Copyright protectionism and its discontents: the case of James Joyce's Ulysses in America.

• Author: Spoo, Robert

In 1927, the expatriate American poet, Ezra Pound, then living in Italy, dispatched to the editor of The Nation a characteristically pugnacious letter containing what must have seemed an unusual declaration:

For next President I want no man who is not lucidly and clearly and with no trace or shadow of ambiguity against the following abuses: (1) Bureaucratic encroachment on the individual, as [in] the asinine Eighteenth Amendment, passport and visa stupidities, arbitrary injustice from customs officials; (2) Article 211 of the Penal Code, and all such muddle-headedness in any laws whatsoever; (3) the thieving copyright law.(1) Three years later, in an article in The Hound & Horn, Pound returned to this list of "abuses," now describing them as "[c]ertain specific laws and regulations [that] are contrary to the welfare of letters in America in 1930" and placing special emphasis on "our copyright law, originally designed to favour the printing trade at the expense of the mental life of the country."(2) During the 1920s and 1930s, Pound routinely expressed his exasperation, as an American author living abroad, with the trinity of legal forces that he believed was crippling the progress of literature and enlightenment in the United States: obscenity statutes, the discretionary powers of customs and postal officials, and the copyright law.(3)

Pound perceived clearly that literary modernism, if it was to thrive in the international context, required the freedom to cross borders. Quite simply, manuscripts and books by foreign-domiciled authors had to pass through customs and the mails before they could come to rest in the hands of American publishers, printers, and readers. Less literally, modernist border-crossing involved the transgressing of moral and ideological boundaries: Authors like Radclyffe Hall, D.H. Lawrence, and James Joyce sought to disturb social, sexual, and aesthetic complacencies.(4) Yet such transgressions could scarcely occur in the absence of the first kind of border-crossing. The artistic and ideological ambitions of authors were dependent upon the sociomaterial means of producing and disseminating texts. Transformation could not take place without transmission.

These prerequisites of the modernist project met their greatest challenge during the first half of the twentieth century, in the American legal forces that Ezra Pound so colorfully identified. While obscenity statutes sought to neutralize the transgressive power of modernist works, those same statutes--in concert with the discretionary acts of customs officials and a copyright law that required works seeking protection to be printed and manufactured in the United States--prevented many foreign-produced works in English from crossing American borders and taking their place in the cultural scene. When controversial books did manage to reach readers in the United States, they often did so through underground channels of piracy, or "booklegging,"(5) a practice that deprived authors of both financial rewards and the power to control the quality and dissemination of texts.

This Note traces the history of the American copyright in James Joyce's Ulysses and argues that Pound's trio of legal "abuses" combined to destroy Joyce's chance of securing such a copyright within months of the book's initial publication in France in 1922. The choice of Ulysses to illustrate a problem that confronted many foreign-domiciled writers has several advantages. First, as a consequence of its early notoriety and subsequent fame, Ulysses has attained a nearly iconic status in modern culture(6) that gives its less familiar identity as intellectual property an intrinsic interest. Second, the case of Ulysses provides unusually detailed insight into the protectionist features of our copyright law in the years before the advent of more cosmopolitan legislation regarding literary property. Finally, the failure of American copyright law to protect Ulysses at the outset engendered a complicated history that has rendered the work's present copyright status an enigma and a source of controversy. Since it is often claimed that Ulysses is protected by copyright in the United States, and since these claims have a chilling effect on the activities of present-day publishers, scholars, and readers,(7) a clarification of the copyright status of Ulysses in America is badly needed. Now that Congress has passed legislation to extend existing copyright terms by twenty years,(8) it is particularly important to determine whether the American copyright in Ulysses is fact or fiction.

One purpose of this Note, then, is to illustrate how vulnerable foreign-domiciled authors were to the parochial policies of the earlier American copyright law, particularly when copyright protection was sought for works deemed obscene. A second purpose is the more pragmatic one of arguing that, because Ulysses has never, or almost never, enjoyed genuine copyright protection in the United States--despite claims to the contrary--this epoch-making work should now be recognized for what in legal reality it is: one of the great treasures of the public domain.

The equities that once favored James Joyce and his heirs now favor the public domain.(9) Whereas the illusion of American copyright once helped to compensate Joyce for the privations he had suffered at the hands of protectionism and piracy, today that illusion serves only to sustain an extralegal monopoly that controls the availability of Ulysses and dictates the forms in which it may appear. Against the backdrop of international modernism and American publishing during the first half of the twentieth century, this Note examines a celebrated yet representative instance of the tension between literary monopoly and the public domain.

Part I of this Note adumbrates historical contexts for thinking about Ulysses as literature and as literary property. Part II sets forth the relevant portions of the 1909 Copyright Act--specifically, the manufacturing and ad interim provisions--and shows that, because it failed to satisfy these stringent requirements, Ulysses was injected into the public domain in America shortly after its publication in France. Part III discusses the phenomenon of trade courtesy that has endowed Ulysses with a kind of de facto "copyright" since its legalized publication in America in 1934. Part IV questions the wisdom of continuing to credit this courtesy copyright now that Congress has passed legislation to extend existing copyright terms. Finally, Part V concludes that the cultural benefits of a public-domain Ulysses far outweigh any private interests in maintaining the illusion of a Ulysses protected by copyright in the United States.

1. ULYSSES AS LITERATURE AND AS LITERARY PROPERTY

   1. Serial Publication in the United States: The Little Review

      The Dublin-born James Joyce first conceived Ulysses as a short story while residing in Rome in 1906,(10) but he did not begin serious composition for nearly a decade, by which time the work had grown in conception from a short story to a novel-length book. By late 1917, Joyce had completed the first three episodes (or chapters).(11) He mailed typescripts of these portions to the editors of a New York literary magazine, The Little Review, who, with Ezra Pound's encouragement, had agreed to print episodes of the novel-in-progress as Joyce produced them.(12) When installments began to appear in The Little Review in March 1918,(13) Ulysses was launched on its American copyright adventure.

      The present copyright law grants protection to a work from the moment the work is created.(14) Under the 1909 Copyright Act,(15) however, a work did not acquire protection until it had been published with a notice of copyright affixed to each copy.(16) While publication with notice was sufficient to secure copyright,(17) the 1909 Act also required that copies of the work be deposited in the United States Copyright Office and that a claim of copyright be registered there.(18) While issues of The Little Review containing installments of Ulysses were published regularly, each beating a notice of copyright in the name of Margaret C. Anderson (the magazine's founder and coeditor), it is not certain that Anderson consistently complied with the deposit and registration requirements. The Copyright Office contains a record of registration for only the first four of twenty-three issues that serialized Ulysses.(19) Although failure to deposit and register the remaining issues would not have destroyed the copyrights in those issues,(20) it might well have impaired their enforceability.(21) Anderson's seeming carelessness is therefore puzzling.

      The anomaly may be explained by events that overtook The Little Review soon after Ulysses began to appear in its pages. Between January 1919 and January 1920, Post Office authorities suppressed three different issues, each containing a portion of Joyce's novel, by revoking the magazine's second-class postage privileges.(22) An issue of The Little Review had been declared nonmailable once before, in October 1917, when the Postmaster of the City of New York decided that a short story by the modernist author Wyndham Lewis was "obscene, lewd, or lascivious" within the meaning of the Federal Criminal Code.(23) The absence of copyright registration records for issues of The Little Review after the middle of 1918 may be the direct result of the Post Office's obscenity suppressions. Nonmailable issues could not readily have been deposited in the Copyright Office, of course. Once the magazine had acquired the stigma of obscenity, moreover, the Register of Copyrights had a ground for refusing to register claims of copyright in its issues.(24)

      Matters soon grew worse for The Little Review and for Joyce. In the autumn of 1920, the Secretary of the New York Society for the Suppression of Vice filed an official complaint against the magazine's two editors for publishing the July-August issue, which...