University of Toronto Faculty of Law
Law & Humanities Workshop Series
Innovation Law & Policy Workshop Series
present
Robert Spoo
University of Tulsa
Courtesy of the Trade in 19th-Century American Publishing:
Social Norms and the Copyright Vacuum for Works Published Abroad
Tuesday, February 8, 2011
12:30 – 2:00
Solarium – Falconer Hall
84 Queen’s Park
Robert Spoo's current book-in-progress tentatively (and rather blandly) titled “Modernism, Copyright, and the American Public Domain” tells the story of how the notoriously formalistic and protectionist nature of American copyright law in the early twentieth century impacted transatlantic modernism, how this legal regime permitted legalized “piracy” in the United States, and how authors and publishers responded to this American copyright vacuum by fashioning various kinds of legal and extralegal remedies. Although the book touches on many literary figures, the chief actors are James Joyce, Ezra Pound, and Samuel Roth (the New York magazine editor and “pirate” of Ulysses and other modernist works). His approach is to tell a compelling, coherent story of transatlantic modernism’s encounter with American copyright law and piracy, and to bring to bear on this narrative, readably, insights provided by the history of publishing in America, along with those of copyright law and legal theory. His workshop presentation will be based chiefly on Chapter 1 of this book-in-progress: “The American Public Domain and the Courtesy of the Trade in the Nineteenth Century.” This chapter focuses on the nineteenth century and those features of American copyright law that created the conditions for widespread legalized piracy in the publishing industry. Pre-1891 copyright law in the United States expressly withheld protection for virtually all works by foreign authors. Most foreign works were therefore free for the taking, by legislative design, and American publishers stood to profit from their ability to reprint these works with reduced overhead and no legal consequences. In order to regulate the ruinous competition that these legal conditions invited, and to give themselves an aura of respectability and fairness, the dozen or so major American publishers practiced “trade courtesy,” whereby the first publisher to pay for “rights” to the “authorized” American edition of a foreign work and to announce its publishing plans to the trade acquired courtesy “title” to the work a kind of makeshift approximation of copyright grounded on tacit trade understandings, community-based norms, and an elaborate professional etiquette. This chapter explores in detail the rules, exceptions, and sanctions that trade courtesy embodied and draws parallels with the work of Robert Ellickson, Lisa Bernstein, and others who have studied the informal norms adopted by close-knit groups like cattle ranchers and farmers, members of the cotton and grain-and-feed industries, fashion designers, and stand-up comics. After describing trade courtesy as an extremely cohesive form of informal private ordering, the chapter concludes with a discussion of the chief reasons for the seeming disappearance of trade courtesy, including the cheap-book wars of the 1880s, antitrust laws, the rise of literary agency, and the passage of the 1891 Chace International Copyright Act.
Robert Spoo is a tenured member of the faculty at The University of Tulsa College of Law. He earned his J.D. from the Yale Law School, where he was Executive Editor of the Yale Law Journal and received the Michael Egger Prize for best student publication on current social problems. After graduating, he served as law clerk for the Honorable Sonia Sotomayor, then on the U.S. Court of Appeals for the Second Circuit, and practiced for several years with law firms in New York, Oklahoma, and San Francisco, providing litigation services and advice in the areas of copyrights, trademarks, and other intellectual property. Prior to his legal career, Professor Spoo received his M.A. and Ph.D. in English from Princeton University and taught for more than ten years as a tenured faculty member in the English Department at the University of Tulsa, where he was also Editor of the James Joyce Quarterly.
A light lunch will be served.
For the workshop paper, please e-mail n.gulezko@utoronto.ca.
