guilty of the same thing, wouldn’t he?”

“Yes. No difference between counterfeiting, be it whisky or a book.”

“Do you think it a important thing for an author to preserve control and title of his books?” “I certainly do,” replied Mr. Clemens positively. “I consider it very important.”

On cross-examination the witness admitted that when he said that certain acts could properly be classed by certain terms he was not speaking from a legal or ethical point of view, but merely giving the ordinary definition of a word.

When his examination was concluded Mr. Rives stated that he would waive verification of the testimony and Mr. Clemens’s signature.

“I will have him read it,” said Mr. Gurlitz, “and make any corrections necessary.” “You’ll have a hard time getting me to read it,” said Mr. Clemens. “Don’t you ever read your own productions?” asked Mr. Rives.

“Never, when I can get a proofreader to read it for me,” was the rejoinder.

The hearing was then adjourned for one week, and Mr. Clemens made his escape with all speed.