Saturday, March 26, 2011

Does the DNA in a Bacterium Infringe the Copyright in James Joyce's "Portrait of the Artist as a Young Man"?

That wonderfully oddball question was posed to me yesterday by author Mike Mullin.  (See his entertaining tweets here.)

I admit that initially I didn't have the foggiest idea what Mike was talking about.  But when I read the link in his tweet it all became clear.

It seems that, in May 2010, the American biologist Craig Venter synthesized the genome of a microbe and implanted a snippet of its DNA into a DNA-free cell of another species.  As Carl Zimmer exclaimed in awe in a blog post on Discover magazine's website:
And that…that thing…can grow and divide. It’s hard to say whether this is “life from scratch,” because the boundary between such a thing and ordinary life (and non-life) is actually blurry . . . 
Here, from The Guardian, is a more detailed discussion of the extraordinary and controversial science -- arguably the first synthetic life form. And here is Venter himself talking about the breakthrough.  But for our purposes, the funky thing is that, as Zimmer reported in a later post, Ventner's synthetic cell:
carries a line from James Joyce, inscribed in its DNA: “To live, to err, to fall, to triumph, to recreate life out of life.” . . . The scientists who produced the new synthetic cell copied the genome of a microbe, letter for letter, and then inserted the synthetic version into a host cell. To determine that their experiment worked, they needed a way to tell the genomes of their synthetic cells from the natural genomes that were their model. So they inserted “watermarks” into the artificial genome. These sequences of DNA (which spelled out the work of Joyce and others through the genetic code) sit in non-coding regions of the microbe’s DNA.
(Emphasis added.) What happened next, sounds like a satire of the James Joyce Estate's legendarily overzealous copyright policing.  As David Ewalt reported in his blog on, at a conference in Texas just last week:
Venter explained his team received a cease and desist letter from Joyce’s estate, saying that he’d used the Irish writer’s work without permission. ”We thought it fell under fair use,” said Venter.
In other words, the Joyce Estate evidently contended that a sequence of DNA in a bacterium infringed the copyright in Portrait of the Artist.  In his tweet, Mike Mullin asked -- doubtless tongue in cheek -- for an opinion on the viability of the Estate's copyright claim.  Here, Mike, is how the analysis might go, if one were to take this claim at all seriously:

The first question is whether Portrait of the Artist is copyright-protected at all.  Joyce's novel was first published in 1916.  It is therefore in the public domain in the United States, as are all works first published in 1922 or before.  (See this earlier post on copyright duration.)  Thus, as long as the literary bacterium was bioengineered in America and not distributed abroad, it would not be an infringing microbe.  Indeed, you can read the entirety of the book on the Project Gutenberg site. (It is, to say the least, quite wonderful.)  But keep in mind that the United Kingdom and the European Union calculate the duration of copyright in older works differently.  Copyright there (at least for works first published during an author's lifetime) endures for seventy years after the death of the author.  Since Joyce died in 1941, Portrait of the Artist is copyright-protected in those jurisdictions until January 1, 2012.  So if the creation and replication of the microbe took place in the UK in 2010, the Estate at least has a copyrighted work on which to base its claim.

By the way, this webpage maintained by Ohio State University and The International James Joyce Foundation tells you everything you could possibly want to know about the duration of Joyce's copyrights in various countries throughout the world.  Among the contributors to page are Robert Spoo and Carol Loeb Shloss.  I will come back to Spoo and Shloss in a minute.

I do not know where Venter's bacterium was created, but he is an American and his Institute is based in Maryland and California.  So odds are the copying occurred in a jurisdiction where Portrait of the Artist is in the public domain.  Don't sweat this, Dr. Venter.

But what if the new life form had been born in London?  There would still be a long line of hoops that the Estate would have to jump through to prove copyright infringement.  We will take it as a given that the microbe does in some sense "copy" a small portion of Joyce's novel, even though the copying cannot be seen by looking at the microbe under a microscope, but only in the print-out produced by the laboratory equipment that analyzes its genetic sequencing.  I am no authority on "fair dealing" -- the British equivalent of "fair use" (I leave any UK analysis to Emily Goodhand @CopyrightGirl) -- but under U.S. law, any claim of copyright infringement would, of course, be patently ridiculous.  The 14-word phrase from Joyce is so short that it would likely qualify as de mimimis copying -- i.e., too insignificant even to bother with applying the fair use analysis.  If the fair use factors under Section 107 of the Copyright Act were examined, Venter should surely win on at least three of the four.  In particular, a court would almost certainly find that Venter's use of Joyce's words was highly "transformative," which strongly favors a finding of fair use.  The "amount and substantiality of the portion used [by Venter] in relation to the copyrighted work" is trivial, to say the least. The effect of Venter's use on the market for Portrait of the Artist is non-existent.  Point, game, match -- Venter.

By the way, from what I read, as the bacteria replicate, the Joyce "quote" is gradually becoming more and more garbled, as mutation alters the gene sequencing.

But there is a serious point lurking here.  This is by no means the first time that the Joyce Estate has aggressively rattled its copyright sabres.  See this long and  fascinating New Yorker article.  And see  this summary by Kim Dian Gainer, which describes the "forced the excision of material from Brenda Maddox’s biography of Nora Joyce," the blocking of a "performance based upon a short story by Joyce that, ironically, was itself based upon a folk tale,"  the blocking of "live readings of Ulysses on the internet," and, in 2004, the threat of legal action to "derail[] exhibits and readings intended to be a part of the ReJoyce Dublin 2004 festival."

Most famously, the Estate objected to Carol Shloss's plans to quote from certain letters and other materials in her biography of Joyce's daughter, Lucia.  In response, Shloss filed a landmark declaratory judgment and "copyright misuse" lawsuit, in which she argued, among other things, that the Estate misused its copyrights in an effort to influence scholarly treatment of Joyce's works and life.  Robert Spoo was one of the attorneys who represented her.  (I told you I would return to Shloss and Spoo.) Ultimately, Shloss obtained a highly favorable settlement, and the Estate ended up paying $240,000 in attorneys' fees to Shloss and her counsel.

Based upon the letter accusing Venter of creating an infringing bacterium, the Estate does not appear to have been chastened by the outcome of the Shloss case.

Postscript: Following up on the Joyce/Venter controversy, New Yorker blogger Jeannie Venasco located several other accounts of literary quotations that have been encoded into DNA (evidently without attracting cease and desist letters).  She summarizes her research in this amusing post.


  1. Wow, that is an impressive and informative post to arise from a joke. Thank you, Mark! Several people on Twitter suggested that a small dose of antibiotics would make the question moot.

    I thought it was an impressively odd thing to sue over in the first place. What a huge compliment it would be to have a snippet of one's writing encoded into the very lexicon of life. If anyone cares to encode ASHFALL into bacterial DNA, I will not object. Heck, I'd settle for having it encoded by self-replicating nanobots, so long as they weren't the sort that could lead to a grey goo apocalypse. If the plaintiff were a modern writer, I'd suspect the whole thing of being a publicity stunt. But A Portrait of the Artist as a Young Man hardly needs the publicity.

  2. Good stuff Mark. Have you seen anything saying who the lawyers were that sent the letter? I think you're spot on and I'm surprised sending the letter was worth the ink.

  3. Fascinating. Thanks for the fun and incisive analysis.