Copyright Without Law?

Copyright Without Law?

A legal quirk enabled Samuel Roth to pirate Ulysses. Was Roth a copyright anarchist or a pioneer?


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. In his new scholarly book Without Copyrights, the legal and literary historian Robert Spoo tells the remarkable tale, which Spoo doesn’t necessarily deem a pretty one. Spoo rather sympathizes, in fact, with the character many observers would consider the villain.

That would be Samuel Roth, a fan, in equal measure, of soft porn and of Joyce, T.S. Eliot, Ezra Pound and other high-modernist writers of the early twentieth century. Roth published a series of mildly smutty magazines—mild by today’s standards, at any rate, though they landed him in jail in his own day—and was always on the hunt for material that he could reprint without having to pay for it. He trolled through records in the US Copyright Office in search of copyrights that hadn’t been renewed, and he leafed through literary journals in search of copyright notices that had been printed sloppily or not at all—in those days, grounds for a loss of copyright protection. On the rare occasions when Roth did pay authors, he tended to pay after the fact of printing, and usually only after considerable hounding. But Spoo believes nonetheless that Roth was in earnest—or, at least, “not wholly insincere”—when he claimed that he republished modernist prose and poetry because he was an admirer and wanted to make the work available to Americans of modest means. Spoo admits to falling under the spell, to some extent, of “the romance of dissemination,” as he puts it, and writes that he feels some affection for Roth, whom he describes as “U.S. copyright law luridly personified, shorn of courtesies and dedicated to a louche, bullying sort of public service.”

Joyce, in contrast, appears to Spoo as “the preacher of droit d’auteur,” guilty of taking a somewhat moralistic advantage of the legend of his genius. Joyce’s good-versus-evil rhetoric leaves Spoo a little uncomfortable. The third character in Spoo’s tale is Pound, who combined aspects of both preacher and rascal and is cast by Spoo as “the theorist” on account of his proposals to remake the law of copyright from scratch. Although Pound came to dislike Roth as a person, he refused to consign him to a circle of hell deep enough for Joyce’s satisfaction. Still, it wouldn’t quite be accurate to say that Pound occupied the middle ground; his opinions on copyright, as on many things, were too idiosyncratic to have much effect on business practices or on mainstream legal debate.

* * *

In American publishing, the heyday of order without law came in the nineteenth century, when the practice was known as “the courtesy of the trade.” The system had antecedents in seventeenth-century England, and it has been described before, including by Adrian Johns, whose view of it in Piracy (2009), an excellent history of intellectual property law, is a little more cynical than Spoo’s.

Until late in the nineteenth century, no work published abroad could receive a copyright in the United States. American publishers who wanted to reprint foreign books risked going broke through their efforts to undersell one another, so they came up with a system: the first publisher to announce an American printing of a foreign book had dibs, and sometimes strengthened his claim by buying advance sheets from the original foreign publisher—which helped him get a jump on any rivals who might not abide by the understanding. According to what was known as “the rule of association,” an author’s later books belonged to the American firm that had published the first one, a restraint that was sometimes applied to American authors as well as foreign ones. Infractions were punished by private remonstrance; public shaming; appeals to consumers, booksellers and other publishers to ostracize the offender; and retaliatory underselling.

The publisher Henry Holt was to boast that between 1850 and 1876 the courtesy of the trade “not only prevented ruinous competition between American publishers, but also secured to foreign authors most of their rights.” Payments to authors were sometimes “handsome, even extraordinary,” Spoo writes, and he hails the “exuberant scramble to exploit a large and utterly free resource,” which he sees as “a necessary condition of American literary culture” at a time when the country imported far more literary works than it exported.

There are hints, however, that courtesy didn’t quite constitute an intellectual property utopia. For one thing, there’s a chicken-and-egg problem to be reckoned with in the relationship between America’s disrespect for foreign copyrights and its literary balance of trade. As early as the 1840s, some American authors were insisting that the country needed to stem the flood of royalty-free British books if it ever hoped to develop a literature of its own, a campaign chronicled in Perry Miller’s 1956 literary history The Raven and the Whale. Spoo reports that in 1857 the American historian William Prescott complained, “Who will give two dollars a volume for Prescott, when one can buy Macaulay for seventy-five cents?”

Spoo acknowledges, moreover, that despite the occasional handsome payment, “authors were harmed financially by the courtesy cartel,” which undermined their bargaining power by making it difficult to switch publishers. In most cases, American publishers seem to have thought of payments to foreign authors as favors rather than obligations, to be conferred when a book sold particularly well and a publisher felt especially grateful. Spoo describes the payments with words like “solatium,” “honoraria” and “gratuities.” It seems likely to me that a legal requirement to pay would have pried a bit more from publishers’ wallets.

When the end of courtesy came in the 1870s and ’80s, the cheap reprinters who undermined it argued that the system had never paid authors all that much and accused it of being a trust that operated merely in the publishers’ own interest. Spoo concedes that after the Sherman Antitrust Act was passed in 1890, courtesy probably wouldn’t have fared well in the courts. It looked too much like price fixing.

Fortunately, in 1891, the Chace Act granted American copyright protection for the first time to works published abroad, and a new day seemed about to dawn. It looked as if American authors were at last going to have a level playing field, and foreign authors a greater likelihood of fair payment. But there was a catch. The Chace Act had a manufacturing clause: an American copyright was granted only if, on or before the date of a book’s foreign publication, the American publisher deposited in the US Copyright Office two copies of an edition printed from type that had been set in America or from plates that had been made in America. In the age before aviation, let alone the Internet, transatlantic coordination of this kind was hard to pull off, and even after a 1909 act added a grace period, the clause threw many new books into the public domain. And so well into the twentieth century, the courtesy of the trade continued to have a role to play, though it shed some of what Spoo describes as the “clubby self-congratulation and moral peacocking” that had invested it in the nineteenth century.

* * *

Because American publishers tended to hesitate before the risks of poor sales and obscenity charges, books with an experimental style or risqué content regularly fell victim to the manufacturing clause. Self-consciously avant-garde, Pound hated the clause and in 1918 proposed a blue-sky reform: upon publication, copyright should be automatic, universal and perpetual. Lest this strong protection keep any book out of circulation, Pound further proposed that for a set royalty, anyone should be able to reprint a book by a dead author or create a mass-market edition of a book that had already sold 100,000 copies. Pound’s aim seems to have been to put books in print and keep them there; Spoo notes that the scheme “effectively canceled a critical prerogative of modern authorship: the power to say no.” A couple of weeks after his proposal was published, Pound suggested a refinement in a private letter: the works of dead authors had an unfair head start in the literary marketplace, and he felt they should be taxed, with the revenue spent on works by the living. The ideas were well grounded in legal and philosophical tradition, Spoo observes, but in terms of practical viability they were hopeless causes. Their only effect on Joyce’s case seems to have been that they rendered Pound, a key ally of his, a bit impulsive in his interventions.

In American copyright law as it actually existed, Joyce lost control over Ulysses almost as soon as he released it. The New York–based Little Review began publishing excerpts of the novel in 1918. In those days, courts were sometimes willing to believe that a periodical held in trust, under its own copyright, the copyrights of its contributors, thereby sheltering them from the manufacturing clause. But there were complications in the case of Ulysses. First, the editors of The Little Review didn’t believe they were holding Joyce’s copyright in trust; they believed they had taken possession of it, to Joyce’s rage and dismay. Second, though The Little Review published twenty-three excerpts from Ulysses, its editors deposited only four with the US Copyright Office, probably because in 1919 and 1920 the post office suppressed the journal as obscene. In 1921, in fact, the journal’s two editors were fined $50 each for having published the Ulysses episode in which Leopold Bloom masturbates while admiring from afar a young woman on a beach.

The publisher Benjamin W. Huebsch advised Joyce in 1920 to prepare an expurgated version of Ulysses for the American market. No reputable American publisher would dare to print an intact version, Huebsch warned, and if Joyce failed to secure his copyright in America, pirates there would publish an expurgated version anyway. Joyce refused. On February 2, 1922, Joyce’s fortieth birthday, the bookseller Sylvia Beach published the novel in Paris, and two months later it fell into the American public domain.

Samuel Roth, among the first pirates to notice the prize, seems to have been drawn to his victim by affinity, and his first approach was burdened by a wish for Joyce’s approval and maybe even affection. His early interactions with the Joyce camp were, on both sides, ambiguous. Shortly after the editors of The Little Review were fined for publishing Joyce’s novel, Roth wrote to Pound offering to print in a new quarterly of his own the chapters that The Little Review hadn’t gotten to. It was Pound who had arranged for the novel’s serialization in The Little Review in the first place. “As I consider the law under which Ulysses was suppressed, an outrage, the people who tolerate such a law little better than apes, I approved the suggestion,” Pound later admitted. In June 1922, Roth asked Beach for permission to print Ulysses in a single issue. The offer was declined. Roth subsequently offered $250; this, too, was declined. “The wonder,” Spoo writes, “is that Roth sought permission at all.” Thanks to the manufacturing clause, he could have reprinted the book with legal impunity as early as April.

Three years later, in 1925, when Roth finally got around to printing his quarterly, he was less careful about niceties. In the first two issues, he reprinted without permission previously published excerpts from Joyce’s “Work in Progress,” the novel later known as Finnegans Wake. He sent Beach a check for $100 afterward, however. In her thank-you note, she asked how much he would be willing to pay for a brand-new excerpt rather than just a reprint of one whose copyright had been forfeited. Roth bid $300. In March 1926, he sent another check for $100, to pay for reprints of two more previously published excerpts.

That was as far as polite negotiations went, perhaps because Roth and Pound turned on each other. Pound had been advertised on the cover of Roth’s quarterly as a contributing editor, but in November 1925 he asked for his name to be removed; and in February 1926, after discovering that Roth had reprinted a poem of his without permission, Pound referred to him as “that son of a jew bitch Roth,” and Roth, in turn, called Pound “one masturbated pimp.” By the summer of 1926, Beach had decided that Roth’s quarterly wasn’t “suitable.” Roth replaced his quarterly with a monthly and proceeded to reprint without permission twelve installments of Ulysses—in total, about twenty-five more pages than The Little Review had managed to do before the vice squad shut it down.

* * *

Joyce was furious, and he retaliated with a campaign that targeted Roth, in Spoo’s words, as “a pirate, a scofflaw, and, worst of all, a sinner against genius.” Beach and Pound sent out denunciations, discouraging magazines and newspapers from running ads for Roth’s monthly, and discouraging booksellers from stocking his publications. “If Roth is not a swindler,” contributed Carl Sandburg, “at least he operates by a dirty code.”

In Paris in the fall of 1926, Beach met with a lawyer who advised suing Roth for $500,000. In January 1927, however, another lawyer, alerted to the case by one of the Little Review editors who thought she owned the copyright to Ulysses, received from Roth a check for $100 and promissory notes for another $900, payable to Joyce on the condition that he agree to the fiction that Roth’s reprints had been authorized. As ever when his integrity was at stake, Joyce refused. A protest against Roth, signed by 160 writers, was published a few weeks later, on Joyce’s birthday in 1927. Pound didn’t sign, saying that he faulted American copyright law rather than Roth, who seemed to him guilty of no more than a “peccadillo.”

Spoo is critical of Joyce’s decision. He hints that the writer’s motives were pecuniary: “keeping the dispute before the public was worth much more to Joyce than settling.” He also suggests that Joyce was exploiting the controversy to win a publicity advantage. “Roth was Joyce’s front man in America whom Joyce had the luxury of continually repudiating,” Spoo writes. He even credits Joyce with a masterly piece of jujitsu. According to Spoo, the campaign “transformed Joyce from victimizer into victim,” and caused Ulysses to seem “more sinned against than sinning, less a corrupter of morals than a scene of trespass.”

The aspersions seem to me a bit unfair. Joyce wanted to be paid for the novel he had written, and Roth was the most irritating kind of enemy—one who had initially presented himself as a friend. Joyce thought Roth’s piracy had cost him $500,000 in American sales, no doubt a wild overestimation, but still, the law had failed Joyce. Why shouldn’t he have appealed to the literary community? Why should he have accepted a late and measly $1,000 in lieu of the pleasure of punishing his enemy? Writers aren’t obliged to be forgiving or economically prudent. It seems to me, too, that Spoo has overestimated the canniness that Joyce or, for that matter, any author is likely to be capable of in the field of public relations. It may have turned out that the campaign against Roth benefited Joyce’s reputation, but it wouldn’t have been obvious to Joyce or anyone else in January 1927 that Joyce was going to prevail, let alone that the fight was going to remove a sexual stigma from Ulysses—if, in fact, it was the fight against Roth that effected the latter result.

Whatever my reservations about Spoo’s assessment of Joyce’s motives, his account of the case of Joyce v. Roth is careful and definitive. The premise of the suit was tricksy. Joyce didn’t sue for copyright infringement. Instead, he sued for unauthorized use of his name in trade, taking advantage of a privacy law that the New York State Legislature had passed in 1903, after a young woman’s image had been used against her will in ads for a brand of flour. Joyce didn’t win on the merits; he probably couldn’t have. The statute itself exempted an author’s name from privacy protection when published in connection with his work, and a 1910 court ruling had clarified that the law couldn’t protect an author’s name even when the work was out of copyright and was being printed without the author’s approval. Joyce won—to the extent that he did—because in 1928 Roth found himself in jail for possession of obscene materials. Roth was cornered. Joyce gave up his claim of damages, and in a consent decree Roth promised never again to use Joyce’s name in connection with a reprint of any of his works.

Joyce heralded the decree as a vindication of his rights as an author, an interpretation that Spoo notes is not quite accurate. In 1929, Roth went on to print a look-alike of the 1922 Paris edition of Ulysses, and despite the consent decree Joyce took no legal steps to punish him. Still, the spectacle of Roth’s shaming served to protect Ulysses a few years later, when Bennett Cerf of Random House issued an authorized American edition of the book after having engineered a way to clear it from the suspicion of obscenity. “By 1934,” Spoo writes, “no one wanted to look like Samuel Roth.” Thanks to the example that Joyce had made of Roth—and thanks to a low price tag—the Random House edition had no pirate rivals in America for decades. When a paperback knockoff did surface in California in the 1960s, it was on newsprint and cost $2.05 more than Random House’s version; forty-three pages of naughty ads in the back seem to have constituted the selling point, and the edition was safely ignored. In 1996, after the United States signed an international agreement that retroactively annulled the manufacturing clause, Ulysses briefly regained its legal copyright. Two years later, the copyright quietly expired of old age, a little more than seventy-five years after the novel’s 1922 publication.

Holt once called the courtesy of the trade “a brief realization of the ideals of philosophical anarchism.” It’s good to know that such a thing is possible, and it would be tempting to romanticize it. But it’s telling that Spoo turns squeamish when he looks closely at Joyce’s invocation of the courtesy tradition in the twentieth century. I see what turns Spoo’s stomach: there’s a soupçon of witch hunt in the cries of indignation against Roth, and it’s ironic—if not worse—that as a legal matter Joyce triumphed over Roth thanks to the obscenity law that was Joyce’s own bane. Maybe the head-in-the-clouds Pound had the right idea after all. Changing mores had outpaced the obscenity and copyright laws on the books, and it was understandable that Joyce appealed to his community for a protection he couldn’t find elsewhere. But the danger of such an appeal is that it may establish no more than a congeries of interests. There is no substitute for reforming the laws.

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