Joyce, Tolkien, and copyright

James Joyce’s Ulysses is fascinating in many ways, not least because it has proven such a magnet for controversy of all kinds: it has been at the center of hullabaloos about obscenity law, about textual editing, and — as Robert Spoo’s new book demonstrates — about copyright. I haven’t read Spoo’s book yet, but I want to after reading Caleb Crain’s lucid review of it.

As often is the case when I find myself thinking about Ulysses, my mind turns towards The Lord of the Rings. This is probably as odd as I suspect it is, but the books have some curious things in common: each seeks to renew and transfigure some inherited literary form; each tries to reconceive the idea of epic scope; each has been accused of being excessively masculine in its understanding of the world; each, thanks in part to endless authorial fiddling, has been the object of a great many controversies; and finally, each has been involved in all sorts of copyright issues.

Crain writes in his review,

Law isn’t the only way for people who do business together to keep one another in line. In most fields, there’s a faster, cheaper and simpler sanction: don’t do business with the miscreant anymore. Such self-policing by a group isn’t fail-safe. Ostracism might not cost enough to be a deterrent in markets with many participants, little reporting and few long-term relationships, and there will always be a few bad actors who choose to be disreputable. But law, no matter how absolute, doesn’t prevent every act of bad behavior either, and self-regulation is more flexible and quicker to adapt to changing circumstances. The phenomenon has been called “order without law,” and it has been detected in Maine lobstermen, who respect one another’s trapping sites; in chefs, who are ginger about knocking off one another’s recipes; and in stand-up comics, who usually refrain from stealing one another’s routines and punch lines. It has even been found, believe it or not, in publishing. Sometimes, in the absence of copyright, publishers have paid authors and have abstained from reprinting the books of authors they haven’t paid. Ulysses, by James Joyce, considered by some the greatest novel of the twentieth century, lost its copyright protection in America on a technicality soon after it was published. But from the 1930s to the ’90s, Joyce and his estate were paid royalties from its publication in America anyway, thanks to exactly this kind of happy anarchy.  

With The Lord of the Rings, things didn’t happen quite this way. In 1965, the bosses at Ace Books decided that they had discovered a loophole in the copyright law that allowed them to publish their own edition of the novel — and to pay J.R.R. Tolkien absolutely nothing for doing so. It seems hard to believe that as recently as fifty years ago the American publishing industry was sufficiently chaotic for any publishing executives to think they could get away with this, but they printed 150,000 copies — you heard that right: one hundred and fifty thousand copies — of each of the three volumes of LOTR, which of course sold like hotcakes. After some huffing and puffing by Tolkien and his American publishers the Ace guys decided that they had received enough legal threats, bad publicity, and cash on the barrelhead that they should probably send the author some money and let their edition slide grecelessly out of print. Still, they probably came out well ahead on the deal. “Order without law” indeed.

how not to run a literary estate

In 1957, when he was 69 years old, T. S. Eliot married 32-year-old Valerie Fletcher. When he died in 1965 she took charge of his literary estate and has controlled it ever since, with — from the scholar’s point of view — uneven results. When Peter Ackroyd was writing his biography of Eliot — which eventually appeared in 1984 — Mrs. Eliot first gave him free access to Eliot’s letters and papers, but then denied him permission to quote from them. He had to re-write his biography to remove the quotations.

In 1988 she published the first volume of his collected letters, which covered the period through 1922 — after the publication of The Waste Land but before his conversion to Christianity — and promised that the second volume would come out the following year. Two decades later, we’re still waiting. A story published last March claimed that the long-awaited letters would appear this November, and, you know, it just might happen. But I’m not holding my breath.

But in terms of making life difficult for scholars, Valerie Eliot can't hold a candle to Stephen Joyce, who controls the estate of his grandfather James Joyce. Mrs. Eliot has been content merely to resist, but Mr. Joyce goes as far as active legal persecution. He thinks that people who simply recite passages of his grandfather’s work aloud are violating his copyright, and has claimed that he will not grant anyone permission to quote from Joyce’s works for any reason. He made life absolutely miserable for Carol Loeb Shloss during and after the writing of her biography of Joyce’s talented but troubled daughter Lucia, fighting in every possible legal venue to prevent her from quoting family letters — and for a time succeeding.

But eventually she not only got the book published with its original research included, she got legal assistance from the Fair Use Project of Stanford’s Center for Internet and Society — the brainchild, more or less, of Larry Lessig — and now Stephen Joyce is going to have to pay Shloss’s legal fees.

This is great news for scholars and students and for the general reader as well. The law can't compel executors of literary estates to be generous, but it can, it seems, restrain them from vindictiveness.