September 28, 2009
Stanford researcher gets six-figure settlement from James Joyce Estate
The Stanford scholar who wrote a controversial biography of James Joyce's daughter has settled her claims for attorneys' fees against the Joyce Estate for $240,000. The settlement successfully ends a tangled saga that has continued for two decades.
As a result of an earlier settlement reached in 2007, consulting English Professor Carol Loeb Shloss already had achieved the right to domestic online publication of the supportive scholarship the Joyce Estate had forced her to remove from Lucia Joyce: To Dance in the Wake (2003). She also had achieved the right to republish the book in the United States with the expurgated material restored. After that settlement was reached, Shloss asked the court to award the attorneys' fees and costs she had incurred in bringing her suit, and the court granted that request. The parties eventually settled the amount of the fees and litigation costs Shloss and her counsel were to receive at $240,000.
Shloss' suit was championed by the Stanford Law School Center for Internet and Society's Fair Use Project, with the assistance of attorneys from Howard Rice Nemerovski Canady Falk & Rabkin and Keker & Van Nest of San Francisco, and Doerner, Saunders, Daniel & Anderson of Tulsa, Okla.
The estate of the celebrated Irish author of Ulysses and Finnegans Wake, under the guidance of Joyce's grandson, Stephen James Joyce, had become notorious in scholarly circles for its conflicts with scholars, authors and Joyce enthusiasts. The estate's history of suits and threats of suit has been the subject of many articles.
Stephen Joyce has stopped countless public readings of his grandfather's works and discouraged a generation of research. At one point, he told a prominent Joyce scholar that he was no longer giving permission to quote from any of Joyce's work. He told one performer, who had simply memorized a portion of Finnegans Wake for an onstage presentation, that he had probably "already infringed" on the estate's copyright, according to a 2006 New Yorker story. (The performer later discovered that Joyce did not have the right to block his performance.) Shloss herself recalls a conference where a scholar had Joyce's words projected on a screen rather than risk pronouncing the words in a recorded session.
"It's a breakthrough, not just for me but for everybody who has to deal with a literary estate," said Shloss. "This has been going on for decades. Scholars are not wealthy people. We don't have easy access to the legal system to determine and vindicate our rights if someone threatens us with a lawsuit. You just have to give in.
"When the Stanford Law School took this on, Larry Lessig [now at Harvard University] said, 'That's disgusting,' and the tables turned. Suddenly scholars had some legal support for an issue that had been stifling our lives for decades."
Shloss said that the suit is a game-changer because now literary "estates know they can get hurt."
"They know that scholars have resources now. They just can't be bullies," she said. "We've established that if you don't pay attention to the rights of scholars, authors and researchers the copyright laws protect, you might have to pay something as the Joyce Estate has had to pay."
In a tartly worded Feb. 24 filing to determine attorneys' fees and costs, Shloss and her legal team argued that "the cost of litigating this case, which was substantial, was a direct result of the Estate's assiduous and energetic efforts to prevent Shloss from exercising the rights the U.S. copyright laws encourage, and its 'scorched earth' approach to litigating the early stages of the case to see if it could bully Shloss into capitulation."
Shloss began researching her book in 1988. During a visit to Stephen Joyce's Paris home that year, the writer's grandson warned her of his determination to protect what he considered the Joyce family's privacy rights. After studying the 50 unpublished notebooks that the author used to write Finnegans Wake, Shloss challenged the long-accepted image of Lucia Joyce, who was institutionalized in mental asylums for decades, as the schizophrenic daughter of a man of genius. Instead, Shloss saw the young dancer as a creative, independent figure who was an inspiration for her father's work.
In subsequent years, according to a 2006 court filing, the author's grandson and the estate's trustee made "attempts to interfere with Shloss' research, to stop publication of her book, to damage her relationship with her employer, and to misuse the copyrights they control."
In 2002, when Shloss' book was nearing publication, Joyce pressured her publisher, Farrar, Straus and Giroux, to delete material from the book or face a lawsuit. The publisher complied rather than fight the issue.
In the deleted material, Shloss links Joyce's chronological observations about his daughter, as related in his notebooks, as a "consistent influence on the final text of Finnegans Wake." Joyce is in an "edgy, almost surrealistic, comic mode" as he describes the budding sexuality of his daughter in her interactions with his son, and himself as an older man watching almost voyeuristically. The account "still bears the specificity of his children's lives: Issy [modeled on Lucia] still whistles, drops handkerchiefs, waits for her male counterpart to pick them up with his feet, worries that she'll be forgotten."
When an expurgated Lucia was published in 2003, the reviews were, as Shloss said she had anticipated, mixed. The New York Times said her unsupported arguments made the book "read more like an exercise in wish fulfillment than a biography." The New Yorker noted that "the less Shloss knows, the more she tells us." The San Francisco Chronicle noted that Shloss added "a daunting quality of her own speculations, surmises and unconvincingly supported suppositions."
Shloss responded by creating in 2005, and later revising, an electronic supplement to Lucia . The website was restricted to U.S. access only, and the additional material was designed to be protected by copyright's "fair use" doctrine.
The Joyce Estate responded with a series of strongly worded letters. To protect herself and her work, Shloss filed a suit for declaratory relief in June 2006, guided by the Stanford Center for Internet and Society and the center's private-sector co-counsel. The estate fired back with a 475-page motion to dismiss and to strike, attacking the quality of Shloss' scholarship and arguing that, despite the estate's threats, there was no dispute for the court to adjudicate. The court ruled against the estate in March 2007, finding that Shloss' suit should go forward. A settlement in 2007 allowed Shloss to publish her supplement on the Internet and in print in the United States, as she had sought in her lawsuit, but did not address attorneys' fees. A full settlement including the payment of attorneys' fees and costs to Shloss and her counsel was not completed until recently.
For Shloss, the decision is "a vindication of my scholarship. I knew the scholarship was excellent. But I'd had to take the evidence out."
On the initial settlement in 2007, Lessig had said, "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."
Shloss said she is happy to leave behind the tangled legal saga that had "defined my life for years."
"This has always been running in the background, always something happening in my name, filled with papers I have to read and understand," she said. "It's a relief not to have double life – professional life and legal life – running in parallel. I was receiving threatening letters from the Joyce Estate long before I found the Fair Use Project and Larry Lessig.
"Larry's the one who said, 'This should not be happening to you.' And then we began to work together with the Stanford center and the private law firms. That's when the tables turned. It's a real Stanford story. Most people can't do this. These are fabulous people to work with. Really fabulous."
Video available at http://news.stanford.edu/news/2009/september28/shloss-joyce-settlement-092809.html.