Are Literary Estates a 'Clot' on Creativity?

Book Review: Modernism & Copyright

The Chicago Manual of Style exhorts writers, editors and publishers to employ fair use “boldly.”  Easier said than done, suggests Paul K.Saint-Amour, editor of this thought provoking collection of essays that focuses on the tension between copyright and modernism.   Fair use, of course, is a doctrine that helps courts avoid the rigid application of copyright law, where rigid application would stifle the very creativity copyright law was designed to promote.  While essential to free expression, fair use is at best, an unpredictable doctrine.  

In the introduction to Modernism & Copyright (Oxford University Press), Saint-Amour, an associate professor of English at the University of Pennsylvania, tells us that his book explores how the “law shapes what is published, studied and canonized.”   Saint-Amour passes that task along to fourteen essayists from diverse fields, who discuss the interplay between copyright, privacy and publicity rights on the one hand, and the progressive agenda of modernists to adapt and borrow freely from others’ works. 

Walt Whitman's Niece

Billy Bragg & Wilco

No one reading this book will likely disagree that the unauthorized use of protected materials to create new art, music and literature is too often automatically thought of as an economic threat to the material that has been borrowed or bent.  The kind of permissiveness the book advocates for is in fact, a preference for a less regulated dialog between past and present – an enhanced ability to mix-and-match that is more in keeping with our digital present than our analog past.   What we lose and what we might gain by freely manipulating the past, can’t be known.  But what is clear from reading the book is how modernistic art, literature and music have been shaped haiku-like by the confines of intellectual property law.  

In a chapter on Ezra Pound, Robert Spoo, a law professor, laments that the general spirit of unpermissiveness and paranoia of the current copyright regime which befuddles and intimidates contemporary artists and authors.   In another era Ezra Pound called copyright “dishonest,” “rascally,” and a “clot” of law.   Unlike Pound who actually worked in a “more permissive and less propertized climate,” today’s artist, author  and composer, sitting in their studio or study, works under much greater pressure – and at their own peril -- to get the law right.   Today, the chilling penalty for getting copyright law wrong is receipt of a DMCA Take-Down Notice, or worse, a call to defend your art or scholarship in court.  Paradoxically, Spoo points out that “Today, the estates of James Joyce, T.S. Eliot, Samuel Becket, William Faulkner and other modernist authors use extended copyrights to discourage or control use of those authors’ works by scholars, critics and others.”  

Creativity is not a self-contained activity observes Celia Marshik, in her essay Thinking Back through Copyright.   Here, the focus is on Virginia Woolf’s feminist classics, A Room of Her Own (1929) and Three Guineas (1938).   She asserts Woolf’s words and sentences were intimately linked (but not in a parasitic sense) to recognizable voices from women’s literature.   “[N]o author works in that room alone,” Marshik points out.   Woolf herself , admitted that “masterpieces are not single and solitary births; they are the outcome of many years of thinking in common of thinking by the body of people, so that the experience of the mass is behind the single voice” (Room 65).   There are echoes here of Mark Twain:  “We have no thoughts of our own, or opinions of our own, we are a compost heap made up of decayed heredities, moral and physical.” 

All of this is background for three chapters on the intersection of copyright law and the law of estates and trusts.  These chapters should be of particular interest to readers of this journal.  Here, the focus is on publishing -- not music, movies or theatre.  Of the three chapters, attorney Mark A. Fowler’s contribution stands out for the clarity of its prose, and prescriptive approach to dealing with literary biography -- writing about the literary lives of writers. 

What makes literary biographies so successful is also what makes them so dangerous to undertake.    They rely on unpublished material and appropriate literary language designed to convey the personality of the writer who is under scrutiny.  This chapter surveys a trio of cases involving quotations from unpublished materials by J.D. Salinger, L. Ron Hubbard, and Richard Wright – a trio of dead authors whose estates harbor animosity against literary biographers.  The three chapters that follow include Carol Loeb Shloss’s essay on her suit against the Estate of James Joyce to adjudicate what constitutes fair use of  unpublished letters, and a pair of illuminating essays by Gertrude Stein’s literary executor (whose non-Joyce-like approach to permission requests is to honor the bohemian spirit of Stein); and Ezra Pounds’ literary executor.  

While following no single line of argument, the essayists would find no issue with the notion that reigning in copyright would expand diversity.   One of the central messages of the book is that copyright is in crisis.   The internet is a major mutation, changing our relationship to content.    Copyright, the book argues, is ill equipped to accommodate creator-publisher-consumers. 

For over 300 years publishing was a top down, multiple uniform copy, “All Rights Reserved,” “No Derivative Works,” “You Buy it You Own it”  industry.  The digital world is not uniform.   It is fundamentally altering our relationship to content by allowing creators to “borrow” and “recast” with near impunity what came before.   While not everything here is above criticism, Modernism & Copyright is a rare interdisciplinary work on the challenging topic of intellectual property.   Refreshingly, its focus is not just whether copyright will survive the digital deluge (a topic of discussion which has gotten old), but what impact copyright has had on the creative process.  

Recommended.   

_______________________________

Paul K. Saint-Amour (ed):  Modernism & Copyright

Oxford University Press, 2011, 381 pp.

Trade Paperback, $29.95

ISBN13: 978-0-19-973154-1, ISBN10: 0-19-973154-3

Lloyd J. Jassin

Originally Published in Publishing Research Quarterly (Springer)