Re: Ulysses Copyright

Dear List Members:

     I want to thank Stephen Fishman, Peter B. Hirtle, and Joelle Savean for their good questions and reactions regarding my Note on the Ulysses copyright in the U.S. Let me see if I can respond to some of their points.

     It's true, as Stephen points out, that Ulysses was first published in 1922. Thus, on the 75-year calculus, the work would have entered the public domain at the end of 1997 (thus just missing being "rescued" from the pd by the Bono Act). But Ulysses was first published in France in 1922, not the States. That meant that Joyce had to comply with the onerous manufacturing requirements in order to secure a U.S. copyright. Since the work, or a portion of it, had been declared obscene by a New York state court, Joyce despaired of getting the requisite copy deposited etc. under the ad interim and manufacturing provisions. So my argument is, in essense, that Ulysses entered the public domain on April 2, 1922, two months after its French publication date.

     The controversy right now is that Random House and the Joyce Estate have been claiming that the U.S. copyright didn't start up until 1934, after the obscemity ban on Ulysses was finally lifted. Their claims have had the effect of halting various scholarly and publishing projects that had been undertaken on the assumption of public domain status. My sense is that, because the 1909 Act requirements have receded into the haze of copyright history, and because no one has come forward with a fully developed legal/factual argument to show how Ulysses was affected by that Act, the Estate's claims have gone unchallenged, faute de mieux.

     From a more scholarly perspective, one of the things I had hoped to do with this piece was to put together a detailed narrative of the misfortunes of a foreign-produced work under our protectionist 1909 Act. Anyone who has researched this area knows that there is remarkably little case law on ad interim and manufacturing clause casualties; we don't have many documented "stories" about the way the manufacturing clause impacted on foreign authors. On a practical plane, to the extent that other works, published post-1923, may have suffered similar fates, the Note offers some advice for arguing the public-domain case for such works. (Heaven knows, with 20-year extensions coming in cycles, we need to find ways of expanding the public domain "from within," as it were.)

     Inicidentally, the Note also goes into certain twists and turns regarding the URAA restoration provisions and the Bono Act.

     Peter and Stephen ask about the copyright effect of revisions made to later editions of Ulysses. First of all, it's the 1922 edition that most scholars and publishers want to work with. The textual controversies surrounding the Random Houses editions of 1934, 1961, and 1986 (mostly having to do with textual inaccuracies or questionable editorial practices) have rendered those editions of little interest to most text-editing scholars. So these scholars would rather build up their own editions from the historical 1922 text anyway. As for the status of the editions carrying revisions, my reading of the case law suggests that copyright would attach only to such substantive ("original expression") revisions as were included, and that the rest of the text--and that means 99% plus--would be pd.

     I take Peter's point that my rather sweeping statement about Internet access would be problematic even if the 1922 text is in the American pd, because the 1922 text will remain in copyright within the European Union until the end of 2011, as per the EU Directive of a couple of years ago. And cyberspace doesn't stop ar borders. I guess I had in mind the differential between that 2011 date and 2032, which is when the American copyright would expire if the Joyce Estate were right about a 1934 start-up date. Looking into the future, that would keep Ulysses out of cyberspace for a very long time. (In fact, the text is on at least one Canadian website now anyway.)

     And finally, Joelle asked if my Note is available online. I haven't checked, but it should be on Westlaw by now.

     Many thanks for your kind and thoughful responses,

Bob Spoo
<robert.spoo[_at_]yale.edu> Received on Thu Jan 28 1999 - 22:28:53 GMT