Spoo on Samuel Roth: "Pirate" or "Discourteous Reprinter"?

Robert E. Spoo, University of Tulsa College of Law, has posted Samuel Roth: Discourteous Reprinter, which originally appeared in the Dublin James Joyce Journal 5 (2012): 99-111.  Here is the abstract:

This article offers an in-depth view of the lawful piracy of foreign works in the United states in the early twentieth century, a practice that was made possible by protectionist features of U.S. copyright law in that period. The focus is the New York publisher Samuel Roth, a “pirate” who, paradoxically, abided by U.S. copyright law while filling his magazines with unauthorized foreign material. Roth built his career on the resources of this unusual feature of the American public domain. U.S. copyright law in 1925 was isolationist and protectionist; its technicalities were a constant worry to foreign-domiciled authors like James Joyce who could not always satisfy the rigid statutory conditions for copyright protection. Among those conditions was the requirement that English-language books be typeset, printed, and bound on American soil within a fixed number of months after publication abroad, on pain of loss of U.S. copyright forever. Confronted with these legal hurdles and shadowed by a reputation for indecency, Joyce made no attempt to secure U.S. copyright for the book version of Ulysses or for the early published extracts of what eventually became Finnegans Wake. These works lay in the American public domain, where Roth found them.

Even though Roth’s publishing activities were lawful in the United States, he was called a “pirate” during his lifetime and probably always will be. This is because he violated the principles of what had been known since the nineteenth century as “the courtesy of the trade,” an informal, norms-based practice voluntarily engaged in by American publishers which restored a precarious order to the publishing scene by imitating the main features of copyright law and permitting both publishers and authors to benefit, though inconsistently, from the wholly informal exclusive rights that trade courtesy recognized. In its simplest form, courtesy awarded informal rights to the first publisher that announced plans to reprint an unprotected foreign work — a kind of makeshift copyright grounded on tacit trade agreements and community-based norms. According to this communal fiction, competitors were required to resist the temptation to exploit a free literary resource once it was claimed by the first comer. Participating publishers often paid foreign authors an honorarium or royalty and sought their permission for reprinting works — all in the name of self-interested honor. But courtesy was always threatened at the margins by upstarts or renegades in the trade who saw no reason to observe a code that could bring them no immediate, tangible benefits. Deviants from courtesy were called “pirates” by the reputable houses. Samuel Roth was one of those deviants. This article tells part of his story.