Litigating the Right to Be a Scholar

This essay is an elaboration of remarks prepared for a plenary panel entitled “Joyce and Copyright” at the Austin James Joyce Conference in June 2007.¹ I had originally planned to call the panel “Carol Loeb Shloss versus One Estate Called the Estate of James Joyce.” My thought was to evoke a parallel, grandiose perhaps, to Morris L. Ernst’s famous legal challenge to the official seizure of a single imported copy of Ulysses, branded by the federal government as obscene under the Tariff Act. Both lawsuits—the one orchestrated by Ernst on behalf of Random House and the action filed by Professor Shloss some seventy-five years later—could reasonably be viewed as efforts to liberate James Joyce’s words from a misuse of the law. For the brandishing of copyrights to stifle lawful use of literary or biographical materials is, in principle, as significant a threat to the public interest as the invocation of a federal statute to suppress an important novel. In both cases, the parties urging suppression sought to wrap themselves in the prestige of reigning orthodoxies: the government argued that the forfeiture and destruction of a copy of Ulysses were needed to protect family values; the Joyce Estate insisted that prohibiting dissemination of writings by James and Lucia Joyce was necessary to preserve family privacy.

The title “Joyce and Copyright,” adequate though it was for its purpose, savors of an earlier period when some of us were working to establish copyright and fair use as analytical and rhetorical tools for thinking about the propertization of modernism and its effects on the traditional functions of scholarship.² It remains just as true today, of course, that the expansion of copyrights, both in scope and duration, is leading many to question whether this law that plays such an important role in our culture has become a victim of its own unprecedented growth. When a room becomes very crowded, we move instinctively toward the nearest open window. Copyright crowding has led to greater reliance on fair use— demonized by some as the “other” of copyright,³ when in fact it serves exactly the same purposes—and to the rise of a new legal defense, “copyright misuse,” which takes misbehaving copyright holders to task for trying to extend a limited monopoly beyond its legal bounds.

One way of marking the difference between the “Joyce and Copyright” years and today is that we have begun to move from theory to practice. Scholars who felt the lash of unsympathetic copyright owners and received no balm from their timorous publishers needed a language and analytical framework for assessing their predicament and its possible solutions. Some years were spent ascertaining the metes and bounds of the right to be a scholar. Essays were written; experts were consulted. These years saw the release of the “Statement Regarding Scholarly Use of Twentieth- Century Literary Materials,” which grew out of a meeting between lawyers and Joyce scholars at the Harry Ransom Humanities Research Center in 1995;⁴ articles on the copyright status of Ulysses;⁵ a special issue of the James Joyce Quarterly devoted to “Joyce and the Law”;⁶ Paul Saint- Amour’s important book, The Copywrights, published in 2003;⁷ and, in 2006, the IJJF-sponsored fact-finding panel and its web-published FAQs about copyright, fair use, and what could then be publicly ascertained of the permissions policies and practices of the James Joyce Estate.⁸

But with the lawsuit brought by Professor Shloss we did more than meet real threats with patient analysis; we took a practical step. It is one lawyer’s story of that lawsuit that I offer here. And, for reasons noted later in this essay, the story is not yet concluded. To begin with the obvious: Professor Shloss is the author of this legal odyssey, and the authoress of the book—Lucia Joyce: To Dance in the Wake (New York: Farrar Straus & Giroux, 2003)—that has existed, like Penelope’s web, at the center of the odyssey. I will touch briefly on the following topics: facts, courage, the lawsuit, its settlement, and the most recent...