intellectual property

What is
there in being able
to say that one has dominated the stream in an attitude of self-defense;
in proving that one has had the experience
of carrying a stick?

– Marianne Moore, “Critics and Connoisseurs”

This post made possible with materials from The Peter Kavanagh Papers (1960), Special Collections, University of Virginia.

New York Times (Jan. 17, 1960)

And what is there in being able to say that one has laboriously memorized a text, set it in type by hand on a jury rigged press, printed it, and then destroyed the copies by cutting them in half? That is the question raised by the bizarre story of Peter Kavanagh’s short collection of John Quinn’s letters, The Letters of John Quinn: A Pandect, a book that now only exists (or almost only exists) as a sort of Borgesian idea of a book.

Peter Kavanagh was an Irish scholar (PhD from Trinity) who moved to the U.S. and who is most famous (if famous at all) for being the brother, and occasional publisher, of the poet Patrick Kavanagh. In January of 1960, however, for the briefest of moments, Peter Kavanagh rose to popular culture prominence for violating copyright in a particularly novel way.

Quinn “published” The Letters of John Quinn: A Pandect, which gathered excerpts from the collection of Quinn’s letters stored in the New York Public Library. A lawyer and collector or art and manuscripts, Quinn is an important figure in the early history of modernism, particularly American modernism: he was crucially involved in the 1913 Armory show (lobbying Congress to remove import duties on art so that the exhibition would be feasible); he was friends with Ezra Pound and an early and ardent defender of Joyce; he was the legal defense for the Little Review which published serialized extracts of Ulysses; T. S. Eliot was so appreciative of of Quinn’s help that he gave the manuscript of The Waste Land to Quinn (it is this copy which, by a circuitous route, ultimately was published as the facsimile edition).

Quinn was an early supporter of modernism across the arts, and his letters are invaluable to scholars of modernism. In addition to the figures already mentioned, Quinn corresponded with Yeats, Augustus John, Jacob Epstein, Marcel Duchamp, Joseph Conrad, and many (many) others.

The New York Library’s collection of these letters was open to be consulted by scholars; the library, however, required that individuals consulting the letters sign a contract that stipulated that none of the letters could be published until 1988. Kavanagh signed this contract but then copied the letters–by memorizing them. Newspapers did their best to sensationalize the story with headlines like “Purloined Letters? Intrigue in the Library” and “Coup By Printer Outwits Library” (Jan 17, 1960, New York Times), or (my favorite) “Uses Memory to Break Thru Library ‘Wall’” (Jan. 18, 1960, Chicago Daily Tribune). The stories all mixed, in varying proportions, the image of Kavanagh as a poor Irish academic (an “impoverished Irish scholar” [NYT April 23, 1961], even “a pauper-scholar” in one story [NYT Jun 6, 1965]), the strange feat of memorization he managed to perform, and the enormous labor to which he went to print this volume.

Quinn was not, however, possessed of a superhuman memory; instead, each day for two weeks, Quinn entered the library’s reading room, found a letter worthy of being reproduced, read it for an hour, stepped outside, and hastily regurgitated it into a ten cent notebook (all the papers refer to these notebooks as “ten cent” notebooks), before returning to the reading room to start again. Kavanagh describes it this way in his autobiography,

The information contained in the letters was so startling that it was easily remembered–what Joseph Conrad said, what Roger Casemant said, what Matisse said, and the rest. At the end of each hour’s reading I went outside and wrote down what I remembered, then returned for another memory session. After two weeks I had completed the reading of all the letters, several million words. (Beyond 174)

Any violation of copyright is not the most immediate legal issue. In reproducing the letters Kavanagh is violated the contract he signed to gain access to the collection. His edition of The Letters of John Quinn clearly violates that contract, regardless of whether it violates copyright, which, of course, it also clearly does. Indeed the letters are both to and from Quinn, so Kavanagh is conceivably violating dozens of copyrights. But, in press accounts, Kavanagh was nevertheless frequently described as violating copyright, and (just as often) as a “pirate,” or his edition as a “bootleg” edition.

Kavanagh himself offered a number of defenses of his actions. The library’s contract had, Kavanagh suggests, “intimidated the few” people who had been able to read them, and (in Kavanagh’s estimation) resulted in “John Quinn’s contribution to twentieth century art and literature being totally forgotten, even by scholars” (“Introduction”). Kavanagh, however, would not be intimated. In the document that would have been the introduction to the letters, he writes,

The author, feeling no sense of intimidation, has decided that it is important that the information in these letters be widely known. Since these letters are open to inspection and reading by all students of literature they have relinquished their private feature and in fact are already published. (“Introduction”)

The suggestion that availability in an archive is the same as publication is unlikely to convince anyone. Elsewhere Kavanagh makes a similar point, noting that while, contractually, you could not “publish” the letters in the archive, nothing prohibited one “from going out on the street telling everyone they chose what they had read” (Beyond 173).

Many years later, in his 1977 autobiography Beyond Affection, Kavanagh gives a very different justification, accusing the New York Public Library of illegitimately overextending its control of the letters. He writes, “For reasons, perhaps legal, perhaps vanity, the New York Public Library had the terms of the will changed directing that these letters not to be published until seventy years after his death” (Beyond 173). The only news report (I’ve come across) that backs up this claim is from the April 23, 1961 New York Times, which quotes Quinn’s will and notes the 1988 date was a product of a court decision made in 1935. While it is not entirely clear from this account, it seems as though the prohibition on publication before 1988 was not Quinn’s request. Quinn even recommends in his will that “a selection of autograph letters to me” may be made and “published in one or two volumes as a possibly interesting record of literary and artistic history.” Crucially, however, Quinn (lawyer that he is) understands the complicated copyright issues attending correspondence; such a volume would be published “with the consent of of the writers living.”

Regardless of the justification he offers, Kavanagh saw his edition of Quinn’s letters as an act of resistance to a silly and unjust law, in defense of Quinn himself. “Quinn,” Kavangh explained to the Washington Post, “is the absolute key to the 20th Century art and literature [sic], as far as one man can be a key. Yet he’s totally forgotten…” (WP Jan 18, 1960). In this sense, Kavanagh saw himself as defending Quinn, not as violating Quinn’s wishes. At times, Kavanagh’s argument sounds almost delusional. “If [Quinn] had not wanted these letters to be published he would have had them locked up for 50 years”–if this is not a particularly convincing suggestion, the next step is just amazing–”I conclude that he must have left a loophole–he was a lawyer–for such a person as myself” (WP Jan 18, 1960).

By a “loophole,” Kavanagh here presumably means his way of copying the letters from memory rather than some other, more direct, form of copying, and thereby getting around the library’s attempt to prevent the letters from being published. But Kavanagh’s edition enacts a more forceful response to copyright in its very materiality.

Kavanagh’s bold claim that, by virtue of being publicly available, the letters were already effectively published is unlikely to convince many lawyers. It does, however, raise the larger question of what precisely constitutes publication. The letters themselves had already been copied once. Quinn sold the original letters, leaving the library copies of them. So what separates why are some copies violations and others not? Or, what separates a good copy from a bad copy?

Here is where the specifics of Kavanagh’s edition become particularly fascinating. In addition to Kavanagh’s odd protocols for acquiring the text through a method of mnemic binge and purge, newspaper stories uniformly stressed a second aspect of his edition of Quinn’s letters–that he printed them entirely himself. That is, the small edition (of 129 copies) was printed and bound by hand, by Kavanagh on a press that he had built entirely himself.

Kavanagh at his press, from Jan 17, 1960 New York Times

The Washington Post described the press like this: “Kavanagh set up his printing press in his two-room East 29th street flat. With a sewing machine as for a base, the homemade press parts include a ship’s wheel, a big automobile jack, strips of tin from gasoline cans, the hinges of a typewriter case, and a section of a broom handle” (WP Jan 18, 1960).

Kavanagh’s own description of the press, in his autobiography, reveals that the process of getting this apparatus working was quite arduous. Frustrated with traditional publishing avenues, Kavanagh decided to do it all himself. “I regarded it as an outrage that any man of genius should be dependent on the ordinary commercial publisher to issue his work. There should be some more civilized way to make his work known” (Beyond 167). (This hubris is mitigated somewhat when we recall that the “man of genius” to which Kavanagh refers is more likely his brother than himself.) Kavanagh built the press from available materials, using scrap wood for key structural elements; but when Kavanagh tried to use the press, the wood broke when sufficient pressure (using the car jack!) was applied to get a good impression. So he replaces some parts with steel that he purchases from an ironworks. This simply shifts the pressure, and another wooden piece breaks. Too embarrassed to return to the ironworks and “the jeers of the iron merchant,” Kavanagh happens upon a piece of scrap steel as he drives down Fifth Avenue one morning, near the site of “the new Guggenheim Museum” (Beyond 170).

Kavanagh’s press was thus built up of the detritus of his meager urban existence.

While there is no legal relevance to this hacked-together press, the enormous labor Kavanagh poured into his edition of Quinn’s letters stands as part of an implicit argument embodied in the text itself. Beyond building the press himself, the work of printing the text on such a device was equally taxing; “it took weeks of seventeen-hour days to produce” (NYT Jan 26, 1960). Kavanagh had planned on selling 100 copies of the edition to collectors for costing $35 each (in 2009 dollars that is, the inflation calculator informs me, $252.87)–a pricy book, but not enough to make Kavanagh rich; indeed, it seems clear that financial gain was not Kavanagh’s main goal.

This labor, out of all proportion to any possible profit, seems to mitigate the criminality of Kavanagh’s violation of both contract and copyright. He may indeed be a pirate, but he is a decidedly sympathetic pirate. And he found plenty of sympathy. A New York Times editorial, without taking Kavanagh’s side against the library, presents Kavanagh as a respectable figure with laudable goals–”Everybody is right” in the dispute between Kavanagh and the library the editorial suggests (NYT Jan. 22, 1960). A letter to the Times argues that the library should buy the entire edition from Kavanagh (NYT Jan. 25, 1960). And, while he is hardly an objective source, Kavanagh in his autobiography quotes from some of the many supportive letters he received.

Kavanagh largely earned this sympathy by eschewing any sense of material benefit. Kavanagh’s edition of Quinn’s letters, as a material object and a product of labor, refutes the legalistic, intellectual property claims of the library levelled against him. Leveraging the craftsmanship of the text, Kavanagh appeals to the basic intuition that people should be the owners of their own labor. After the enormous work of memorizing and self-printing his edition, should it really be scrapped because it violates the library’s contractual rights over the text, divorced completely from either authorship or labor?

Intellectual property law attempts to preserve the intangible labor of writers and others through a discourse of rights. Kavanagh’s edition, understood as a gesture, represents a clearly tangible object; but by so consistently resisting the larger alienating mechanisms of publishing, by so solitarily laboring the produce the actual book itself, Kavanagh attempts to refocus the question of publication not on rights, but on who has earned control of a text. (I don’t pretend that this is a good alternative to copyright). By thus highlighting the labor that produced the edition, Kavanagh seeks to align himself with Quinn as a creator of value rather than a bearer of rights. This alignment is equally evident in Kavanagh’s own (sometimes strained) claims to be working on Quinn’s behalf. In performing what, from any perspective, is likely to look like an irrational, pointless, fanatical sort of labor, Kavanagh is able to disburden himself (at least) of the image of the self-interested pirate seeking profit. The description Kavanagh offers of Quinn is likely to remind of Kavanagh’s own quixotic project: “All this he did without thought of personal gain” (“Introduction”).

Kavanagh with his Press, and Remnants his Work

Ultimately, Kavanagh settled with the library without going through a trial. Deciding to not undertake a protracted legal proceeding, Kavanagh destroyed nearly every copy of The Letters of John Quinn. Kavanagh managed to make his point one final time; he brought with him into court a bag which he then held over his head, and from which tumbled the remnants of the 117 copies of The Letters of John Quinn. Kavanagh had used a cobbler’s knife (he also made his own shoes, crafty fellow) to cut (nearly) the entire run in half. “Mr Kavanagh gave the court the bound side of the books only. He kept the other halves for himself, explaining that he did so to prevent the books from being pieced together” (NYT Jan 26, 1960). Kavanagh here ironically insists that he cannot turn over both halves of the books to the court, because they might reconstruct the whole edition.

Kavanagh here plays out just one more variation of the question that motivated the entire controversy–what is a text and who should own it? (Is, for instance, one half of a book that has been cut apart by a knife a text?). A few copies escaped the cobbler’s knife: Kavanagh was allowed to keep two copies for his own consultation (but which were to be returned to the library upon Kavanagh’s death), and one was sent to the British Library. Kavanagh treated the outcome as a success. “I’ve made my point,” he told the New York Times. “To me, the act is everything” (NYT, Jan. 21, 1960). The act, the thing done, obeys a logic quite different from that of rights.

For Kavanagh that is how the story ends, but technically the story doesn’t end here. Before he used a knife to destroy the full print run, Kavanagh had given nine copies to Padric Farrell. Farrell was not particularly interested in restoring Quinn’s reputation, or in laboriously setting an edition of letters in type by hand; but he was interested in the legal issues surrounding who owns/controls manuscript materials. And when Kavanagh decided not to pursue the matter in court, Farrell teamed up with Morris Ernst (the lawyer who had successfully defended Ulysses before Judge Woolsey) to press onward (ultimately winning the right to keep all but one of the nine copies).

(In what is certainly the most interesting anecdote from Farrell’s involvement, when the court first learned of Farrell’s nine copies, sheriffs were sent to his apartment to collect them; the nine copies were rescued by Farrell’s wife Elsa de Brun, the Swedish painter also known as Nuala, who hid them in her jacket, snuck out of the apartment past the police, and took refuge–I am not kidding–in the home of Teddy Roosevelt’s daughter-in-law [NYT April 23, 1961]. Farrell would later claim that he had told Kavanagh to pirate the Quinn letters [NYT July 27, 1988]; Kavanagh’s autobiography suggests no such thing.)

Bibliography

• Peter Kavanagh, Beyond Affection: An Autobiography (NY: Peter Kavanagh Hand Press, 1977).
• Peter Kavanagh, “Introduction” to The John Quinn Letters: A Pandect, Papers of Peter Kavanagh (1960), Special Collections, University of Virginia Library.
• “Purloined Letters? Intrigue in the Library,” by McCandlish Phillips, New York Times, Jan 17, 1960.
• “Irishman with Memory and a Press ‘Pirates’ Letters of Patrons of Arts,” Washington Post, Jan 18, 1960.
• “Disposition of the Quinn Letters,” letter to New York Times, by Paul Holister, Jan 17, 1960.
• “Uses Memory to Break Thru ‘Wall,’” Chicago Daily Tribune, Jan 18, 1960.
• “Library Summons Printer to Court,” by McCandlish Phillips, New York Times, Jan. 21, 1960.
• “Mr. Quinn’s Letters,” editorial, New York Times, Jan. 22, 1960.
• “Court Gets the Purloined Letters,” by McCandlish Phillips, New York Times Jan 26, 1960.
• “Case of Purloined Letters is Resolved by Public Library,” by McCandlish Phillips, New York Times, April 23, 1961.
• “A Son of Ireland Makes his First Visit There,” by McCandlish Phillips, New York Times, June 6, 1965.
• “About New York: A Printer with the Proper Respect for the Poet’s Art,” by William Farrell, New York Times, Feb. 14, 1981.