Kim Dian Gainer, Ph.D., Radford University, Radford, VA
Carol Loeb Shloss is a James Joyce scholar who teaches at Stanford University. Her attempt to write and publish a biography about Joyce’s daughter (Lucia Joyce: To Dance in the Wake [Farrar, Straus and Giroux, 2003]) was met with threats of litigation by the estate of James Joyce. As a result, material that arguably should have fallen under the aegis of fair use was stripped from the book. Her attempt to provide scholars with the missing material via a web-based electronic supplement was also met with threats of litigation. With the help of the staff of the Fair Use Project of Stanford University’s Center for Internet and Society, Shloss brought suit in federal court in an effort to win a ruling verifying that her intended use of the material was indeed protected by the doctrine of fair use. The suit was filed in June of 2006, with an amended suit being filed in October of that year. The estate of James Joyce filed for a dismissal in January of 2007. In February the motion to dismiss was rejected by the Court in a twenty page ruling whose language exposed serious weaknesses in the estate’s defense against the amended complaint. By the end of March, the estate had settled, and Shloss had not only prevailed but won concessions that went beyond her original request for relief. One of the significant intellectual property cases of 2006 was settled in under a year, but its effects may be felt considerably longer.
The James Joyce estate in general and Joyce’s grandson Stephen Joyce in particular have a well-established record of attempting to control the author’s reputation by threatening to file lawsuits alleging copyright infringement. Thus, in 1988, for example, pressure by the estate forced the excision of material from Brenda Maddox’s biography of Nora Joyce (Nora: The Real Life of Molly Bloom [Houghton Mifflin, 1988]). In the 1990s the estate blocked a performance based upon a short story by Joyce that, ironically, was itself based upon a folk tale. In 1998 the estate sued to block live readings of Ulysses on the internet. In 2000 the estate sought and won an injunction against a university press that wished to include an excerpt from Ulysses in an anthology but objected to the size of the licensing fee (7,000 Euros) demanded by the estate. In 2002 the estate prevailed in a case against a publisher who wished to bring out a version of the 1922 edition of Ulysses, an edition that had entered the public domain but for which copyright had been retrospectively restored. Perhaps most dramatically, in 2004 Stephen Joyce threatened legal action that would have derailed exhibits and readings intended to be a part of the ReJoyce Dublin 2004 festival. This dispute led to an act of parliament. In order to safeguard this centennial celebration of Bloomsday, the Irish legislature hastily passed an act that protected public exhibits and readings from charges of copyright infringement.
THE DEVELOPMENT AND PUBLICATION OF THE BOOK IN DISPUTE
Against this background, Carol Loeb Shloss, began work on a biography of Lucia Joyce (Lucia Joyce: To Dance in the Wake [Farrar, Straus and Giroux, 2003]). As had Brenda Maddox before her, Shloss ran into roadblocks thrown up by the Joyce estate. In 1996 she contacted Stephen Joyce and requested his assistance in pursuing her project. His reply went well beyond refusing his aid. He stated that Shloss could not use the letters or papers of Joyce’s daughter. He first granted and then withdrew permission for the use of a published poem, apparently taking the latter action because Shloss intended to use other materials of which he did not approve. In 2002 Stephen Joyce wrote to Shloss to add to the list of materials that she was blocked from using. Among these materials: the medical files and records of Lucia Joyce. That same year Joyce contacted Shloss’ publisher, Farrar, Straus and Giroux, and in a series of contacts via phone and letter threatened legal action against the book. He also enlarged his list of materials whose use he wished to block, adding to the roll letters written by individuals who were not members of the Joyce family. The publisher’s attorney, Leon Friedman, responded to Joyce by adducing the fair use doctrine. Joyce wrote in reply that the estate had shown itself willing in the past “to put our money where our mouth is.” This and other statements suggested that Joyce intended to sue if he was not satisfied with the response to his demands. Correspondence between Joyce and Friedman then broke off, as the attorney concluded that the estate would never grant Shloss permission to use any material for which it claimed to hold copyright, and the publisher’s attention turned to editing Shloss’ manuscript to avoid legal action by the Joyce estate. These edits resulted in thirty pages being cut from the manuscript. Shloss contended that these cuts removed vital evidence, and the reviews that the book received upon its publication in 2003 suggest that, if not eviscerated, the book had at the very least been enervated.
Given that she had been blocked from including material in her book that she felt had been vital evidence for the support of her thesis, Shloss decided to make the material available in another form, via an electronic supplement at a password-protected website that would be available only to users with US Internet Protocol (IP) addresses. Even though she felt that her use of the material was protected under the doctrine of fair use, she offered the Joyce estate the opportunity to review the material. In the succeeding exchange, the Joyce estate once again refused to concede that Shloss had any right to use the materials and again raised the threat of litigation. What followed could be considered a pre-emptive strike on the part of Shloss: an effort to put paid once and for all the question of whether her use of the materials was or was not protected under the doctrine of fair use. In June of 2006, attorneys for the Fair Use Project of Stanford University’s The Center for Internet and Society filed suit against the estate of James Joyce in an effort to obtain injunctive relief and declaratory judgments for Joyce scholar Carol Loeb Shloss on the grounds that Professor Shloss’ ability to support her interpretations of Joyce’s writing had been severely compromised by repeated threats of litigation, especially on the part of Joyce’s grandson, Stephen Joyce. Lawyers representing Shloss included Lawrence Lessig, well known for his studies of copyright law and its implications for scholarship and for the culture as a whole, and Robert Spoo, himself a Joyce scholar who had first-hand knowledge of the difficulty of pursuing studies of Joyce in the face of opposition from the estate.
The suit, as amended in October of 2006, alleged four causes of action in support of the request for injunctive relief and declaratory judgment. The first count was that the web site intended to provide the documentation excised from the book would not infringe upon any copyrights held by the Joyce estate. The second was that the use of any copyrighted material at the web site would fall under the aegis of “presumptively fair use.” The third was that the estate had in fact misused its copyrights in its effort to control scholarship pertaining to James Joyce. The fourth was an outgrowth of the third, depending as it did upon the notion that the estate’s misuse of copyright had left it with “unclean hands” so that it had in fact forfeited its right to wield its claims of copyright. The lawyers for the estate filed a reply to the amended complaint in January of 2007. In it they argued for dismissal of the suit on four grounds: first, that the correspondence between Shloss, her publisher, and her publisher’s attorney “could not give rise to a reasonable apprehension of suit”; second, that the electronic supplement did not exist in finished form at the time Shloss’ complaint had been filed and that as a result no cause for action existed (“no actual controversy”); third, that the estate had stated its intention not to file a copyright infringement suit over the material at the website; and fourth, that since the original complaint was filed in June of 2006—and since the web site was still under development—no steps had been taken by the estate that could currently give rise to a “reasonable apprehension of suit” based upon the material at the web site as it currently existed.
In February of 2007 the Court issued an opinion in which it refused to dismiss any of the four counts and in its opinion systematically demolished the reasoning behind all but one of the arguments proffered in support of the call for dismissal or for, alternately, the striking of portions of the complaint. The Court determined that it had jurisdiction, that there was a cause for action, and that any current statements by the estate abjuring litigation had no relevance or future force. The heart of the Court’s refusal to dismiss was that Shloss did indeed have a “real and reasonable apprehension” of legal action on the part of Joyce’s estate and this “real and reasonable apprehension” was a cause for action:
Plaintiff undertook to write a scholarly work on Lucia Joyce—the type of creativity that the copyright laws exist to facilitate. Defendants’ alleged actions significantly undermined the copyright policy of “promoting invention and creative expression,’ as Plaintiff was allegedly intimidated from using (1) non-copyrightable fact works such as medical records and (2) works to which did not own or control copyrights, such as letters written by third parties. The Court finds that the Plaintiff has sufficiently alleged a nexus between Defendant’s actions and the Copyright Act’s public policy of promoting creative expression to support a cause of action for copyright misuse.
(Order Denying Motion to Dismiss 16)
The Joyce estate prevailed in only one small matter: the Court ordered the striking of a paragraph of the amended complaint that pertained to the physical destruction of documents that were in the possession of Stephen Joyce. The Court ruled that no copyright issues were involved in the decision of the owner of the physical objects as to whether to keep or destroy personal property.
The ensuing settlement represented a complete capitulation by the estate. First, the estate abandoned its pretense to a right to control the fair use of both the printed and unprinted writings of James Joyce, as well as of the materials pertaining to Lucia Joyce. (The estate had already acknowledged in court filings that it could claim no control whatsoever over the letters written by individuals who were not members of the Joyce family.) The estate provided the assurances that Shloss had originally sought from the court: that Shloss could publish the electronic supplement on the web without fear of being sued for copyright infringement. Moreover, the settlement empowered Shloss to go beyond her original plans for rectifying the damage done to her book. Instead of being password-protected, the website would be made available to any user, provided that the user had a US IP address. Finally, the estate put in writing a commitment not to sue for copyright infringement should Shloss publish the material in more traditional form, leaving her free either to include the supplement in future editions of her book or to reintegrate the material into the actual text of her work. As in the case of the website, such publication would be restricted to the United States.
IMPLICATIONS FOR THE FUTURE OF FAIR USE
Stephen Joyce attempted to restrict the use a scholar could make of materials by or related to James Joyce and his daughter Lucia. The outcome of Professor Shloss’ suit suggests that by so doing he and the Joyce estate exceeded their prerogatives as copyright holders. However, the Joyce estate is not the only one that has attempted to use claims of copyright infringement to inhibit scholarship that the Court described as “the type of creativity that the copyright laws exist to facilitate.” Although no precedent was set by the Court’s refusal to dismiss Shloss’ suit, the outcome of the case suggests that future litigation may help establish the principle that, regardless of their personal preferences, copyright holders do not possess the power to veto scholarly and creative uses of copyrighted material. In press releases and interviews, the attorneys associated with Shloss’ suit have indicated that they are willing to pursue additional cases such as this one. In addition, Shloss has now filed suit to recoup expenses arising from her ten-year struggle to win acknowledgement of her rights as a scholar under the doctrine of fair use. Both legal and financial pressure may now be brought to bear on copyright holders who attempt to inappropriately control the transformative use of copyrighted material.
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