EZRA POUND’S COPYRIGHT STATUTE: PERPETUAL RIGHTS AND THE PROBLEM OF HEIRS * Robert Spoo This Article explores the historical and present-day significance of proposals for copyright reform advanced in 1918 by the controversial American poet, Ezra Pound. These proposals have never been discussed by legal scholars and have received but scant attention from literary scholars. Yet, like William Wordsworth and Mark Twain, whose efforts to reform copyright law are much better known, Pound is a major writer whose views shed considerable light on the state of copyright law and the conditions of authorship in his time. Pound’s proposed statute—offered as a “cure” for American book piracy—begins by making authors’ copyrights exclusive and perpetual, and goes on, surprisingly, to introduce broad compulsory-license provisions that would prevent authors and their heirs from interfering with later efforts to disseminate authors’ works and require publishers only to pay a fixed royalty on sales. The tension in Pound’s proposal between a perpetual, exclusive copyright and expansive compulsory licenses shows him to be an inheritor of two legal and economic traditions: on the one hand, a Lockean and Romantic belief in a strong property rule grounded in an author’s natural rights and unique personality, and, on the other, an anti-monopoly, free-trade preference for a liability rule that would encourage wide dissemination of affordable works to serve the public interest. As the author of such a dual-purpose proposal, Pound emerges as remarkably and presciently alert to the dangers currently posed by lengthy copyright terms unaccompanied by limitations that adequately protect the public. Today, the estates of James Joyce, T.S. Eliot, Marianne Moore, Samuel Beckett, and other modernist authors use extended copyrights to discourage or control use of those authors’ works by scholars, critics, and others. Pound’s perpetual, royalty- based copyright would, in principle, have removed or reduced such obstacles to the study and enjoyment of modernist authors. Moreover, Pound’s draft statute anticipates recent proposals by Richard Posner, Lawrence Lessig, and others for mitigating the conflict between the lengthy copyright monopoly and the needs of the public. * Associate Professor, University of Tulsa College of Law; B.A. Lawrence University; M.A., Ph.D. Princeton University; J.D. Yale University. I would like to thank the following individuals for their valuable comments on earlier drafts: Charles W. Adams, William Brockman, Ron Bush, Lars Engle, Peter Hirtle, Dennis S. Karjala, Carlton Larson, Paul Saint-Amour, and Richard Sieburth. I also wish to thank the University of Tulsa College of Law for summer research funding that assisted with the completion of this Article, as well as Ryan Welner for his excellent work as research assistant. 1775 1776 56 UCLA LAW REVIEW 1775 (2009) INTRODUCTION..................................................................................................................1776 I. POUND’S COPYRIGHT STATUTE AND LEGALIZED AMERICAN BOOK PIRACY...........1782 II. POUND’S COPYRIGHT STATUTE: TEXT AND HISTORICAL INFLUENCES ...................1788 A. The Text ............................................................................................................1788 B. Historical and Philosophical Influences ...........................................................1797 1. Genius, Intellectual Labor, and Oil Stock................................................1798 2. Nineteenth-Century Royalty Schemes and Anti-Monopoly Reform .....................................................................1803 III. LITERARY IMPLICATIONS OF POUND’S PROPOSED STATUTE ....................................1807 A. International Copyright and Communication Among Nations .....................1807 B. Competing With the Dead: Copyright and the Public Domain .....................1810 C. Significant Omissions From Pound’s Statute....................................................1814 IV. THE PROBLEM OF HEIRS AND LONG COPYRIGHTS....................................................1819 A. Pound’s Prescience.............................................................................................1820 B. Recent Proposals for Balancing Long Copyrights With the Needs of the Public............................................................................1828 CONCLUSION .....................................................................................................................1831 APPENDIX ...........................................................................................................................1833 INTRODUCTION In mid-September 1918, an independent American army under the command of General John J. Pershing struck a swift and decisive blow against German positions at the St. Mihiel salient in northeastern France.1 Catching the Germans in the act of abandoning the salient, Pershing’s forces, assisted by French colonial troops and strong aircraft cover, quickly overran the enemy position and recaptured the fortified area, which had been in German hands for four years.2 The success of the Americans, who had been regarded as inexperienced latecomers to the European conflagration, boosted Allied morale and persuaded Pershing and Allied Commander Marshal Foch that American doughboys had the fighting ability to make a difference in the war.3 Among those who welcomed the news of the victory was Ezra Pound, the American expatriate poet who had been living in London since 1908. Brash and outspoken, Pound had made no secret of his detestation of the 1. See JOHN H. MORROW, JR., THE GREAT WAR: AN IMPERIAL HISTORY 249–50 (2004); David R. Woodward, The Military Role of the United States in World War I, in THE AMERICAN MILITARY TRADITION FROM COLONIAL TIMES TO THE PRESENT 127, 145–46 (John M. Carroll & Colin F. Baxter eds., 2d ed. 2007). 2. See MORROW, supra note 1, at 249–50. 3. See JAMES L. STOKESBURY, A SHORT HISTORY OF WORLD WAR I, at 286–87 (1981); ROBERT H. ZIEGER, AMERICA’S GREAT WAR: WORLD WAR I AND THE AMERICAN EXPERIENCE 99–100 (2000). Ezra Pound’s Copyright Statute 1777 Great War, which he frequently referred to as “Armageddon.”4 Several of his friends and fellow artists had gone to the conflict, and some had not returned.5 In a poem published not long after the war, Pound lamented the “[y]oung blood and high blood, / fair cheeks, and fine bodies” that had been sacrificed “[f]or a botched civilization.”6 His sense of the waste and futility of war, combined with a growing belief that wars were created for profit by pow- erful international banking interests, fed a bitterness that eventually caused 7 him to lose faith in the efficacy of liberal democracies. 4. See, e.g., Ezra Pound, A Shake Down, LITTLE REV., Aug. 1918, at 9, 11, reprinted in 3 EZRA POUND’S POETRY AND PROSE CONTRIBUTIONS TO PERIODICALS 145, 147 (Lea Baechler et al. eds., 1991) [hereinafter POETRY AND PROSE CONTRIBUTIONS] (“As Armageddon has only too clearly shown, national qualities are the great gods of the present . .”). 5. Pound’s friends, the French sculptor and artist Henri Gaudier-Brzeska and the English philosopher and poet T.E. Hulme, were killed in action in 1915 and 1917, respectively. See EZRA POUND AND DOROTHY SHAKESPEAR: THEIR LETTERS: 1909–1914, at 345–47 (Omar Pound & A. Walton Litz eds., 1984). 6. EZRA POUND, Hugh Selwyn Mauberley (Contacts and Life) (1920), reprinted in PERSONAE: THE SHORTER POEMS OF EZRA POUND 183, 188 (Lea Baechler & A. Walton Litz eds., rev. ed. 1990). 7. The story of Pound’s disenchantment with democratic societies is a tragic one. Throughout the 1930s, his journalism and correspondence grew increasingly anti-Semitic as he more and more associated the problems of modern political and economic systems with what he called international “usury” and the bankers’ conspiracy that he imagined sustained it. See generally Robert Spoo, Introduction to EZRA AND DOROTHY POUND: LETTERS IN CAPTIVITY, 1945–1946, at 1–2 (Omar Pound & Robert Spoo eds., 1999) [hereinafter LETTERS IN CAPTIVITY]. In 1928, Pound moved to Italy and came to embrace the charismatic fascism of Benito Mussolini. See id.; see also generally HUMPHREY CARPENTER, A SERIOUS CHARACTER: THE LIFE OF EZRA POUND 457–58, 489–93 (1988) (discussing Pound’s admiration for Mussolini). By 1940, he was broadcasting over Rome Radio in support of the Duce, and he continued to do so even after the United States entered World War II on the side of the Allies. During his radio talks, he held forth on the history of money, the supposed evils of international finance and “Jew-ruin’d England,” and savagely denounced Winston Churchill, Franklin D. Roosevelt, and their policies. LETTERS IN CAPTIVITY, supra, at 2–4; see also CARPENTER, supra, at 583–97 (describing Pound’s radio broadcasts). Pound’s broadcasts did not go unnoticed by the U.S. Department of Justice. When Italy fell to the Allies in 1945, he was captured and held on charges of treason against the United States. After a Washington, D.C. jury found him mentally unfit to stand trial, he was confined to a federal mental institution for the next twelve years. See generally LETTERS IN CAPTIVITY, supra, at 4–36; CARPENTER, supra, at 750–53. Commentators have found Pound’s prejudice and fascist politics difficult to reconcile with his achievements as one of the twentieth century’s greatest poets and translators. See, e.g., ALAN M. DERSHOWITZ, AMERICA ON TRIAL: INSIDE THE LEGAL BATTLES THAT TRANSFORMED OUR NATION 297 (2004) (“Ezra Pound was