As touched on in a previous previous post, I have recently become familiar with the work of Robert Spoo, who has had a multi-faceted career as a practicing litigator, law school professor, and English literature professor. He was for a good while the editor of the James Joyce Quarterly and was one of the attorneys who represented Carol Shloss in her long copyright battle with the James Joyce Estate. Spoo has criticized what he calls the “Era of Forbidden Quotation,” in which scholarly works are legally sanitized to avoid conflicts with copyright owners:
By trimming quotations to the bone or forgoing them altogether, by deleting all unpublished material or paraphrasing it nearly out of existence, by using public-domain editions in place of better, copyrighted ones, academic authors are practicing the art of designing around copyrights. . . . . Design-around scholarship often amounts to a kind of perverse self-denial—perverse because not warranted by the porous nature of copyrights.
Robert Spoo, "Copyrights and ‘Design-Around’ Scholarship," James Joyce Quarterly 44 (2007): 566-67, 578 (available through a MUSE institutional subscription). As Spoo argues, design-arounds come at a price—often in the form of “timid, bloodless paraphrase.” He also urges, correctly, that the law does not by any means require the purging of all quotation when permission from a copyright owner cannot be obtained or is expressly refused.
That said, there are times when it is only prudent to cut back, as artfully as possible, on the amount of quotation in order to bring a scholarly (or popular) work safely within the bounds of fair use. I will return to the timing and strategy of “quotation trimming” in a later post.