[6 September 2013]
Reprinted from Without Copyrights: Piracy, Publishing, and the Public Domain by Robert Spoo (footnotes omitted) with permission from Oxford University Press. Copyright © Robert Spoo 2013. No part of this excerpt may be reproduced or printed without permission in writing from the publisher.
Growing the American Public Domain
All this chaos and uncertainty, all these feuds and enmities, have one and the same cause,—the existence in the world of a kind of property which is at once the most precious, the easiest stolen, and the worst protected.
—James Parton (1867)
Late in September of 1918, a miscellaneous troupe of actors—some professionals, some rank novices—launched a series of performances of George Bernard Shaw’s Mrs. Warren’s Profession for audiences in Zurich, Switzerland. The actors called themselves the English Players. They had been assembled, in part, to assist in promoting British culture during wartime, and they performed Shaw’s controversial play in English, without permission from the playwright. A year later, with the dust of war still settling in Europe, G. Herbert Thring, secretary of the Society of Authors in London, wrote to chide the English Players for mounting the play without Shaw’s consent and without paying him any royalties. The unauthorized production and the troupe’s evasiveness were creating “a very bad impression” on the Society of Authors, Thring warned, and the society was considering pressing “legal claims to the utmost.”
Thring’s menacing letter found its way to James Joyce, cofounder of the English Players, but Joyce was a hard man to intimidate. Instead of hastening to placate the society, he responded with a string of legal theories designed to excuse the alleged outrage. First, he coolly hinted that there could be no enforceable rights in a play like Shaw’s, whose indecency had caused the Lord Chamberlain to deny a license for its public performance in Britain. Second, he claimed that the production of English-language plays on the Continent was “an exceptional case not foreseen” by the Berne Convention for the Protection of Literary and Artistic Works, the agreement that governed copyright relations among many nations. Performing the play in Switzerland was “free” because the Berne Convention did not expressly forbid such an act. The most Joyce would concede was that his company might have given the appearance of infringing “literary courtesy.”
The tables turned seven years later when Joyce, now a victim of piracy himself, was treated to uncannily similar defenses by Samuel Roth, a New York publisher who had begun reprinting unauthorized magazine installments of Ulysses in July 1926. Roth told Joyce’s lawyers that Ulysses was “not copyrighted” in the United States and was therefore “the property of anyone wishing to use it.” At that time, America was still isolationist in copyright matters, a tainted wether of the international flock, prevented by its hyper-formalistic laws from joining the Berne Convention. The 1909 U.S. Copyright Act, which determined what was and what was not protected within the borders of the United States, specified that, to enjoy full copyright, foreign works written in English had to be reset, printed, and bound on American soil within a fixed number of days after they had been published abroad. Works like Ulysses that suffered from the stigma of immorality often failed to find a legitimate publisher in time to satisfy these requirements, known collectively as “the manufacturing clause.” The penalty was loss of copyright. Perversely, copyright and obscenity statutes worked at cross purposes in this respect: books that vice crusaders sought to ban from circulation could more easily reappear under the imprints of unauthorized publishers simply because one of the chief restraints on promiscuous distribution—the authorial monopoly conferred by copyright—had been withheld by federal law on technical grounds. Joyce in 1919 and Roth in 1926 each appealed to the law to justify their doubtful activities. Copyright codes, they argued, authorized their unauthorized acts.
Around the time that Thring’s accusatory letter reached Joyce in Zurich, Roth in New York mailed off a check for $500 to Edwin Arlington Robinson, whose long poem Lancelot had won the cash and a promise of publication in a contest arranged by Roth through the Lyric Society. The donor of the prize had reneged, so Roth made good the $500 out of his own pocket. The gesture was characteristically flamboyant, a combination of generosity and showmanship. He was a romantic when it came to his literary passions, a determined disseminator of the authors he loved. Several years later he realized another of his dreams by reprinting Ulysses, though his reward would be to wear a scarlet “P” for the rest of his life.
Roth, too, learned what it was to be pirated within the law. During a sojourn in London in 1921, hungry and low on funds, he visited the office of The Jewish Chronicle in the hope of selling some articles. The editor, who had previously reprinted Roth’s contributions to the American Jewish press without permission or compensation, looked him in the eye and told him it was the Chronicle’s policy never to pay for what it could get for nothing; once Roth’s new articles appeared in the States, the Chronicle could freely reprint them with the blessing of British law, which, given America’s non-Berne status, granted no automatic protections for the published writings of U.S. citizens. Roth was shocked by “the discourtesy of this indecent old reprobate and his piratical magazine.” Later, he looked back on the encounter as a sort of primal scene foreshadowing his own lawful depredations. Like the old editor of the Chronicle, he admitted to using “a great deal of matter in the public domain” during his long career.
This is a book about the convergence of lawful piracy and transatlantic modernism within what I call the American public domain, a vast, opportunistic literary commons assembled from the legal have-nots of foreign authorship and reflecting the protectionist policies of a developing nation in quest of instant and assured culture. Created by U.S. copyright laws, the American public domain was nothing less than an aggressively legislated commons, an invitation to piracy that served the interests of domestic publishers, typesetters, printers, binders, and the book-buying public. For the first century of federal copyright protection and well into the twentieth century, the American public domain grew daily through the influx of new works by foreign-domiciled authors. By operation of the law, these works were claimed, immediately or soon after they were issued abroad, by a preternaturally premature, or forced, commons.
One of my goals is to reframe literary piracy and its role in modernism within an accurate understanding of copyright law and the realities of publishing in the period. The typical and uncritical use of the term piracy—detached from the legal conditions that permitted and even encouraged it—gives a false aura of illegality to a practice that, though inconsistent with strict business morality or what was then called “the courtesy of the trade,” was a lawful form of cultural diffusion well into the twentieth century. Joyce’s retaliatory campaign to discredit Roth for exploiting Ulysses was a continuation, by other means, of the traditional extralegal sanctions of trade courtesy, but it was not the upbraiding of a violator of the copyright law. What Joyce brashly asserted concerning Shaw’s play in Zurich—that it was free for common use—was really true of Ulysses in the United States. This study seeks to disentangle the coarse weave of the rhetoric of piracy as used by modernism’s contemporaries as well as by today’s commentators and to reveal piracy’s role in transatlantic modernism. My use of the term pirate varies from context to context, sometimes denoting a breaker of the law, at other times indicating a deviant from courtesy or a transgressor of other informal norms. Context gives the appropriate coloration; I have avoided intrusive glosses of my every use of pirate.
The story I tell concerns the disseminative conditions of transatlantic modernism, the practice and rhetoric of lawful piracy, the counter-rhetoric and retaliations of its outraged victims, and the courteous code by which some publishers justified exploiting the free booty of the American public domain. My methodology combines traditional legal and literary history with an intense focus on the particular rules of U.S. copyright law as they affected foreign-domiciled authors. I bring to bear the discourses of law, economics, protectionism, and piracy as they were produced in the nineteenth century and were carried over, in familiar and altered forms, into the twentieth. My perspective is sociolegal and interdisciplinary, historical in mood, narrative in style, and grounded in three decades of literary and legal study and more than a decade of practicing and teaching copyright law. My accounts of law and courtesy are woven from many archival sources, including the recently acquired Samuel Roth Papers at Columbia University, documents uncovered in New York court archives, the litigation file preserved by the law firm that represented Joyce in his 1927–28 lawsuit against Roth, and materials located in a score of other libraries and private collections throughout the world.
Chapter 1, “The American Public Domain and the Courtesy of the Trade in the Nineteenth Century,” explores the founding rules of a protectionist copyright law that openly encouraged the unauthorized reprinting of new foreign works, generated frenzied competition for those free resources, and set in motion a counter-practice of self-restraint among American publishers that came to be called the courtesy of the trade. As a way of regulating ruinous competition for unprotected titles, and to give themselves an aura of respectability and fairness, the major publishers adopted trade courtesy whereby, in its simplest form, the first publisher to announce plans to issue an American edition of an unprotected foreign work acquired informal title to that work—a kind of makeshift copyright grounded on tacit trade agreements and community-based norms. Drawing on the insights of scholars of social norms and common-pool regulation, I offer a detailed account of nineteenth-century courtesy and its regime of entitlements, exceptions, and penalties. Courtesy restored a fragile order to the publishing scene by imitating the main features of copyright law and permitting both publishers and authors to benefit, though inconsistently, from the wholly informal exclusive rights recognized by this self-interested chivalry.
Chapter 2, “Transatlantic Modernism in the American Public Domain,” moves into the twentieth century and traces the same forces—copyright law, legalized piracy, and trade courtesy—as they shaped the production and consumption of modernism in the United States. Here I show how the dreaded manufacturing clause and other strict formalities of U.S. copyright law, persisting from the previous century, claimed works by many foreign-domiciled authors for the American public domain. The stringent law and the high costs of American printing combined to drive such writers as Ezra Pound to publish in Europe and thereby to sacrifice their U.S. copyrights. The fear of failed copyrights lay behind many developments of modernism, including Pound’s editorial work for The Little Review and The Dial, foreign authors’ efforts to place their writings in American magazines and to print special limited editions of their works, and the role of the New York lawyer and cultural patron John Quinn in building a legal infrastructure for the transatlantic avant-garde in America.
Chapter 2 also introduces Samuel Roth as a central figure in the unauthorized production of modernism in America and traces the quiet persistence of trade courtesy among other American publishers, such as B. W. Huebsch and Bennett Cerf. A variety of legal and social pressures had caused courtesy to decline from its extrovert prominence in the nineteenth century, but it continued on in the new century, more an ethical assumption of doing business than a boasted badge of probity. An echo of the old courtesies can be heard in Joyce’s halfhearted assurance to Thring that, though the English Players had violated no legal rights, they wished to avoid the appearance of transgressing “literary courtesy.” Roth’s protest over the “discourtesy” of the editor of The Jewish Chronicle likewise alluded to an ethical impropriety that did not rise to outright unlawfulness. Courtesy was a voluntary affirmation of moral solidarity with authors and fellow publishers. To operate outside of courtesy was to declare oneself dead to the higher ideals of the trade. Deviants from the practice were branded as pirates, a second-order piracy that could leave a permanent stain on a publisher’s reputation. Roth never fully recovered from Joyce’s campaign to fix him as an unscrupulous thief beyond the courtesy pale.
Ezra Pound hated literary piracy, lawful or unlawful, and was a sworn enemy of the copyright-defeating technicalities of U.S. law. For decades he railed against statutes that “favour[ed] the printer at the expense of the author.” Although he thought Roth was a “bloody crook” for reprinting uncopyrighted works without permission, he considered “the American copyright law… a worse crook than he is.” The law made the man, Pound thought, and Roth was merely a symptom. Chapter 3, “Ezra Pound’s Copyright Statute: Perpetual Rights and Unfair Competition with the Dead,” traces Pound’s detailed proposals for copyright reform and his rigorously ambivalent attitudes toward authors’ legal rights and disseminative piracy. At the very moment that the English Players were presenting Shaw’s play to Zurich audiences without a license, Pound was publishing his proposals in the London weekly The New Age. His program for reform envisioned the granting of strong authorial entitlements—indeed, he urged a perpetual copyright—but at the same time he worried over the power that such entitlements would place in the hands of authors and their heirs. His solution was to install various checks and balances that would enable publishers to reprint authors’ works without permission if authors or their heirs failed or refused to keep works in circulation. Pound’s idea of a literature without borders, a utopia of fluid international communication, existed in conscious tension with his desire to fortify authors’ rights and to combat literary piracy.
Chapter 4, “Ulysses Unauthorized: Protectionism, Piracy, and Protest,” tells how U.S. copyright law forced Joyce’s masterpiece into the American public domain within months of its publication in France in 1922. The chief reason for the book’s unprotected status was Joyce’s inability to comply with the 1909 copyright act’s manufacturing clause. The law’s willingness to trade protection for protectionism enabled Roth to use his Two Worlds magazines as a force for diffusing an archly eroticized version of modernism in a country bound by moral prohibitions and conventional reading habits. Here and in the following chapter I discuss Roth’s reprinting of Joyce, T. S. Eliot, and Pound and show that the international protest over Roth’s Ulysses piracy, organized by Joyce and his supporters, employed one of the familiar penalties of trade courtesy: the ritual ostracism of a violator of informal publishing norms. Pound’s refusal to sign the protest was not a personal crotchet, as Joyce liked to believe. It reflected instead a principled distaste for pillorying an individual who was acting in conformity with an admittedly objectionable law and who in any case was circulating a great work that had frightened off other American publishers. The law, Pound thought, not its inevitable product, should have been the focus of Joyce’s organized army of protesters.
Chapter 5, “Joyce v. Roth: Authors’ Names and Blue Valley Butter,” turns to Joyce’s lawsuit against Samuel Roth in 1927–28. The litigation has never been recounted in anything like sufficient or accurate detail, and its implications for Joyce’s career have gone unnoticed. Joyce’s lawyers, unable to sue for copyright infringement, chose a New York civil rights statute to combat Roth’s reprinting of Ulysses. The lawsuit, which alleged that Roth had unlawfully exploited Joyce’s name for commercial and advertising purposes, was an early example of a publicity-rights claim couched in the legal idiom of privacy rights. The litigation became a means by which Joyce altered public perception of Ulysses and furthered his growing reputation as an avant-garde innovator. Together with the international protest, the lawsuit marked a significant moment in the development of modernism as an engine for generating authorial celebrity. The injunction against Roth that Joyce eventually obtained—a product of the parties’ agreement as much as the judgment of a tribunal—was in many ways a fitting conclusion to this rather free-form experiment in litigation, but even a diminished remedy served Joyce as an additional piece of the courtesy machinery he was assembling and the fame he was crafting.
The final chapter, “Ulysses Authorized: Random House and Courtesy,” revisits the efforts of the lawyer Morris L. Ernst to remove the customs ban on Ulysses and to prepare the way for Random House’s authorized edition of the novel. But my perspective is not the usual one of focusing on the legal strategies and arguments that persuaded Judge John M. Woolsey to declare Joyce’s masterpiece safe for admission into the United States. Rather, I tell the much less familiar story of how the uncopyrighted status of Ulysses in America created additional legal obstacles for Random House and how Bennett Cerf shrewdly employed trade courtesy to fend off what he feared would be a feeding frenzy of lawful piracy following Judge Woolsey’s removal of the last legal barrier—the strictures of obscenity law—to unchecked reproduction of what was widely known to be a public domain work. Free riding publishers were Cerf’s chief concern, once vice crusaders had been chased from the scene. So effective was his strategy that the exclusivity of Random House’s claim to Ulysses went unchallenged for decades after its publication in 1934.
The American public domain has not been static. It has evolved remarkably during recent decades into a much less acquisitive, more author-friendly commons, especially after the United States joined the international Berne Convention in 1989 and adopted laws to safeguard the rights of foreign authors. Laws have been enacted, and upheld, that restore protection to foreign works that lost their U.S. copyrights through the operation of the manufacturing clause or other formalities. The epilogue, “Disturbing the American Public Domain,” examines this changing public domain and legislators’ quest for international harmonization of copyright rules. Far from unifying the global public domain, however, recent laws enacted in the United States and Europe only guarantee its continuing disharmony and fragmentation. Worldwide availability of modernist works is threatened by a tragedy of the uncoordinated global commons, a congestion of divergent durational terms and other rules that impede the free use of works created nearly a century ago. How the American public domain will fit its voice into this copyright cacophony is a story that continues to unfold.
At the heart of modernism, as of all creativity, lurks a mystery that challenges the received rationale for copyright laws. The Anglo-American theory of copyright holds that the prospect of an enforceable property right encourages authors to trouble themselves to produce because they know they will not be giving their creative offspring as hostages to free riders. This is the incentive theory of copyright, and it requires us to think of an author as a rational actor who responds with dutiful scribbling when the invisible hand of interest beckons. People get down to creating, the theory says, when they can descry a monetary carrot in the offing; if you promise to build their bank account, they will come. Abraham Lincoln encapsulated the idea when he remarked of patents that they add “the fuel of interest to the fire of genius, in the discovery and production of new and useful things.”
Yet even lawyers know this is only a partial account of creativity. Creativity is “messy,” writes Rebecca Tushnet, “in ways that copyright law and theory have often ignored to their detriment.” Authors produce for many reasons that have little to do with immediate material gain; their lives attest to other compulsions: joy, competitiveness, prestige, celebrity, the lure of aesthetic pleasure, the dream of building a beautiful mousetrap. Tushnet sees desire as central to the experience of creators, including “desire for reciprocal gift relationships between authors and audiences.” Arguments for copyright have often relied on the figure of the Romantic author—the embodiment of originality standing apart from soulless capitalism and faceless markets—as a justification for awarding a monopoly for creativity. But when it comes to theories of incentive, copyright law abandons Keats and substitutes homo economicus—the rational artist who produces with dollar signs dancing in his head—and argues that more protection will always incentivize more creativity. In those places where I draw upon the incentive theory, I am ever mindful of the incompleteness of its explanatory power.
Pound wrote of the artist’s “inherent activity.” He recalled that his grandfather had built a railroad “probably less from a desire to make money or an illusion that he could make more that way than some other, than from inherent activity, artist’s desire to MAKE something, the fun of constructing and the play of outwitting and overcoming obstruction.” Modernist writing was undoubtedly motivated by the marketplace, yet copyrights played a complex and varied role in the lives of many writers. These authors were prompted as much by a desire to accumulate cultural capital as by a need to secure immediate monetary benefits, and they made striking property-related sacrifices in their quest for textual ideality. Joyce was willing to forgo copyright in the United States for the opportunity to issue an unexpurgated Ulysses in France, even though he knew that judicious revision would have made the work acceptable to some American publishers. W. B. Yeats so longed for collected editions by which he could shape and reshape his artistic image that he reluctantly gave an exclusive license for publishing his collected works to a New York publisher. These authors had their reward. Yeats joyfully remade himself over and over in successive editions. Joyce kept his text inviolate, and he later turned his legal disability into a loss leader by using his quarrel with Roth to accelerate his growing celebrity, all the while that Roth’s unauthorized installments were seeding the American market for an authorized Ulysses. The pursuit of fame and the quest for artistic perfection, together with inherent activity, drove these writers as much as the hope of monetizing each new story or poem.
In addition to the mysteries of motivation, the existence of cultural patrons complicates the picture of modernists’ copyright incentives. Patronage is usually viewed as historically and structurally distinct from copyright regimes, but it coexisted with copyright for the modernists. Numerous authors—Pound, Eliot, H.D., Wyndham Lewis, to name a few—enjoyed the benefactions of patrons for brief or lengthy periods of time. John Quinn served as a clearinghouse for gifts (his own and those of others), and he provided pro bono legal and publishing services to Joyce, Pound, Yeats, and others. In 1919, Harriet Shaw Weaver settled an enormous sum of money on Joyce and later added more, sustaining him and his family for more than twenty years. Copyright and patronage inhabited the same cultural moment that saw the convergence, as Lawrence Rainey has shown, of collectors, investors, little reviews, limited editions, and other institutions of modernism that courted commodification while resisting it. According to strict economic logic, the kind of financial assistance that Joyce received should have lessened the urgency to protect his works as property. As public goods, they were reaching readers by fair means or foul, through appointed publishers or self-appointed reprinters, and Joyce was being amply rewarded for his creativity by his English patron (and receiving handsome royalties from the Paris edition of Ulysses, protected by copyright in France at least). Yet that was not enough for him; he clung to his copyrights, whether they existed or not.
Modernist authors thought of their work as ownable and resented assaults on it, even when the work lay squarely in the American public domain, stripped of all incidents of legal property. The idea of literary property was talismanic, emblematic of respect for artistic labor, an acknowledgment of the dignity of the attic. For some, it was a question of honor. When in 1953 Margaret Anderson published the retrospective Little Review Anthology, she included Eliot’s prose dialogue “Eeldrop and Appleplex” from a 1917 number of The Little Review. Anderson’s editor, having satisfied himself that the piece was “free to use” because it lacked U.S. copyright protection, had not sought Eliot’s permission but had simply forwarded him a “courtesy payment” after the fact. Eliot coldly returned the check, remarking that acceptance of payment might be construed as permission to reprint. Anderson was chagrined, but Eliot had made his point: authors deserved better than to be treated to the sterile letter of the law, and courtesy was not courteous if it failed to acknowledge authors’ moral rights to dispose of their work as they pleased. Whether they were acting from pride, the need for royalties, or the desire to control the quality and placement of their texts, transatlantic modernists worried over their copyrights; and when copyrights did not exist, they expected full-blooded courtesy.
The American public domain could be merciless, but it could also be a writer’s friend. Lawful piracies helped build the success of the American tours of Oscar Wilde, Arthur Conan Doyle, and Yeats, spreading the fame of those authors and others throughout the United States. Unauthorized reprinting was, in important respects, an involuntary boon to such writers as Joyce and Pound, in a time when the costs of American printing were prohibitive and the mores of the parlor and the vigilance of vice societies often foreclosed legitimate avenues of publishing. Pound knew the value of dissemination, even though he condemned piracy. His attitude toward Samuel Roth was complex; he publicly denounced the New York publisher’s thefts while reserving a measure of respect for his courage. They were secret sharers.
At the core of the events I relate are three very different figures of high modernism: Pound, Joyce, and Roth. Although I show how dozens of transatlantic writers, from Virginia Woolf to Edgar Wallace, struggled with the American public domain, these three men, with their sharply divergent attitudes toward literary property, most vividly illustrate the scope and intensity of the commons decreed by U.S. copyright law. Roth was a bold pragmatist, the bad boy of magazine publishing who cynically acted within the letter of a discriminatory law and used the public domain to promote his libidinous confections of the avant-garde. He was, in a sense, U.S. copyright law luridly personified, shorn of courtesies and dedicated to a louche, bullying sort of public service. Joyce, in contrast, was the preacher of droit d’auteur, a self-righteous property scold who, even as he launched protests and lawsuits, quietly benefited from the network effects of enhanced fame and expanded markets that lawful piracies created. He was Roth’s inevitable adversary, the avenging fury of authors’ moral and natural entitlements.
Pound was the theorist of modernism’s encounter with copyright and piracy. Unafraid to articulate the contradictions within literary property, he believed in strong authorial rights as long as they did not interfere with free trade in books and ideas. My emphasis on Anglophone modernism is equally a product of the law. From 1909 on, U.S. copyright status extended protection to works published abroad in foreign languages even when they were not reprinted and bound on American soil, but those statutes continued to subject all English-language works to manufacturing requirements that were in some respects even more stringent than formerly. The rise of modernism was coterminous with the U.S. manufacturing clause; transatlantic authors, particularly those who wrote in English, were bound and defined by American copyright protectionism, an inescapable part of the mode of literary production.
“[A]rt is more ancient than copyright laws,” Roth once wrote in defense of his actions. Alongside a desire to cash in on his peculiar blend of modernism and erotica, a part of him believed that art was a gift to the world and that he had a right and a duty to keep that gift in motion, the “constant donation” of which Lewis Hyde has written. If he failed to observe courtesy, or if he bent it to his needs, it was because his temperament and finances prevented him from climbing above his pariah status and joining Alfred Knopf, Bennett Cerf, and other new publishers in their quest for respectability. Courtesy was mostly a game for insiders anyway. Roth preferred the periphery.
This is a book about the periphery, the elusive point at which law and piracy traded places, legitimacy shaded off into lawlessness, courtesy grew discourteous, and gifts to the world were deemed encroachments on authorial entitlement. Amid an abundance of unowned riches, law-abiding reprinters were viewed as international thieves held together by a precarious code of honor, and buccaneers boasted of being Johnny Appleseeds. In some ways, it was a world turned upside down. It was the American public domain.