As readers of this blog and my book, Unfair to Genius, must know, I am fascinated by the ways in which developments in the law sometimes shape and are sometimes shaped by developments in the arts. They will also know that I have a weakness for a good story about the colorful luminaries and rapscallions that populated the arts and the copyright industries in the early 20th Century. Professor Robert Spoo’s Without Copyrights: Piracy, Publishing and the Public Domain, just published by Oxford University Press, offers a heaping helping of just the stuff I crave.
The narrative centerpiece of Spoo’s book is a painstakingly researched story about James Joyce’s efforts, in the late-1920s, to prevent a notorious New York-based magazine publisher named Samuel Roth from publishing a bowdlerized serialization of Ulysses, which at the time was still banned as obscene in the United States. Spoo is just the guy to tell this tale–he is a scholar of both copyright law and modernist literature, and a former editor of the James Joyce Quarterly.
First, though, Spoo patiently sets the legal and extra-legal backdrop, focusing on U.S. copyright law’s historically rather shabby treatment of English language works first published abroad. He explains the system of trade courtesy, a kind of “quasi-copyright,” that leading American publishers observed in the days before the 1891 Copyright Act, a time when such works were afforded no legal protection at all. As matters of customs and usage, top publishers like Henry Holt and Charles Scribner respected the rights of the first publisher to announce an intention to publish a foreign work, provided it perfected the “courtesy right” by making some, often token, ex gratia payment to the author. The term “pirate”–and the sanctions of public shaming and ostracism–was reserved for publishers of cheap editions, like Thomas Mosher and Horace Liveright, who flouted the established norms.
Spoo goes on to review the only slightly improved status of foreign works under the 1891 and 1909 Copyright Acts, which made them eligible for copyright protection, but under such onerous formalities and conditions–especially the protectionist requirement that an edition of a work manufactured on U.S. soil be published within 6 months of initial foreign publication–that many of the acknowledged modernist masterpieces, immediately entered the public domain. This included works of Joyce, D.H. Lawrence, and T.S. Eliot, which could find no simultaneous U.S. publisher because the author was not yet established at the time, or the work was seen as avante garde, seditious, or obscene. Spoo shows that the early modernists suffered
because the reading public had not yet learned the language in which they wrote. Their styles were unfamiliar or rebarbative, and their messages when decoded, were often objectionable, running counter to approved morality and literary convention. . . . The manufacturing clause was a crude sorting device that rewarded the proven, the safe, and the popular.
The system of trade courtesy survived into the 20th Century and gave some measure of dignity and protection to these non-copyrighted works, but so did the tradition of piracy, carried on by fringe figures like Samuel Roth.
An interesting entr’acte follows on Ezra Pound’s attempts to address what Spoo calls “American copyright exceptionalism,” as well as the competitive disadvantage of contemporary authors versus writers of the past who have fallen into the public domain, with a proposal for an international, formality-free, perpetual copyright statute with compulsory licensing. Spoo then turns to the matter of Joyce v. Roth. Back in 1922, after the editors of The Little Review had faced criminal prosecution for printing an excerpt of the “Nausicaa” episode of Ulysses, describing Leopold Bloom’s rather too ardent and public appreciation of Gerty MacDowell on Sandymount Strand, Joyce was on the horns of a dilemma. No American publisher would touch his novel without editing this episode and other material censors and prosecutors might seize upon. Sylvia Beach was ready to publish an unexpurgated version in Paris. Unless he permitted his American publisher, B.W. Huebsch, to release an authorized expurgated version in the U.S. within six months of the Paris publication, the entire novel would enter the public domain. Joyce would not permit it.
Roth was a purveyor of middle-brow erotica and a literati wannabe. (He seems also to have been a sincere admirer of Joyce–and judging by the photos in Without Copyright, he even adopted Joyce’s look.) In 1925 he founded a literary magazine characterized by what Spoo calls a “nervous oscillation between literary ambition and bawdy entertainment.” After being rebuffed in efforts to obtain the imprimatur of Joyce, Pound, and others, Roth went rogue, reprinting in bulk contemporary foreign works not protected by copyright, including what he promised would be a complete serialization of Ulysses, expurgated by Roth personally to avoid offense to anti-vice crusaders.
Joyce’s response was two-pronged. First, he launched a coordinated protest in which writers, publishers, booksellers and others were encouraged to attack Roth publicly as a fraud and a literary vandal. The attacks, some of them blatantly anti-Semitic, were calculated to ensure that Roth would never achieve the respectability and recognition on the cultural vanguard to which he aspired. Second, Joyce sued Roth for misappropriating his name for commercial purposes under a New York statute adopted some years earlier to redress invasions of privacy. It was a tenuous legal theory at best, since Roth had done nothing more than accurately identify the author of a public domain work.
Unfortunately, there was no climactic courtroom showdown. The case wound down a desultory path until Roth, by then imprisoned for various scrapes with the obscenity laws, agreed to a consent decree that enjoined him from any further publication of Joyce’s work. Although this lacked de jure precedential value, Joyce declared it a de facto major victory for authorial rights in America. Spoo argues, moreover, that by taking on Roth in the law courts and the courts of public opinion, Joyce had rehabilitated his own reputation and that of his masterwork:
By presenting himself as a sufferer under American law, Joyce rewrote a narrative that had cast him as the law’s subverter; he deflected the cataract of adjectives that had poured upon his work–obscene, lewd, lascivious, filthy–by introducing a new legal lexicon: literary property, moral rights, unauthorized publication, textual mutilation. Ulysses came to seem more sinned against than sinning, less a corrupter of morals than a scene of trespass. Fashioning himself as an aggrieved rights holder and his book as a vandalized temple, Joyce laid the groundwork for the eventual authorized edition of Ulysses in the United States.
Joyce had created a climate of public opinion more hospitable to a challenge to the Customs Office’s ban on Ulysses, which Judge Woolsey overturned in 1932. The very public wrecking of Samuel Roth, moreover, had an in terrorem effect on would-be pirates of the newly emancipated novel, ensuring the success of Bennett Cerf’s authorized Random House edition.
Without Copyright is a highly informative and readable addition to the growing academic literature on the intersection of law, art, and commerce, and I recommend it highly.