Rose Mark Authors and Owne

M.C. Sloss Collection Authors and Owners Authors and Owners The Invention of Copyright Mark Rose Harvard University Press Cambridge, Massachusetts London, England Copyright 1993 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Second printing, 1994 Library of Congress Cataloging-in-Publication Data Rose, Mark. Authors and owners : the invention of copyright / Mark Rose. p. cm. Includes bibliographical references and index. ISBN 0-674-05308-7 (alk. paper) (cloth) ISBN 0-674-05309-5 (pbk.) i. Copyright Great Britain History. 2. Copyright United States History. I. Title. KDi300.R67 1993 346.4i04'82 dcao [344-106482] 92-43010 CIP For Ted Preface My interest in copyright emerges from my experience as a literary "expert witness" in a number of copyright-infringement cases. The principal cases in which I have participated a suit against a television police serial with a science-fictional gimmick (one of the cops was a robot), a suit against a made-for-television movie about a child "genius" and his experiences in college, a suit against Raiders of the Lost Ark by the author of a long, mystical novel about the Ark of the Covenant, a suit against a movie about the rock music industry in the 19505, a suit against a television movie about an alien invader are, I believe, rep- resentative of run-of-the-mill infringement cases in the film and television industry. The issues are usually access and similarity. Did the defendant have access to the plaintiff's work, and could he or she have copied that work or otherwise taken something of value from it? Is the defendant's work so similar to the plaintiff's that plagiarism is a rea- sonable hypothesis, or, alternatively, is the defendant's work different enough from the plaintiff's to be considered original? The issue for the expert witness is usually similarity. In the police serial case, the robot cop in the plaintiff's story was a mechanical device that was supposed to look something like a vacuum cleaner and was conspicuously mechanical and irritating in its behavior. The defendant's cop looked like an ordinary police rookie; his true nature was unknown to everyone except his older partner. Were these two figures essentially the same? Was it relevant that a robot detective had been the central character in a well-known science-fiction novel of the 19505 and that robot police had figured in minor ways in a number of other texts? As a legal witness, I became conscious of the contradiction between the romantic conception of authorship the notion of the creative individual that underlies copyright and the fact that most work in the entertainment industry is corporate rather than individual. Further- more, many of the characteristic products of the industry game shows, soap operas, situation comedies, police stories, spy stories, and the like tend to be formulaic. Romantic conceptions of authorship seem as inappropriate in discussing these cultural productions as in discussing the equally formulaic productions of some older periods, ballads, say, or chivalric romances. I found these contradictions between the ideology of copyright and the actual circumstances of litigation intriguing and provocative. Imagining that my experiences in infringement cases might make an interesting essay, my colleague Richard Helgerson suggested that I should write something about copyright. My friend Robert Burt en- couraged me and suggested that I look at Lyman Ray Patterson's Copyright in Historical Perspective, a book to which all students of the history of Anglo-American copyright must be enormously indebted. Patterson's study in turn whetted my curiosity about the early British cases, and my interests turned historical. The first fruit of these interests was an article, "The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship," published in 1988. This book is an expansion and, I trust, a deepening of that article. Suspicious as I am of romantic notions of authorship, I am keenly aware that my own work is part of a collective enterprise in which many scholars, building on the work of such older historians of literature as A. S. Collins and such recent historians of publishing as John Feather, are attempting to understand the relations between conceptions of authorship and the development of intellectual property. The claim that there is a connection between the invention of the author as original genius and the invention of copyright was prefigured by Benjamin Kaplan in An Unhurried View of Copyright (1967), still one of the most penetrating discussions of copyright law we have. But in its recent phase this enterprise has been stimulated by the questions about authorship raised by Roland Barthes and Michel Foucault. The first extended consideration of the interaction between aesthetic and legal develop- ments in the eighteenth century that I know was Martha Woodmansee's important "The Genius and the Copyright: Economic and Legal Con- *+ viii Preface ditions of the Emergence of the 'Author'" (1984), which focused on Germany in the latter part of the century. Since then Carla Hesse has explored the legal construction of authorship in eighteenth-century France, where the political situation was very different from that in England, and Margreta de Grazia, Peter Jaszi, and Jane M. Gaines, among others, have made significant contributions to the historical enterprise. Recently the Cardozo Arts & Entertainment Law Journal published a special number devoted to "Intellectual Property and the Construction of Authorship," which contains essays from the important conference on this subject organized by Peter Jaszi and Martha Wood- mansee at Case Western Reserve University in April 1991. I am keenly aware, too, of the many institutional and personal debts I have incurred in writing this book, I am grateful to the Santa Barbara and Irvine campuses of the University of California for providing funds for research and to Shannon Miller and Ruth Warkentin for their excellent assistance at different stages in my work. I am grateful as well to the National Endowment for the Humanities for a Research Fellow- ship and to the Board of Governors of the University of California Humanities Research Institute for allowing me to take a six-month leave of absence from my duties as director in order to accept the fellowship. The Harvard Center for Literary and Cultural Studies provided a wonderful refuge in which to work. Many friends and colleagues have been generous with their time and support. I am particularly indebted to Ann Bermingham, Robert Burt, Marjorie Garber, Paul Geller, Peter Haidu, Richard Helgerson, Alvin Kernan, Robert Post, and Everett Zimmerman. I am also grateful to James Boyle, Cynthia Brown, Robert Folkenflik, Paul Hernadi, David Lieberman, James Oldham, Roberta Rosental, Ted Rose, Bert States, Maud Wilcox, and to the readers for Harvard University Press, whose reports were genuinely helpful to me. Debra Massey and the fine staff at UCHRI have been understanding and supportive beyond the call of duty. Sections of this book were presented at the Interdisciplinary Hu- manities Center at UC Santa Barbara, the Stanford Humanities Center, the Center for Literary and Cultural Studies at Harvard, and the Case Western Reserve conference on intellectual property and authorship. In every instance I profited from the discussions that followed. My thanks are also due to the Regents of the University of California for permis- * Preface ix. sion to reprint material that originally appeared as "The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Author- ship," Representations 23 (1988): 51-85, and to Oxford University Press for permission to reprint material that originally appeared as "The Author in Court: Pope v. Curll (1741)," Cultural Critique 21 (1992): 197-217. A few words about procedures are in order. I have preserved the spelling and punctuation in quotations from original materials, but I have silently expanded abbreviations and ignored the complexities of eighteenth-century typefaces small capitals and such except for preserv- ing italics. I have regularized the capitalization in book titles and normalized dates to conform with present practice (for example, the date of the Statute of Anne is listed as 1710 rather than 1709). Biblio- graphical information for authors and works referred to in the text can be found in the list of works cited. Sources for law cases and standard references for statutes can be found in parentheses after the listing in the index. I have attempted to keep the apparatus simple and unobtru- sive. British cases are cited, when possible, to the standard set of English Reports. Direct quotes from American cases are cited to the page on which the quote appears. The following abbreviations are used through- out: CJ for Journal of the House of Commons; LJ for Journal of the House of Lords; and ER for English Reports. Preface *<*, Contents + 1 The Question of Literary Property 1 * 2 The Regime of Regulation 9 * 3 Making Copyright 31 4 * The Author in Court 49 5 * Battle of the Booksellers 67 * 6 Literary Property Determined 92 7 ^ Property / Originality / Personality 1 13 * 8 Strange Changes J30 Appendix A. Documents Related to Pope v. Curll 145 Appendix B. Justice Nares' Vote in Donaldson v. Becket 154 Works Cited 159 Index 171 I thought of a sudden that I was hurried away to the realms of Parnassus . The greatest part of these regions is portioned out by Apollo into different tenures, some of them conveyed to the person for ever, others for life, and many for a shorter duration. There are mansion-houses built on many of these estates, and the great genius's, who have made a figure in the world, have here fixed their residence .

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