Ochoa on the Duration of James Joyce’s Copyrights

By Tyler Ochoa

[Eric’s note: my colleague Tyler Ochoa contributes to the blog from time to time. This time, he submits a modified version of a letter he sent to the editors of the San Francisco Chronicle, wherein he explains some of the finer points of copyright duration.]

The San Francisco Chronicle recently reported that the estate of James Joyce has agreed to play Stanford Professor Carol Shloss $240,000 for her attorneys fees stemming from a lawsuit over her “fair use” right to quote from Joyce’s unpublished letters.

Shloss wrote a book in 2003 about Joyce’s daughter, Lucia Joyce, that quoted extensively from Joyce’s papers. After the Joyce estate threatened to sue, Shloss removed many of the quotes and paraphrased others. When the book was published, Shloss was criticized for making unsupported assertions (that had been supported by the removed material). Aided by the Stanford Fair Use Project, she sued for a declaratory judgment that she had a right under U.S. “fair use” doctrine to quote from Joyce’s papers in her scholarship. The case settled in 2007, allowing her to post the supporting material from Joyce’s papers on the Internet.

Unfortunately, the otherwise excellent article contains an error concerning U.S. copyright law (although, given the complexity of the duration provisions of U.S. law, the error is entirely understandable).

In the penultimate paragraph, the article states: “The original U.S. copyright on Joyce’s writings expired in 1991, 50 years after his death. But a law signed by President Bill Clinton in 1998 added 20 years to all such lapsed terms, restoring the Joyce estate’s control through 2011.”

That statement is not correct. The Sonny Bono Copyright Term Extension Act of 1998 (CTEA) did add 20 years to the duration of all existing (and future) copyrights, but it did NOT revive any copyrights which had already lapsed due to the expiration of duration. If the copyrights on Joyce’s writings had in fact expired in 1991, they would NOT have been revived by the 1998 legislation.

Unfortunately, U.S. law on duration is ridiculously complicated. Here is the shortest version of those two sentences that would be legally correct:

“Although most U.S. copyrights in unpublished letters were to expire 50 years after the author’s death, a statutory loophole preserved the copyrights in Joyce’s unpublished letters through 2002. A law signed by President Bill Clinton in 1998 added 20 years to most existing copyrights, extending the Joyce estate’s control through 2011, 70 years after the author’s death.”

Here is the longer explanation of the calculation:

For Joyce’s unpublished works, such as his letters, he had a common-law copyright of unlimited duration at the time they were written. Under section 303 of the 1976 Copyright Act, as originally enacted, all common-law copyrights in unpublished works were converted into federal statutory copyrights on January 1, 1978, and were given a duration of life of the author plus 50 years, SUBJECT TO a statutory minimum. (Congress reasoned that even if the author had been dead more than 50 years, it was fair to provide the author’s heirs with a minimum term, to compensate them for the loss of their theoretically unlimited common-law copyright.) The minimum term was 25 years (to the end of 2002), unless the work was published by the end of 2002, in which case the minimum term was extended 25 years (to the end of 2027). Thus, even though Joyce died in 1941, and a life-plus-50-years term would have expired in 1991, the statutory minimum maintained the copyright in his unpublished works at least until the end of 2002. (Without the statutory minimum, copyrights in any unpublished works by Joyce would not have been eligible for the 1998 extension, because they would have expired in 1991.)

When the CTEA was enacted in 1998, it extended the basic term for unpublished works to life of the author plus 70 years, subject to the statutory minimum. The statutory minimum remained to the end of 2002 for works that remained unpublished; but if the work was published between 1978 and 2002, the statutory minimum was extended twenty years to the end of 2047. [Existing 17 U.S.C. §303(a)] Thus, the copyright on any of Joyce’s unpublished letters now extends to the end of 2011 (70 years after the author’s death, extended to the end of the calendar year by 17 U.S.C. §305), unless the heirs published them between 1978 and 2002; in which case they will remain under copyright until the end of 2047.

For Joyce’s published works, the original term at the time the works were published (under §23 of the 1909 Copyright Act, later renumbered §24) was 28 years from the date of first publication, which could be renewed once, for a maximum duration of 56 years from first publication. All such terms were temporarily extended while the 1976 Copyright Act was pending. The 1976 Act (which came into effect on January 1, 1978) extended the renewal term to 47 years, for a maximum duration of 75 years (28 + 47) from first publication. [Former 17 U.S.C. §304(a),(b).] The 1998 CTEA extended the renewal term to 67 years, for a maximum duration of 95 years (28 + 67) from first publication. [Existing 17 U.S.C. §304(a),(b)] Thus, for Finnegan’s Wake, which was first published in 1939, the copyright (if renewed) originally would have expired in 1995; but it was extended to the end of 2014 by the 1976 Act, and it was extended again to the end of 2034 by the 1998 CTEA.

This example should suffice to demonstrate that the duration provisions of U.S. copyright law can be ridiculously complicated. How can a layperson possibly be expected to figure this out?