Portrait of the old man as a copyright miser

In the sweet science of early-21st-century struggles over intellectual property rights, the title fights tend to be fairly technology-rich. Court cases over network DVR, Viacom’s continuing battle against Google, Microsoft’s grudge match with the open-source community, George Lucas’ accord with Star Wars mashup artists—that kind of thing. But every fight fan knows the undercards are where the really strange stuff happens, and you can still find old-fashioned battles involving such fanciful media as bound books and longhand letters.

On Friday, a San Jose federal judge awarded attorney fees to a Stanford University English professor whose suit against the estate of James Joyce was settled recently. The awarding of fees in an out-of-court settlement, while not typical, is not unprecedented; and since settled cases don’t establish legal precedent, this case is unlikely to become required reading at any law schools. But Carol Loeb Shloss’ suit against the Joyce estate sheds light on an ironic, and maybe inevitable, trend in intellectual property: As copyright becomes harder to defend, many copyright holders are becoming less realistic about the limitations of their ownership.

Shloss’ suit, which was launched by the Stanford Law School’s Fair Use Project and argued by intellectual property expert Lawrence Lessig, charged the Joyce estate, (consisting of Stephen James Joyce, the author’s grandson and sole living heir, and Sean Sweeney, a trustee), with unreasonably preventing Shloss from making fair use of the author’s published works or quoting from Joyce family letters for her biography Lucia Joyce: To Dance In the Wake. It also charged the estate with a variety of copyright “misuses”—trying to prevent Shloss from using materials (such as medical records) whose copyright the estate did not own, intimidating the owners of the physical papers on which its copyrighted material is written and repeatedly refusing reasonable fair-use requests from others. It also took some steps to chip away at the presumed copyright on some of Joyce’s published works.

It wasn’t easy to find a rooting interest in this fight. While Shloss was the plaintiff of choice, this was a laundry-list suit that the Joyce estate should have seen coming. Stephen Joyce’s habit of aggressive copyright defense, which was abundantly detailed last year in a New Yorker article by D.T. Max, is the stuff of legend. Scholars in the vast (maybe too vast) Joyce industry have formed support groups and fact-finding missions just to deal with his attempts to prevent Joyce scholarship. Potential adapters of Joyce’s work for the stage and screen, musicians looking to quote Molly Bloom’s monologue in their songs, even amateur Bloomsday pub crawlers have all felt the lash of the grandson’s frequently insulting and often hilariously over-the-top campaigns to separate Joyce’s work from the few people who actually read it.

In this case, however, the Joyce estate had at least a sentimentally compelling argument. Shloss’ book deals in the kind of sordid family history few of us would want to see made public, and her argument that Joyce’s mentally unstable daughter was essential to his creative output has found few takers. (Reviewing the book in Slate, Katie Roiphe dismissed its story of “the almost-artist, the brilliant ‘fantastic being,’ who could have written Ulysses but somehow never got around to it” and accused Shloss of giving a “dishonest, literary gloss to what is a form of illicit voyeurism.”)

The Joyce estate had a track record of arguing every case to the end, and Stephen Joyce had taken a particular interest in this one. Yet in March the estate settled on terms that can fairly be called favorable to Shloss. (The awarding of attorney’s fees on Friday defines Shloss as the “prevailing party” in the settlement.) What changed?

Maria K. Nelson, the estate’s attorney, calls it “more of a nuisance settlement,” but the Fair Use Project sees the case more broadly, as part of its ongoing efforts to loosen the tightening grip of copyright holders intent on discouraging new creative works. There are many side issues at play in contemporary copyright battles, among them the absurdly lengthy terms of copyright imposed by the 1998 Copyright Term Extension Act (popularly known as the “Sonny Bono Act”) and the tendency of copyright owners—including those who had no hand in creating the original work—to become more restrictive as the number of new creative works (which inevitably draw to some degree on existing works) explodes.

“The doctrine of copyright misuse is a growing trend in case law,” says Robert Spoo, who served as co-counsel for Shloss. “This refers to copyright owners’ attempts to extend their power to areas that go beyond their copyrighted materials and into public domain materials. In this case, the estate attempted to prevent Carol from even getting into SUNY-Buffalo’s manuscript archives to see letters that it had under copyright. We also alleged that the estate was telling Carol she could not reproduce any of Lucia Joyce’s medical records. Well the estate doesn’t own medical records that were made by a clinic in Switzerland. The Joyce estate has consistently tried to leverage copyright it does own onto materials it doesn’t own.”

While that may be bad behavior, some critics of the Shloss case argue that bad or unpopular behavior shouldn’t cost you your rights. “Going nuclear, which is what the property rights guys have done, is bad,” says F. Scott Kieff, a professor at Washington University Law School. “Going nuclear in the other direction—saying that by imposing contract terms we don’t like, you forfeit your copyright—is also bad.” This argument is made more poignantly by Nelson, who points to the incredibly tangled history of Joyce’s copyrights and the fact that for its first 12 years of existence Joyce’s signature work Ulysses was banned—and extensively bootlegged—throughout the English-speaking world. “Joyce was deprived of his rights in the United States,” she says. “He didn’t get royalties at the time, and was in effect robbed... His entire legacy to his family is in those works. Why can’t he pass those rights and incomes to his family?”

The particular troubles of Joyce’s work colors all copyright proceedings like this one. A small part of Shloss’ case referred to an argument Spoo made in The Yale Law Journal that calls into question whether Ulysses has ever enjoyed copyright protection at all in the United States. While it’s a complex legal thread, Spoo’s basic argument is that the book was published in Paris in 1922, but not published in the United States—where it was deemed obscene and became the subject of a precedent-setting Suprem Court decision—until 1934. A law in effect at that time, transparently designed to protect the U.S. printing industry, held that English-language works published anywhere in the world had to be published by an American printer within four months or lose their American copyright protection.* Under this reading, the book that remains Joyce’s most valuable work has never been under copyright in the United States. (It’s been estimated that the estate still collects between $300,000 and $400,000 a year in royalties on all the author’s still-copyrighted works).

Nelson says the looming threat to Ulysses copyright was “certainly a concern in the abstract,” but not the estate’s “overriding concern” in deciding to settle. The book exists in a middle state of copyright now: Facsimile reproductions of the 1922 version are safely in the public domain, but the real or erroneous copyright on the typo-corrected edition published by Random House in 1934 is still protected. There’s a special irony here for Ulysses, which is possibly the most allusive book ever written, drawing not only on Homer’s Odyssey but on countless song lyrics, literary quotations, advertising slogans, and works of journalism—many of which were still under copyright when the book was written.

Can we learn anything from this trip through the deep weeds of intellectual property? First, there may be a point here about the problems of endless copyright protection. Joyce’s last novel was published in 1939, and much of this wrangling hinges on books that were written before many of our parents were born. If it’s absurd to be arguing about these ancient works, how strange will it be in some futuristic, Jetsons-worthy era when somebody wants to do a smellivision version of SpongBob Sqarepants but the descendants of Viacom won’t let that happen?

It also may be the case that estates are rarely the best or smartest stewards of literary works. Stephen Joyce, whatever his enemies in the Joyce scholarly community may think of him, is honestly committed to maintaining his grandfather’s legacy. That doesn’t mean he’s especially smart in his efforts, which essentially amount to policing the culture for work he considers substandard. Adaptations and studies may be good, bad or indifferent (I have argued that almost all Joyce adaptations have been pretty lousy), but common sense dictates that even a sub-par adaptation generates more reader interest in the original work.

Joyce is in a special case. His works are extraordinarily difficult, and while they have attracted fanatical fans, they can use as much audience-priming as possible. But the same goes for any adaptive work, even or especially those that go against the grain of the original. Few Americans would take Margaret Mitchell’s romantic view of the slavery-era South seriously these days, but there was something especially ludicrous in the Mitchell estate’s attempts to block the publication of Alice Randall’s parody The Wind Done Gone, a work that certainly throws new and interesting light on Gone With the Wind. For that matter, nobody who has read Ulysses ever reads Homer in quite the same way again. New works alter, and deepen, our understanding of their sources. This is something for copyright holders to keep in mind in the era of infinite mashups and YouTube parodies. The love of a creative work is like any other kind of love: If you try too hard to control it, it can only die.