Literary Legacies Hostage to Heirs

According to a recent New Yorker article, any scholars who want to “quote sizable passages or to reproduce manuscript pages from those works of Joyce’s that remain under copyright—including Ulysses and Finnegans Wake—as well as from more than three thousand letters and several dozen unpublished manuscript fragments,” must get permission from Joyce’s son, Stephen James Joyce. SJJ, in turn, delights in blocking access, and has commented that academics are like “’rats and lice—they should be exterminated!’” Apparently Larry Lessig, my law school classmate Robert Spoo, and David Olson, are attempting to help a scholar (Carol Shloss) battle the estate in an upcoming showdown. SJJ brags that he’ll pour resources into the fight, and delights in recounting how tenaciously he fought SUNY Buffalo to regain ownership of an “engraved charm” years ago.

The New Yorker article focuses on a dispute over letters, a type of writing where this type of familial control is most understandable. Joyce may well have wanted certain missives kept private. But isn’t it bizarre that the mercurial and temperamental SJJ has such influence over Joyce studies? I can’t understand why any public policy should permit such a person to unilaterally veto uses of passages from Ulysses. One more example of the “uniformity costs” of copyright, I guess; private letters and public novels are subject to (roughly) the same arbitrary ownership rules.

(I know, I know, fair use law protects use of the latter more than the former, but as Lessig has said, fair use has basically waned to the point that it’s little more than the right to hire a lawyer. And who’d like to battle SJJ in court?)

7 thoughts on “Literary Legacies Hostage to Heirs

  1. You write:

    But isn’t it bizarre that the mercurial and temperamental SJJ has such influence over Joyce studies? I can’t understand why any public policy should permit such a person to unilaterally veto uses of passages from Ulysses. One more example of the “uniformity costs” of copyright, I guess; private letters and public novels are subject to (roughly) the same arbitrary ownership rules.

    I don’t see what’s so bizarre. Would you prefer copyright in non-private works be non-transferable? Should Joyce not have the ability to transfer what may have been the vast bulk of his wealth to his children? Should he have been forced to sell while alive and transfer only cash? And would that really be a less-arbitrary ownership rule? I guess, perhaps, you think that original authors exercise their ownership interests in a relatively defensible fashion, but anyone to whom the original owner decides to assign ownership may exercise control that is less . . . defensible? economically-sensible? ethical? moral? what?

    Regardless, it’s not at all clear to me that the more-defensible ownership interests exercised by authors can be separated from those of their heirs or other assignees. To the extent that copyright provides creation incentives, surely some incentive comes from the expectation that one’s heirs may enjoy the fruits of one’s creation, or that one will be able to sell/assign ownership rights. We can quibble over precisely to what extent the author internalizes benefits enjoyed by his/her descendants after the author’s death, but that doesn’t strike me as the point you are making. In short, the ownership rules don’t really seem so arbitrary here. I suppose, once in a while, the consequences of perfectly sensible, non-arbitrary ownership rules may seem arbitrary, but that is quite a different matter entirely.

  2. Yes, I agree that it’s hard to pull apart the more and less defensible ownership rights…the “bundle of sticks” is often more inextricably intertwined than one would like!

    And I will concede that perfectly fair and reasonable property rules can generate bizarre outcomes.

    All that I want to advance here is the idea that when it comes to the famous novels, like Ulysses, a compulsory license may well be appropriate. (At a rate set at some very low level, like what ultimately happened in one of the “quilt in the background of the movie” cases.)

    Following Jed Rubenfeld in his Freedom of Imagination, I think a creation like Ulysses exercises enormous influence over our imaginative lives. Something that important shouldn’t be hostage to a random heir’s whims.

    Perhaps it is difficult to determine what aspects of cultural heritage are important enough to merit such treatment. But courts seem to handle genericide doctrine (another example of “extraordinary success” leading to the loss of an IP right). And we seem to be willing to treat famous trademarks differently in dilution inquiries (i.e., the federal law only covers those).

    One more angle: perhaps at some point a text becomes important enough that the whole thing amounts to an “idea.” For example, one might need to quote three whole pages of Ulysses to make one’s point…or intersperse the whole thing into some online critical resource. It’s not good enough to just paraphrase. Rather, (large chunks of) the entire, actual text may be necessary to make one’s point, or one’s project.

  3. There are several problems here. Chiefly, of course, is the one you allude to: Who is going to decide which works don’t merit full copyright protection, and by what criteria will they decide, and when will they do so? Is the cost really worth the benefit? How often do “cultural artifacts” end up being withheld from public use? And to the extent that they command a higher price (I’m sure even Stephen Joyce has his price), can you be sure the higher price wouldn’t be considerably less than the price (monetary and otherwise) of administering a government-run, cultural control apparatus? Finally, my answer to your question about important works becoming ideas in themselves is “so what?” Why should the presumption be that, for special works (identified as such by a court — or perhaps congress? blech!) where lots of copying may be required “to make one’s point, or one’s project,” the secondary project should have precedence over the original work? It’s surely a strage way to reward cultural success. But it isn’t a necessary result, either. Instead, why not require the users to pay to make use of Joyce’s work, remain within fair use limits, or forebear? He (and even his irrational heirs) have an incentive to license the works. The reality is, situations like the one here are the exception; there’s just no basis for imposing a compulsory license regime here to plug up some essentially-non-existent holes.

    On your follow-up question: If what you are suggesting is that the purported federal limitation on a copyright holder’s ability to alienate copyrights to whomever she pleases, regardless of the existence of “blood heirs,” is utterly idiotic, then I agree wholeheartedly!

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