The estate of James Joyce has come out swinging in a copyright battle with a Stanford University scholar, accusing Professor Carol Loeb Shloss and her lawyers of trying to “run roughshod over the rights of a copyright holder.”

Shloss, a specialist in Joycean studies, claims in a preemptive suit filed against the estate that Joyce's grandson and only living descendant, Stephen Joyce, threatened her with a copyright infringement action if she published an online supplement to her book about Joyce's daughter.

The complaint, filed in June, seeks a court order declaring the doctrine of fair use applies to the material in the supplement and that the estate has been misusing its copyrights to stifle scholarship. Shloss' book “Lucia Joyce: To Dance in the Wake” was published in 2003.

In a motion to dismiss, the estate says “no actual controversy exists between the parties” because it has never threatened to sue Shloss and now promises not to sue her as long as the supplement is posted on a Web site accessible only in the U.S.

“Expressing disapproval and requesting privacy ... are not the same as threatening litigation for copyright infringement,” it argues, and Shloss has shown an “utter disregard for the privacy of Lucia Joyce or that of the remaining members of the Joyce family.”

Claiming privacy for a deceased person is a stretch. But estate attorney Maria K. Nelson (Jones Day, Los Angeles) also questions the plaintiff's motives for filing the suit and requests an award of attorneys' fees and costs.

“The Website is a pretext,” the motion says. “The lawsuit ... is an attempt by Shloss and her lawyers, Lawrence Lessig and Robert Spoo, to run roughshod over the rights of a copyright holder in the name of 'scholarship' and on behalf of 'fair use.'”

The rhetoric is less than consistent, however. At one point, Nelson says “Shloss and her team of lawyers are not interested in salvaging Shloss’s book but in making new law,” but later, in a particularly personal attack, accuses Shloss of trying

to salvage her reputation as a “scholar” –- following the pitiful reception of her speculative faction on Lucia Joyce -– by spreading accusations against Stephen Joyce and others.

The pleading does not indicate how Shloss could salvage her reputation without salvaging her book.

As far as copyright misuse, Nelson says it "has only been applied when a copyright owner commits antitrust violations or forms copyright licensing agreements that are unduly restrictive. Here, there is no restrictive licensing agreement, and the law provides copyright owners the absolute right to refuse a license.”

But courts have lately expanded the potential scope of the copyright misuse defense beyond the antitrust context. In Video Pipeline v. Buena Vista Home Entertainment, 342 F.3d 191 (2003), the 3rd U.S. Circuit Court of Appeals reasoned that the “'ultimate aim' of copyright law is 'to stimulate artistic creativity for the general public good'” and misuse could therefore apply to a “copyright holder’s attempt to disrupt [that] goal.”

By Matthew Heller
11/18/06