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.

What Are the Risks of Misquoting an Interviewee?

"Quotation, n: The act of repeating erroneously the words of another." (Ambrose Bierce, The Devil's Dictionary)

Unless a writer tape records her interviews, has mastered shorthand, or conducts her interviews by email, the questions and answers she publishes will rarely be a word-for-word transcription of what the interviewee said.  A writer should, of course, do her level best to record the interviewee's actual words. However, unless an interview is unusually adversarial, the interviewee will seldom complain about minor disparities in wording as long as you have accurately reported the facts and captured the essence, tone, and spirit of what the interviewee had to say.

Interviews give rise to some interesting issues of journalistic ethics:  Should you correct an interviewee's, you know, verbal tics and grammatical mistakes?  Should you publish a verbatim acount of your interviewee's distinctive dialect or convert his words into standard English?  The Associated Press says "no":

We do not alter quotations, even to correct grammatical errors or word usage. If a quotation is flawed because of grammar or lack of clarity, the writer must be able to paraphrase in a way that is completely true to the original quote. If a quote's meaning is too murky to be paraphrased accurately, it should not be used.

Journalists may worry about such things, but they are seldom, if ever, the stuff of lawsuits.

But beware of the man who claims that he has been misquoted in a way that makes him look bad -- unprofessional, bigoted, ignorant, malevolent, crooked, violent -- whereas an accurate quotation would have made him look like the upstanding citizen he believes himself to be.  And be aware that (inaccurately) putting words into your interviewee's mouth that diminish his reputation and expose him to "hatred, contempt, or aversion" can, in fact, be actionable.

As the Supreme Court explained in the the famous (to libel lawyers) case of Masson v. New Yorker Magazine:

A fabricated quotation may injure reputation in at least two senses, either giving rise to a conceivable claim of defamation. First, the quotation might injure because it attributes an untrue factual assertion to the speaker. An example would be a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not.

Second, regardless of the truth or falsity of the factual matters asserted within the quoted statement, the attribution may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative personal trait or an attitude the speaker does not hold.

Jeffrey Masson alleged that he had been the victim of the latter form of misattribution.  Masson is a noted psychoanalyst who was at one time the Project Director of the Sigmund Freud Archives. In 1982, Janet Malcolm interviewed him for a lengthy New Yorker profile, which was later expanded into a book, entitled In the Freud Archives.  One reviewer said that the book portrayed Masson "as a grandiose egotist — mean-spirited, self-serving, full of braggadocio, impossibly arrogant and, in the end, a self-destructive fool."  Masson read it that way, too, and sued for defamation, primarily complaining that Malcolm invented a series of quotes that made him look unprofessional. Malcolm denied that she had done anything of the kind.  Here, The New York Times identifies the most famous phrases that Masson challenged:

In three of the five disputed quotations in the two-part, 45,500-word article, Ms. Malcolm wrote that Mr. Masson had said he hoped to turn Freud's home into "a place of sex, women, fun"; that two prominent psychiatrists considered him "an intellectual gigolo," and that he himself would one day be considered the "greatest analyst who ever lived."

Malcolm had tape recorded some of her interviews.  But she testified that she had taken handwritten notes of other conversations, which she believed that she had discarded after typing them up; it was during these unrecorded conversations that the challenged statements were made (according to Malcolm) or not made (according to Masson).

The case went all the way to the U.S. Supreme Court and back down again to trial. In all, there were five quotations at issue; a jury ultimately found that some of the quotes were substantially accurate, some were not, but none of the erroneous quotations was written with reckless disregard for the truth, the minimum level of fault that Masson, as a public figure, had to prove to establish liability.

So Masson lost.  (Here is the decision in the final appeal to the Ninth Circuit Court of Appeals.)  But the case nonetheless continues to stand for the proposition that an inaccurate quotation can give rise to a viable defamation claim.  Moreover, if Masson had been a private figure instead of a public figure, he presumably would not have had to show that Malcolm knowingly or recklessly misquoted him; mere negligent misquotation of a private figure (provided, again, that the misquotation induces an unsavory opinion of the misquotee) might be enough in some states to give rise to a viable claim.

So what can a writer do to avoid a Masson/Malcolm-style smackdown?

1.  As previously stated, do your utmost to get the quotations right.  The more inflammatory the quote, the more careful you should be.

2.  Consider tape recording interviews, especially if they are likely to be contentious.  But, remember, in many states, consent of both parties is required to tape a telephone conversation.  (The Reporter's Committee for Freedom of the Press has published a helpful state-by-state guide on the legality of taping telephone interviews.)  If consent to taping is required, it is a good idea to get the consent itself on tape.

3.  If you recall the gist of a statement, but are not confident about the wording, don't put the words inside quotation marks.  Report it for what it is:  your paraphrase of what was said.

4.  If you haven't taped an interview, and if you aren't certain that you have precisely captured the interviewee's words in your notes, consider inviting the interviewee to review the quotes before publication.  Many professional journalists are loathe to take this step, however, because interviewees will too often disavow making (or want to change) the tactless statements that they actually made. If the interviewer then publishes the quotation as she originally heard it, the litigious interviewee may claim that the interviewer was on notice that the quotation was false.

5.  Consider preserving your interview tapes and notes for a substantial period after the interview is published.  (In a later post, I will have some suggestions regarding how long writers should keep their contracts and source materials.)  A counter-argument can be made in favor of discarding notes; working journalists are rightly concerned that their notes could be subpoenaed, making them involuntary witnesses (a la Judith Miller) or eating up their time and their employers' money fighting the subpoenas.  However, this is seldom a concern for writers who are not covering hot news or doing investigative work.  In the end, there is no always-right answer to question: should I preserve or should I discard?  But, on balance, I would generally keep my notes.  (Janet Malcolm is evidently a preserver rather than a discarder; as reported in the Times article above, her two year-old granddaughter reportedly stumbled upon Malcolm's lost notebook many months after the Masson trial was over.)

6.  Reconstruction of quotations from long ago can be hazardous, too. Memoirists and autobiographers frequently recreate conversations that occurred years earlier.  But, if their memories are at all like mine, they could, at best, only hope to recall the gist of what was said.  Readers understand that the quotation marks around decades-old dialog are a literary convention, not the literal truth.  But that may not stop a quotee from claiming he had been Massonized if he believes that gist is inaccurate and disparages him.

7.  Take to heart the moral of this case against ABC: don't take quotations out of context.

8.  Consider whether an inflammatory quotation could be effective, even without naming the speaker:  e.g., "'Muslims aren't welcome in this neighborhood,' a local grocer said."

Ultimately, there is no call for paranoia.  Occasional inaccuracies in quotations are inevitable (see this long list of famous, but inaccurate, quotations -- some of them deliberate misquotations), but the vast, vast majority do not materially distort the essence of what the speaker said -- and therefore should not give rise to legal liability.