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California and the West

Conflicting Claims on Twain Aren't Meeting

May 26, 2000|ERIC BAILEY | TIMES STAFF WRITER

CARSON CITY, Nev. — On this dry side of the Sierra, there is no arguing history. Locals say Sam Clemens lived here when he came west in the 1860s. Before Tom Sawyer, before Huck Finn, the wannabe author bunked down at his brother's place on Division Street, developing his famous nom de plume--Mark Twain--while moonlighting as a journalist.

Just don't advertise it.

Twain's good name and unmistakable mug--that shock of white hair, the bristling walrus mustache--are the intellectual property of the Mark Twain Foundation Trust, set up after the author's last blood relatives passed on. Through its attorneys, the charitable trust is demanding that Carson City stop using Twain's name in a national tourism campaign--or face a legal battle.

Folks here in Nevada's capital are more than miffed. This, they say, is like shackling the history books, muzzling the past.

"We all think it's incredibly ridiculous," said Candace Duncan, executive director of the Carson City Convention and Visitors Bureau. "If we were using Mark Twain's name to sell boxer shorts, that would be one thing. But he was here! We're using it to promote a destination where he was very much a part of the history."

Julian C. Smith Jr., a normally mild-mannered attorney who has maintained his offices behind the whitewashed plaster walls of the two-story Clemens House for a quarter century, can't hide his ire.

"I think it's bull," he said. "That's a good legal term for it."

But the law may be against Carson City. Never mind that Twain died 90 years ago. The use of a celebrity's name and likeness without consent is banned in Nevada for 50 years after the person's death, but states such as Indiana and Oklahoma maintain prohibitions on poaching the famous and the dead for a full century. In Nebraska, the ban extends into perpetuity.

The Carson City visitors bureau may have unwittingly violated prohibitions in those states with its Twain advertisement in the Sept. 16 issue of Travel Weekly, a trade magazine circulated to 50,000 travel agents nationwide.

Or so says CMG Worldwide, the Indiana law firm representing the New York-based Twain trust.

CMG, which has a Hollywood office and a reputation for aggressively enforcing the merchandising rights of screen and sports stars, alive and dead, proposed in a Nov. 2 letter that the city stop using Twain's name and pay $1,500 for the unauthorized Travel Weekly ad.

Jonathan Faber, the law firm's legal affairs director, warned tourism officials that "in effect, Mark Twain has been made a spokesperson for Carson City, Nev., and . . . he deserves to be compensated."

Since then, Faber has backed off a bit. The Carson City case, he said, "certainly isn't as heinous as a blatant commercial use." But he says his firm had to take action, lest "the floodgates" be opened for unauthorized exploitation of Twain's legacy.

Use of the author's name, like the raging waters of the Mississippi that he plied as a riverboat pilot, is hard to contain.

In neighboring Virginia City, Nev., where the twentysomething journalist began developing his style as a humorist on the Territorial Enterprise, there is a Mark Twain Saloon, Mark Twain's Books and a Twain housing development. In Elmira, N.Y., where the author wrote some of his most famous works, Twain is a part of civic boosterism.

And in Hannibal, Mo., the author's boyhood home, he is ubiquitous.

"Around here Twain's name sure is used, and I don't hear anything about this law firm bothering people," said John Rolsen, owner of a bed and breakfast inn that bills itself as a spot where Twain slept. "About every other thing in this town is Twain this or Twain that."

Twain remains a potent salesman nearly a century after his demise at 74. CMG has legal agreements with about 20 firms that market Twain, among them a greeting card maker and Brunswick Billiards. In a few spots, such as Elmira and Hannibal, tourism promoters have sought the foundation's permission to use Twain's name. The foundation donates profits to various causes, including UC Berkeley's Bancroft Library, which maintains Twain's papers.

CMG boasts on company letterhead that it represents "the greatest legends of the 20th century," more than 200 in all, including Marilyn Monroe, Babe Ruth and Humphrey Bogart. Only one--English author Oscar Wilde--has been dead longer than Mark Twain.

In a dozen instances this year alone, CMG fired off letters warning of unauthorized uses of Twain's name. But, Faber said, "there are undoubtedly a few we miss."

To promote a walking tour of historic homes ringing its antique state Capitol, Carson City's ad touts "the house where Sam Clemens gave birth to Mark Twain."

Aside from the house where Clemens' brother, Orion, lived while serving as Nevada's territorial secretary, the city has no other building or business named for the author.

Despite the wrangling, Faber said, he is confident that a quick resolution at a "nominal dollar amount" can be hammered out allowing the city to use the author as a draw.

Local tourism officials will decide next month whether to put up a legal fight. For now, they have suspended use of Twain's name in advertisements outside Nevada.

"This feels like extortion," said Duncan, the tourism director. "But I must admit I think Mark Twain would get a kick out of it."

McAvoy Layne, who has been dressing as Twain and putting on one-man shows around these parts for a dozen years, bristles over the whole mess. "Mark Twain is an icon, an American icon," he said. "You cannot copyright that."

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