Q: What do I do if my publisher demands that I secure Estate permission to quote an amount of material that seems to me to fall within fair-use/fair-dealing parameters?
Authors and their estates enjoy rights in works that are in copyright; and performers, adaptors, and scholars have privileges as well when they meet the requirements for fair use or fair dealing or fulfill the criteria for another exemption from copyright. When you publish your work, publishers enter the picture, bringing their own interests and their own perspectives on copyright and permissions matters. We hope that scholarly writers as well as publishers will bring to the transaction a sensible and informed approach to these matters in order to minimize unnecessary problems that you might face, while respecting both your rights and the rights of the subject author or the author’s estate.
We urge publishers not to maintain a blanket policy of requiring all scholarly writers to approach an author or an author’s estate whatever the nature and extent of the writer’s use of the author’s words. If your use of the author’s words seems to go beyond fair use/fair dealing or in some other way rules out the privilege of fair use/fair dealing, the publisher may be justified in requiring you to approach the author or estate for permission. But if you reasonably can claim that your use of the author’s words meets fair-use/fair-dealing criteria, the publisher should not force you into the possibly protracted, expensive, or even fruitless negotiations that might result from contact with an author or an estate.
In general, it is to be hoped that publishers will, on behalf of their authors, exercise fair use and fair dealing up to the reasonable limits of those doctrines, rather than restrict quotation to the actual or perceived expectations of copyright holders.
As a scholarly writer, you have, on your side, an obligation to know what the fair-use/fair-dealing criteria are for the country or countries that are relevant to your publication, so that you can back up your claim to be exercising fair use/fair dealing if you take that position. And, of course, you should ensure as far as possible that your quotations do indeed meet those criteria.
Be aware that different publishers can have widely varying policies when it comes to approaching literary estates for copyright permissions. These differences can pertain to the size of quotations for which permission is deemed necessary as well as to the point during the review/publication process by which permissions need to have been secured. It is worth acquainting yourself carefully with the permissions policies of your publisher before you make contact with the Estate. It would also be in your best interest, early in your communication with a publisher, to ask if it has a general policy on fair use/fair dealing and on approaching an author or estate and for any details of that policy.
Q: Do I need to seek permission from the library or archive that owns a Joyce manuscript or letter if I want to quote from the manuscript or letter?
Some libraries and archives expect scholars to seek their permission before quoting from material held in their collections, particularly where the material is unpublished and the scholar gained access to it by visiting the library or archive. This expectation is often contained in an agreement that the scholar is asked to sign before being permitted to view the material on site or before receiving a photocopy of the material from the library or archive. It is important to bear in mind that this expectation typically reflects the library or archive’s desire to be made aware of intended uses of its material and to be cited as the owner of the physical document, and is rarely (and in the case of James Joyce material, never) based in any copyright ownership that the library or archive may claim. Therefore, any permission obtained from the library or archive to use its material will usually not substitute for permission from the copyright holder, if such permission is necessary.
Q: Do I need to seek permissions from Joyce’s publishers when I quote from his work?
No. It does not appear that any of Joyce’s copyrights are currently owned by publishers, and the Estate has consistently taken the position that copyright permissions should be directed to it. Thus, if you go to the Estate for permission, you need not get additional permissions from publishers. Some literary estates have delegated the handling of permissions to their publishers, who act as agents of the estate in question. This is evidently not the case with the Estate of James Joyce, however.
Q: What is droit moral (moral right)? Where and for how long is it applicable?
Droit moral traditionally is part of Continental (i.e., not Anglo-American) conceptions of authorial rights and descends from natural law regimes such as the French civil code. It confers on authors a semi-sacred reputational right that in some countries coexists with and even survives the temporary monopoly created by copyright. The primary moral rights are the right of integrity (i.e., the right against distortion or mutilation of the work) and the right of attribution or paternity (the right to be named as the author of the work and not to be named as the author of a work one did not create). Because droit moral protects against distortions and misattributions of an author’s work, it is not inconsistent with the privileges of fair use and fair dealing in the ordinary context of accurate, attributed quotations.
In France, where moral rights are perpetual, a parody that intends to harm the original author’s work might be held to violate droit moral even if it is permissible according to fair dealing provisions for parody and pastiche. In Spain, droit moral empowers the author to restrain “any distortion, modification, or alteration that is likely to prejudice his legitimate interests or threaten his reputation.” In both his 1927 protest against Samuel Roth’s Ulysses piracies and his 1937 address to the PEN Club, Joyce invoked “le Droit Moral des Écrivains” to decry the appropriation and mutilation of authors’ property.
There is no statutory or common-law droit moral for writers in the U.S., although federal and state statutes there protect creators’ moral rights in certain works of visual art. Canadian law (since at least 1988) and Australian law (since 2000) recognize authors’ moral rights of integrity and attribution; these rights subsist for the same term as a work’s copyright. In the U.K., the right to be identified as the author of a work, the right to object to derogatory treatment of the work, and the right not to have the work falsely attributed have been statutorily protected since at least 1988; these rights also last for the same term as the work’s copyright. Since 2001, the Republic of Ireland has protected authors’ moral rights by statute, but these rights do not apply there to authors who died as long ago as James Joyce.
Q: If I plan to quote from texts in the public domain in the U.S. and am publishing with a U.S.-based press, do I need to secure the Estate’s permission to quote from those texts if the book is to be available overseas?
If your publisher plans to distribute copies of your book in non-U.S. countries where the copyright in the particular work remains in force, the Estate’s permission might be necessary, unless your quotations are privileged by fair dealing or another exemption.
Q: If I plan to hold a private reading of Joyce’s work, should I seek Estate permission?
Under the law of the United States (and probably other countries), private performances—for example, to a family circle (including single persons) and its social acquaintances or to a small group not amounting to a “substantial number of persons”—are never infringing and do not require permission.
Q: If I plan to hold a public reading of Joyce’s work, should I seek Estate permission?
No permission is needed for a public reading of any work that is in the public domain in the country in which the reading will take place. For a work that remains in copyright:
U.S.
Performances or displays of works or portions of works by students or instructors in nonprofit educational settings are exempt in the context of (1) face-to-face classroom teaching or (2) certain course-related digital transmissions.
Outside of the educational context, live, non-profit public performances of copyrighted nondramatic literary works or nondramatic musical works are permitted by U.S. law and do not require permission. Note that such performances must not be of dramatic literary works (such as Exiles) or dramatic musical works (such as George Antheil’s operatic treatment of “Cyclops”); must not be sponsored for a commercial purpose; must not provide compensation to participants; must not involve a direct or indirect charge of admission; and must not be broadcast over television or radio or “streamed” over the Internet.
A similar exemption applies to live, public performances of copyrighted nondramatic literary works or nondramatic musical works where admission is charged, so long as the proceeds, less the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain. Note that the other requirements apply here just as they do in the case of a public performance for which no admission is charged, namely that the performance be live (not broadcast or “streamed”), that it not compensate the participants, and that it not be for directly or indirectly commercial purposes.
If admission is charged for the second type of non-profit public performance, the copyright owner may veto the performance by serving a signed, written notice of objection “at least seven days before the date of the performance,” stating “the reasons for the objection” and complying with other requirements established by the Register of Copyrights. (The first type of non-profit public performance discussed above—the one not involving an admission charge—cannot be vetoed by the copyright owner.)
Note that for either type of non-profit performance, there is no limitation in the U.S. upon the amount of copyrighted material that may be performed. For example, if the above requirements are otherwise satisfied, an individual or group could publicly perform the entirety of a copyrighted edition of Ulysses or Finnegans Wake, and could incorporate into the performance all of a copyrighted nondramatic Irish song. Comparable public performance exemptions in non-U.S. countries (discussed below) are typically not so expansive.
U.K.
Performances of copyrighted literary, dramatic, musical, and certain other works in an educational institution for educational purposes do not infringe copyright, so long as the audience consists of teachers, students, and others directly connected with the institution (parents are excluded from this group).
Outside of the educational context, the U.K. copyright law also contains an exemption for public performances of the type Joyceans often engage in: “The reading or recitation in public by one person of a reasonable extract from a published literary or dramatic work does not infringe copyright in the work if it is accompanied by a sufficient acknowledgement.” CDPA § 59(1). This exemption would appear to apply to a reading or recitation from any copyrighted literary work (such as Ulysses) or dramatic work (such as Exiles), so long as the extract is “reasonable” in length and the authorship is “sufficient[ly] acknowledge[d].” “Sufficient acknowledgement” means “an acknowledgement identifying the work in question by its title or other description, and identifying the author.” Id. § 178.
Republic of Ireland
Ireland has a provision for educational performances that is similar to the U.K.’s. (See above.)
Like U.K. law, the copyright law of the Republic of Ireland has carved out an exemption for certain public performances outside of the educational context: “The reading or recitation in public by one person of any reasonable extract from a literary or dramatic work which has been lawfully made available to the public, where accompanied by a sufficient acknowledgement, shall not infringe the copyright in the work.” CRRA § 90(1). Like its U.K. counterpart, this exemption appears to apply to a reading or recitation from any published, copyrighted literary work (such as Ulysses) or dramatic work (such as Exiles), as long as the extract is “reasonable” in length and the authorship is “sufficient[ly] acknowledge[d].” “Sufficient acknowledgement” means “an acknowledgement identifying the work concerned by its title or other description and identifying the author.” Id. § 51(3); see also id. § 2.
Canada
It is not an infringement of copyright for students to mount a live, nonprofit performance of a copyrighted work at an educational institution before an audience consisting primarily of students and instructors. Note: Canadian law does not exclude “dramatic literary works” from this provision.
Outside of the educational context, the Canadian Copyright Act also contains an exemption for certain public performances of published, copyrighted works: “It is not an infringement of copyright … for any person to read or recite in public a reasonable extract from a published work.” R.S. 1985, c. C-42, § 32.2(1)(d).
Australia
A teacher’s performance of a literary, dramatic, or musical work, or the playing of a record or showing of a film, in the course of educational instruction at a nonprofit place of education, is not an infringement of copyright.
Outside of the educational context, Australian copyright law contains a specific exemption for certain public performances of specified published, copyrighted works: “The reading or recitation in public … of an extract of reasonable length from a published literary or dramatic work, or from an adaptation of such a work, does not constitute an infringement of the copyright in the work if a sufficient acknowledgement of the work is made.” Copyright Act of 1968, § 45. “Sufficient acknowledgement” means “an acknowledgement identifying the work by its title or other description and … also identifying the author …” Id. § 10.
Q: If I plan to quote from Joyce’s work in an original musical composition, should I seek Estate permission?
So long as the quotation is from a work in the public domain or is privileged by fair use, fair dealing, or another exemption, permission would not be required. If the work is not in the public domain and if the quotation is extensive or of a nature that would render fair use/ dealing inapplicable, then permission should be sought.
Q: If I plan to create a visual or sculptural artwork using James Joyce’s image, should I seek Estate permission?
U.S.
Courts have held that the “right to publicity” (a rather irregular body of state-based law that bars people from “appropriat[ing] the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade”) may not prohibit movies, novels, plays, or songs that use people’s names or likeness. However, statuettes, prints, and T-shirts that reproduce a person’s likeness for a commercial purpose may be found by some state courts to violate the right to publicity. Some courts tend to look more permissively on “transformative” uses of a person’s likeness (e.g., works that creatively and expressively alter a likeness or use it as only one among many raw materials, rather than a single realistic or representational image or likeness). And in some states the likeness of a deceased person is more broadly usable than that of a living person. The basic rule of thumb: the more transformative and the less commercial the use, the less likely permission is necessary.
U.K.
Although living celebrities have employed U.K. privacy law to restrict some uses of their likenesses, there is in the U.K. no body of law equivalent to “rights of publicity” or “personality rights” in the U.S.
Canada
The Canadian tort of “appropriation of personality” is less developed than the U.S. right to publicity law but more developed than U.K. protections. A deceased celebrity’s estate may bring an action under this law for uses of that celebrity’s likeness, but the protections appear to be limited to purely and explicitly commercial uses (e.g., celebrity endorsement of a product).
Q: If I plan to create a parody of Joyce’s work, should I seek the Estate’s permission before publishing it?
U.S.
Although parody is not explicitly mentioned in the U.S. fair-use provision, case law has established that copying aspects of a work for the purpose of parody can be considered a fair use under certain conditions. The chief condition is that the work copied or imitated also be the specific object of the parody. For example, one might not be able lawfully to imitate the melody, chord structure, and lyrics of a Britney Spears song in order to make a trenchant critique of American foreign policy; a court might consider this to be “satire” and grant no fair-use privilege for it. Ms. Spears’s song itself would have to be the target of a parody in order for the imitation to be eligible for the fair-use privilege. And so with a work by Joyce.
U.K.
A 2001 E.U. directive permits member states to allow exceptions and limitations to copyright in the cases of caricature, parody, or pastiche. To date, however, the U.K. has not formalized any fair dealing provisions for parody, and U.K. case law provides no consistent rule of thumb for determining at what point a parody’s borrowing from a copyrighted work is substantial enough to be considered an infringement.
Canada
Unlike U.S. courts’ treatment of fair use parody, Canadian courts tend not to regard parody as a viable form of fair dealing and therefore as a possible exemption from infringement.
Q: If I plan to reproduce a photograph of James Joyce or a member of his family in my scholarly book or article, should I seek the Estate’s permission before doing so?
In most cases, no. Copyright law with respect to photographs has historically been somewhat complicated, but in most countries, the copyright in a photograph, if any, is initially owned by the “author” of the photograph—typically, the person who snapped the picture. This means that, as a general rule, if James Joyce is the subject of a photograph, he could not have authored it.
An older photograph whose author is unknown—and this is the case with many older photos, especially candid ones—may generally be reproduced without permission, especially if it seems likely that the photo is old enough to be in the public domain. Reproducing a photograph whose author is unknown opens up the possibility—perhaps a remote one, though not out of the question—that the author or his or her descendants might come forward to object. In this situation, your having previously made a good-faith effort to locate the author might help your case, but it would not be a complete defense to an infringement claim.
By contrast, where the photographer’s identity is known—as in the famous images of Joyce created by Man Ray, Gisèle Freund, and Berenice Abbott—efforts should be made to obtain permission from the photographer or his or her estate or representatives, unless the photograph is in the public domain or reproducing it would be privileged by fair use/ dealing or another exemption.
The application of fair use/fair dealing to copyrighted photographs is a subject that is still evolving in the courts. While fair use/ dealing is never guaranteed, a rule of thumb would be to reproduce a copyrighted photograph without permission only when you are subjecting that image to specific commentary or analysis. At a minimum, such a practice would make your use of the image more likely to qualify as a “transformative” fair use within the U.S.
Duration of copyrights in photographs often follows the usual rules of copyright duration, as discussed above. In some countries, however, the duration of photographic copyrights is more complicated. In Germany and Spain, for example, a distinction is drawn between photographic “works” (satisfying criteria of authorial creativity) and “simple” photographs not constituting “works.” These categories are assigned different copyright terms. Many countries do not observe such a distinction, however.
Updated April 2012