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 Forbes.com, 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.

Sixteen Things Writers Should Know About Quoting From Letters

1.  If I send you a letter, unless I have an agreement with you to the contrary, I continue to own the copyright.

2.  As the recipient of the letter, you own the letter itself -- the paper and ink.  You can show the letter to others, sell it, give it to a friend, donate it to a library, preserve it, or (with one possible limited exception I will come to in a moment) destroy it.  Or to put it in a more lawyerly way, absent an express writing to the contrary, transfer of ownership of the tangible physical property of the letter from me to you does not carry with it the transfer of the copyright.

3.  As the recipient of the letter, you cannot, however, publish the entirety of the letter without my consent (except for another possible limited exception I will come to in another minute).  The reproduction right remains with me, as the copyright owner -- as does the right to create a derivative work.  If you find my letter housed in a scholarly library, the library's permission to reproduce it will ordinarily not suffice (unless I assigned my copyright to the library).  You will need to obtain permission from me or, if I'm dead, my heirs.

4.  You (and others) can, however, quote portions of the letter I sent you, to the extent permitted by fair use.  Alas, there are no bright lines as to what constitutes fair use -- no clear assurances that quoting, for example, 30 words from a two-page unpublished letter is surely fair use, while quoting 100 words from the same letter is not.

5.  It is certain, however, that, because a letter is a short work, the number of words that you can safely quote is far smaller than the number you could safely quote from a longer work.  You must also quote sparingly from other short works, such as song lyrics and poetry.

6.  For a while, there was disturbing uncertainty as to whether you could quote anything at all from an unpublished letter.  The fair use of unpublished letters and diaries was the subject of a series of cases about 20 years ago in which my firm and I represented the defendant biographers and publishers:  Salinger v. Random House, New Era v. Henry Holt (see also this decision denying en banc rehearing), and Wright v. Warner Books.  Ultimately in the Wright case, the Second Circuit Court of Appeals clarified that some amount of quotation from unpublished works, such as letters and diaries, can qualify as fair use.  Congress then codified this finding by amending Section 107 of the Copyright Act to add  this sentence:  "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

7.  Despite the Wright decision and the amendment to Section 107, unpublished status is still a factor to be considered in the fair use analysis, which tilts in the copyright owner's favor.  So, as a general matter, publishers advise their authors to quote less from unpublished letters than they might quote if the same letters had previously been published.

8.  I am surely no authority on British law, but my impression is that, under the doctrine of "fair dealing" (the UK equivalent to "fair use"), unpublished status takes on even greater importance than it does in U.S. law.  See this good discussion by Emily Goodhand, aka @copyrightgirl, comparing the U.S. and UK doctrines.

9.  As with any quotation, the more you "transform" what you are quoting -- comment upon it, analyze it, criticize it, put it into a larger context -- the more likely it is that your use will be found to be "fair use."  Similarly, a starkly commercial use, such as quotation of a letter in advertising, is less likely to be found fair.

10.  Don't forget that copyright protects expression, not facts and ideas.  So, even though you can only quote a limited number of words from a letter, you may still be able to summarize and discuss the facts and ideas contained therein at greater length, as long as you do so in your own words (avoiding close paraphrase).

11.  Letters written by U.S. government officials within the scope of their official employment are in the public domain and may be freely quoted.  The same is not necessarily true of letters written by state government employees or government employees in other countries.  Letters written by U.S. government officials in their private lives are copyright protected -- as are your letters and mine.

12.  According to Paul Goldstein, the author of one of the leading treatise on copyright:  "No reported decision has held that an exchange of letters constitutes a joint work."  It is a tempting argument, though, considering that, as discussed in this prior post, some cases hold that the back-and-forth between an interviewer and interviewee gives rise to joint ownership of the copyright in the resulting interview.   And I do think that, in the Wright case, the fact the quoted, unpublished letters in question were written by the novelist Richard Wright to the poet-biographer, Margaret Walker Alexander, may have helped push the court in the direction of finding fair use.  That said, given that an exchange of letters does not constitute a joint work, the rule in point 1 above holds, i.e., I own the copyrights in the letters I send you, and you own the copyrights in the letters you send to me in reply.

13.  An 1867 Kentucky case, Grigsby v. Breckinridge, established that the recipient of a letter is free to destroy it.  However, a few interesting cases, including Baker v. Libbie (involving the letters of Christian Science founder Mary Baker Eddy) have held that, if the letters are still in existence, the writer may be entitled to gain access to them to make copies so as to preserve the intellectual property or to register the copyrights.  This issue sometimes comes up when litigation is contemplated.

14.  A few interesting cases, such as Avins v. Moll, suggest that the recipient of a letter may publish a whole letter, if publication is necessary to defend the recipient's reputation against charges made by the sender. In any event, fair use ordinarily would give the recipient the leeway she needs to deal with this rare circumstance.

15.  Sometimes the circumstances in which a letter is sent can imply that the recipient has permission to publish it.  One obvious example is a letter to the editor.

16. It is always advisable to credit your source when quoting letter or any other source materials, not merely as a matter of scholarly and journalistic ethics and etiquette, but also because some courts have said that the failure give proper credit cuts against the "quoter" in the fair use analysis.

Again, the philosophy of fair use quotation of letters and other source materials is neatly summed up in this quotation from The Chicago Manual of Style (brought to my attention by Peter Ginna aka Dr. Syntax);

Fair use is use that is fair--simply that....The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly.

Works Going Into the Public Domain (in Some Countries) in 2011

The first tweet of the New Year from the always-interesting Boho Lawyer drew my attention to the fact that January 1 was Public Domain Day.  Alas, President Obama is not issuing a proclamation to celebrate the occasion.  Public Domain Day is the the brainchild of Duke University's Center for the Study of the Public Domain.  There is a lot of interesting material of their site, including a list of prominent authors, some of whose important works are entering the public domain today in some jurisdictions.  The caveats are fascinating to read, illustrating, in the words of the Center, "how fiendishly complex copyright laws can be."

Key point: thanks the the Sonny Bono Copyright Term Extension Act, no works will be newly entering the public domain in the United States until 2019.

Should Congress Extend Copyright Protection to Fashion Designs?

While this blog focuses primarily on writing and writers, I do take an occasional frolic and detour into the public policies underlying copyright and copyright's effect on creative artists in other fields.  In this regard, you may have read that Senator Schumer and others have introduced legislation that would provide a new three-year term of copyright protection to fashion designs.  The text of the bill, known as the Innovative Design Protection and Piracy Prevention Act, is reproduced here.  The Judiciary Committee unanimously approved the bill earlier this month.

Clothing designs have never before been the subject of copyright protection in the United States (although fabric prints -- of sufficient originality -- can be).  A few years ago, Tyler Cowen, the always-interesting economics blogger, ran a fascinating post on how the fashion industry works without copyright and and wondered aloud "why the absence of IP protection has led to (apparently) acceptable results." Worth revisiting in light of the proposed new law.

And here is an informative article on the history of the Innovative Design Protection and Piracy Prevention Act (from Louis Ederer and Maxwell Preston).

CopyLeft in 19th Century Germany?: Did an Absence of Copyright Laws Give Rise to a Dramatic Expansion of the German Economy?

A3WRGPJX2HAB I am a dyed-in-the-wool believer in the efficacy of copyright as an engine to "promote the Progress of Science and useful Arts," as Article I, Section 8, of the Constitution puts it.  That doesn't diminish my fascination with the theory championed by economic historian Eckhard Höffner, who argues that the absence of copyright laws in early 19th Century Germany stimulated an explosion in the number of books and academic papers published, giving rise to unprecedented industrial expansion.  I wonder what Höffner has to say about the role of lax intellectual property enforcement in China today.

Is It Still in Copyright?

One of the most frequent questions asked by writers (and bloggers) is whether a particular work they wish to quote at length (potentially beyond the bounds of fair use) -- or even republish in its entirety -- is still protected by copyright.  It can be a more complicated question than one might expect.

One short answer is that, if a work was first published in 1922 or before, the copyright in the United States has expired, and the work is in the public domain in the United States.  However, you must be careful to quote from the work as it existed in 1922 or before.  Later editions of the work could contain new or different copyrightable expression first published after 1922, and that expression could still be copyright protected.  (There is also a bit of disagreement among courts as to when the copyright term begins if the work was first published outside of the United States without a United-States-style copyright notice, but we will skip over that subtlety here.)

Matters are further complicated by the fact that copyright is territorial.  The duration of copyright in other countries is computed differently, a subject I will return to in later posts. As a result, even though the copyright in a work has expired in the United States, it could still be copyright-protected in other nations.

Further complications arise from the fact that many post-1922 works that once enjoyed copyright in the United States have lost their copyright protection over the years by reason of the failure to register and renew the copyrights or to comply with other statutory formalities, particularly the formalities of the old 1909 Copyright Act.  Additionally, works created prior to January 1, 1978, that were unpublished as of that date, have their own complicated set of rules concerning copyright duration.

The best short summary of the duration of U.S. copyright is to be found here on the Cornell website.  It is based in part on Laura Gassaway's simpler chart found here.