January 17, 2017

Charles Dickens And Copyright Law: Five Things You Should Know

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One hundred and seventy five years ago, on January 22, 1842, Charles Dickens first set foot in America, specifically in Boston, after a twenty day steamship voyage from Liverpool. Dickens, only a few days shy of his thirtieth birthday, was already an acclaimed author, and was greeted with great adulation. However, the trip was soon ruined by, and was to become best-remembered for, Dickens’ ugly spat with the American press over the issue of international copyright.

In commemoration of the dodransbicentennial anniversary of Dickens’ landing in Boston and the copyright controversy that followed, here are five things you should know about Charles Dickens and copyright law.

The Pickwick Papers Dedication

Dickens’ relationship with copyright law goes at least as far back as his first serialized novel, the Pickwick Papers, which he completed in 1837. Dickens dedicated the work to lawyer and Minister of Parliament Thomas Talfourd, on account of Talfourd’s campaign for copyright legislation that would provide to “the authors of this and succeeding generations . . and their descendants a permanent interest in the copyright of their works.” Dickens wrote to Talfourd: “Many a widowed mother and orphan child will bear higher testimony to the value of your labours.”

Nicholas Nickleby and the Literary Gentleman

Two years later, Dickens appears to have included in the plot of Nicholas Nickleby a shout-out to Talfourd’s legislative fight for copyright protection. When Nicholas interviews for the job of secretary to a member of parliament, he is informed that his duties would include preparing speeches to counter “any preposterous bill … for giving poor grubbing devils of authors a right to their own property.” Later in the story, Nicholas speaks with a “literary gentleman” who claims to be following in the footsteps of Shakespeare by pirating serialized fictional works in order to make unauthorized dramatic productions. Nicholas challenges him:

You take the uncompleted books of living authors, fresh from their hands, wet from the press, cut, hack and carve them . . . all this without permission, and against his will; and then, to crown the whole proceeding, publish in some mean pamphlet, an unmeaning farrago of garbled extracts from his work, to which your name as author, with the honourable distinction annexed, of having perpetrated a hundred other outrages of the same description. Now, show me the distinction between such pilfering as this, and picking a man’s pocket in the street: unless, indeed, it be that the legislature has a regard for pocket-handkerchiefs, and leaves men’s brains, except when they are knocked out by violence, to take care of themselves.

The “literary gentleman” shrugged his shoulders and replied: “Men must live, sir.”

The American Visit

The backstory to Dickens American visit began in about 1837, when a group of prominent English authors led by Harriet Martineau petitioned the United States Congress — in vain — to enter into a bilateral treaty with the United Kingdom to provide copyright protection for foreign authors in the United States. There is some dispute as to whether Dickens was among the petitioners, but there is no dispute that Dickens was quickly becoming one of the chief victims of American literary piracy or, as he called himself, “the greatest loser alive by the present law.” Even before Dickens completed the Pickwick Papers, the Philadelphia publishing house of Carey, Lea & Blanchard began selling an unauthorized edition in the United States, and W.T. Moncrieff staged an unauthorized and plagiarized dramatic version of the work in New York.

At this time, American pirating of English (and other foreign) authors was common, perfectly legal, and considered to be consistent with developing First Amendment jurisprudence. In fact, when Carey, Lea & Blanchard published the Pickwick Papers without Dickens’ permission, Mr. Carey wrote him a letter proudly telling him so:

On the first appearance of the Pickwick Papers we undertook their publication in this country… we have thought of the author and have requested our agent . . . to furnish you with a draft … for £25 . . . which we beg you will accept not as a compensation, but as a memento of the fact that unsolicited a bookseller has sent an author, if not money, at least a fair representative of it . . . The amount is small [but] . . . it is but seldom that [American publishers] will admit of any payment to authors.

By 1842, Dickens’ celebrated tour of America was celebrated precisely because all of these pirated copies of his work had made him a virtual rock star. But when Dickens told Americans they would be even further enriched by a national literature of their own, the “universal answer (out of Boston)” was:

We don’t want one. Why should we pay for one when we can get it for nothing? Our people don’t think of poetry, sir. Dollars, banks and cotton are our books.

So Dickens used his trip as an opportunity to change American opinion by lobbying both Congress and his audiences to support copyright protection in the United States for foreign authors. At one speaking event, Dickens reportedly stated:

Gentlemen . . . I would beg leave to whisper in your ears two words, International Copyrights. I use them in no sordid sense, believe me, and those who know me best, best know that. For myself, I would rather that my children coming after me, trudged in the mud, and knew by the general feeling of society that their father was beloved, and had been of some use, than I would have them ride in their carriages, and know by their banker’s books that he was rich. But I do not see, I confess, why one should be obliged to make the choice, or why fame, besides playing that delightful reveille for which she is so justly celebrated, should not blow out of her trumpet a few notes of a different kind from those with which she has hitherto contented herself.

This didn’t go over well. Dickens’ pleas for authorial recompense were interpreted by many Americans as a challenge to the cherished freedom of the press, and Dickens was widely attacked by newspapers as a “mere mercenary scoundrel,” “no gentleman,” and no better than John C. Colt (the brother of firearms maker Sam Colt), who had recently been convicted of murdering a New York printer over the publication of a textbook. The Boston Morning Post put it more directly: “You must drop that, Charlie, or you will be dished.”

Dickens wrote that these critics, and the publishing interests that backed them, were “mislead[ing] the American public” in order to “gain a very comfortable living out of the brains of other men, while they would find it very difficult to earn bread by the exercise of their own.” In the end, however, Dickens’ attempts to change American copyright policy and opinion failed, and he returned to England somewhat embittered about his American experience, as reflected in Martin Chuzzlewit and the American Notes.

Sheldon v. Houghton

The first copyright opinion in the United States to mention Dickens, two years before his death in 1867, was the 1865 matter of Sheldon v. Houghton. Dickens – who of course had no rights at all in the United States – was not a party. Rather, the case concerned a dispute between what Dickens would have called a “pirate” on the one hand and a “plunderer” on the other.

In the 1860’s, Massachusetts printer Henry O. Houghton (founder of Houghton Mifflin and later Mayor of Cambridge) and New York City publisher Smith Sheldon got together and jointly published a very successful uniform edition of Dickens’ work, without of course paying Dickens a cent. When the business partnership came to an end, the parties sued each other in the Southern District of New York to determine their respective ownership rights in the valuable edition.

But how were they going to decide who owned a written work that wasn’t protected by copyright? Well, in the absence of international copyright, the American publishing industry had developed a custom. Whoever published a pirated foreign work first was seen as owning an ersatz form of “good will” in the volume, and other publishers generally respected that “good will.” Here, the parties’ partnership had acquired this good will in the eyes of the publishing industry, and the parties each argued that the Court should award that good will to them now that the partnership was dissolving.

However, Judge William Davis Shipman wasn’t interested in publishing industry custom. Judge Shipman held:

I do not find from the contract, or from any evidence in the cause, that the partnership acquired any title, either legal or equitable, to any corporeal property about which any dispute has arisen . . . If anything which can be called, in any legal sense, property, was transferred to this partnership, it must have been that incorporeal right of publishing this edition of Dickens, which is described in the bill as a “good will” . . . I apprehend that it is very far from . . . a solid foundation upon which an inviolable title to property can rest, which courts can protect from invasion. It can, therefore, hardly be called property at all . . . I know of no way in which the publishers of this country can republish the works of a foreign author, and secure to themselves the exclusive right to such publication [except to the extent it is] a subject of copyright.

As a practical matter, this left the established publishing houses of New York without a way to enforce their perceived rights against competition from upstarts with lower overhead and no respect for industry custom. Over the next few decades, the industry’s realization that it had no legal protection for editions of foreign literature, combined with the growing recognition of an American literature deemed worthy of protection, wore down the opposition to international copyright and helped lead to the 1891 passage of the Chace Act, which for the first time established copyright protection in the United States for works by foreign authors.

The Copyright Room at the Charles Dickens Museum

Just as I was nearing the end of my tour of the Charles Dickens Museum in London last August, I was delighted to find a room dedicated entirely to “Dickens & Copyright.” Well, truth be told, it wasn’t so much a room as a vestibule to the museum’s tiny elevator. Nevertheless, the walls are covered with a fascinating timeline of Charles Dickens’ relationship to copyright law, including the disappointing American tour.

According to these walls, when English law provided insufficient protection for other authors who had not enjoyed the same level of economic success, Dickens put his money where his pen was. He organized fundraisers to benefit the descendants of writers who were left penniless, lobbied for state pensions for deserving writers, and helped establish the Guild of Literature and Art as a welfare and housing scheme for writers, artists and journalists, thus creating a model for modern organizations such as the Authors’ Licensing and Collecting Society.

The author is indebted to David Perdue’s Charles Dickens Page; Professor Thomas Hoeren’s Charles Dickens and International Copyright Law, 63 J. Copyright Soc’y 341 (2016); the Life of Charles Dickens by John Forster; the excellent Charles Dickens Museum at 48 Doughty Street in London; and the article Charles Dickens, Copyright Pioneer by Lucinda Hawksley (an author who happens to be Dickens’ great great great granddaughter). With one obvious exception, the illustrations are 19^th Century public domain images from the British Library Flickr collection.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.