Samuel Roth was a pirate who abided by the copyright law. Rarely accused of infringing anyone’s copyright, he built his career on the resources of the American public domain.1 US copyright law in 1925 was isolationist and protectionist; its technicalities were a constant worry to foreign-domiciled authors like James Joyce who could not always satisfy the rigid statutory conditions for copyright protection. Among those conditions was the requirement that English-language books be typeset, printed, and bound on American soil within a fixed number of months after publication abroad, on pain of loss of US copyright forever.2 Confronted with these legal hurdles and shadowed by a reputation for indecency, Joyce made no attempt to secure US copyright for the book version of Ulysses or for the early published fragments of ‘Work in Progress’. These works lay in the American public domain, where Roth found them. So the question ‘Did he have permission?’ may be answered, initially, in the affirmative: Roth’s reprinting of Joyce’s writings was permitted by US law. He was a lawful opportunist.
Yet we call him a ‘pirate’ and probably always will. We sense that he violated some unwritten law of good faith and fair dealing, though we are hard pressed to name the law. The nineteenth century had a name for it, however: the courtesy of the trade, or trade courtesy. Trade courtesy was a system evolved by American publishers for regulating competition among themselves for uncopyrighted works by popular transatlantic authors like Charles Dickens and Sir Walter Scott. In its simplest form, courtesy awarded informal rights to the first publisher who announced plans to reprint an unprotected foreign work — a kind of makeshift copyright grounded on tacit trade agreements and community-based norms. According to this communal fiction, competitors were required to resist the temptation to exploit a free literary resource once it was claimed by the first comer. Participating publishers often paid foreign authors an honorarium or royalty and sought their permission for reprinting future works — all in the name of self-interested honour. But courtesy was always threatened at the margins by upstarts or renegades in the trade who saw no reason to observe a code that could bring them no immediate, tangible benefits. Deviants from courtesy were called ‘pirates’ by the reputable houses. [End Page 99]
So when we ask ‘Did Roth have permission?’ we are really asking whether he obtained Joyce’s permission after the fashion of the courtesy publishers of the nineteenth century and those like Bennett Cerf who practised courtesy in the twentieth century. This essay seeks to put to rest the vexed question of whether Roth had courtesy permission to reprint Joyce’s works. With respect to the fragments of ‘Work in Progress’ that he reproduced in his quarterly magazine Two Worlds, the short answer is yes and no. With regard to the installments of Ulysses that he ran in his Two Worlds Monthly, the answer is mostly no. Contrary to most accounts of Roth, however, I contend that he actually enjoyed a brief period of legitimacy when he could call himself Joyce’s authorized reprinter of ‘Work in Progress’ in the United States. Had Roth been able to sustain that relationship, the history of modernism might read differently, and he would have been spared the indignity of the international protest and the lawsuit that Joyce launched against him in New York in 1927.3
Each of the first five issues of Two Worlds contained a different extract from Joyce’s new work, drawn from Paris and London publications whose contents lay in the American public domain. Roth timed his appropriations expertly to ensure their lawfulness under US copyright law and to maximize their currency for his readers. For his September 1925 number, he lifted ten pages of Joyce’s work from the July 1925 issue of T.S. Eliot’s Criterion, retitling the extract ‘A New Unnamed Work (First Installment)’ (see FW 104–25). Roth’s December 1925 number contained the ‘Humphrey Chimpden Earwicker’ fragment that had appeared in May 1925 in Robert McAlmon’s Contact Collection of Contemporary Writers (see FW 30–4). His...