Shloss v. Sweeney

Carol Loeb Shloss (plaintiff) spent a year researching a biographical book about writer James Joyce and his daughter, Lucia Joyce. Shloss conducted research using original source materials, such as letters and unpublished books from members of the Joyce family. When Shloss contacted Stephen Joyce (Joyce), the beneficiary of James Joyce’s estate (the estate) (defendant), Joyce refused to speak with Shloss and forbade her from using any letters or papers by Lucia Joyce. Over the course of several years, Joyce sent several letters to Shloss and her publisher, objecting to use of the estate’s materials and stating that the estate had never lost a lawsuit. Joyce rejected a fair-use assertion by the publisher. Shloss’s book was ultimately published without reference to many of the original sources. Shloss later created a website to host an electronic supplement to the book, which contained copies of the original source materials previously objected to by Joyce. Though Joyce claimed to have agreed to a covenant not to sue about the website’s materials, Shloss had added material to the non-public version now under review. After Shloss wrote to the estate to alert it to her intent to publish the electronic supplement, the estate again objected to publication of the material and stated that it reserved all rights if Shloss proceeded with publication. Shloss then filed a lawsuit seeking declaratory judgment to determine that the website would not violate any copyrights and that the supplement constituted fair use. The estate asserted that Shloss did not show reasonable apprehension of liability; the covenant not to sue eliminated any reasonable apprehension; and a ruling would constitute an advisory opinion, because the supplement had not been published.