Carol Shloss, an English professor at Stanford University, can finally breathe a sigh of relief after two decades of threats by the estate of James Joyce, the Irish author of Finnegans Wake, published in 1939 and protected under the European Union’s copyright extension. In 1988, when she first travelled to Paris to do preliminary research for her 2003 biography, Lycia Joyce: To Dance in the Wake, the executor of the author’s estate, Stephen James Joyce, warned her of his determination to protect the copyright of his grandfather’s works. Shloss saw Lycia, Joyce’s daughter, as his muse for Finnegans Wake, but the family had long tried to keep Lycia’s existence hidden; she was schizophrenic and they were embarrassed of her life in and out of mental institutions. Shloss, however, was undeterred.
Over the next several years, Stephen Joyce made attempts to damage Shloss’s relationship with her employer, interfere with her research, and ultimately stop publication of her book, according to the Stanford article below. In 2002, when the book was headed for publication, the estate pressured Shloss’s publishers to delete copyrighted material taken from the estate or face suit. The publisher complied without a fight, but the repercussions were harsh: critics claimed that Shloss’s work lacked the literary evidence to support her argument.
Shloss responded to their attacks by creating a website that juxtaposed the actual pages of the book with all the information that she was made to take out. She called her site “a vindication” and believed it was protected under fair use. Thus, in 2006, after receiving threatening letters regarding the site from the Joyce estate, she filed a suit for declaratory relief .
Stephen James Joyce is a prime example of an extremely aggressive copyright holder, one who seems to be particularly egregious in his understanding of fair use. According to the Stanford University News, Joyce has stopped countless public readings and impeded multiple scholars in their research. Joyce told one performer who was preparing to dictate a portion of Finnegans Wake onstage that he had infringed his copyright just by memorizing a small fraction of the work. Schloss recalls another academic figure who was paranoid about accidentally slipping a few of Joyce’s words into a recorded presentation. Given Joyce’s reputation, these individuals would not dare to even ask for permission to use material from the estate, knowing they would be denied clearance before even approaching Joyce.
Despite this history, the estate settled with Shloss in 2007, allowing her to keep the online supplement as well as print an addition to the book with the previously omitted material. In this most recent development, the Ninth District Court of Appeals mandated that the Joyce estate pay the $240,000 that Shloss owes to her attorneys, who include counsel from Stanford’s Fair Use Project and Larry Lessig.
Though the outcome of this case is certainly a victory for fair use in educational contexts, the fact that Shloss had to withstand Joyce’s threats for twenty years and eventually risk a six-figure sum and her professional reputation by taking him to court illustrates the disparity of the fair use doctrine in theory and practice. She speaks of living a “double life” in which the potential legal actions by Joyce were always on her mind while she pursued various scholarly endeavors. How is an academic writer to employ the breadth of one’s creativity with such substantial worries bogging one down?
As Michael Carroll’s “Fixing Fair Use” explains, neither Joyce nor Shloss could be entirely certain who had the law on their side. Though the book’s and website’s educational purpose provides the refuge of the “nature and purpose of use” factor, the book also had the potential to make profit, as evidenced by the many mainstream publications, including The New York Times, which published a review. Joyce may have felt that he would prevail under the harm to the market factor. Moreover, while the work of literary scholars is inherently transformative, as Shloss contended throughout the battle, the fair use doctrine does not include transformative use in its four-part test.
Awarding a scholar his or her attorneys’ fees may encourage other scholars to advocate for their creative rights when confronted with threats from copyright holders, as now the legal system may seem financially most accessible to them. However, this hardly seems like anything more than a minor victory, since this case only demonstrates how the language of the fair use doctrine allows the possibility for illegitimate applications for copyright to burden an individual for much of their career as a scholar.
See the article and also a YouTube video of Carol Shloss here:
Stanford Scholar Gets Six-Figure Settlement from James Joyce Estate
Some Rights Reserved
I know that this comment lacks any scholarly merit, but Shloss’s story is an incredibly intriguing one. I really enjoyed your post!
Yes, great post. Thanks.
You bring up the ‘harm to the market factor’ as a potential defense for Stephen James Joyce to argue that this work would not be considered fair use. However, it seems like with the parody of Gone with the Wind, The Wind Done Gone, mentioned in Carrol’s article, that this book is dependent on the reader’s awareness of Finnegan’s Wake and thus would not hurt the market for the original work.
I agree with you that there needs to be protection against the attitude that Stephen James Joyce exemplifies. How can there be fair use if there are copyright holders with both the means and determination to litigate every use of a copyrighted work and who threaten creators with the cost of litigation to stop all use, fair or not. It seems that the copyright system is guilty until proven innocent and must be fixed or at the very least clarified.