I have been watching the Google lawsuit and settlement talks play out over the years, and with each announcement, mostly in favor of Google, I went from anger and disbelief, to confusion, and now to a glimmer of understanding of how writers could find themselves not quite owning their own work. I stumbled across this insight while reading Robert Spoo's book on how copyright protections (or the lack of them) affected the introduction of modernist literature in the United States, with a focus on Ezra Pound and James Joyce.
Without Copyrights: Piracy, Publishing, and the Public
Domain, by Robert Spoo (Oxford University Press, 2013)
I came across this book by accident. When I picked it up in
a local library after being drawn in by the title I expected something that
would seem relevant to me as a writer grappling with the changing environment
for commercially and self-published writers. The challenges facing writers
opposed to Google’s digital copying program are nearly overwhelming, and I was
stumped to understand why courts found it so easy to rule against writers and
in favor of Google and others. I still don’t understand completely, but I have
a better understanding of how we got where we are and why Google has been
successful so far.
Robert Spoo, well recognized in his chosen field of
copyright law and literature, is interested in how copyright laws, or the lack
of them as we understand them today, interacted with modernism in literature.
He takes for his example the writer James Joyce, and his attempts to have an
unexpurgated Ulysses published in the
United States.
Spoo’s history of copyright in this country is an
eye-opener. Writers often talk about books in the public domain as though they
had drifted into this ocean as a result of neglect or the passage of time or creation
by the US or state government. But the public domain was in fact created by
Congress through earlier copyright laws to ensure that those involved in the
book business in this country had work here and didn’t face competition from
outside the country. The only books that received copyright in this country
were those that were printed and bound here, manufactured here; all others, no
matter where they were published or by whom, were in the public domain. Once in
the public domain, which occurred within a very short time after publication
elsewhere, the book was fair game for anyone who wanted to publish it here. Writers
who published abroad could gain a copyright here if they met stringent
requirements, but otherwise the copyright failed in the US. This was the case
well into the twentieth century.
Publishers who wanted to publish work by someone who had
already published it abroad faced the Wild West of publishing for decades. In
response to this chaotic world they developed something called the “courtesy of
the trade,” or “trade courtesy.” This phrase referred to a gentlemanly
agreement among the larger, more established publishing houses to let the first
to claim the work to have it. If Publisher X announced through a magazine ad or
in some other way that he was going to publish the work of a popular British
poet, his colleagues left him to it. The trade courtesy was an understanding
among publishers to not poach on others’ writers from their publishers, and to
not try to undercut other publishers with cheap reprints. None of this was
legally binding, and no one could stop another publisher who ignored the
unspoken rules.
A publisher who ignored the rules was called a pirate. The
term is not accurate because the publisher operating outside the rules of trade
courtesy wasn’t breaking any law, but some felt so strongly against what he (it
seems mostly a he) was doing that the term was used freely. Publishers who
wanted to get ahead published anything that wasn’t protected by copyright,
which meant almost everything published overseas. One of the more famous of
these publishers was Samuel Roth, who hoped to publish James Joyce’s work,
especially Ulysses.
A publisher who published with no regard to the gentlemanly
agreements of others faced no legal repercussions but plenty of social costs.
He was shunned and subjected to unrelenting negative gossip and boycotting,
others published cheap work to undercut his prices, and writers might sue to
get any monies they could extract. Public opprobrium could drive a publisher
out of business.
Into this topsy turvy world came Ezra Pound and James Joyce.
Joyce bitterly resented anyone taking his book and publishing an altered
version, one cleaned up for the censors. Pound believed in disseminating
literature, and in the end chose that over Joyce’s right to control his
publishing in its entirety. When we think of Joyce’s lawsuit to get Ulysses into the US, we think he was
challenging the prudish laws of the US. But in fact, Joyce first sued Roth for
using his name for advertising without his permission. Joyce sued for damages
he felt he must have suffered by not having control of his work, but in the end
Joyce and Roth settled by agreeing to a consent decree (dated December 27,
1928). But even this had a very limited effect. This decree, according to the
author, and despite Joyce’s grandiose claims, “has not been cited by a single court
in a reported case” (p. 224). Joyce thought this decision would give authors their
natural moral rights in the ownership of their labor, echoing Locke and
European attitudes, but US courts and legislation have never gone this far (p.
225).
The second step in getting Ulysses safely into the US, where Joyce’s preferred publisher,
Bennett Cert, could publish it, was to have it seized by Customs. Once this
happened, the book was subject to the Tariff Act of 1930, and the Cutting
amendment. This amendment made the object confiscated the defendant in a case,
and forced the government itself to defend its actions. The sender and the
receiver of the item in question, in this case Ulysses, were not part of the case. During Prohibition, according
to Spoo, lawsuits were often filed against the truck carrying bootlegged liquor
and the like.
Ulysses was
confiscated, the case went to trial, and Judge Woolsey decided in favor of the
book, in 1933. The book was free to enter the US, but it was still without
copyright. Joyce’s great work was now subject to the trade courtesy practices
that he and others abhorred, but he had no choice.
This is a story of stunning twists and turns and surprises
in getting Ulysses published in the
US, not the least of which was Joyce’s attitude towards his lawyers’ bills (he
refused to pay them).
Equally surprising to me as a writer is that copyright as I
have come to understand it only became law in 1976. Legislators have continued
to tinker with copyright law so that even now the public domain is occasionally
given a great book and deprived of another for a few years. It is a patently
crazy system. The US didn’t sign the Berne Convention until 1989, when the US
finally agreed to recognize foreign copyrights and afford works so protected overseas
the same protection in the US. There is more, but by now you should have the
idea that the history of copyrights in the US is anything but tidy and linear.
The text is dense, but the writing is free of academic
jargon, in some cases delightful. The author makes every effort to explain the
legal niceties in simple, clear language. I learned more about Ezra Pound and
James Joyce in this book than I ever did in college English literature classes.
Highly recommended.
