Shloss settles with Joyce Estate

Carol Loeb Shloss, an acting professor of English at Stanford, has won the right to publish her scholarship on the literary work of James Joyce online and in print based on a settlement agreement with the Joyce Estate.

Stanford Law School's Fair Use Project and Cyberlaw Clinic filed a lawsuit on behalf of Shloss in June 2006 asking a federal court to find that she has the right to use quotations from published and unpublished material relating to James and Lucia Joyce on a scholarly website. The case, Shloss v. Estate of James Joyce, was filed in the U.S. District Court in San Jose.

Relying on many primary sources, Shloss's work focuses on the life of Lucia Joyce: her unacknowledged artistic talent, her tragic life spent mostly in mental institutions, and the unrecognized influence she exerted over her father's work. Upon learning of Shloss's scholarship, the Joyce Estate—controlled by Joyce's grandson Stephen James Joyce—denied her permission to quote from any of the materials controlled by the estate and repeatedly threatened Shloss with a copyright infringement suit.

This week, Stephen James Joyce and the Joyce Estate entered into a settlement agreement enforceable by the court that lets Shloss publish this material electronically and also publish a printed supplement to her book Lucia Joyce: To Dance in the Wake.

"The Joyce Estate has been extremely aggressive in enforcing copyrights and has threatened scholars with lawsuits even though their work qualifies under the 'fair use' doctrine of copyright law," said Anthony Falzone, executive director of the Fair Use Project, who led the litigation team. "Our client got exactly what she asked for in her complaint, and more."

"I am extraordinarily happy that Stanford's Fair Use Project has enabled an academic to do her work," said Lawrence Lessig, the C. Wendell and Edith M. Carlsmith Professor of Law and director of the Law School's Center for Internet and Society. "But this is just the first of a series of cases that will be necessary to establish the reality of creative freedom that the 'fair use' doctrine is intended to protect in theory. We will continue to defend academics threatened by overly aggressive copyright holders, as well as other creators for whom the intended protections of 'fair use' do not work in practice. I am hopeful that this is the last time this defendant will be involved in an action like this. But it is only the first time that we will be defending academics in these contexts."

In 2003, prior to publishing Lucia Joyce: To Dance in the Wake, which is about the influence of James Joyce's daughter on Finnegans Wake, Shloss deleted substantial evidentiary portions of the manuscript to avoid the threat of copyright litigation from the estate. In 2005, Shloss created a supplemental website containing the supporting material that was cut from her book but did not make the website publicly available. In a series of letters to Shloss, the Joyce Estate threatened legal action if the website were to be made available to the public. In 2006, Shloss decided to sue, asserting that the website uses the work in a scholarly transformative manner—a manner allowed under U.S. copyright law.

"The work of literary scholars is inherently transformative," Shloss said. "We take the writing of someone whose work we love and share it with others. We keep our human inheritance alive by making it part of a dialogue with our peers, our friends, our students and the generations that follow us. When that dialogue is interrupted, when we are squeezed between the aggression of literary estates and the apprehensions of publishers, something very important is lost. I fought not just for Lucia and Joyce, whose words had to be taken out of my book, but for the freedom to consider what happened to them and for the freedom of others to respond to my ideas. 'Fair use' exists to foster this liveliness of mind; its measure is in transformation not in a restrictive counting of words. Everyone who worked on this case understood that something far more important than my particular book was at stake in the fight. It was an honor to work with them."

David Olson, a resident fellow at the Center for Internet and Society who worked on the case, said: "I think we succeeded in showing the Joyce community and other scholars that they have rights and the opportunity to push back against overly aggressive copyright enforcement."

Along with Lessig, Falzone and Olson, several lawyers played a key role in the case and provided pro bono services: Mark Lemley, Stanford Law professor and of counsel at Keker & Van Nest, and Robert Spoo and Bernie Burk and their colleagues at Howard Rice Nemerovski Canady Falk & Rabkin.

Carol Shloss is expected to make her website live in the coming days at http://www.lucia-the-authors-cut.info.