Sean J Murphy

The copyright act of 1909 governed the protection of “Ulysses” when Sylvia Beach put out the first edition in February 1922. That act stated that if a book in English was not published in America within six months of its appearance abroad, copyright claim was forfeited. “Ulysses,” deemed obscene, could not be put out in America until more than a decade after its original appearance. Therefore, the original text has been in the public domain since September 1922.

In 1934 Random House published “Ulysses” and paid Joyce and, afterward, his estate, royalties. Random enjoyed tacit exclusive rights to this work for this courageous action. What explicit legal rights it held remained unclear. The copyright page for the 1934 Random printing is confusing. It lists several dates, including ones for separate sections of the novel that appeared in Margaret Anderson’s “Little Review,” as well as the date of 1934 for Random House itself.

What, however, does that 1934 copyright by Random cover? It cannot pertain to the text of the original edition, for that had been in the public domain for twelve years. Random’s copyright can apply only to the textual changes (some erroneous) introduced into its edition and to the special matter added when the book appeared in the United States–e. g., James Joyce’s letter to Bennett Cerf in the prefatory material.

No person of probity would wish to deprive Joyce or his heirs of money due. All reputable publishers have followed the law with respect to “Ulysses.” Joyce and his estate have reaped fair benefits from “Ulysses.” Now it is time that “Ulysses,” like “The Waste Land” and “The Beautiful and Damned” and “Babbitt” and all works published in 1922, enter the public domain. Obviously Joyce’s grandson, however rebarbative, must be accorded the privileges allowed by the law, but no reason exists any more for publishers to hold back on putting out editions–scholarly, adaptive, inexpensive, or illustrated–of Joyce’s twentieth century masterwork.

To the extent that the Joyce estate’s actions depend upon definding the copyright of “Ulysses,” it has no solid ground whatever to stand on.

Fair use has never been held to be a constitutional right; because it has always existed as a matter of statutory or common law, the question whether it is required by the Constitution has never come up. If Congress were to amend the statute tomorrow to abolish fair use, one can imagine that many (including probably the host of this blog) would argue that without fair use the Copyright Act did violate the First Amendment right to free speech. They would probably have a strong argument, but not a self-evident one, as copyright protects only certain fixed expressions, not ideas.

answer:
My understanding is a ‘fair use defense’ is a trademark term, not a copyright term, and that ‘fair use’ as applied to copyright is a 100% constitutional right, an element of free speech.

Without copyright ‘fair use’ eventually nothing could be written. every snippet of thought would be digitized in to phrases and speech would grind to gridlocked stop. We all can feel the gridlock’s building pressure as text and media continues to shift to the digital realm at creation.

Shloss dissents openly from Joyce’s view on the legitimacy of academic and archival self help while Joyce dissents tacitly from Shloss’s views on suppresion of the influence of hebephrenic balletics on the paternal literature, citing both the existence of altenative methodologies for flaying felines and the dissheveled plumage of certain migratory Columbidae upon return to their habitation in the territory sobrinamed auric.

I’ve just written about it here: James Joyce, the Dog in the Manger, and Lawrence Lessig.