An end to bad heir days: The posthumous power of the literary estate

On the last day of 2011, the 70th anniversary year of his death, James Joyce's work finally passed out of copyright. It was the dawn of a new age for Joyce scholars, publishers and biographers who are now free to quote or publish him without the permission of the ferociously prohibitive Joyce estate.

Over the past 20 years the right to quote from or publish Joyce's work has been a matter of increasingly heated debate. The estate's most vocal trustee, Stephen Joyce, the author's grandson, earned himself the reputation as the most intractable defender of any copyright in modern times. His truculence (often verbal and colourful) towards those wishing to quote or publish his grandfather's words dated from the mid-1970s, when biographer Richard Ellmann published some of Joyce's "pornographic" letters to his wife Nora and some suggestive ones to a clandestine lover in Zurich. On becoming a trustee, Stephen was determined to prevent any further such revelations.

He outraged a meeting of Joyce scholars in Venice in 1988 by announcing that he had destroyed around a thousand letters to Joyce from his troubled daughter Lucia, as well as some to her from Samuel Beckett, the love of her young life. The following year he forced Brenda Maddox to delete a postscript concerning Lucia from her biography Nora: The Real Life of Molly Bloom. However, in 1991, the 50th anniversary of his death, Joyce's copyright lapsed and for a time he could be quoted freely without permission. But in 1995 copyright in Europe was extended to 70 years, so the rights reverted to the estate.

From that moment, Stephen became increasingly forceful in policing it. He announced that for the foreseeable future no permissions would be granted to quote from his grandfather's work. Court actions were threatened and prosecutions launched. Libraries holding Joyce's letters were forbidden from showing them without written permission; revised editions, anthologies, re-enactments, and plans to run passages from his work on the net were vetoed.

Stephen Joyce's hostility largely accounted for the long absence of a comprehensive life of the author following Ellmann's long-admired biography of 1982. He claimed that he was protecting the reputation of his grandfather and the privacy of his family. Perhaps this was why the permission fees demanded were often extortionate.

There's nothing new in a writer's work being restricted by some determined keeper of the flame. Shelley's work was bowdlerised by his wife, most of Jane Austen's letters were burned by her sister, pages were torn from Lewis Carroll's diaries, probably by family members, and Ted Hughes destroyed one of Sylvia Plath's journals. The literary executors of TS Eliot, George Orwell, Vladimir Nabokov and Lawrence Durrell have at various times denied access to letters and diaries to would-be biographers. Mary Shelley, Franz Kafka and Philip Larkin asked for letters and manuscripts to be burned after their deaths; JD Salinger took Ian Hamilton to court to prevent him quoting from his letters in a proposed biography, and in an attempt to defeat the iconoclasts, Thomas Hardy secretly composed his own biography to be published posthumously as if written by his widow.

The intention of the literary guardian is often not just to protect the reputation and prestige of an individual or family but also to safeguard the integrity of a work against experimentation, revision or trivialisation. Samuel Beckett, for example, refused to allow women to take the leading roles in Waiting for Godot, an indignant Orwell stopped his publisher publicising Nineteen Eighty-Four as a romantic thriller and the Joyce estate refused Kate Bush permission to include the final, seductive words of Molly Bloom from Ulysses in a song.

But there is also a certain power and prestige in being the literary executor of a famous writer. People pay heed to one's words, come cap-in-hand to one's door with requests, and the trustee of manuscripts is free to grant or deny favours with a lordly nod or dismissive gesture. It is a power jealously guarded and sometimes remorselessly implemented. State censorship in the West might be dead but private censorship is alive and flourishing.

The question of rights in Joyce's work was a fraught one even during his lifetime. Fearing prosecution, no one would publish Ulysses complete and unabridged until Sylvia Beach, the American bookseller in Paris, bravely did so in 1922. But Joyce's notoriety attracted pirates , and at one time he was unprotected by good contracts or good law. In November 1925, he found that without his permission Ulysses was being published serially in the magazine Two Worlds by Samuel Roth, the New York pornographer. His protests went unheeded. Roth simply sent a cheque for $1000 which Joyce refused to cash.

Among his literary friends and supporters, only Ezra Pound and Bernard Shaw were unsympathetic. Pound said that Joyce had only himself to blame for not registering his copyright in America. He advised him "to write letters to the press denouncing Roth", or alternatively, "organise a gang of gunmen to scare [him] out of his pants". But Roth, he warned, was a ruthless capitalist driven by avarice, not easily stopped.

Joyce was incensed, and with the aid of friends composed a letter of protest which was circulated among writers, attacking unjust American copyright law. Pound refused to sign, as did Shaw, who suspected a Joycean stunt.

He told Sylvia Beach, that "Nobody that the pirate cares about will blame him taking advantage of the law". But the letter was signed by 167 writers, including Somerset Maugham, Ernest Hemingway, Virginia Woolf and three Nobel Prize-winners - Knut Hamsun, Albert Einstein and WB Yeats, then an Irish senator.

Many newspapers refused to publish the letter, but the New York Times quoted from it, and the London Times ran a story about it, as did the Sunday Express - with a supportive note from Arnold Bennett, a Joyce admirer. Yeats made a speech about the protest to the Irish Senate, proclaiming Ulysses "the work of an heroic mind". Probably because of this, and despite the hostility of Irish Catholics, the book was never banned in Ireland, though its importation was limited and booksellers were reluctant to put it on sale.

Hoping to safeguard his copyright, in December 1930 Joyce signed over the world rights of his novel to Miss Beach. But in the following year she blocked an American edition by demanding a sum no publisher could afford. Joyce was shocked and outraged by what he saw as a betrayal. The woman who had been courageous enough to bring out Ulysses was now preventing its publication in America which would establish his copyright there.

It took many months of anguished negotiation before friends of Joyce persuaded Beach to return the rights to him. She later said that she and her partner, Adrienne Monnier, were simply trying to teach the male-dominated New York publishers to respect women.

In 1932, Bennett Cerf of Random House had a copy of Joyce's novel sent to New York openly marked "Ulysses by James Joyce", knowing it would be seized by US Customs and lead to a prosecution for importing an obscene work. Cerf's attorneys then fought a subtle court campaign to win over the judge, who decided that the book's literary merits outweighed any indecency. Random House duly published the book unexpurgated in 1934.

With Ulysses unbanned in America, four years later Allen Lane of the Bodley Head took a chance and published it in London. Although it had been prohibited in the UK for 16 years, in the wake of the US decision, the Home Office declined to prosecute. In 1960, Lane, then at Penguin Books, took another chance by publishing Lady Chatterley's Lover, but on that occasion it had to survive the famous court case first.

Ironically enough, although Joyce was a great champion of free speech, in 1939 he forbade his chosen biographer, Herbert Gorman, from mentioning his father's dissipation, his daughter's illness or his belated marriage to Nora. It was this impulse of his grandfather to shape and control his reputation that Stephen Joyce picked up and implemented in spades.

However, in 2004 Stephen's threats began to work against him when he tried to stop an exhibition of the author's manuscripts in Dublin for a centenary celebration of Bloomsday, the day in 1904 on which Ulysses is set. It took an Act of the Irish Parliament modifying the country's copyright law to allow it to happen. Then, finally, in 2005, Stephen met his Waterloo when he refused an American scholar, Carol Loeb Shloss, permission to quote any of Joyce's words concerning his aunt in her biography, Lucia: To Dance in the Wake.

With the support of the Stanford Law School Center for Internet and Society's Fair Use Project, she sued the trustees. Their defence - that they were acting to protect the privacy of the author and his family rather than benefit from the property commercially - was rejected by the court as "a misuse of copyright".

In 2007, the parties settled out of court. Two years later, Shloss was awarded costs, and the Joyce estate was ordered to pay $240,000 towards her legal expenses. With the expiration of Joyce's copyright imminent, that spelt the end to one of literature's most notorious copyright dictatorships. It was also a warning to literary estates worldwide not to sabotage scholarship or act unreasonably against requests to quote. The keeping of the Joycean flame now rests with Joyce's readers.

Gordon Bowker's 'James Joyce: a biography' is published by Weidenfeld & Nicolson