Monday, July 31

The "intellectual property" morass

Susan Bielstein's wonderful "Permissions: A Love Story", just out from University of Chicago Press, takes on this issue from the perspective of art history and visual culture. -ed

Writers Who Price Themselves Out of the Canon

Arguments about the shape and nature of the literary canon — at least the interesting, thoughtful, impassioned arguments of a decade ago — seem to have quieted down somewhat of late. Though we've by no means crossed the Jordan into some kind of post-canon promised land, certain premises of the 1990s canon wars are now more or less taken for granted by both sides: for instance, that canons are always to some extent political, and in need of constant surveillance. With so many books and so little time, we will always be vetting and winnowing in our roles as teachers and scholars.

The muting of arguments about the canon now highlights a more subtle influence on what our students read: the high cost of obtaining permission to reprint copyrighted material.

If my experience is any indication, we teachers tend to open up a new anthology and do a quick survey of what's in and what's out. We may be tempted to chalk up any divergence from our ideal Table of Contents to taste, politics, or even space; all of those certainly are factors. But so is cost. Some authors — and their agents or executors and estates — are concerned about privacy and understandably limit access to certain unpublished, personal materials; but some seem to be promoting only their own financial interests, trading long-term literary reputation for short-term profit.

Privacy is the battle cry of Stephen James Joyce, the author's grandson and literary executor. In a profile of him in a recent issue of The New Yorker, Mr. Joyce makes it clear that he's still angry about the violation of privacy involved in the 1975 publication of some erotic letters his grandparents exchanged, and his oversight of Joyce's literary estate now seems largely dictated by his resentment over that breach. But vigilant defense of his grandfather's privacy has gradually slid into a crusade to burnish Joyce's reputation, a crusade that, colored by Stephen Joyce's general disdain for scholars and scholarship, has resulted in a seemingly across-the-board policy of denying permission to quote from Joyce's works even for scholarly purposes. Behind the mask of an arguably legitimate concern for family privacy, Stephen Joyce has begun to hamstring new research into the work of the 20th century's greatest novelist.

The suit filed in June on behalf of the Joyce scholar Carol Loeb Shloss by Stanford Law School's Center for Internet and Society (The Chronicle, June 23) promises to bring some clarity to the currently fuzzy concept of fair use and to provide scholars and publishers with better guidance regarding citation from copyrighted works for scholarly purposes. But the granting, or denial, of permission to quote from copyrighted material is just part of the problem, and one for the most part affecting only scholars and artists (such as DJ Danger Mouse, whose innovative The Grey Album, a remix of Jay-Z's The Black Album and the Beatles' self-titled double album — known colloquially as The White Album — was blocked by lawyers for the Beatles). More worrisome for classroom teachers, editors, and publishers are the escalating charges assessed by authors and estates for the reprinting of literary texts still under copyright protection.

I've served as co-editor of the 20th-century selections for the Longman Anthology of British Literature for the past decade and as general editoralong with the founding editor, David Damroschfor the recently published third edition (2005). Part of my work as general editor involves overseeing permissions costs, so I am in a position to witness how those costs influence decisions about what is included and what is not (and why); and ultimately I am the one who must make those difficult decisions.

A portion of every dollar we spend on permissions to reprint is charged against the royalties of the textbook's editors, which means that we need to be prudent without being downright stingy. In effect, every dollar in permissions cost is split between the editors and the students who buy the book: We editors split permissions costs with the publisher, whose share is built into the price of the book, to the extent that the market will bear it. Because the publisher passes along its share to the book's purchasers — primarily students — the editors are in effect equal stakeholders with the students, equally interested in keeping permissions costs down. Permissions costs can mount up pretty quickly, contributing to students' complaints that their books are too expensive.

By my calculations, almost 70 percent of the permissions costs of the current edition of the Longman result from selections in the 20th-century volume. That should come as no surprise, since for most works published before 1923 the copyright has run out in this country. But the translations and scholarly editions chosen for earlier periods often are still covered by copyright protection, and payment must be made to the translators and scholars who have made older works accessible to modern readers. Those costs can be quite high: I was surprised to learn, for instance, that the volume on the Middle Ages is the next most expensive after that for the 20th century, accounting for nearly 15 percent of the permissions costs for the entire anthology. J.R.R. Tolkien's translation of Sir Gawain and the Green Knight, for example, is the second costliest item in the entire anthology (after Samuel Beckett's play Endgame). Is it worth it? Absolutely: Tolkien's is a vivid, accessible translation, and his dual credentials as a medieval scholar and fantasy author make him the perfect voice to render the tale. That said, we can still hope that the windfall of the Lord of the Rings movies will allow the Tolkien estate not to charge us as much the next time around.

In sorting through the permissions charges as they come across my desk, I have found it useful to think of four different categories of works and to deal with the invoices accordingly. The first category — "the A list" — consists of those texts that the anthology cannot be published without, and for which there is only one source. T.S. Eliot's The Waste Land is one of those must-haves. Fortunately, it moved into the public domain just before passage of the 1998 Sonny Bono Copyright Term Extension Act, which extended the term of U.S. copyright for certain older works to 95 years from publication. Also on the A list would be something from the works of Virginia Woolf, including at least an excerpt from A Room of One's Own, and from James Joyce, including a chapter from Ulysses, although it is unlikely to be taught in a survey course. The anthology's editors have no choice but to pay what's required by the copyright holders.

Ulysses was a problem for our third edition, as it has been a problem for so many scholars and publishers. Dubliners, Joyce's early short-story collection, is the Joyce text most useful in an undergraduate survey course; mercifully the stories are in the public domain and thus cost nothing to reprint. The copyright status of Ulysses, on the other hand, is a matter of some debate, though Carol Shloss's lawsuit against the Joyce estate may help to clarify it.

Robert Spoo, perhaps the leading scholar of intellectual-property law as it pertains to modernist literature, published an article in the Yale Law Journal in 1998 arguing that, because of the delayed publication of Ulysses in the United States, the 1922 first edition published in Paris has been in the public domain in this country for years — an argument that, to the best of my knowledge, has never been rebutted. The U.S. copyright law in force in 1922, Spoo argues, would have required Joyce to deposit a copy of the book at the U.S. copyright office within two months of its initial publication in France, and then, within another four months, to have the book printed on American soil by a U.S. printer. Because the book was declared obscene and not published here until 1933, Joyce was not able to satisfy those requirements, and even testified in 1926 in a sworn deposition in Paris that he had never tried to secure American copyright.

That fact notwithstanding, publishers understandably tend to be conservative in these matters: Contrary to the old saw, they find it easier, or at least cheaper, to ask permission than to ask forgiveness. And because the editors of an anthology are typically required to split the cost of permissions with the publisher, and the publisher can pass its costs along to the book's purchasers, any financial incentive to fight the good fight over public domain is considerably lessened.

Because Ulysses is commonly (if mistakenly) thought to be protected by copyright, we applied for permission to reprint the "Nausicäa" chapter, as we had done for our second edition. (From a scholar's point of view, it's maddening to pay for something I believe we should have free; but establishing the public-domain status of Ulysses with certainty would require costly litigation, and no individual publisher finds that expense worthwhile. Fortunately, Spoo's claim about the public-domain status of Ulysses may be adjudicated in the Shloss suit.) Permission was flatly denied by Joyce's grandson. The reasons for his refusal are complicated and perhaps best not recounted in detail here; in part, Mr. Joyce was unhappy with the way we had handled permissions in previous editions, and also, I was told by our permissions person, he "has problems with the introductory material on Joyce" — material I had written myself.

Any scholar who has done much work on Joyce (and anyone who has read The New Yorker piece on his grandson) knows the dim view the Joyce estate takes of literary scholarship; as a consequence, most of us in modernist studies know more than we'd care to about copyright law and the public domain. In this case, that knowledge saved us. Because Joyce published Ulysses serially in the United States before the book was published in its entirety in 1922, we had a loophole: The "Nausicäa" chapter for which we had sought permission had been published in the July/August 1920 issue of the important modernist literary magazine The Little Review. That version of the chapter is now indisputably in the public domain and thus does not require us to seek permission to use it at all. It differs somewhat from the 1922 book version, and I'm disappointed that some late stylistic embellishment is missing from the version we've published. On the other hand, the 1920 version is historic, a landmark in U.S. obscenity law: It got the magazine shut down, and its editor, Margaret Andersonalong with her partner, jane heaphauled into court on obscenity charges. We now use the 1920 version of the text in the anthology to illustrate modernism's running battle with censorship, and the anthology also reprints the famous 1932 court decision ruling that Ulysses is not pornographic and can therefore be published legally in the United States. Certainly that chapter is enriched by this historical and cultural context.

A second permissions category consists of authors who must be included, but whose work might be represented in different ways: The writer is canonical, but no one text is a sine qua non. Any anthology of British literature, for instance, must include a representative selection of the poems of W.H. Auden. Quarrels continue around the borders of the canon, but Wystan is in, end of story. He has also become fantastically expensive — at an average fee of $20 per line, the modest selections we've included come to more than $8,000. Those permissions costs are a bitter pill for an editor to swallow. While Auden is in no danger of disappearing from our anthologies, and consequently from our classrooms or our cultural consciousness — "September 1, 1939," for instance, was the most visible piece of literature in the days, weeks, and months following the September 11, 2001, attacks — one begins to think about how much one can afford, and what one can afford to do without. I resent being forced to make absurd calculations, such as five lines of Auden equals one page of Salman Rushdie. Although Auden is one of the 20th century's most gifted English-language poets, he is represented in the Longman by a mere handful of poems, most of which are somewhat familiar choices.

Other 20th-century poets have suffered that same diminution, as permissions fees in some cases have actually doubled in the short time between editions. We were forced to drop Dylan Thomas's poetic radio drama "Return Journey," for example, and Eavan Boland's poem "The Journey." Poets, because their work is available in smaller discrete units than that of playwrights and fiction writers, are especially susceptible to such cuts. It's hard to feel good about that state of affairs.

A third group comprises those authors and works that one tries to include not because one must have them, but because one wants them — an interesting writer who might otherwise be overlooked, but whose work deserves attention or has become newly interesting in light of recent scholarship; a text whose inclusion helps to enrich an otherwise two-dimensional rendering of an era, problem, or movement. For the second edition of the Longman, for instance, Jennifer Wicke, my editing partner for the 20th-century volume, had the brilliant idea of adding a handful of poems by the American poet Sylvia Plath, to accompany some poetry by her (in)famous British husband, Ted Hughes. Their difficult marriage is the stuff of literary legend and now big-screen fame (the 2003 film Sylvia, starring Gwyneth Paltrow and Daniel Craig). More to the point, in 1998 Hughes's poetic narrative of their partnership, Birthday Letters, was published posthumously, bringing the couple again to the forefront of literary and public consciousness.

Well, in the third edition Plath is gone again: Whether because of the recent resurgence of interest in her life (and perhaps poetry) among the American public, or some other cause, the fees demanded for reprinting just four poems suddenly rose to more than $3,500 for the U.S. and Canadian rights. Plath thereby crossed some kind of invisible line into the realm of extravagant indulgence. Assembling an anthology is a little bit like building a home: One goes into the project with big dreams, but after meeting with the architects and builders, certain features go by the boards; even more desires are sacrificed during construction, as costs overrun estimates. In our third edition, a smattering of poems by Sylvia Plath became those skylights in the kitchen that would have to wait for later.

Sometimes texts are omitted, or added, for the most idiosyncratic of reasons: This is my fourth category, probably best labeled "Misc." In thinking about contemporary responses to Eliot's The Waste Land, I very much wanted to include a poem by the contemporary Irish poet Thomas Kinsella (who also taught here in Carbondale for many years), the long poem "Nightwalker." But Kinsella himself refused permission. Why? His refusal had to do with the title of our anthology. Because we are convinced that the phrase "English literature" suggests an Anglophilic perspective that doesn't account for the vitality and diversity of British writing, which includes works by current and former members of the British Empire (is Rushdie an "English" writer?), ours is the Longman Anthology of British Literature. Mr. Kinsella objected that he is not a British writer, and of course he's right; "I am sorry to have to refuse, as I feel the adjective 'British' does not apply to my work," he wrote. On the other hand, we thought the Longman Anthology of English, Irish, Northern Irish, Welsh, Scottish, Indian, Pakistani, South African, and West Indian Literature was a bit unwieldy.

As our first edition was being prepared for press, back in 1998, we learned that permission to reprint Caryl Churchill's play Cloud 9 could not be granted. Ownership of rights to the play was then being decided in the British courts, and no one had legal standing to grant permission. The play was simply unavailable to us. Given that immovable object, Jennifer and I quickly turned to another script that we had hoped to include but hadn't found room for, Hanif Kureishi's screenplay for the wonderful film about the complexities of multicultural London, My Beautiful Laundrette. That text proved very popular with teachers and students, and by no means felt like a compromise or second choice. But when we sat down to plan the second edition, we learned that the legal status of Cloud 9 had been established and that the play would be available to us. Although it was a difficult decision, we decided to drop Kureishi to make room for Churchill — we couldn't pay, nor had we room, for both. Such is the horse trading that goes into assembling an anthology.

When we began planning the third edition, we decided to keep Cloud 9 — the play had been at least as popular with our readers as My Beautiful Laundrette, and we saw no reason to drop it. But when we applied for permission to reprint the play in the new edition, we learned that the play was now worth $10,000 up front, plus a percentage of the gross, which would have put the cost in excess of $13,000. After a good deal of soul-searching, I suggested that we contact Mr. Kureishi's people to see what it would cost to switch back to our first-edition favorite, My Beautiful Laundrette. The answer, to my delight, was $1,000.

And there was a bonus. Just as our volume was going to press, Mr. Kureishi published an essay in The Guardian, following the London subway bombings of last summer, about the costs and limitations of multicultural London. I thought the piece would make a wonderful companion to the screenplay, suggesting some of the ways that London has changed since 1985, when the script was written. Our deadline was so short — just one week — that our permissions staff told me there was no way we could clear permissions for the essay in time. I e-mailed Mr. Kureishi directly late on a Wednesday night and delivered my plea. I never heard back from him, but the following morning an e-mail message was waiting for me from the person who handles his permissions in the United States: "The author has granted his permission." Even better, he gave it to us for a song.

From these examples it seems clear that one of the hidden forces shaping the evolving canon of modern literature, in ways not always having much to do with literary value, is the shortsightedness of copyright holders. A traditional understanding of the canon and its formation might be contributing to that unfortunate result: If writers, or their agents or estates, ascribe to the belief that the greatest works of art transcend time and tide and petty interference — that the cream will rise and quality will out — then they can afford to price their work without respect to the vagaries of the literary marketplace. If, on the other hand, one thinks of literary reputation as something like a stock market, driven by investor confidence, then one realizes that the best long-term investment strategy is to balance short- and medium-term profitability with protection of the brand, by making one's work, or the work for which one is responsible, available. We might think of these as long-term and short-term investment strategies: Mr. Kureishi is investing for the long-term by letting his work be reprinted comparatively cheaply, knowing that securing a place in the canon will pay long-term dividends in both prestige and income. Ms. Churchill's handlers, on the other hand, seem to be looking only at quick returns, and in so doing are not serving her well in the long run.

Pursued to its logical extreme, the strategy embraced by Ms. Churchill's permissions people endangers her place in the canon. I understand, of course, that the canon does not reside in any one book, but is a kind of Platonic ideal, in the mind of God — or Harold Bloom. I also realize that the Longman anthology does not dictate the canon of 20th-century British literature, and that being dropped from our pages does not mean that one has fallen out of the canon. But we are an important force in canon formation, one of the two dominant classroom anthologies on the market; and for us, Kureishi's in, and Churchill's out. The situation is particularly bad for contemporary British drama — playwrights such as Harold Pinter and Tom Stoppard seem to be pricing themselves out of the market — and for some contemporary poetry: Thom Gunn, to my dismay, is gone from our third edition, since his executors, following his death in 2004, doubled their fees between publication of our second and third editions.

An author and later his or her heirs have a legitimate right to recompense for their artistic property, the more so in cases where a work is published in its entirety: Harcourt Brace will presumably sell fewer copies of Mrs. Dalloway because we've reprinted the entire novel, and so Woolf's estate is entitled to the large sum we're paying for it. A good editorial team will use every tool at its disposal to prevent its sense of the canon from being deformed by such economic considerations. But without some forward thinking by literary executors, 20th-century literature risks being distorted in ways that none of us who love that literature can easily stand by and silently watch.

Kevin J.H. Dettmar is a professor of English and cultural studies at Southern Illinois University at Carbondale and the author, most recently, of Is Rock Dead? (Routledge, 2005). He is a regular contributor to The Chronicle Review.
Section: The Chronicle Review
Volume 52, Issue 48, Page B6
Copyright © 2006 by The Chronicle of Higher Education