Literary Property: A Pique at Biography

Ernest Hemingway met A. E. Hotchner in 1948, and the world-famous novelist and the relatively unknown magazine writer soon became fast friends. They went fishing together in Cuba, watched bullfights in Spain, hunted the pheasant country of Idaho, and toured France. "Papa" and "Hotch" got along so well together that Papa gave his friend the right to adapt some of his novels and short stories for movies and TV. And because they were inseparable companions, Hotch became aware of Papa's gradually increasing periods of depression, his dark and suicidal moods. There was a time when Hemingway tried to jump out of a plane in flight; on another occasion he tried to walk into a whirling propeller. One morning, Mary Hemingway, Papa's fourth wife, found her husband with a shotgun in one hand, two shells in the other. He had just finished writing a note in which he made ominous references to his will.

All this, and more, went into the pages of Papa Hemingway, Hotchner's story of the novelist's final years, which Random House plans to publish in April. The book bristles with intimate details of Hemingway's slow deterioration. On reading the galleys, Mary says, she suffered "a traumatic shock." In a letter to Random House Board Chairman Bennett Cerf, she accused Hotchner of "shameless penetration into my private life and the usurpation of it for money." She demanded a long list of changes in the book. The author and the publisher agreed to many of them, but Hotchner flatly refused to delete the last chapter, which recalls how he urged Mary to transfer her husband from the Mayo Clinic to a specialized psychiatric hospital, how she refused, fearing what effect the publicity might have, and how, on July 2, 1961, Hemingway put the muzzle of a shotgun in his mouth and blew the back of his head off.

Invasion of Privacy. Mary's next move was to ask the New York State Supreme Court to enjoin publication. The book invaded her privacy, she said, and it violated the confidential relationship that existed between Hotch and Papa. But her main argument was that it appropriated her literary property. The law holds that the author of a letter maintains ownership of its contents, and Mary claimed that her husband's estate, of which she is both executrix and beneficiary, maintained ownership of the material Hotchner had used in his book.

The notes he had taken on conversations with Papa should be considered as letters from the author; it was as illegal for Hotchner to use the tape recordings he had made as it is for recordings of the radio broadcast of an opera or a symphony to be copied and sold. Almost all the material of the book, said Mary, was the stuff that Papa could have put into an autobiography. As such, it now belonged to her, and she had not given her consent for its use.