Volume 11, Issue 3 - March 2013

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VOLUME 11, ISSUE 3: STUDENT SPOTLIGHT

“Hurry Up Please Its Time:”[1] The Growing Need for ADR Methods in the Publishing Industry

Lindsay Nichols*

I. Introduction

Alternative Dispute Resolution (“ADR”) methods have much to offer the world of publishing.  Literature, like other art forms, is a complex arena for the judiciary to negotiate.  This is due to a variety of reasons, one being the fact that books often take on lives of their own, distinct from both their author and their publisher. Mary Wollstonecraft Shelley famously acknowledged this in Frankenstein when she wrote in its introduction, “[a]nd now, once again, I bid my hideous progeny go forth and prosper.”[2] In fact, the disconnect between the work and those who have been involved in its creation has led to absurd results. In a 1966 U.S. Supreme Court case out of Massachusetts, a book—not its author, publisher, or distributor—was put on trial in an obscenity case.[3] Other reasons revolve around the complex nature of the publishing industry: publishing companies and authors may have different interests, copyright laws in different jurisdictions can conflict, a publishing company may have to deal with a late author’s estate, and publishing technology continues to change rapidly. All of these reasons equate to a number of publishing disputes being litigated in the court system where an ultimate resolution is reached, but the parties lose something in the process: personal privacy, the avoidance of bad press, and relationships with other involved persons or monetary losses. Surely litigation is not the best approach for these publishing disputes, but then the question becomes: what is?

The answer lies in ADR.  ADR methods are private, confidential, and informal.  They have the needed flexibility, potential for creativity, and room for specificity to help prevent or resolve some of the conflicts mentioned above. As publishing companies seek to create an effective dispute system design, publishers should consider ADR methods as the premier tool to resolve disputes in the publishing industry.

This paper seeks to illuminate the positive impact the use of ADR techniques could have on the publishing industry and how using ADR methods is the best way to resolve publishing disputes. Part II describes various instances of publishing disputes that have occurred, why litigation was an inadequate process for resolution, and why ADR methods are better suited to resolve those conflicts.  Part III discusses examples from modern literature, looking specifically at two instances where authors and publishers engaged in ADR practices even before the ADR movement became widely accepted. Finally, Part IV examines potential ways of incorporating ADR into publishing contracts before disputes arise as well as a potential system for resolving disputes without making the parties resort to litigation.

II. Publishing Disputes

A. Alternatives to Traditional Publishing

Many publishing disputes end up in litigation. While litigation will ultimately resolve the conflict, there are many drawbacks to the litigation process: the court’s ultimate authority, the court’s deadlines, the court’s rules of procedure and evidence, the finality of decisions made by the judge or jury, and the narrow forms of remedy.[4]

Are there alternatives to the traditional publishing route that is the source of so many disputes? There are, of course, always creative solutions when creative people are involved. One option would be to do as Virginia Woolf[5] and her husband Leonard Woolf did: they formed their own printing press called Hogarth Press in 1917 and published many notable authors such as T.S. Eliot, H.G. Wells, Katherine Mansfield, Chekov, Tolstoy, and Freud.[6] The Woolfs created Hogarth Press to both avoid pressure from publishers and to have the freedom to write and publish as they wished.[7] Yet, while the Woolfs had autonomy over their publishing processes, they also experienced the costs of publishing, both monetarily and in terms of the difficulty of learning how to operate the printing press.[8] Moreover, while Leonard and Virginia Woolf were not the only small publishers of the time—other examples include Shakespeare and Company, Contact Editions, Three Mountain Press, Black Sun Press, and Hours Press—external factors such as WWI and the economic troubles of the 1920s and 30s caused many small presses to close their doors by the early 1930s.[9] At any rate, creating one’s own publishing company is likely not a viable option for most authors.  Furthermore, the publishing rate of some of these small publishers (averaging four books a year[10]) would not meet the demands of our present day society that consumes media products quickly and on a global scale.

Another alternative would be to follow the example of Barney Rosset, who used his publishing company as a political voice. Rosset bought the New York-based Grove Press in 1951 and, for the next three decades, published books other publishers would not touch because they were too experimental or too risqué.[11] Rosset published in the face of 1950′s obscenity laws, taking on hundreds of lawsuits and setting out to have the existing obscenity laws struck down.[12] In one particular example, involving the publication of D.H. Lawrence’s[13] Lady Chatterley’s Lover, Rosset engaged in almost five years of preparation:

We decided the best thing to do was send the book through the mail so it would be seized by the post office . . . a federal governmental agency, and if they arrest you, you go to federal court. That way you don’t have to defend the book in some small town. If we won against the post office, then the federal government was declaring that this book was not objectionable. That was the idea, and it worked out in exactly that way.[14]

In fact, Rosset’s idea did work out: Though the New York Postmaster declared Lady Chatterly’s Lover to be obscene under 18 U.S.C. §1461, the Southern District of New York reversed, holding that Lady Chatterly’s Lover was not obscene and the Postmaster General’s decision was clearly erroneous,[15] thereby allowing Lady Chatterly’s Lover to be published and distributed in the United States. However, as with Hogarth Press, the amount of time, money, and effort needed to take on lawsuits as a political mechanism is not something most authors would be willing, or able, to expend. There are more efficient alternatives to litigating publishing disputes; they lie within the realm of ADR.

The most common ADR methods include negotiation, mediation, and arbitration. Negotiation is a process in which the parties themselves control the discussion and creation of a mutually beneficial solution. They also control the negotiation style, the timing and place of the negotiation, and the ability to reject an outcome unless mutually agreed on.[16] Benefits include autonomy and the opportunity to resolve the issue privately.[17] In one particular form of negotiation called “principled” negotiation,[18] a collaborative effort is paramount.  The basic elements of principled negotiation include a focus on the parties’ interests, investment in options for mutual gains, and the use of objective criteria.[19]

Mediation is a process by which two or more disputing parties invite a neutral third-party to help them create a negotiated settlement together.  Mediation is forward rather than backward looking.[20] Benefits include the parties’ ability to control the outcome, a neutral third-party’s perspective, and a greater likelihood of maintaining a working relationship between the parties.[21] Mediation can be divided into five stages: (1) pre-mediation where parties agree to mediate; (2) the opening of the mediation where the mediator explains the process; (3) the parties’ opening presentations where each party explains their side of the story; (4) mediated negotiations where the parties determine the issues to be discussed, identify alternatives, and perhaps speak individually to the mediator in a private meeting called a caucus; and (5) the agreement when the mediator helps draft a verbal or written accord reached by the parties.[22]

Finally, arbitration involves submitting a dispute to an impartial third-party for a final and binding decision, which is called an “award.”[23] While arbitration is less autonomous than negotiation or even mediation, one of its benefits is that it ensures that a solution, or ‘award,’ will be issued.[24]

B. Why ADR Methods are Preferable to Litigation

Using ADR methods to resolve publishing disputes is preferable to litigating those disputes in court for a variety of reasons. ADR methods provide several very positive elements that make resolving the dispute more palatable for both parties: ADR can promote parties’ interests in the dispute; it can preserve the parties’ relationships with one another; it allows parties to resolve disputes privately and can allow the parties to avoid negative publicity; and finally, ADR methods are flexible and can adapt to situations where either the law has not caught up yet or where the law’s jurisdiction does not extend. Consider the following examples of authors (or authors’ estates) and publishers who litigated. While they arrived at a final decision, both parties lost something in the litigation process.

In 1987, after the death of American author John Cheever,[25] his widow Mary Cheever entered into a contract with Academy Chicago Publishers to publish a collection of Cheever’s short stories in an anthology.[26] Relying on contract law principles, the Supreme Court of Illinois determined that there was actually no contract between Mrs. Cheever and Academy Chicago Publishers in the first place because there were disputes over material elements of the contract such as the number of stories to be included, the page length of the anthology, and Mrs. Cheever’s involvement.[27] Thus, after years of work to create the short-story anthology, and litigation expenses for both sides, Academy Chicago Publishers had no book to show for its efforts and Mrs. Cheever received neither royalties nor the further publication of her husband’s work. Had this dispute been settled with ADR it might have been possible to preserve both parties’ interests rather than just voiding the contract.

ADR can preserve parties’ relationships in a way litigation cannot. In another example, five years after Ernest Hemingway’s[28] death in 1961, a close friend of Hemingway and Hemingway’s family, A.E. Hotchner, wrote and published a memoir of Hemingway titled Papa Hemingway. The memoir included long quotations by Hemingway, as well as medical details about Hemingway’s illness and suicide. The memoir also contained a few positive portrayals of Mrs. Hemingway. In 1966, Hemingway’s widow brought an action against Papa Hemingway’s publisher, Random House, alleging that use of Hemingway’s quotes constituted copyright infringement and competition with Hemingway’s other literary works.  She also contended the inclusion of medical information breached the confidentiality and fiduciary duties Hotchner had in his relationship with Ernest Hemingway.[29] The court ruled in favor of Hotchner.[30] Papa Hemingway is still in print and available for purchase, but the relationship between Hotchner and Mrs. Hemingway was wrung through the litigation process, and this all happened only five years after Hemingway’s death.

Not only can ADR provide a better avenue for dispute resolution in the wake of an author’s death, it can also help improve and maintain relationships between the publisher and the estate for an extended period of time. Consider, for example, that while John Steinbeck[31] signed his original publishing agreement in 1938 with The Viking Press, seventy years later, his children and other assigns were still litigating with Penguin over the publishing agreement, and subsequent changes, in 2008.[32] The long-term nature of a publishing house’s relationship with the author and the author’s estate emphasizes the need for a positive, effective relationship between the parties.

Furthermore, ADR is an avenue to resolve disputes privately. Random House was sued by J.D. Salinger—famous not only for his work, but for his reclusive lifestyle[33]—over a biography by Ian Hamilton that was slated to be published.[34] Hamilton had researched the biography by reading Salinger’s letters available at university libraries.[35] However, the content in the biography so closely mirrored the content and expression of the letters that Salinger sued Hamilton and Random House for copyright infringement. For instance, a letter in which Salinger criticized 1940 presidential candidate Wendell Willkie described, “[h]e looks to me like a guy who makes his wife keep a scrapbook for him.”[36] Hamilton’s biography relates that Salinger “had fingered [Wilkie] as the sort of fellow who makes his wife keep an album of his press cuttings.”[37] The Second Circuit held that Hamilton had in fact infringed on Salinger’s copyrighted works[38] and issued an injunction preventing the biography from being published.[39] While Salinger won the case, the litigation subjected the reclusive Salinger to a very public process. Had Salinger and Random House engaged in an ADR process to settle the dispute, Random House may have been able to salvage parts of its book and Salinger could have kept out of the public eye.

Similarly, Harper Lee[40]—an author who shuns the public spotlight as much as Salinger did—and Penguin Press have recently engaged in a very public disagreement: Penguin and the author of The Mockingbird Next Door: Life with Harper Lee maintain the memoir was created in cooperation with Harper Lee and her sister Alice, yet Lee issued a public statement through Alice’s law firm denying involvement with the book.[41] If a lawsuit does result from the publication of the memoir, it may look much like the Salinger dispute and will involve Lee in the type of publicity she has sought to avoid for years, as well as jeopardize a publication into which Penguin has invested resources and time.

Beyond just avoiding the public eye, using ADR can help avoid negative publicity. Some ADR methods, such as arbitration, allow the decision-making responsibilities to be passed off to a third party.  In a 1981 contract dispute between Simon & Schuster and Joseph Heller,[42] the parties resolved the dispute with arbitration.[43] Able to comment on the situation without having to accept responsibility or point fingers, Simon & Schuster chairman Richard E. Snyder stated, “[y]es, we are in dispute and we will let the arbitration speak for itself.”[44]

Avoiding negative publicity by using ADR over litigation is also key in disputes between publishing houses. In 1962, both McGraw Hill and Random House published books about President Kennedy’s bravery during World War II. McGraw Hill sued because it considered the title of the Random House publication too similar to its own.[45] While both publishers were attempting to highlight the president’s wartime valor through the biographies, they were simultaneously arguing over permissible combinations of the phrases: PT 109, World War II, and John F. Kennedy.[46] It took the Supreme Court of New York to point out that “the law does not recognize a monopoly of the English language.”[47] A process such as arbitration could have involved a neutral third-party familiar with copyright law and unfair competition to rule on the permissibility of Random House’s title without making the dispute over the title public knowledge.

Finally, ADR has the distinct advantage of being able to adapt to some issues the U.S. court system is not equipped to handle—either for situations where the relevant law has not caught up to new technology or the relevant law’s jurisdiction does not extend to the issue at hand. Recent technology creating electronic readers (e.g., the Kindle, the Nook, and the Reader) has caused disputes to arise in publishing that can more quickly and effectively be dealt with by the flexibility of ADR. While publishing contracts for the last 15 years have traditionally included terms for e-books, the contracts for books that were published before the invention of e-books are causing problems.[48] The question of who owns the rights—the author (or the estate) or the publisher—and how much authors should receive in royalties are issues currently being debated, or causing traditional publishers to amend old contracts.[49]

In 2001, Random House sued RosettaBooks for publishing electronic versions of particular Random House titles.[50] The Second Circuit denied Random House’s request for a preliminary injunction, pointing out that New York law has a restrictive view of what new uses may be covered by an exclusive license when the parties to a contract have not expressly considered future forms of publication.[51] Afterwards, instead of proceeding to trial, the two parties settled their case out of court.[52] Moreover, the e-book dispute is carried on between publishers themselves. In 2010, when the Wylie (literary) Agency ventured into the realm of publishing by releasing Kindle-only electronic versions of books written by Wylie’s clients, Macmillian’s CEO publicly criticized Wylie for giving only Amazon rights to the electronic editions.[53] Additionally, Random House issued a statement saying it would cease doing business with the Wylie Agency until the disputed was resolved.[54]

Finally, with books often being sold in different countries and in different languages, publishing disputes need to be resolved in a way that can take different notions of copyright into account. Different countries have different ideas about what copyright law should protect. For example, French and U.S copyright laws are very different, as the French law elevates the rights of the author above the rights of the public, whereas in the U.S., copyright law considers the rights of both equally.[55] Not only may different notions of copyright law conflict, but it is generally understood that copyright laws do not extend extraterritorially.[56] Even under the Universal Copyright Convention, the Convention does not extend a member country’s copyright law outside of the jurisdiction, but rather ensures that the member country give the same copyright protection to a work created abroad, albeit infringed within its borders, as it would to a domestic work.[57] The varying copyright laws across different jurisdictions could add a layer of complication to using stock publishing contracts or to the litigation process. With an ADR method, however, a publishing contract or agreement involving flexibility, creativity, and customization to the particular author’s situation could be created, making both parties—the author and the publisher—more satisfied with the arrangement.

In conclusion, ADR is a preferable method to litigating publishing disputes because it preserves the interests and relationships of the parties involved, allows the parties to resolve their disputes privately so as to avoid negative publicity, and presents a flexible and quickly-adaptable method to resolve new or extra-jurisdictional disputes.

III. Examples from Modern Literature

This paper includes many examples from modern literature, both in the court cases listed in Part II and in the following instances examined in detail. Examples from modern literature are relevant for a number of reasons. In the modern era, technological advances altered society’s perception of the world; new machines and other labor-saving devices meant that activities could be accomplished quicker and more successfully.[58] Modernism was also a rejection of tradition, meaning that artistic methods like appropriation and parody became more prevalent.[59] For these reasons, modern literature is an ideal body of work to study, as it presents literature as delivered to the masses (through technological advances) and literature as it began to incorporate previous work, raising many questions of copyright, contract, and mass distribution. As discussed below, certain authors of modern literature engaged in ADR-type practices before ADR became a well-established field in its own right, emphasizing ADR’s suitability for the realm of publishing.

A. James Joyce, the publication of Ulysses, and Principled Negotiation

Now considered one of the best novels in the English language,[60] James Joyce’s Ulysses encountered no small amount of problems in its publication process. While Irish author James Joyce[61] had published earlier works, Ulysses was either too long for publishers to tackle[62] or publishers did not want to publish the novel in the face of obscenity laws. Originally, two episodes of Ulysses were published in the literary magazine Little Review, but when a copy ended up in the hands of the daughter of a prominent New York attorney, an official complaint was filed.[63] After a jury trial, Ulysses was ruled obscene and Little Review was guilty of publishing obscenity.[64] Joyce eventually found a French publisher in American expatriate Sylvia Beach, and her bookstore Shakespeare and Company, but the copies produced were only available to readers in Europe.[65]

These struggles prompted Joyce to write to Random House co-founder Bennet Cerf in 1932. Joyce’s letter to Cerf suggests an exchange similar to what may be witnessed in the principled negotiation[66] of today.  First, the parties’ interests are considered. Random House, a publishing company, has an interest in publishing a novel that has fetched large sums in Europe.[67] Joyce’s interest is to finally see Ulysses published: “[p]ublishers and printers alike seemed to agree among themselves, no matter how divergent their points of view were in other matters, not to publish anything of mine as I wrote it.”[68] Second, Joyce examines options for mutual gain, as he describes the peculiar situation he finds himself in:

On the one hand I was unable to acquire the copyright in the United States since I could not comply with the requirements of the American copyright law which demands the republication in the United States of any English book published elsewhere within a period of six months after the date of such publication [due to the obscenity laws], and on the other hand the demand for Ulysses which increased every year in proportion as the book penetrated into larger circles [creating] the opportunity for any unscrupulous person to have it printed and sold clandestinely.[69]

Joyce’s situation falls outside the governance of the law, since any copyright protection is denied to him due to the obscenity laws. If Joyce and Random House could partner together, Joyce would receive a copyright and royalties and Random House would be the official publisher, receiving both profits and copyright protection.  Thus, in exchange for Cerf’s “courageous venture both as regards the legalisation [sic] of Ulysses as well as its publication,” Joyce offers Cerf, “I willingly certify hereby that not only will your edition be the only authentic one in the United States but also the only one there on which I will be receiving royalties.” [70] Joyce also expressed his wish that the two stay in communication about the progress of their efforts until Ulysses was published, which would only occur with the permission of the U.S. judiciary.[71] Random House continued to advocate for the novel and, in December 1933, United States District Judge John M. Woolsey declared Ulysses not obscene, announcing, “Ulysses’ may, therefore, be admitted into the United States.”[72] The result and relationship forged by Joyce and Cerf continues to this day: Ulysses is still published by Vintage International, an imprint of Random House.

B. T.S. Eliot and Mediation

1. The publication of Poems by T.S. Eliot

Before T.S. Eliot [73] published his masterpiece The Waste Land, he published an earlier work—Poems by T.S. Eliot—with an imprint of Random House, called Knopf, through a process which resembles today’s mediation.[74] The publication of Poems by T.S. Eliot involved Eliot’s good friend Ezra Pound,[75] a fellow Modernist poet, as well as New York attorney and modern art and literature patron John Quinn.[76]  Both Pound and Quinn acted as intermediaries to the publishing process; indeed, their involvement in the communication between Knopf and Eliot cast them in a role that resembles that of today’s mediator.

In 1918, it was Pound who first sent the Poems manuscript to Knopf on Eliot’s behalf, who communicated with the publisher and ultimately was told of Knopf’s rejection of the manuscript.[77] Later, it was Quinn who contacted Knopf to find out that the publisher was interested only in publishing the “poems alone but not the poems with the prose”[78] and was concerned that the original title, Prufrock (named after one of Eliot’s poems), may affect sales.[79] Furthermore, Quinn’s communications with Knopf revealed that the publisher was “willing and anxious to publish the poems in a volume by themselves” so long as the manuscript could be changed to remove the submitted essays.[80] In this way, one party—the publisher—was communicating its concerns and interests to the third-party, Quinn.

When Quinn spoke to Eliot—the other party—Eliot agreed to add more poems and change the title to Poems by T.S. Eliot.[81] After these changes, Knopf agreed to publish the manuscript. Quinn even looked over Eliot’s contract with Knopf, made a few changes, and then signed off as Eliot’s attorney.[82] Eliot later wrote to thank Quinn: “[i]t is quite obvious that without you, I should never get anything published in America at all.”[83]

The analysis of the publishing process of Poems by T.S. Eliot reveals the integral stages of mediation, laid out in Part II: the parties’ presentations where each party explains their interests, the mediated negotiations where the parties determine the issues to be discussed and create alternatives, and finally, the agreement when the mediator assists in drafting a written accord.[84] Indeed, Knopf wanted to publish a book of poetry under a more mainstream name and Eliot wanted to publish his work in America. When Eliot made the changes to the manuscript, Knopf agreed to publish the manuscript they had previously rejected. Finally, Quinn helped finalized the agreement between the two parties by reviewing the publication contract.

2. The publication of The Waste Land

Credited as the “justification” for the Modernist movement by Ezra Pound, Eliot’s 435-line poem The Waste Land has been called the “epitome of a modernist poem.”[85] Still, The Waste Land, like Ulysses, had its share of publishing challenges.

The Waste Land was ultimately published in two literary journals—the Criterion in England and the Dial in the United States—and a few months later appeared in an independent volume published by Boni and Liveright.[86] In fact, Horace Liveright had given Eliot an offer of publication before The Waste Land was even finished.[87] Liveright’s access to The Waste Land “had been mediated by Pound:” he was the one to “[assume] the function of stage director cuing the characters in their parts: the shy, reserved poet played by T.S. Eliot; the brash, young publisher acted by Horace Liveright.”[88] In this particular situation, Pound was integral to facilitating communication between the two parties because their differing personalities may have otherwise impeded the creation of a publishing agreement.

Pound’s role as an intermediary was not just useful in handling personality conflicts. In reaching a publishing agreement with the Dial, Pound’s presence was a way of smoothing out miscommunications and angry emotions that threatened to obstruct any sort of agreement. Much like the mediators of today, Pound’s presence as a third-party helped diffuse tension and reach an agreement.[89]

Pound had been experiencing some success with promoting The Waste Land to the editor of the Dial, Scofield Thayer, when communication between Eliot and Thayer began to break down.[90] First, Eliot’s request via telegraph for no less than £50 for publication had been “distorted in transmission” to “!8!56 pounds” which Thayer took as a “shocking request.”[91] Second, when Thayer asked to see a copy of the manuscript before publication and refused to alter the journal’s policy of “pay[ing] all contributors famous and unknown at the same rates,” Eliot threatened to withdraw his poem from consideration for publication.[92] Eliot expressed in a letter that a payment of £30 for his “biggest work,” a poem that had taken a year to write, was “out of the question.”[93] Thayer was so insulted by Eliot’s letter that he refused to continue communicating with him; instead Thayer turned to Pound.[94]

Employing a strategy that looks much like today’s mediation technique of finding goals both disputants have in common,[95] Pound chose to point out the positive aspects that could result from an agreement. Rather than picking a certain side, Pound emphasized that publishing The Waste Land would be mutually beneficial for both parties: first, Pound preferred The Waste Land to be published in the Dial because “one good review [is preferable] to several less good ones,” and second, “literary modernism could best present itself . . . [if it was published] under the umbrella of a single publisher,” such as the Dial.[96] Finally, Thayer’s co-editor at the Dial, James Sibley Watson, Jr., began to speak with Pound on Thayer’s behalf.  The two came up with a solution that both Thayer and Eliot agreed to: Eliot would receive the original amount of £30 but would also receive the Dial Award (including prize money) and Thayer would receive an advance transcript of the poem before publication.[97] The Waste Land was subsequently published in the Dial, making Eliot “the most hotly contested issue in American poetry”[98] and contributing to the Dial’s success. This was a beneficial result for both parties that could not have been achieved without Pound acting as a mediator to facilitate the agreement.

3.  Ezra Pound as a Third-Party

Pound’s role as a third-party (“TP”) is particularly notable because he was such an effective intermediary in these various publishing disputes. Indeed, Thayer at one point summarized Pound’s presence as the only remaining thread in his relationship with Eliot: “[w]e now correspond only through Pound . . . .” [99] While Pound was a poet in his own right, he was also a “cultural impresario and entrepreneur who, precisely by virtue of [his] roles, occupied a critical position at the heart of modernism.”[100] His role as such gave him two qualities important to a TP: authority and impartiality.[101] The TP’s authority is why the parties are willing to cooperate; the TP’s effect on the parties—by motivating them to collaborate—establishes why a TP is often necessary in mediating a dispute.[102] Furthermore, the TP’s impartiality guarantees that his or her actions will be based on the merits of the case itself, not a personal preference or personal connection with one of the parties.[103]

In this case, Pound’s authority came from his position at the forefront of the Modernist movement: he was a poet himself and was actively involved in advancing the work of his peers, such as Eliot, W.B. Yeats, James Joyce, and Ernest Hemingway.[104] Because of his intimate knowledge of Modernism, both Eliot and Thayer respected his opinion. Furthermore, Pound’s commitment to advancing the movement as a whole—evidenced by his desire to gather significant modern literature under the umbrella of one publisher,[105] not just Eliot’s career or the financial success of any particular literary journal—pointed to his ability to be impartial in these disputes. Pound respected both Eliot and Thayer and recognized that each party had something to bring to the table to advance the Modern movement. Because of Pound’s unique position at the heart of the Modern movement, he possessed both authority and impartiality. These qualities made him a highly effective TP to resolving the publishing dispute between Eliot and Thayer.

C. Modern Literature & Copyright Issues

Modern literature presents various issues involving copyright law. One reason is that the movement occurred in an “Era of Repetition:” a “historical period . . . for which iteration and repetition seemed to dominate the whole world of artistic creativity.”[106] Much of modern art and literature involves repeating, or incorporating, pieces of past art or literature. For example, even a cursory look at the first section of Eliot’s The Waste Land evidences Eliot’s own tendency to reference previous literary works: the first section includes an allusion to authors and works such as Chaucer, Walt Whitman, the Bible, Alfred Lord Tennyson, Sappho, Yeats, and Shakespeare almost every two lines.[107] The incorporation of past works not only raises copyright issues in the modern work itself, but—as subsequent parodies of modern literature appeared in the media—the rights of modern authors themselves become an issue. Especially complex is the situation in which copyright law varies in different jurisdictions. In situations like these, ADR methods could be particularly useful in accommodating the rights of the modern author and the rights of the parodists at the same time.

1. Copyright Law in the U.S. and Britain.

a. U.S. Copyright Law and the doctrine of Fair Use.

Though copyright protection for authors is of paramount concern, the purpose of U.S. copyright law “[t]o promote the Progress of Science and useful Arts . . .” requires some opportunity for the fair use of copyrighted works.[108] The fair use defense to copyright infringement extends to activities such as critiquing the work, commenting on the work, new reporting, teaching, scholarship, and research, and deems these activities not to be an infringement of copyright.[109] In determining whether a particular instance falls under fair use, there are four factors to consider: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the copyrighted work used; and (4) the effect of the use upon the market or value of the copyrighted work.[110] Indeed, some works like parodies require being able to quote directly from a work in order to create a new work that comments on the original.[111] Therefore, a parodist has a claim to use the original author’s creative efforts.[112]

b. British Copyright Law

In Britain, the Copyright, Designs and Patent Act of 1988 states that any adaption made of a work is restricted by the work’s copyright in literature, drama or music.[113] The Act then defines the ‘adaption’ of a literary work as a translation, dramatization, or a “version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical.”[114]

2. Gary Hallgren’s The Wasteland

American cartoonist Gary Hallgren[115] created a visual parody[116] of T.S. Eliot’s work; a map of The Wasteland, an imaginary amusement park that incorporates several of Eliot’s poems.[117] In the map of The Wasteland, Hallgren utilized character names, phrases, and concepts that are taken directly from Eliot’s poems. This normally would present a copyright issue.  However, under the Fair Use Doctrine, Hallgren is able to use a portion of Eliot’s poetry for criticism or comment.[118] Furthermore, the purpose of The Wasteland amusement park parody is to either poke fun at, or comment on, Eliot’s poetry. For example, Hallgren highlighted the spatial nature of the poems; he did not attempt to replace Eliot’s work or even create more poetry.[119] Hallgren was able to publish his work without censor because it was published in the United States. Had the parody been published in another jurisdiction, however, Hallgren may have encountered obstacles. Consider the following example.

3. Martin Rowson’s The Waste Land

In 1990, British cartoonist Martin Rowson[120] published a comic book inspired by Eliot’s poem The Waste Land. The comic book retells the poem as a mystery: “L.A. private eye Christopher Marlowe, searching for his dead partner’s killers, is lured into a web of murder, deceit, lust [and] despair [set in a] . . . nightmare world.”[121] Rowson’s The Waste Land “was a dazzlingly executed and gleefully sustained joke about the poem and its cultural milieu- part erudite spoof, part visual shaggy-dog story, part loud and juicy raspberry at a literary monolith.”[122] It was published in New York by Harper & Row; under American copyright law and the fair use defense, Rowson’s comic was published in its totality.[123] However, in the United Kingdom, “a lengthy period of horse-trading between Penguin and the lawyers [of Eliot's estate] resulted in a version which was more or less intact pictorially but in which many of the wittiest verbal gags . . . were at best muffled, at worse ruined.”[124] For instance, the character of Phlebas the Phoenician became Mike the Minoan, Stetson became Idaho Ez, and the nightingale no longer says ‘twit twit twit’ and instead says ‘quack’.[125]

In an age of mass publication and mass distribution of media,[126] Rowson’s example is much more likely than Hallgren’s; an author today is more likely to face publication in multiple countries and face multiple copyright laws than simply publishing one time in the author’s home country. Furthermore, Rowson’s struggles to publish his comic in Britain leave the question of how much the interests of either party were really satisfied by the censored publication. If Eliot’s lawyers were concerned about Rowson’s comic somehow harming the legacy of the poem, the American version—using Eliot’s names and phrases—still existed and was available for purchase. On the other side, Rowson had to compromise his artistic vision just to see his comic book published in England. In this circumstance, an ADR method could have greatly helped this dispute; it could have brought the parties together to discuss concerns each had about copyright infringement, money royalties, or artistic vision and could have facilitated a solution that accommodated both parties’ concerns and interests. As this situation occurs more and more often—authors seeing their works published in various locations under different copyright laws—ADR should be considered as an effective and flexible method for resolving copyright disputes across jurisdictions that do not share the same laws.

IV. ADR Methods for Resolving Publishing Disputes

The publishing industry is full of complex issues that give rise to a variety of disputes. As discussed in Part II, litigation is not the best way to resolve these disputes because rarely do the parties come away with everything they wanted. Even if a party wins at trial, the party may have lost an opportunity for royalties, a relationship with a friend, the preservation of privacy, or the avoidance of bad press. Because ADR methods are flexible, private, creative, and may be customized to individual situations, publishing disputes are best resolved by ADR methods. This section seeks to examine different systems of deflecting and resolving publishing disputes by utilizing ADR techniques and thus avoiding litigation.

A. Publishing Contracts

One method for resolving publishing disputes is utilizing the publishing contract itself. A creatively-drafted, interest-based contract may circumvent possible disputes. Furthermore, including a dispute resolution clause in a contract will typically direct the parties to mediation or arbitration, where both sides can attempt to reach an agreement without resorting to litigation from the outset. In fact, when parties are first negotiating a contract is the ideal time to decide on a reasonable way to resolve future disputes, as the parties are more likely to be cooperative and rational before a dispute has flared up than after.[127]

1. Incorporating Interests in Publishing Contracts 

In the ADR context, a party’s interests are different from their positions. A position is a party’s stance on an issue, while interests are the parties’ actual concerns.[128] Interests tend to be less tangible than positions, but motivate the parties nonetheless. In fact, interests define the problem.[129] Considering party interests while drafting a publishing contract can help reach a solution amenable to both parties and avoid a possible future dispute. Consider the following example:

A promising, but unknown writer is anxious to enter into a contract and publish her first novel with a well-known publishing company. She has full confidence—as does her editor—that the book will be a success and will sell well over the expected amount of copies, making a large profit for the publishing company. Thus, the writer would like a high percentage of the royalties. This is the author’s position in the contract negotiation. The publishing company, however, is worried about recouping its costs: paying the editor, the copy-editor, the art designer, and the publicist as well as the printing, binding, and distribution costs. The novel is the first work by an unknown artist, and the publishing company has no idea how well it will sell. Thus, the publishing company wants to keep most of the money from the novel’s sales and give the author a much lower percentage of royalties. This is the publishing company’s position in the contract negotiations.

At first glance, it appears that the contract negotiations between author and publisher have come to an impasse. Surely both sides’ interests cannot be satisfied; the author cannot receive a high percentage and low percentage of royalties at the same time.

By considering the parties’ interests, rather than just their positions, a solution may be reached.[130] The author’s interests are publishing her novel—as this is her first publication—and making a substantial profit off of it because she believes the novel is an excellent piece of artistic work. She does not have a pressing need to receive the extra money right away though. The publishing company has an interest in recouping its costs immediately so it can continue to pay the costs and salaries associated with publication. Thus, if the parties worked out an agreement based on their interests, it might look something like this: for the first printing of the novel, the publishing company will keep most of the monies received from sales. That way the company can still pay its employees and recoup costs associated with printing the novel. However, if the novel is as big of a success as the author believes it will be, then she may negotiate a high percentage of royalties for the subsequent printings of her novel. Because both parties’ interests were considered in this example, they were able to reach an effective agreement that will likely satisfy them both in the future as well.

2. Identifying Areas of Disputes in Publishing Contracts

Considering the parties’ interests in drafting a contract is an effective way to curtail future disputes. Moreover, including as many specifics as possible in the contract will assist the parties in identifying their own interests and any contractual provisions that may be problematic. Copyright scholar Nimmer suggests a checklist of contractual issues to consider when creating a publishing agreement including: (1) grant of rights, and whether the grant extends to different languages, territories, and forms of publication; (2) financial issues including an advance, royalties, and share of licensing income; (3) manuscript considerations including the deadlines, acceptability, and potential of loss; (4) publishing decisions and who has the authority to make them; (5) future works; (6) new media issues; (7) international concerns; and (8) copyright claims.[131]

Especially notable is Nimmer’s acknowledgement of certain areas of potential dispute that might arise if not considered in advance, such as the author’s relationship with the editor, unsatisfactory manuscripts, disputes with collaborators, and disputes over publicity efforts.[132] Nimmer also outlines specific types of disputes, such as disputes with authors and licensees, with art and promotional staff, and with third-parties such as government agencies.[133] Drafting a thorough publishing contract allows parties to recognize their own interests in the contract negotiation. It also allows both parties to identify certain areas that may give rise to future disputes and to prevent future problems. In short, being proactive in contract drafting—considering parties’ interests and what in the contract might go wrong and addressing it—is a significant step toward resolving future disputes before they ever go to litigation.

3. ADR Clauses in Publishing Contracts

Once the parties have considered their interests and the areas in the contract that may be problematic, including an ADR clause in a publishing contract allows parties to outline how they want to handle a future dispute. ADR clauses, or dispute resolution clauses, are well-suited for nearly every type of business agreement[134] and thus can be used effectively by the publishing industry.

Dispute resolution clauses aim to avoid litigation and are useful instruments to direct parties toward ADR methods to resolve a dispute when tensions are running high and where the court system or a statute does not require participation in a mediation program.[135]  One of the appeals of a dispute resolution clause is the expectation that parties will honor the clause because they have contractually agreed to it, regardless of their personal eagerness or reluctance to try the ADR method after the dispute has erupted.[136] In general, the judiciary is supportive of ADR clauses and will often enforce them or dismiss litigation where one party failed to comply with the clause.[137]

While dispute resolution clauses vary depending on the agreement at hand and the needs of the parties, the most sophisticated agreements include a “multistep scheme of alternative dispute resolution.”[138] Moreover, the dispute resolution clauses will likely reference an outside set of rules or procedures—like those of the American Arbitration Association, the Center for Public Resources (CPR), or JAMS Arbitration, Mediation, and ADR Services—which may be modified to fit the specific situation or the potential disputes that may arise.[139] The clauses will also lay out other necessary steps such as the selection of a neutral, enforceability, confidentiality, and any international agreements.[140] The parties should give careful thought to the dispute resolution clause they create because courts have, on occasion, prevented the parties from enforcing the second step of the clause if the parties fail to attempt the first specified method.[141]

B. The Multi-Step Alternative Dispute Resolution Clause

Creating a multi-step dispute resolution clause allows parties to designate how the resolution of a future dispute will progress and which ADR methods they want to utilize. Including a multi-step process in a publishing contract will not only help channel future disputes away from litigation and into processes the parties have chosen, but the process is also customizable to the unique needs of a specific publishing contract.

Multi-step alternative dispute resolution clauses commonly begin with mediation or negotiation.[142] Usually these methods are followed by one of two kinds of arbitration: binding or non-binding.[143] Other possible methods include a mini-trial—a highly structured process in which party representatives work to reframe the problem and work with a neutral party to achieve a settlement—or med-arb—a hybrid process that begins with mediation and shifts to arbitration if the parties are unable to reach an agreement.[144] Each publishing contract presents its own unique set of concerns for the author and publishing company. Thus, the dispute resolution clause should be tailored accordingly. However, this paper suggests that the three most common ADR methods––negotiation, mediation, and arbitration––are the strongest candidates (in that respective order) for inclusion into a publishing contract’s multi-step dispute resolution clause.

1. Negotiation

Negotiation is an ideal first step in a multi-step dispute resolution clause because, while publishing disputes are undoubtedly complex and involve many issues, usually the issues come from just two different parties: the author (or the estate) and the publishing company. In most clauses, negotiation is non-binding, and further steps to resolve a dispute are provided for if negotiations fail.[145]Additionally, negotiation is ADR at its most basic: a means of one party getting what it wants from another. In fact, people negotiate daily about almost any topic.[146] Utilizing the technique of principled negotiation allows the parties to resolve their conflict in a collaborative and interest-based fashion, leading to a greater satisfaction with the resulting settlement.[147] By attempting negotiation first, the parties in dispute can work to resolve the matter privately, efficiently, on their own terms, and without having to bring in a neutral third-party to facilitate.

A sample negotiation clause may resemble the following:

The parties shall attempt in good faith to resolve any disputes arising out of or relating to this Agreement promptly by negotiation between [party representatives] who have authority to settle the controversy . . . Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within [15] days after delivery of the notice, the receiving party shall submit to the other a written response [including a summary of the party's positions and who will be representing the party] . . . Within [30] days after delivery of the disputing party’s notice, the [party representatives] shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary to resolve the dispute. All reasonable requests for information made by one party to the other will be honored.[148]

American lawyers tend to prefer dispute resolution clauses with a substantial amount of detail, such as the one provided above, whereas lawyers from other jurisdictions may only include a line or two about settling the dispute through friendly negotiations.[149] As discussed in the context of contracts, however, specifying as much detail as possible at the outset of the contractual relationships limits the number of variables that can later go awry.

2. Mediation

If the disputing parties fail to reach a settlement through negotiation, a dispute resolution clause may provide for mediation next. The clause may simply state something to the effect that if “the matter has not been resolved by these persons within [45] days of the disputing party’s notice, the dispute shall be referred to mediation.”[150] Mediation is like negotiation in that it is a private, confidential, and non-binding process of resolving disputes, but it also differs in that it involves a neutral mediator who works with the disputing parties to reach a settlement.[151] Mediation is an ideal second step in a publishing contract’s multi-step dispute resolution clause because the parties still retain control of the process and the outcome, but have the added help of a neutral facilitator to work through any issues that could not be resolved in negotiation. Another strong benefit to using mediation for publishing disputes is the ability to use a norm-generating model of mediation; a model in which social or legal norms are not applied to the dispute, but rather the parties agree on and choose the norms they want to use.[152] This model is ideal for facilitating innovative problem solving, increasing the autonomy of the disputing parties and preserving the parties’ relationship––all desirable aspects of a publishing settlement.[153]

A sample mediation clause may look like the following:

The parties shall endeavor to resolve any dispute arising out of or relating to this   Agreement by mediation under the [referenced outside set of rules or procedures]. Unless otherwise agreed, the parties will select a mediator from the [outside institute or agency's] Panel of Neutrals and shall notify [the outside institute or agency] to initiate the selection process.[154]

As with negotiation, if mediation efforts fail, the parties may provide for a third and final step, binding arbitration.

3. Arbitration

Arbitration is the best final step in the multi-step dispute resolution clause because it offers the disputing parties the ability to receive a final and binding decision without resorting to litigation. Arbitration is a process that is, like mediation and negotiation, still private and informal, where parties submit their dispute to an impartial party who will review and resolve the dispute by creating a final award.[155] While arbitration can be both binding and non-binding, in this model, where arbitration is the last step of a dispute resolution clause, binding arbitration is the most logical choice. After progressing through two previous ADR methods—negotiation and mediation—the parties will likely be at a point where they need a definitive resolution. Publishing, like any other business, runs on deadlines and due dates, and a final resolution is necessary to keep the publishing process moving. Arbitration can achieve this result while still avoiding litigation and the associated costs and bad publicity. Furthermore, arbitration is still customizable to the particular issue at hand: the dispute resolution clause can provide for a neutral who is knowledgeable about the publishing industry[156] and the arbitration can be expedited if necessary, saving both time and money.[157] Finally, international arbitration may be employed if the parties involved hail from different countries, thereby circumventing the issue of different jurisdictions having different laws.[158]

The dispute resolution clause may provide for the final step of arbitration by stating:

Any controversy or claim arising out of or relating to this [agreement] which remains unresolved 45 days after appointment of a mediator, shall be settled by arbitration by [the number of] arbitrator(s) in accordance with [an outside institute or agency's rules], and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.[159]

Though the three steps of negotiation, mediation, and arbitration have been discussed as being part of a system provided for in a dispute resolution clause, even if the parties have not contracted to using these methods they are still a viable alternative to litigation and should be considered. The parties would have the opportunity to first explore and discuss their interests independently with negotiation. If that fails, they may continue to work together in mediation with the help of a neutral third-party. Finally, if the parties are not able to reach any sort of agreement, they may turn to an arbitrator who will create an agreement for them. In this way, the parties will resolve their dispute privately and without any bad publicity or invasion of privacy while hopefully maintaining their relationships and preserving their interests.

V. Conclusion

This paper has illustrated how well-suited and useful ADR methods could be for the publishing industry in resolving many kinds of disputes. ADR methods are flexible and have the ability to be tailored to a particular dispute and to include creative solutions as well as preserve parties’ relationships. Moreover, ADR methods are private and allow parties to avoid unwanted publicity and bad press.

This paper has discussed various publishing disputes that have ended up in litigation as well as why trial was not the best way to resolve the issue for the parties. As shown by examples from modern literature, using ADR methods in publishing is nothing new. Authors and publishers were mediating and negotiating far before the ADR movement became widely known. Thus, ADR practices have a broad applicability to disputes arising in today’s publishing industry. This paper has discussed how best to utilize ADR methods to resolve publishing disputes: a publishing contract considering parties’ interests and identify potential areas of dispute. Moreover, a dispute resolution clause can mandate use of an ADR method before the parties proceed to litigation. Finally, a multi-step ADR system can give parties a way of allowing their dispute resolution efforts to progress and receive outside assistance without resorting to litigation.

Publishing is full of complex issues and disputes, partly because of the multifaceted nature of the publishing industry, and party because literature, like other art, is a difficult area for the judiciary to manage. For these reasons, as publishing companies create dispute resolution systems, they should first turn to the wealth of dispute resolution possibilities that ADR methods offer. With all of their advantages, ADR methods are the best dispute resolution tool for the publishing industry.

Appendix A

 

appendix-a

Gary Hallgren, The Wasteland, in The Book of Sequels 126–127 (Henry Beard, et al., eds., 1993).


*J.D. Candidate, 2013, The Ohio State University Moritz College of Law. Thanks to Professor Sebastian Knowles for introducing me to James Joyce (and Dublin!) and to Professor Brian McHale for trudging through every single Eliot poem with me.  I’m ever so grateful.

[1] [sic] T.S. Eliot, The Waste Land, line 141 (1922).

[2] Mary Wollstonecraft Shelley, Frankenstein, or The Modern Prometheus 10 (Penguin Books 3d ed. 2003) (1831).

[3] See A Book Named ‘John Cleland’s Memoirs of a Woman of Pleasure,’ et al. v. Attorney General of the Commonwealth of Massachusetts, 86 S. Ct. 975 (1966).

[4] ADR Spectrum: Mediation, Arbitration, JAMS, http://www.jamsadr.com/adr-spectrum/ (last visited Jan. 31, 2013).

[5] See Nigel Nicholson, Virginia Woolf (2000).

[6] J.H. Willis, Leonard and Virginia Woolf as Publishers: The Hogarth Press, 1917–41 20 (1992).

[7] Id. at 10.

[8] Id. at 13–14.

[9] Id. at 40–42.

[10] Id. at 41.

[11] Interviewed by Ken Jordan with Barney Rosset, Barney Rosset, The Art of Publishing No. 2, 145 The Paris Rev. (1997), available at http://www.theparisreview.org/interviews/1187/the-art-of-publishing-no-2-barney-rosset.

[12] Id.

[13] See generally D.H. Lawrence, Biography.com, http://www.biography.com/people/dh-lawrence-17175776 (last visited Jan. 31, 2013).

[14] Id.

[15] Grove Press, Inc. v. Christenberry, 175 F. Supp. 488, 499 (S.D.N.Y. 1959).

[16] ADR Spectrum, JAMS, http://www.jamsadr.com/adr-spectrum/#Mediative%20Processes (last visited Jan. 31, 2013).

[17] Id.

[18] See Roger Fisher, William L. Ury, and Bruce Patton, Getting to Yes (3d ed. 2011).

[19] See id.

[20] What is Mediation?, Am. Arbitration Assoc., http://www.aaamediation.com/faces/index.jspx (last visited Jan. 31, 2013).

[21] Id.

[22] Nancy H. Rogers and Richard A. Salem, A Student’s Guide to Mediation and the Law 7–39 (1987).

[23] Arbitration, Am. Arbitration Assoc., http://adr.org/sp.asp?id=28749 (last visited Jan. 31, 2013).

[24] Arbitration, JAMS, http://www.jamsadr.com/adr-spectrum/#Mediative%20Processes (last visited Jan. 31, 2013).

[25] See generally John Cheever, Biography.com, http://www.biography.com/people/john-cheever-9245907 (last visited Jan. 31, 2013).

[26] Academy Chicago Publishers v. Cheever, 578 N.E.2d 981 (Ill. 1991).

[27] Id. at 984.

[28] See generally Ernest Hemmingway, Biography.com, http://www.biography.com/people/ernest-hemingway-9334498 (last visited Jan. 31, 2013).

[29] Estate of Ernest Hemingway v. Random House, Inc., 23 N.Y.2d 341 (N.Y. 1968).

[30] Id. at 354.

[31] See generally John Steinbeck, Biography.com, http://www.biography.com/people/john-steinbeck-9493358 (last visited Jan 31, 2013).

[32] Penguin Group (USA), Inc. v Steinbeck, 537 F.3d 193 (2d Cir. 2008).

[33] See generally J.D. Salinger, Biography.com, http://www.biography.com/people/jd-salinger-9470070 (last visited Jan. 31, 2013).

[34] Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987).

[35] Id.

[36] Id. at n.2.

[37] Id.

[38] Id. at 98.

[39] Id. at 100.

[40] See generally Harper Lee, Biography.com, http://www.biography.com/people/harper-lee-9377021 (last visited Jan. 31, 2013).

[41]  See Julie Bosman, Author of Memoir About Harper Lee Insists She Had Lee’s Cooperation, N.Y. Times (Apr. 29, 2011), http://www.nytimes.com/2011/04/30/books/dispute-continues-on-harper-lee-book.html.

[42] See generally Joseph Heller, Biography.com, http://www.biography.com/people/joseph-heller-9334279 (last visited Jan. 31, 2013).

[43]  Edwin McDowell, Joseph Heller in Dispute with Simon & Schuster, N.Y. Times, July 1, 1981, at C24.

[44] Id.

[45] McGraw-Hill Book Co. v. Random House, Inc., 32 Misc. 2d 704 (N.Y. App. Div. 1962).

[46] Id.

[47] Id. at 708.

[48] Motoko Rich, Legal Battles Over E-Book Rights to Older Books, N.Y. Times (Dec. 12, 2009), http://www.nytimes.com/2009/12/13/business/media/13ebooks.html.

[49] Id.

[50] Random House, Inc. v. Rosetta Books LLC, 283 F.3d 490 (2d Cir. 2002).

[51] Id. at 491.

[52] Rich, supra note 48.

[53] Rachel Deahl, Wylie, Random House Dispute Heats Up, Publishers Weekly (July 23, 2010), http://www.publishersweekly.com/pw/by-topic/digital/content-and-e-books/article/43937-wylie-random-house-dispute-heats-up.html.

[54] Id.

[55] Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tul. L. Rev. 991, 991–92 (1990).

[56] De Bardossy v. Puski, 763 F. Supp. 1239, 1243 (S.D.N.Y. 1991) (quoting Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 72 (2d Cir. 1988)).

[57] Id. at 1243.

[58] Steven Kern, The Culture of Space and Time 1–2 (2003).

[59] See Umberto Eco, Innovation and Repetition: Between Modern and Post-Modern Aesthetics, 114 Daedalus 161 (1985).

[60]  100 Best Novels, Modern Library, http://www.modernlibrary.com/top-100/100-best-novels/ (last visited Jan. 31, 2013).

[61]  See Joyce’s Works, James Joyce Center, http://jamesjoyce.ie/category/joyces-works/ (last visited Jan. 31, 2013).

[62] Willis, supra note 6, at 27.

[63]  Lawrence Rainey, Consuming Investments: Joyce’s Ulysses, in Institutions of Modernism 42, 47 (1998).

[64] Id. at 49.

[65] Id. at 47.

[66] See Fisher, et al., supra note 18.

[67] See Rainey, supra note 63, at 64. Rainey describes how even the cheapest first edition of Ulysses, published by Beach, was 150 francs, which at the time in Paris would be equivalent to half a month’s rent for a moderate studio apartment. Id.

[68] Letter from James Joyce to Bennett Cerf (April 2, 1932), in James Joyce, Ulysses, at xv–xvii (Vintage International 1990) (1934).

[69] Id.

[70] Id.

[71] Id.

[72] United States v. One Book Called ‘Ulysses’, 5 F. Supp. 182 (S.D.N.Y. 1933).

[73] See T.S. Eliot, Poets.org: From the Academy of American Poets, http://www.poets.org/poet.php/prmPID/18 (last visited Jan. 31, 2013).

[74] T. S. Eliot, The Waste Land: A Facsimile and Transcript of the Original Drafts Including the Annotations of Ezra Pound xvi (Valerie Eliot, ed. 1971).

[75] See Ezra Pound, Poets.org: From the Academy of American Poets, http://www.poets.org/poet.php/prmPID/161 (last visited Jan. 31, 2013).

[76] Eliot, supra note 74, at xvi–xvii.

[77] Id. at xiv–xvi.

[78] Id. at xvi.

[79] Id. at xvi–xvii.

[80] Id.

[81] Id. at xvii.

[82] Eliot, supra note 74, at xvi–xvii.

[83] Id. at xvii.

[84] Rogers and Salem, supra note 22, at 7–39.

[85] Pericles Lewis, The Waste Land, The Modernism Lab at Yale University (Jan. 31, 2013), http://modernism.research.yale.edu/wiki/index.php/The_Waste_Land.

[86] Lawrence Rainey, The Price of Modernism: Publishing The Waste Land, in Institutions of Modernism 77, 78 (1998).

[87] Id. at 81.

[88] Id.

[89] See Rogers and Salem, supra note 22, at 7–39.

[90] Rainey, supra note 86, at 83.

[91] Id.

[92] Id. at 84.

[93] Id.

[94]  Id. at 85.

[95] See Rogers and Salem, supra note 22, at 7–39.

[96] Rainey, supra note 86, at 85–86.

[97] Id. at 88.

[98] Id. at 92.

[99] Id. at 86.

[100] Id. at 80.

[101] Carole Silver, Models of Quality for Third Parties in Alternative Dispute Resolution, 12 Ohio. St. J. on Disp. Resol. 37, 46–47 (1996).

[102] Id. at 46–47.

[103] Id. at 49–50.

[104] See Poets.org, supra note 75.

[105] Rainey, supra note 86, at 85–86.

[106] Eco, supra note 59, at 166.

[107] Lewis, supra note 85.

[108] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const., art. I, §8, cl. 8).

[109] 17 U.S.C. §107.

[110] Id.

[111] Campbell, 510 U.S. at 580.

[112] Id. at 580–81.

[113] Copyright, Designs and Patent Act, 1988, c. 48 §21 (Eng.).

[114] Id.

[115] See Gary Hallgren, About the Artist, Gary Hallgren (Jan. 31, 2013), http://www.garyhallgren.com/news.php.

[116] See Appendix A.

[117] Gary Hallgren, The Wasteland, in The Book of Sequels 126–127 (Henry Beard, et. al, eds., 1993).

[118] 17 U.S.C. §107.

[119] Id.

[120] See British Cartoon Archive, Martin Rowson: Biography, Cartoons (Jan. 31, 2013), http://www.cartoons.ac.uk/artists/martinrowson/biography.

[121] Martin Rowson, The Waste Land (1990).

[122] Kevin Jackson, T.S. Eliot: the sequel: First that film, now this Waste Land opera based on a comic. No wonder lawyers acting for the Eliot estate are so busy, The Independent (May 4, 1994), http://www.independent.co.uk/arts-entertainment/t-s-eliot-the-sequel-first-that-film-now-this-waste-land-opera-based-on-a-comic-no-wonder-lawyers-acting-for-the-eliot-estate-are-so-busy-1433576.html#.

[123] Jackson, supra note 122.

[124] Id.

[125] Id.

[126] Kern, supra note 58.

[127]  CPR Institute for Dispute Resolution, Dispute Resolution Clauses: A Drafter’s Guide 1 (1995).

[128] See Fisher, et al., supra note 18.

[129] Id. at 41.

[130] Id. at 42–43. Fisher, Ury, and Patton point out that “[a]greement is often made possible precisely because interests differ . . . Shared interests and differing but complementary interests can both serve as the building blocks for a wise agreement.” Id.

[131] Melville B. Nimmer & David Nimmer, Legal Issues in Publishing Agreements, in 5 Nimmer on Copyright §26.02 (2011).

[132] Id.

[133] Id.

[134] CPR Institute for Dispute Resolution, supra note 127, at 2.

[135] Sarah R. Cole, et al., Meditation Clauses in Contracts, 1 Mediation: Law, Policy and Practice § 6.1 (2011).

[136] Id.

[137] Id.

[138] CPR Institute for Dispute Resolution, supra note 127, at 2.

[139] Id.

[140] CPR Institute for Dispute Resolution, supra note 127, at 3–4.

[141] See HIM Portland v. DeVito Builders, 317 F.3d 41 (1st Cir. 2003) (holding one party could not compel arbitration without either party requesting meditation first because their dispute resolution clause required mediation before arbitration). See also Kemiron Atlantic v. Aguakem Int’l, 290 F.3d 1287 (11th Cir. 2002) (holding a failure to request mediation also precluded the enforcement of the arbitration clause).

[142]  See Howard J. Aibel & George H. Friedman, Drafting Dispute Resolution Clauses in Complex Business Transactions, 51 Disp. Resol. J. 17 (1996).

[143] CPR Institute for Dispute Resolution, supra note 127, at 2.

[144] JAMS, supra note 16.

[145] CPR Institute for Dispute Resolution, supra note 127, at 2.

[146] Fisher, et al., supra note 18, at xvii.

[147] Id. at xviii.

[148] CPR Institute for Dispute Resolution, supra note 127, at 6.

[149] Cole, et al., supra note 135.

[150] CPR Institute for Dispute Resolution, supra note 127, at 5.

[151] CPR Institute for Dispute Resolution, Mediation 1–4 (1995).

[152] Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 Hastings L. J. 703, 718–19 (1997).

[153] Id. at 719. Waldman notes, however, that the norm-generating model is not appropriate for all cases, such as a divorce or criminal proceeding. She does go on to describe different models that are more suited to those types of disputes. Id. at 724–48.

[154] CPR Institute for Dispute Resolution, supra note 127, at 5.

[155] Aibel & Friedman, supra note, at 17, 18.

[156] Id. at 18.

[157] WIPO Arbitration, Mediation Center, Why Mediate/Arbitrate Intellectual Properly Disputes?, 42 Les Nouvelles 301, 302 (1997).

[158] See Steven Smith, et al., International Legal Development Year in Review: 2010: International Arbitration, 45 Int’l Law. 95 (2010).

[159] CPR Institute for Dispute Resolution, supra note 127, at 5.

Posted in: Volume 11, Issue 3

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