Pre-constitutional copyright statutes

Journal of the Copyright Society of the U.S.A.

Volumn 47, Issue 1, 1999, Pages 167-191

  Crawford, Francine ^a  

^a NONE

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EID: 0042916397     PISSN: 08863520     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (100)

1. 1 JOHN TEBBEL, A HISTORY OF BOOK PUBLISHING IN THE UNITED STATES 25 (1972).
2. The court order was later expanded, giving Usher a definite right to publish this work for a seven-year period.
3. 4 RECORDS OF THE GOVERNOR AND COMPANY OF THE MASSACHUSETTS BAY IN NEW ENGLAND 506, 527 (Nathaniel B. Shurtleff, ed., Boston, W. White 1853-54).
4. John Schulman, The Battle of the Books Revived - Copyright Law Revision in the Year 1971, 18 BULL. COPYR. SOC'Y 397, 404 (1971).
5. TEBBEL, supra note 1, at 138.
6. Id. at 138.
7. SAMUEL ELIOT MORISON, THE OXFORD HISTORY OF THE AMERICAN PEOPLE 279 (1965).
8. JOURNAL OF THE UNITED STATES IN CONGRESS ASSEMBLED, CONTAINING THE PROCEEDINGS FROM NOV. 1782 TO NOV. 1783, 256-57 (Philadelphia, C.D. Claypoole 1783).
9. Except Virginia. Virginia gives no reason for her copyright law, launching immediately into the terms of the protection granted.
10. ACTS AND LAWS OF THE COMMONWEALTH OF MASSACHUSETTS 143 (Boston, B. Edes & Sons 1782) [hereinafter cited as MASS.].
11. Wheaton v. Peters, 33 U.S. 591 (8 Pet.) (1834).
12. 1 LAWS OF THE STATE OF NEW YORK 274 (2d ed. New York, T. Greenleaf 1798) [hereinafter cited as NEW YORK].
13. 11 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801, 171 (James T. Mitchell & Henry Flanders comps., 1906) [hereinafter cited as PENNSYLVANIA].
14. Id. at 271-72.
15. There was little piracy in pre-Revolutionary America. Author's rights, however, were nor a determining factor in this circumstance. Every printer's welfare would have been threatened by mass mutual piracy. An unspoken "gentlemen's agreement" not to steal each other's works seems to have existed among these men throughout the early years. TEBBEL, supra note 1.
16. LAWS OF MARYLAND, MADE AND PASSED, AT A SESSION OF ASSEMBLY, BEGUN AND HELD AT THE CITY OF ANNAPOLIS ON MONDAY, THE 21ST OF APRIL, 1783. (no page numbers) (Annapolis, F. Green 1783) [hereinafter cited as MARYLAND].
17. PENNSYLVANIA, supra note 13, at 272.
18. An argument might be made that publishers needed no extra encouragement to market books: the profit motive was sufficiently strong, even with literary piracy. Therefore, the professed reasons for copyright laws may be contradicted by including assignees among those protected.
19. A COLLECTION OF ALL SUCH ACTS OF THE GENERAL ASSEMBLY OF VIRGINIA OF A PUBLIC AND PERMANENT NATURE, AS ARE NOW IN FORCE, COMPRISING THE FIRST VOLUME OF THE REVISED CODE (Richmond, Pleasants 1814) [hereinafter cited as VIRGINIA].
20. 4 LAWS OF NEW HAMPSHIRE 521 (Henry H. Metcalf ed., 1916) [hereinafter cited as NEW HAMPSHIRE].
21. State citizenship requirements are discussed in the section on reciprocity.
22. DIGEST OF THE LAW OF THE STATE OF GEORGIA 342 (Horatio Marbury & William H. Crawford comps., Savannah, Seymour, Wolhopter & Stebbins 1802) [hereinafter cited as GEORGIA].
23. Pamphlets, or broadsides, were a popular method of exchanging political ideas in colonial and revolutionary America, and had the advantages of cheapness and speed of production.
24. How broadly or strictly these statutes were interpreted would depend upon the state court's temperaments, the extent of violations, and the amount of damage done.
25. NEW HAMPSHIRE, supra note 19, at 521.
26. Manuscripts might have been included in this designation, also.
27. PENNSYLVANIA, supra note 13, at 272.
28. It is interesting to note that, although New York's law was patterned after Georgia's, New York did not include maps and charts, in its catalogue of protected works.
29. NEW YORK, supra note 12, at 275.
30. NIMMER ON COPYRIGHT, 11.
31. Portraits in colonial America were executed chiefly by itinerant painters, and were rather primitive. As the years progressed, the European influence strengthened, more money became available, and the general quality of paintings was upgraded. Painters became artists.
32. Connecticut legislators could not have anticipated movies, television, records, computers, and the myriad other forms of communication, the copyrights of which have been litigated in the courts in this century.
33. NEW YORK, supra note 12, at 275.
34. GEORGIA, supra note 21, at 343.
35. ACTS AND LAWS OF THE STATE OF CONNECTICUT, IN AMERICA 134 (New London, T. Green 1784) [hereinafter cited as CONNECTICUT].
36. No copyright act of the Revolutionary era defined its terms in order to aid the fact-finder.
37. NEW YORK, supra note 12, at 275.
38. 4 THE STATUTES AT LARGE OF SOUTH CAROLINA 619 (Thomas Cooper ed., Columbia, A.S. Johnston 1837) [hereinafter cited as SOUTH CAROLINA].
39. The estoppel theory was a possible defense here.
40. PENNSYLVANIA, supra note 13, at 272.
41. Id. at 272.
42. On the assumption that he previously had assigned his interest elsewhere: otherwise, the vested rights would never have left him at all.
43. SOUTH CAROLINA, supra note 37, at 618.
44. NEW HAMPSHIRE, supra note 19, at 521. In England, the Parliamentary press restriction act completely forbade the publishing of anything to which the printer's name and place of publication had not been affixed. TEBBEL, supra note 1, at 45.
45. SOUTH CAROLINA, supra note 37, at 619.
46. th ed. 1968).
47. MASS., supra note 10, at 144.
48. JAMES IREDELL, LAWS OF THE STATE OF NORTH CAROLINA 563 (Edenton, Hodge & Willis 1791) [hereinafter cited as NORTH CAROLINA].
49. TEBBEL, supra note 1, at 46.
50. LIBRARY OF CONGRESS, COPYRIGHT OFFICE, COPYRIGHT ENACTMENTS 1783-1900, at 17 (Thorvald Solberg comp., 1900).
51. NEW YORK, supra note 12, at 274.
52. If an author in Virginia or Maryland were to have given his permission after the fact, however, he may have been estopped from bringing suit. Other legal theories always were effective in conjunction with these copyright laws.
53. PENNSYLVANIA, supra note 13, at 272.
54. New Hampshire, Rhode Island, and Massachusetts laws also came within this proviso.
55. The Statute of Frauds provides that certain classes of contracts, to be enforceable or to be used as a defense to an action, must be in writing and signed by the party to be charged. Smith v. Morton, 173 P. 520 (Okla. 1918).
56. Or, if the Statute of Frauds were on the Pennsylvania books, the agreement between the proprietor and the other party might have been narrow enough in scope to fit within accepted exceptions to it.
57. VIRGINIA, supra note 18, at 21.
58. ND DAY OF OCTOBER 1782, AND CONTINUED BY ADJOURNMENTS, BEING THE SECOND SITTING 47 (Trenton, I. Collins 1783) [hereinafter cited as NEW JERSEY].
59. An action of debt is a common law action which lies to recover a specific sum of money, or a sum that can be easily reduced to a certainty. United States v. Claflin, 97 U.S. 546 (1878).
60. NEW HAMPSHIRE, supra note 19, at 521.
61. It was the same in most of the statutes. Consent contracts, on the other hand, were rebuttable pieces of evidence.
62. NORTH CAROLINA, supra note 47, at 24.
63. PENNSYLVANIA, supra note 13, at 273.
64. Id. at 272.
65. A bill is a formal written complaint in equity averring that acts disclosed are contrary to equity and praying for specific relief. Sharon v. Sharon, 7 P. 456 (Cal. 1885).
66. th ed. 1968).
67. Informations differ from bills in little more than form. 3 BL. COMM. 261.
68. th ed. 1968).
69. th ED. 1968).
70. A privilege is an immunity. Cope v. Flannery, 234 P. 845 (Cal. Ct. App. 1925).
71. Protection was a writ by which a king might privilege a defendant from all personal and many real suits for one year at a time. This was obviously inappropriate in revolutionary America.
72. An imparlance is a continuance. Colby v. Knapp, 13 N.H. 175 (1842).
73. SOUTH CAROLINA, supra note 37, at 619.
74. Id. at 620.
75. Id.
76. MARYLAND, supra note 15, no page number.
77. NEW YORK, supra note 12, at 275.
78. According to North Carolina almanacs of the period, a Spanish milled dollar in 1767, eighteen years before the passage of this act, was worth approximately six shillings six pence in British currency. Colonial currency, in turn, was valued at 8% to 10% less than its British counterpart.
79. GEORGIA, supra note 21, at 343.
80. This is not necessarily true with other copyrightable material, such as films or art work.
81. This is not universally true. See, e.g., the South Carolina law, text at note 87, infra.
82. Pennsylvania, in the provision in its law which said that a suit for damages which are less than five pounds should be heard by two county justices, recognized that the amount of damages might be low.
83. E.g., loss of profit, loss of privacy, possible damage to reputation, etc. Connecticut's law called for the payment of "just" damages.
84. NEW HAMPSHIRE, supra note 19, at 521.
85. Three thousand pounds was (and is) a great sum of money, and such a stiff fine should have discouraged any organized attempt at literary piracy.
86. Damask means "to deface (as a book) by marking with lines or figures." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 571 (1971).
87. th ed. 1968).
88. SOUTH CAROLINA, supra note 37, at 618.
89. The South Carolina act protects only books, and at the old rate of twelve shillings to a pound, a 240 page book would have 120 sheets, making the vendor liable for a ten pound penalty per volume.
90. NORTH CAROLINA, supra note 47, at 563.
91. Neither South Carolina's, New Jersey's, nor Virginia's acts contained a section dealing with reciprocity. These three statutes protected anyone who had properly registered his work in the appropriate place with the appropriate fee.
92. MASS. supra note 10, at 144.
93. Delaware never legislated on the subject of copyrights.
94. PENNSYLVANIA, supra note 13, at 273.
95. SOUTH CAROLINA, supra note 37, at 620.
96. Did the church ask to do this, or was it an order?
97. Today there is no Reformed Protestant Dutch Church in New York.
98. The proceedings were secret, and no contemporary publications credited anyone for originating this provision. 2 GEORGE T. CURTIS, CONSTITUTIONAL HISTORY OF THE UNITED STATES 531 (Da Capo Press 1974) (1897).
99. Karl Fenning, The Origin of Patent and Copyright Clause of the Constitution, 17 GEO. L.J. 109, 113 (1929).
100. THE FEDERALIST NO. 43, at 267 (James Madison) (H.C. Lodge ed., 1888).