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Volume 69 March 2017

Stanford Law Review

ARTICLE

Courtesy Paratexts:

Informal Publishing Norms

and the Copyright Vacuum

in Nineteenth-Century America

Robert Spoo*

Abstract.

In response to the failure of U.S. copyright law to protect foreign authors,

nineteenth-century American publishers evolved an informal practice called the “courtesy

of the trade” as a way to mitigate the public goods problem posed by a large and ever-

growing commons of foreign works. Trade courtesy was a shared strategy for regulating

potentially destructive competition for these free resources, an informal arrangement

among publishers to recognize each other’s wholly synthetic exclusive rights in otherwise

unprotected writings and to pay foreign authors legally uncompelled remuneration for

the resulting American editions. Courtesy was, in effect, a makeshift copyright regime

grounded on unashamed trade collusion and community-based norms.

This Article examines a particular feature of this informal system: the courtesy paratext.

Typically appearing in the form of letters or statements by foreign authors, courtesy

paratexts prefaced numerous American editions of foreign works published from the

1850s to the 1890s. These paratexts—supplements to the text proper—played a prohibitory

role (not unlike the standard copyright notice) and also extolled the regulating and

remunerating virtues of the courtesy system. Authorial paratexts continued to accompany

texts well into the twentieth century—including, notably, American editions of James

Joyce’s and J.R.R. Tolkien’s works—and enable us to observe the principles of courtesy as

they operated less overtly to govern American publishers’ treatment of unprotected

foreign works. A little-examined source for understanding the history of copyright law

* Chapman Distinguished Professor, the University of Tulsa College of Law, and 2016

Guggenheim Fellow; B.A., Lawrence University; M.A., Ph.D., Princeton University; J.D.,

Yale University. I would like to thank the following individuals for their valuable

comments on earlier versions of this Article: Chuck Adams, Elizabeth Anker, Oren

Bracha, Michael Everton, Joseph A. Kestner, Mitch Lasser, Oskar Liivak, Tamara Piety,

Graham Reynolds, Paul K. Saint-Amour, Chris Sprigman, Simon Stern, Eva Subotnik,

Gerald Torres, Michael Winship, and those who attended workshops and presentations

at Cornell Law School and the Allard School of Law at the University of British

Columbia.

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and informal publishing norms, courtesy paratexts offer insight into a form of private

ordering that rendered the American public domain a paying commons.

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639

Table of Contents

Introduction ............................................................................................................................................................ 640

I. American Piracy, Public Goods, and Trade Courtesy ........................................................... 650

A. Trade Courtesy: Entitlements.................................................................................................. 655

B. Trade Courtesy: Punishments .................................................................................................. 659

C. The Dickens Controversy .......................................................................................................... 666

II. Courtesy Paratexts: Binding Norms in Authorized American Editions .................... 672

III. Gilbert and Sullivan’s Paratext: Courtesy Rationalized ...................................................... 688

IV. Monopolistic Practices and the Decline of Trade Courtesy .............................................. 695

V. Paratextual Ghosts of Courtesy: James Joyce and J.R.R. Tolkien .................................. 702

Conclusion ............................................................................................................................................................... 709

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Introduction

The French literary theorist Gérard Genette famously described par-

atexts—book titles, prefaces, epilogues, and the like—as verbal productions that

“surround . . . and extend [the text proper], precisely in order to present it, . . . to

make [it] present, to ensure the text’s presence in the world, its ‘reception’ and

consumption in the form (nowadays, at least) of a book.”

Genette likened the

paratext to a “threshold” or “vestibule” that “offers the world at large the

possibility of either stepping inside or turning back.”

It operates as a zone of

both “transition” and “transaction,” a “privileged place . . . at the service of a

better reception for the text and a more pertinent reading of it.”

So conceived,

the paratext is a space that promotes informed consumption, that beckons

without force or fraud, preparing the reader’s experience of the text or,

sometimes, reshaping the reading experience once completed. Paratexts of this

sort propose a transaction supported by consideration on both sides: a promise

of textual pleasure in exchange for full readerly performance. They are a kind

of prospectus or invitation. They hang a shingle or put out a welcome mat.

But there is another kind of paratext that seeks to discourage certain

transactions with the text. It sets strict conditions for the reader’s textual

tenancy. Many contemporary works of fiction carry in their front matter

something like the following: “This is a work of fiction. Any resemblance to

actual persons living or dead, events, or locales is entirely coincidental.”

This

disabusing paratext appeals to the reasonableness of readers in the vestibule,

asking them to respect the difference between imagination and reality and to

1. GÉRARD GENETTE, PARATEXTS: THRESHOLDS OF INTERPRETATION 1 (Jane E. Lewin

trans., 1997).

2. Id. at 2 (emphasis omitted).

3. Id. (emphasis omitted).

4. CORMAC MCCARTHY, THE ROAD (ninth unnumbered page) (2006). “All characters are

fictitious” disclaimers have also been used by Hollywood filmmakers since at least 1934.

Natalie Zemon Davis, “Any Resemblance to Persons Living or Dead”: Film and the

Challenge of Authenticity, Fifth Annual Patricia Wise Lecture of the American Film

Institute (Apr. 12, 1987), in 76 Y

ALE REV. 457, 457 (1987). Even lawyers employ versions

of this paratext. See, e.g., D

OUGLAS J. FARMER, CALIFORNIA EMPLOYMENT LAW: THE

COMPLETE SURVIVAL GUIDE TO DOING BUSINESS IN CALIFORNIA, at iv (2013) (“All

characters appearing in this work are fictitious. Any resemblance to real persons,

living or dead, is purely coincidental.”). Farmer’s paratext, referring to his use of

fictitious examples to illustrate legal issues, accompanies another familiar paratextual

disclaimer used by book-writing lawyers: “Legal information is not legal advice.” Id.

Like the “all characters are fictitious” warning, this is a litigation-discouraging paratext

that urges the reader to consume the text in the proper spirit.

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avoid crude attempts to convert fictional characters into real persons.

It urges

the deluded, the literal-minded, and the thin-skinned to put aside their instinct

to sue for libel or privacy invasion and instead play the author’s game of

fictiveness in a sporting spirit.

Another common threshold paratext is the copyright notice (©),

usually

found on the back of the title page (in the United States and other Anglophone

countries, at least) and often followed by a formulaic parade of prohibited acts

of reproduction, adaptation, distribution, and the like.

Whereas the “all

characters are fictitious” paratext discourages a faulty reading practice, the

property. The copyright notice does not concern itself with the reader’s

experience of the text so much as with discouraging the reader from

5. Authors and publishers have often been the targets of outraged people who believe

they have discovered themselves in fictional works. For example, threatened with a

libel action, the English publisher of D.H. Lawrence’s Women in Love settled the claims

of two former friends of Lawrence and insisted that Lawrence revise the text to

obscure the offending likenesses. D.H.

LAWRENCE, WOMEN IN LOVE, at xlix-l (David

Farmer et al. eds., Cambridge Univ. Press 1987) (1920). For an account of the roman à

clef (a subgenre of the novel that portrays real persons in fictional guise) and the

litigiousness it has aroused, see S

EAN LATHAM, THE ART OF SCANDAL: MODERNISM, LIBEL

LAW, AND THE ROMAN À CLEF 3-42 (2009).

6. Genette mentions copyright notices only in passing, GENETTE, supra note 1, at 32, and

does not discuss any of the other paratexts with which this Article is concerned. The

term “paratext” has been used in legal scholarship, without apparent derivation from

Genette, to mean “the electronic recording produced by currently known video

technology in American law and unknown technological inventions that will be the

functional analogues of video in the future.” Ronald K.L. Collins & David M. Skover,

Paratexts, 44

STAN. L. REV. 509, 510 (1992). This is not the meaning I assign to the term.

Some legal scholars use “paratext” to refer to textual or situational contexts. See, e.g., Jon

M. Garon, Wiki Authorship, Social Media, and the Curatorial Audience, 1 H

ARV. J. SPORTS &

ENT. L. 95, 110-11 (2010) (“The paratext, or grounding contextual materials, that

contextualize a wiki are provided by the wiki community rules and the statements of

goals and purposes provided by the publisher.”). This is also not the sense in which I use

the term.

7. Sometimes, paratextual copyright warnings can be verbose and didactic, even

threatening or wheedling:

The scanning, uploading, and distribution of this book via the Internet or via any other means

without the permission of the publisher is illegal and punishable by law. Please purchase only

authorized electronic editions and do not participate in or encourage electronic piracy of

copyrighted materials. Your support of the author’s rights is appreciated.

RON CHERNOW, ALEXANDER HAMILTON (eighth unnumbered page) (2004). In other

cases, a more nuanced, less author-centric vision of copyright law appears on the back

of the title page: “This book may not be reproduced, in whole or in part, including

illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of

the U.S. Copyright Law and except by reviewers for the public press), without written

permission from the publishers.” A

KHIL REED AMAR, THE BILL OF RIGHTS: CREATION

AND RECONSTRUCTION, at iv (1998).

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642

consuming the text in unauthorized and potentially unlawful ways. Although

traditional copyright law has emphasized the role of the copyright notice in

establishing the year of publication (formerly a critical legal fact in the United

States

) and protecting members of the public from becoming unwitting

infringers,

it seems safe to say that from the author and the publisher’s point

of view, the copyright notice and the accompanying prolix recitation of

prohibited acts simply serve as a “no trespass” sign. Both the copyright notice

and the “all characters are fictitious” paratext are negative injunctions in this

respect. They place boundaries around the text’s presence in the world and seek

to educate readers in the proper use of the work and its contents, so that

readerly misprision does not convert a desired transaction into unwanted legal

conflict. These paratexts play no role in enhancing the reader’s textual pleasure

or guiding her interpretive activity; they merely urge or command the reader

to avoid certain disapproved uses of the work.

A close cousin of the ubiquitous copyright notice is the familiar declara-

tion, also a fixture of the title page’s verso, “Manufactured in the United States

of America”

or “Printed in the United States of America.”

These avowals do

not attest to the national pride of bookmakers but rather derive from a period

in American publishing when U.S. copyright protection turned on strict

compliance with the statutory requirement that books be physically

manufactured on U.S. soil. Beginning with the International Copyright Act of

1891 (Chace Act), authors, foreign and domestic, could obtain a U.S. copyright

only by having their books manufactured from type set within the United

States or from plates made from such type.

While the 1909 Act—the first

significant revision of U.S. copyright law since 1891—exempted foreign

language books of foreign origin from the manufacturing requirements, the

8. Under the 1909 Copyright Act, copyright terms were measured from the year of

publication, Act of Mar. 4, 1909, Pub. L. No. 60-349, ch. 320, § 23, 35 Stat. 1075, 1080

(repealed 1976), not from the author’s death, as they currently are, 17 U.S.C. § 302(a)

(2015). The year of publication is still the measuring stick for works made for hire,

anonymous works, and pseudonymous works. Id. § 302(c).

9. Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F.2d 406, 409 (2d Cir. 1946).

10. See, e.g., TAMARA R. PIETY, BRANDISHING THE FIRST AMENDMENT: COMMERCIAL

EXPRESSION IN AMERICA, at iv (2012).

11. See, e.g., WILLIAM PATRY, HOW TO FIX COPYRIGHT, at iv (2011). Patry’s volume

conspicuously lacks the usual copyright notice. The absence of a common legal

paratext may sometimes be as suggestive as its presence.

12. Act of Mar. 3, 1891, ch. 565, sec. 3, § 4956, 26 Stat. 1106, 1107-08. As a practical matter,

these requirements mandated not only U.S. typesetting but also first or simultaneous

printing and publication on U.S. soil. C

ARROLL D. WRIGHT, COMM’R OF LABOR, A

REPORT ON THE EFFECT OF THE INTERNATIONAL COPYRIGHT LAW IN THE UNITED STATES,

S. DOC. NO. 56-87, at 5-6 (2d Sess. 1901) [hereinafter INTERNATIONAL COPYRIGHT LAW

REPORT].

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Act retained those requirements for most other works, including foreign books

and periodicals written in English.

For those works, the relevant clause was

even more stringent than its 1891 predecessor. Whereas the Chace Act had

specifically mandated domestic typesetting, the 1909 Act increased the burden

by requiring that printing and binding also be performed within the United

States.

The clear legislative purpose in both cases was to protect American

book manufacturers from the competitive effects of foreign bookmaking and

imported books.

Today, U.S. copyright protection arises automatically with the creation of

a work, or, to use the jargon of the 1976 Copyright Act, when the work is fixed

with sufficient permanence in a “tangible medium of expression . . . under the

authority of the author.”

Enjoyment of U.S. copyright protection by domestic

and foreign authors no longer depends on American manufacture or other

formalities but rather extends in the case of published works to every national

and domiciliary of the United States and its treaty nations, as well as to certain

other authors.

Until the 1950s,

however, the recitations “Manufactured in

13. HERBERT A. HOWELL, THE COPYRIGHT LAW: AN ANALYSIS OF THE LAW OF THE UNITED

STATES GOVERNING REGISTRATION AND PROTECTION OF COPYRIGHT WORKS, INCLUDING

PRINTS AND LABELS 85-86 (2d ed. 1948).

14. Act of Mar. 4, 1909, Pub. L. No. 60-349, ch. 320, § 15, 35 Stat. 1075, 1078-79 (repealed

1976).

15. See ROBERT SPOO, WITHOUT COPYRIGHTS: PIRACY, PUBLISHING, AND THE PUBLIC DOMAIN

60-64, 67-75 (2013) [hereinafter S

POO, WITHOUT COPYRIGHTS] (discussing the protec-

tionist purpose of the 1891 and 1909 manufacturing clauses); Robert Spoo, Note,

108 Y

ALE L.J. 633, 644-53 (1998) [hereinafter Spoo, Copyright Protectionism] (discussing

the same).

16. 17 U.S.C. § 101 (2015) (defining “created” and “fixed”). The 1976 Act significantly revised

the 1909 Act, notably by replacing the rule that copyright protection begins when

copies of a work are published with proper copyright notices, § 23, 35 Stat. at 1080,

with the rule that copyright protection begins from the moment the author creates the

work, 17 U.S.C. § 302(a) (“Copyright in a work created on or after January 1, 1978,

subsists from its creation . . . .”); see also H.R.

REP. NO. 94-1476, at 137-38 (2d Sess. 1976)

(discussing the concept of creation under the 1976 Act).

17. For a complete list of published works that are currently protected in the United States

as a matter of national origin, see 17 U.S.C. § 104(b). Unpublished works are protected

“without regard to the nationality or domicile of the author.” Id. § 104(a).

18. Foreign works qualifying for protection in the United States under the UNESCO

Universal Copyright Convention (effective September 16, 1955) were exempted from

the U.S. manufacturing requirements if they complied with copyright notice require-

ments. 17 U.S.C. § 9(c) (1954) (amending 17 U.S.C. § 9 (1947)). Repeal of the manufactur-

ing clause was originally set for July 1, 1982, as provided by the 1976 Act. Act of Oct. 19,

1976, Pub. L. No. 94-553, § 601(a), 90 Stat. 2541, 2588. However, it was postponed until

July 1, 1986 by congressional amendment. Act of July 13, 1982, Pub. L. No. 97-215, 96

Stat. 178, 178 (formerly codified at 17 U.S.C. § 601(a)).

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the United States” and “Printed in the United States” were true legal

paratexts,

informing governmental authorities and potential unauthorized

reprinters that the manufacturing requirements had been satisfied by tribute

paid to American book artisans. Unlike copyright notices, these paratextual

avowals did not warn readers to avoid certain ways of consuming the text;

they were not addressed to ordinary readers at all. Instead, they announced the

lawfulness of the text itself. Today, these phrases are vestigial, a kind of small

talk or phatic communion that conveys no legally relevant message.

They are

fossil paratexts.

In their day, these manufacturing declarations, like the copyright notice

and the “all characters are fictitious” recitation, could properly be called legal

paratexts. Legal paratexts have enjoyed a rich and varied history in publishing.

As early as 1851, in his preface to The House of the Seven Gables, Nathaniel

Hawthorne wittily combined a form of the “all characters are fictitious”

paratext with an important rumination on the genre of narrative romance,

announcing that the “personages of the tale . . . are really of the author’s own

19. I use the phrase “legal paratext” to denote a paratext that conveys a legal or law-related

meaning or warning or that seeks to persuade readers that the text or the act of

publishing it is lawful or legitimate in some way.

20. “Phatic communion” is a term coined by the anthropologist Bronisław Malinowski. See

Bronisław Malinowski, The Problem of Meaning in Primitive Languages, in C.K.

OGDEN &

I.A. RICHARDS, THE MEANING OF MEANING: A STUDY OF THE INFLUENCE OF LANGUAGE

UPON THOUGHT AND OF THE SCIENCE OF SYMBOLISM 296, 315 (4th ed. 1936). Malinowski

described phatic communion as “free, aimless, social intercourse” that includes

“[i]nquiries about health, comments on weather, . . . a flow of language, purposeless

expressions of preference or aversion, accounts of irrelevant happenings, [and]

comments on what is perfectly obvious” that do not “serve any purpose of communi-

cating ideas.” Id. at 313-16. Although the manufacturing paratext communicates a fact,

that fact has lost its legal significance.

21. “A line such as ‘Made [or Printed] in the United States of America [Hong Kong, Italy,

etc.]’ is no longer legally required but is often included.” Copyright Page, M

ERRIAM-

EBSTER’S MANUAL FOR WRITERS & EDITORS 316-17 (rev. ed. 1998) (brackets in

original). This same volume includes on its own copyright page a vestigial nod to the

defunct manufacturing clause of the 1909 Act: “Printed and bound in the United States

of America.” Id. at vi. Inertia rather than conscious purpose is likely responsible for the

repetition of this archaic formula, just as some contemporary lawyers continue to draft

contracts that recite the empty, outmoded term “witnesseth.” Kenneth A. Adams, The

New New Rules of Drafting (Part Two), M

ICH. B.J., Aug. 2002, at 40, 40.

22. The copyright notice, a formality that at one time could make or break legal protection

in the United States, is now largely a fossil paratext. Formerly mandatory, copyright

notices became permissive after the United States joined the Berne Convention for the

Protection of Literary and Artistic Works. See Berne Convention Implementation Act

of 1988, Pub. L. No. 100-568, § 7(a), 102 Stat. 2853, 2857 (codified as amended at 17 U.S.C.

§ 401 (2015)). Nevertheless, a copyright notice continues to afford certain advantages.

For example, it can negate a litigation defense of innocent infringement. 17 U.S.C.

§ 401(d).

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making, or, at all events, of his own mixing” and that it would be “an inflexible

and exceedingly dangerous species of criticism [to bring the author’s] fancy-

pictures almost into positive contact with the realities of the moment.”

Hawthorne’s dual purpose was to discourage claims of libel and to assert the

primacy of the nonrealistic and the imaginary in his aesthetic craft—to make

literary autonomy double as a shield against legal harassment.

His threshold

paratext served both to prepare the aesthetic experience of readers and to steer

them away from the courthouse doors.

Though we are often unaware or only barely aware of it, legal or law-

related paratexts crowd the vestibules of the books we read; in many cases,

they are invisible paratexts, easily skipped, thought of—if at all—as part of the

text’s standard throat-clearing. The “all characters are fictitious” paratext and

the other paratextual forms mentioned above deserve a full and lengthy

treatment, but this Article focuses on one particular form of legal or

legitimizing paratext that gained currency in American publishing during the

nineteenth century. This paratext, the courtesy paratext, was a direct response

to the failure of American copyright law to protect the writings of non-U.S.

authors. From its inception in 1790 and for a century afterward, U.S. copyright

law, by legislative design, offered virtually no protection for the works of

foreign authors.

Even after passage of the Chace Act in 1891, the Act’s strict

manufacturing clause, which effectively required foreign works to be typeset,

23. NATHANIEL HAWTHORNE, THE HOUSE OF THE SEVEN GABLES, A ROMANCE, at v (Boston,

Ticknor, Reed & Fields 1851). In his preface to The Blithedale Romance, Hawthorne again

asserted that his characters were “entirely fictitious” despite any resemblance between

the utopian community depicted in the novel and the actual Brook Farm in Massachu-

setts. N

ATHANIEL HAWTHORNE, THE BLITHEDALE ROMANCE, at iii-vi (Boston, Ticknor,

Reed & Fields 1852).

24. See LAWRENCE BUELL, THE DREAM OF THE GREAT AMERICAN NOVEL 74-75 (2014); see also

J.A.

BARNES, A PACK OF LIES: TOWARDS A SOCIOLOGY OF LYING 130-32 (1994) (discussing

Hawthorne’s “disclaimer” in the context of fictiveness and lying).

25. Genette distinguishes between paratexts written by authors and those created by

publishers or other nonauthorial parties. G

ENETTE, supra note 1, at 8-9.

26. The text of the 1790 copyright statute expressly excluded foreign authors from

protection. Act of May 31, 1790, ch. 15, § 5, 1 Stat. 124, 125. Later copyright acts

perpetuated this disability. See Act of July 8, 1870, ch. 230, § 103, 16 Stat. 198, 215; Act of

Feb. 3, 1831, ch. 16, § 8, 4 Stat. 436, 438. In rare cases, however, foreign authors succeeded

in getting around the statute’s exclusionary purpose by certain stratagems. See Peter

Jaszi & Martha Woodmansee, Copyright in Transition, in 4 A

HISTORY OF THE BOOK IN

AMERICA: PRINT IN MOTION; THE EXPANSION OF PUBLISHING AND READING IN THE UNITED

STATES, 1880-1940, at 90, 94 (Carl F. Kaestle & Janice A. Radway eds., 2009). B. Zorina

Khan offers examples of these stratagems, including Harriet Beecher Stowe’s idea of

partnering with the English novelist Elizabeth Gaskell. B.

ZORINA KHAN, THE

DEMOCRATIZATION OF INVENTION: PATENTS AND COPYRIGHTS IN AMERICAN ECONOMIC

DEVELOPMENT, 1790-1920, at 276-77 (2005).

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printed, and published on American soil before or at the same time as

publication abroad, prevented many foreign authors from obtaining U.S.

copyrights.

Because of the enormous popularity of British fiction and poetry among

American readers during the nineteenth century, American publishers faced a

public goods problem: the availability of free literary resources from abroad

appealed to publishers, but the lack of U.S. copyright protection for those

resources invited lawful free riding.

To prevent market failure for foreign

titles, the major publishing houses in New York, Philadelphia, and Boston

entered into “a kind of tacit understanding”

to divide this literary commons

among themselves. Each publisher claimed informal exclusive rights to certain

works or authors, while the other participating publishers recognized these

rights by “courtesy” and forbore to reprint courtesy-protected titles.

This

practice, which by midcentury had generated elaborate rules as well as

sanctions for violating them,

came to be called the “courtesy of the trade,”

“trade courtesy,” or “trade usage.”

In addition to horizontally colluding with

each other, norm-abiding publishers often paid legally uncompelled honoraria

27. See supra note 12 and accompanying text; see also SPOO, WITHOUT COPYRIGHTS, supra

note 15, at 60-63 (discussing the difficulties the Chace Act posed for foreign authors).

28. See infra notes 52-58 and accompanying text. Authors’ writings can be thought of as

public goods that are nonexcludable and nonrivalrous. Mark A. Lemley, IP in a World

Without Scarcity, 90 N.Y.U.

L. REV. 460, 466-67 (2015). That is, by their nature, they

cannot be fenced off, and their consumption by one person does not prevent others

from consuming them equally. For that reason, they are especially vulnerable to free

riding by unauthorized users. Copyright laws seek to prevent such free riding and the

market failure that might result.

See Wendy J. Gordon, Authors, Publishers, and Public

Goods: Trading Gold for Dross, 36 L

OY. L.A. L. REV. 159, 164 & n.13 (2002).

29. ROYAL COMMISSION ON COPYRIGHT, MINUTES OF THE EVIDENCE TAKEN BEFORE THE

ROYAL COMMISSION ON COPYRIGHT, 1878, [C. (2d series)] 2036, at 316 (UK) (testimony of

John Tyndall).

30. See infra notes 59-77 and accompanying text.

31. See infra Part I.A-B (discussing trade courtesy’s detailed rules and punishments).

32. There were several contemporaneous names for courtesy. See J. HENRY HARPER, THE

HOUSE OF HARPER: A CENTURY OF PUBLISHING IN FRANKLIN SQUARE 358 (1912) (using

“law of courtesy”); Charles Scribner’s Sons, Charles Scribner’s Sons Publish the Authorized

Edition of Reminiscences, by Thomas Carlyle, P

UBLISHERS’ WKLY., Mar. 26, 1881, at 322, 322

(using “the courtesy of the trade”); Harper & Bros., Note Respecting Harper & Brothers’

Edition of Reminiscences by Thomas Carlyle, P

UBLISHERS’ WKLY., Mar. 19, 1881, at 316, 316

(using “trade usage”). Trade courtesy was sometimes called the “Harper Rule” because of

the role the publisher Harper and Brothers played in establishing courtesy rules.

DRIAN JOHNS, PIRACY: THE INTELLECTUAL PROPERTY WARS FROM GUTENBERG TO

GATES 300-01 (2009); see also CHARLES A. MADISON, BOOK PUBLISHING IN AMERICA 63-64

(1966).

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647

or royalties to foreign authors or their publishers, in effect adding a vertical

dimension to courtesy.

By the 1850s, once trade courtesy had taken firm root, participating

publishers often made a point of including courtesy paratexts in their editions

of foreign works.

In these paratexts, which typically appeared in the opening

pages of books, publishers took the opportunity to acknowledge or extol the

norm of courtesy. Often, more pointedly and vividly, they reproduced a

testimonial letter or statement by the work’s foreign author exclusively

“authorizing” the edition and urging other publishing houses to respect the

publisher’s approved courtesy claim.

By binding into their books prefatory

matter of a legitimizing and normative nature, courtesy publishers signaled the

probity of their business dealings to readers and to fellow publishers. Courtesy

paratexts played a role somewhat analogous to the “no trespass” exhortation of

the copyright notice, but they went beyond this purely hortatory function to

remind the world that the cohesive community of respectable publishers could,

by voluntary collective action, be fairer than their country’s ungenerous law.

Courtesy paratexts tell us a great deal about the informal norms that

prevailed in the close-knit community of major American publishers prior to

1891. They are likewise a valuable source for legal and literary historians who

seek to explore the impact of America’s isolationist and protectionist copyright

laws on nineteenth-century authors and publishers. These authorizing

paratexts offer a window into a cohesive set of publishing norms that, with

remarkable though inevitably imperfect success, sought to fill the copyright

vacuum for foreign works in the United States for much of the nineteenth

century and, in more attenuated forms, as late as the 1970s.

Trade courtesy

was a norms-based system similar in complexity to those used by recent

communities that have informally regulated the use of public goods such as

stand-up comedy routines,

chefs’ recipes,

roller derby pseudonyms,

and

33. See infra notes 89-109 and accompanying text. For further discussion of courtesy’s

horizontal and vertical axes, see notes 62-64 and accompanying text below.

34. See infra notes 202-79 and accompanying text; see also Henry Holt, The Recoil of Piracy,

ORUM, Mar. 1888, at 27, 28 (stating that trade courtesy “grew up” roughly between

1850 and 1876).

35. See infra notes 227-79 and accompanying text.

36. See infra notes 365-95 and accompanying text.

37. Dotan Oliar & Christopher Sprigman, There’s No Free Laugh (Anymore): The Emergence of

Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 V

A. L. REV.

1787, 1809-31 (2008).

38. Emmanuelle Fauchart & Eric von Hippel, Norms-Based Intellectual Property Systems: The

Case of French Chefs, 19 O

RG. SCI. 187, 191-96 (2008).

39. David Fagundes, Talk Derby to Me: Intellectual Property Norms Governing Roller Derby

Pseudonyms, 90 T

EX. L. REV. 1093, 1108-31 (2012).

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648

tattoos.

Although it has received little attention from scholars of copyright

law or informal norms,

trade courtesy was a historically significant example

of informal private ordering, or what the American publisher and courtesy

40. Aaron Perzanowski, Tattoos & IP Norms, 98 MINN. L. REV. 511, 525-67 (2013).

41. For the most sustained treatment of courtesy by a legal scholar, see SPOO, WITHOUT

COPYRIGHTS, supra note 15, at 30-64, 107-15. See also Spoo, Copyright Protectionism, supra

note 15, at 656-59 (discussing courtesy in the context of James Joyce’s Ulysses). For brief

mentions of courtesy, see Thomas Bender & David Sampliner, Poets, Pirates, and the

Creation of American Literature, 29 N.Y.U.

J. INT’L L. & POL. 255, 266-67 (1996-1997);

Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies,

and Computer Programs, 84 H

ARV. L. REV. 281, 282-83, 299-300, 300 n.79, 302 (1970);

Jessica Bulman, Publishing Privacy: Intellectual Property, Self-Expression, and the Victorian

Novel, 26 H

ASTINGS COMM. & ENT. L.J. 73, 85 n.40 (2003); Catherine Seville, Authors as

(2008); Robert Spoo, Ezra Pound’s Copyright Statute: Perpetual Rights and the Problem of

Heirs, 56 UCLA

L. REV. 1775, 1783-84, 1784 n.42, 1796-98 (2009); and Steven Wilf,

HEORETICAL

INQUIRIES L. 179, 192-93, 198 (2011). For the most systematic discussion of the subject by

a nonlegal scholar, see Jeffrey D. Groves, Courtesy of the Trade, in 3 A

HISTORY OF THE

BOOK IN AMERICA: THE INDUSTRIAL BOOK, 1840-1880, at 139, 139-48 (Scott E. Casper et

al. eds., 2007). For less extensive though still useful discussions of courtesy and courtesy

principles, see M

ICHAEL J. EVERTON, THE GRAND CHORUS OF COMPLAINT: AUTHORS AND

THE BUSINESS ETHICS OF AMERICAN PUBLISHING 44-47, 125-27 (2011); EUGENE EXMAN,

THE BROTHERS HARPER: A UNIQUE PUBLISHING PARTNERSHIP AND ITS IMPACT UPON THE

CULTURAL LIFE OF AMERICA FROM 1817 TO 1853, at 52-55, 58-59, 116, 118, 264-65 (1965);

LLEN D. GILBERT, THE HOUSE OF HOLT, 1866-1946: AN EDITORIAL HISTORY 3, 18, 31-33,

36-39, 164-67, 210 (1993); H

ARPER, supra note 32, at 110-14, 340-45, 347-48, 355-56, 358,

393, 428, 447, 615-17; M

ELISSA J. HOMESTEAD, AMERICAN WOMEN AUTHORS AND

LITERARY PROPERTY, 1822-1869, at 154-63 (2005); JOHNS, supra note 32, at 295-302;

HAN, supra note 26, at 277-83; HELLMUT LEHMANN-HAUPT, THE BOOK IN AMERICA: A

HISTORY OF THE MAKING, THE SELLING, AND THE COLLECTING OF BOOKS IN THE UNITED

STATES 166-67 (1939); MADISON, supra note 32, at 10, 16-17, 26, 50, 53-55, 63-69, 98-100,

148-49, 225-26; D

ONALD SHEEHAN, THIS WAS PUBLISHING: A CHRONICLE OF THE BOOK

TRADE IN THE GILDED AGE 39, 57-69, 71, 73, 217, 225-26 (1952); JOHN TEBBEL, BETWEEN

COVERS: THE RISE AND TRANSFORMATION OF BOOK PUBLISHING IN AMERICA 39-40, 87, 89-

90, 130-31 (1987); S

IVA VAIDHYANATHAN, COPYRIGHTS AND COPYWRONGS: THE RISE OF

INTELLECTUAL PROPERTY AND HOW IT THREATENS CREATIVITY 52-55 (2001); MICHAEL

WINSHIP, AMERICAN LITERARY PUBLISHING IN THE MID-NINETEENTH CENTURY: THE

BUSINESS OF TICKNOR AND FIELDS 136-40 (1995); John Feather, The Significance of

RIVILEGE AND PROPERTY:

ESSAYS ON THE HISTORY OF COPYRIGHT 359, 364-65 (Ronan Deazley et al. eds., 2010);

Arnold Plant, The Economic Aspects of Copyright in Books, 1 E

CONOMICA 167, 172-73

(1934); and Stan J. Liebowitz, Paradise Lost or Fantasy Island?: The Payment of British

Authors in 19th Century America (Aug. 8, 2016) (unpublished manuscript),

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2676048. For descriptions of

courtesy by a contemporaneous practitioner, see Henry Holt, Competition, A

TLANTIC

MONTHLY, Oct. 1908, at 516, 522-24 [hereinafter Holt, Competition]; and Holt, supra note

34, at 27-32.

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649

practitioner Henry Holt called a “brief realization of the ideals of philosophical

anarchism—self-regulation without law.”

Part I of this Article provides historical context for analyzing courtesy

paratexts. That Part sketches the broad outlines of lawful piracy in nineteenth-

century America; the public goods problem that U.S. copyright law posed for

American publishers of foreign authors; and the cohesive, informal practice of

trade courtesy that arose to meet that problem by preventing or reducing

destructive competition for unprotected foreign works. That Part goes on to

offer a succinct taxonomy of trade courtesy’s rules for acquiring and retaining

informal title to foreign works and the sanctions for violating established

courtesy rights. Finally, that Part shows courtesy and its sanctions operating in

controversies that broke out over American publishers’ claims to works by

Thomas Carlyle and Charles Dickens.

Part II examines numerous courtesy paratexts found in nineteenth-

century American editions of foreign authors’ works, including works by

Charles Dickens, Robert Browning, Elizabeth Barrett Browning, Alfred Lord

Tennyson, Thomas De Quincey, and Rudyard Kipling. These authorial

paratexts served both as negative injunctions against unauthorized reprinting

of courtesy texts (the courtesy equivalent of copyright notices) and as

testimonials to the business virtue and morality of the informal norms-based

publishing practice. They reveal the contours of the courtesy system and

enrich our understanding of the ways in which this complex system of private

ordering operated from the 1850s to the 1890s.

Part III offers a close reading of a remarkably elaborate courtesy paratext

that appeared in the vocal scores of Gilbert and Sullivan’s comic operas

published in the United States in the 1880s. In addition to the usual testimonial

and prohibitory functions, this paratext offered reasons and justifications for

courtesy practices and sought to assure purchasers that trade courtesy did not

operate in the manner of other public goods monopolies to elevate prices,

lower quality, and restrict supply.

Part IV goes on to show that the defensive note in Gilbert and Sullivan’s

paratext was a response to forces that would soon cause trade courtesy to

decline as an overt practice: rampant unauthorized reprinting by discourteous

houses, the rise of antitrust laws, and the enactment of the 1891 Chace Act,

which offered conditional copyright protection to foreign authors. These

developments accompanied and helped fuel suspicion that trade courtesy was

more an unjustified monopolistic practice than a defensible solution to market

failure or an honor code observed by better businessmen.

42. Holt, Competition, supra note 41, at 522-23.

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650

Part V shows that although trade courtesy declined as a highly visible,

frequently extolled system of publishing norms, the principles of courtesy—

mutual forbearance to reprint claimed works and legally uncompelled

payment to foreign authors—continued to govern the behavior of some

American publishers. The “ghost of courtesy,” as it has been called,

inhabited

paratexts in American editions of two iconic works of the twentieth century:

James Joyce’s Ulysses

and J.R.R. Tolkien’s The Lord of the Rings.

These

paratexts testify to the survival of courtesy principles as a resource for

American publishers who sought to protect their investments in works lacking

incontestable copyright protection in the United States.

I. American Piracy, Public Goods, and Trade Courtesy

During the nineteenth century, protests against “Yankee pirates” issued

regularly from Britain.

Yet American literary piracy was a complex activity

closely bound up with legitimate publishing and copyright law. As one

commentator put it in 1882, piracy was “the product of law.”

A decentralized

reprint industry in the antebellum years reflected the republican ideals of

cultural diffusion and widespread learning, fostering a depersonalized print

culture at the expense of individual authors’ rights.

Legislators built piracy

into the copyright law as a way of accommodating the democratic values of

“ready access to literature, information, education, and other conduits for

achieving equality of opportunity.”

For much of the century, the United

States was a net importer of fiction,

and British books were voraciously

consumed by an increasingly literate populace.

43. Groves, supra note 41, at 147.

44. JAMES JOYCE, ULYSSES (Random House 1st authorized American ed. 1934) (1922).

45. J.R.R. TOLKIEN, THE FELLOWSHIP OF THE RING (Ballantine Books 1965) (1954); J.R.R.

TOLKIEN, THE TWO TOWERS (Ballantine Books 1965) (1954); J.R.R. TOLKIEN, THE

RETURN OF THE KING (Ballantine Books 1965) (1955). These volumes are parts one, two,

and three, respectively, of the trilogy known as The Lord of the Rings.

46. S.S. Conant, International Copyright: An American View, MACMILLAN’S MAG., June 1879,

at 151, 159; see also Culture and Progress Abroad, S

CRIBNER’S MONTHLY, Jan. 1872, at 375,

375 (quoting unnamed Englishman).

47. See The Author’s Best Friend, N.Y. EVENING POST, Sept. 1, 1882, reprinted in PUBLISHERS’

WKLY., Sept. 23, 1882, at 430, 430.

48. See MEREDITH L. MCGILL, AMERICAN LITERATURE AND THE CULTURE OF REPRINTING,

1834-1853, at 49-51, 63-73 (2003).

49. KHAN, supra note 26, at 286.

50. Id. at 16-17, 258.

51. See PAUL GOLDSTEIN, COPYRIGHT’S HIGHWAY: FROM GUTENBERG TO THE CELESTIAL

JUKEBOX 149 (rev. ed. 2003). The 1850 U.S. Census reported a literacy rate of 90% among

footnote continued on next page

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651

To the extent nineteenth-century authors can be said to have created

public goods, unauthorized reprinting of their works in the United States

represented a vast free rider phenomenon.

Intellectual property laws seek to

prevent market failure for public goods by artificially restricting their

distribution and making them subject to simulated scarcity.

U.S. copyright

laws in the nineteenth century offered no mechanism for contriving scarcity

in foreign works. Yet despite the aggressive free riding of American reprinters,

foreign authors continued to create. In part, this was because copyright

protection in their own countries solved free rider problems for their

publishing markets, allowing them to capture at least the domestic benefits of

their labors. American piracies did not seriously undermine foreign authors’

incentives to create so long as they could look to their own markets for

remuneration.

The divergence of international laws—protection in the

country of creation and lack of protection in the countries of production and

distribution—brought about a variant of the disaggregation that commerciali-

zation theory examines today.

The American public domain was parasitic; it

annexed a vast free resource of foreign innovation without running the risk of

losing that resource through failure to incentivize it. With respect to the

creation of foreign works, the American public domain was not haunted by a

public goods problem.

But publishers, too, produce—not typically by creating works but rather

by reproducing and disseminating works created by others. Like creators, they

white men and women. CANDY GUNTHER BROWN, THE WORD IN THE WORLD:

EVANGELICAL WRITING, PUBLISHING, AND READING IN AMERICA, 1789-1880, at 10 (2004).

52. See Gordon, supra note 28, at 164 (discussing authors’ works and free riding).

53. Lemley, supra note 28, at 462.

54. See INTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 80-81 (statement of the

Historical Publishing Company) (“In no possible event can an author . . . be seriously

wronged by the republication of his works in a foreign country. If he is appreciated at

home, his reward should be reasonably satisfactory.”); The International Copyright

Question, 12 U.S.

MAG. & DEMOCRATIC REV. 115, 120 (1843) (“The English author . . . has

written his book for the large and liberal reading public of his own country, under the

rights, for his compensation and protection, conferred upon him by its institutions and

laws; how is he injured by the reproduction and diffusion of the same in another

country, three thousand miles across an ocean, a distinct political body?”); see also

Breyer, supra note 41, at 313 (“[I]t may have been British [copyright] protection that

guaranteed [the British] author and publisher sufficient income to make them

relatively indifferent to American [reprint] prices.”).

55. It is commonly observed that the Internet, with its capacity for rapid dissemination of

copies, tends to disaggregate creation and distribution. See, e.g., Lemley, supra note 28, at

461. Commercialization theory contends that intellectual property is necessary not so

much to incentivize the creation of works as to encourage production, distribution,

and marketing of works. Jonathan M. Barnett, Copyright Without Creators, 9 R

EV. L. &

ECON. 389, 404-14 (2013); Lemley, supra note 28, at 463, 494.

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652

require economic incentives to go on producing. Why would a New York

publishing firm in, say, 1855 invest in advance sheets of a new English novel

when a firm in Philadelphia could free ride by quickly bringing out a

competing edition that would benefit from advertising paid for by the New

York house?

First-mover strategies offered some advantages, but being first

to market with a new foreign title sometimes secured a head start of only days

or hours before competitors began issuing their own reprints.

Why, then, did

the threat of uncontrolled reprinting not result in widespread market failure

and early abandonment of foreign literature as a profitable good? One

important solution, carefully evolved over the nineteenth century, was the

courtesy of the trade.

Contemporaries variously defined the courtesy of the trade as a duty “[n]ot

to jump another publisher’s claim”

and an agreement among publishers

“not . . . to cut each other’s throats.”

“[T]here . . . grew up,” wrote Henry Holt,

“between, say, 1850 and 1876, the unwritten law . . . of ‘trade courtesy.’ It not

only prevented ruinous competition between American publishers, but also

secured to foreign authors most of their rights.”

Trade courtesy, in its fully

developed form, thus had a horizontal axis and a vertical axis. By requiring

participating publishers to respect the claim of the first publisher to announce

its intention to reprint a foreign title,

courtesy horizontally regulated what

might otherwise have disintegrated into destructive competition for the

work.

Vertically, the system ordered relations between American publishers

and foreign authors by encouraging voluntary payments to the authors or

their publishers.

Again, self-interest was at work. Payments helped cement

56. See INTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 48 (statement of G.P.

Putnam’s Sons) (describing the tendency of publishing rivals to free ride on “the

advertising done for the authorized edition”).

57. EXMAN, supra note 41, at 7-8.

58. Many American publishers testified to the threat of market failure by unrestrained

reprinting prior to 1891. See, e.g., I

NTERNATIONAL COPYRIGHT LAW REPORT, supra note

12, at 56 (statement of Charles Scribner’s Sons) (“[R]eprint[ing] recent English books in

America and mak[ing] a profit on them . . . had become almost impossible when there

was no protection.”); id. at 69 (statement of J.B. Lippincott Company) (discussing “the

demoralizing and ruinous competition” caused by pre-1891 “reckless reprinting”); see

also infra notes 111-13, 144-61, 271-76 and accompanying text (discussing the financial

hardship inflicted on publishers by the reprinting of foreign works).

59. “The Evening Post’s” Libel Suit, PUBLISHERS’ WKLY., Feb. 25, 1893, at 359, 360 (1893)

(quoting testimony of Henry Holt).

60. ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 43 (testimony of John Blackwood).

61. Holt, supra note 34, at 28.

62. See infra notes 78-81 and accompanying text.

63. See MADISON, supra note 32, at 50.

64. Id.

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653

relationships with foreign authors and signaled to other publishers that the

paying firm was a responsible member of the trade.

What is most striking about trade courtesy is that it was an “unwritten

law,”

an entirely voluntary system of informal norms that imitated the basic

features and purposes of copyright law.

Courtesy evolved a complex set of

exclusive rights, rules for securing those rights, and sanctions for violating

them.

These extralegal entitlements helped stabilize the book market during

much of the nineteenth century.

The community of participating courtesy publishers was a small cohesive

one. Although estimates vary, the extant correspondence of Charles Scribner’s

Sons reveals that at least nine major publishing firms, in addition to Scribner’s,

observed the principles of courtesy during the 1870s: J.B. Lippincott and Co.,

J.R. Osgood and Co., D. Appleton and Co., Roberts Brothers, G.P. Putnam’s

Sons, Harper and Brothers, Macmillan and Co., E.P. Dutton and Co., and Henry

Holt and Co.

Not all publishing houses recognized courtesy. Novice

publishers and small firms, for example, had strong incentives to resist the

informal code and to reprint freely as a way of establishing book lists and

amassing capital that could help build a foundation for success,

and courtesy

failed to gain a foothold in the aggressive paper-book trade of the 1870s and

65. Cf. ERIC A. POSNER, LAW AND SOCIAL NORMS 18-19 (2000) (discussing actors who signal

willingness or unwillingness to cooperate within informal ordering systems).

66. Holt, supra note 34, at 28.

67. Holt praised courtesy as possessing “the essential features of an International Copyright

Law” despite the “gaps and defects” typical of “all usages, and, for that matter[,] . . . all

laws.” Id. at 30.

68. See infra Part I.A-B.

69. American courts refused to treat courtesy claims as actual property entitlements. See,

e.g., Sheldon v. Houghton, 21 F. Cas. 1239, 1241-42 (C.C.S.D.N.Y. 1865) (No. 12,748) (“If

[courtesy] has any foundation at all, it stands on the mere will, or . . . the ‘courtesy’ of

the trade. . . . It can, therefore, hardly be called property at all—certainly not in any

sense known to the law.”).

70. SHEEHAN, supra note 41, at 65; see also ROYAL COMMISSION ON COPYRIGHT, supra note 29,

at 181 (testimony of Charles Edward Appleton) (describing “courtesy copyright” as “an

understanding which theoretically exists between all firms in America, but practically

only amongst the five or six largest firms”). A form of courtesy also underlay the

system of exchange newspapers in the 1850s, where uncopyrighted (and sometimes

copyrighted) material from American periodicals could be reprinted freely by other

American periodicals, as long as they credited the author and the original publishing

source. H

OMESTEAD, supra note 41, at 154-63.

71. See GEORGE T. DUNLAP, THE FLEETING YEARS (1937), quoted in PUBLISHERS ON PUBLISHING

269, 271-72 (Gerald Gross ed., 1961) (discussing the publishing company Grosset and

Dunlap’s use of unauthorized reprinting to achieve financial viability); M

ADISON, supra

note 32 at 7-8 (“[F]ledgling publishers . . . made up most of their lists with reprinted [and

unremunerated] importations.”).

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654

1880s when publishing norms were often cast aside in favor of quick profits on

cheaply printed books.

Moreover, new entrants into the publishing field

increasingly accused veteran firms of monopolistic practices and supracompet-

itive pricing.

The publishing world in the nineteenth century, though cohesive enough

to evolve an extralegal code of conduct, was more heterogeneous and volatile

than the close-knit rural community of Robert Ellickson’s classic study of

informal norms.

Unlike Ellickson’s resourceful cattlemen who employ

flexible social mores as an alternative to unwieldy or unfamiliar legal remedies,

American publishers did not have the luxury of choosing between informal

norms and legal entitlements because the foreign authors whom they reprinted

enjoyed no legal entitlements at all in the United States.

These publishers

were confronted instead with a starker choice between informal self-

regulation and virtually no legal regulation at all. The choice was not one

between order with law and order without law but, more fundamentally,

between fragile order and commercial chaos. Operating beyond the shadow of

the law—indeed, in a kind of legal vacuum—publishers sought to avert

destructive competition by cooperating to manage a free, unprotected resource.

With striking though intermittent success over the decades,

the elaborate

72. See infra notes 100, 108, 158-61, 271-76 and accompanying text. On the “piracy wars” in

nineteenth-century American publishing, see Robert L. McLaughlin, Oppositional

Aesthetics/Oppositional Ideologies: A Brief Cultural History of Alternative Publishing in the

United States, 37 C

RITIQUE 171, 173-74 (1996).

73. See infra notes 314, 318-25 and accompanying text. Courtesy publishers often entered

into contracts with each other and their foreign authors. See Groves, supra note 41, at

141; see also R

OYAL COMMISSION ON COPYRIGHT, supra note 29, at 94-95 (testimony of

George Haven Putnam) (referring to American publishers’ “contracts” with foreign

authors). But there was no comprehensive system of horizontal contracting, except in

the sense that courtesy publishers tacitly operated as a cartel. See id. at 287 (testimony of

Herbert Spencer) (noting that trade courtesy conferred “a [publishing] priority, such as

is tacitly regarded as a monopoly”).

74. See generally ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE

DISPUTES 40-64 (1991) (describing the system of informal norms that cattlemen and

landowners employ in Shasta County, California to resolve cattle-trespass disputes in

preference to formal tort remedies).

75. See supra notes 26-27 and accompanying text.

76. See SHEEHAN, supra note 41, at 62-63 (describing courtesy around 1860 as a “clearly

defined, even if occasionally ignored, principle of self-regulation”); see also

NTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 50 (statement of G.P.

Putnam’s Sons) (noting that prior to the 1891 Chace Act, “foreign authors secured at

haphazard an uncertain remuneration from their American readers”); R

OYAL

COMMISSION ON COPYRIGHT, supra note 29, at 43 (testimony of John Blackwood) (“I have

known [courtesy] broken, and I have known it kept.”).

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655

rules of courtesy staved off or at least mitigated “the old scramble of pirated

editions.”

A. Trade Courtesy: Entitlements

In its simplest outlines, the courtesy of the trade granted an informal

exclusive right of publication to the first American publisher to announce

plans to issue an uncopyrighted foreign book.

Participating houses

recognized this right and refrained from “printing on” the announcing firm.

Later, in part to avoid confusion over the priority of announcements, the rule

emerged that the announcing firm, to secure its rights, must actually have

purchased advance sheets of the foreign edition for use as setting copy or

entered into an agreement with the author for permission to reprint. “If a

publisher had the advance sheets in his possession, such right or claim overrode

a simple announcement.”

By supplementing its announcement with the

purchase of advance sheets or with an author’s contract, the publisher

perfected its otherwise bare title to the foreign work.

Trade courtesy also developed a kind of option system based on what the

trade referred to as the “rule of association.”

Once an American publisher

reprinted a foreign title and paid its author, it was generally understood that

the author was associated with that house, which could then expect to have the

first refusal of the author’s next effort.

For example, after William D.

77. INTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 30 (statement of the

American Copyright League). Whether market failure for foreign works was a real

threat to American publishers or served as rhetorical cover for monopolistic practices

or moral preferences—or both—is beyond the scope of this Article. Certainly,

publishers routinely voiced concern about ruinous competition. E.g., Holt, supra note

34, at 28.

78. EXMAN, supra note 41, at 52-55; JOHNS, supra note 32, at 300-01; SHEEHAN, supra note 41,

at 71.

79. The phrase “printing on” meant “printing a book for which another publisher claimed

priority.” E

XMAN, supra note 41, at 7.

80. HARPER, supra note 32, at 111; see also ROYAL COMMISSION ON COPYRIGHT, supra note 29,

at 66 (testimony of George Washburn Smalley) (stating that arrangements for “early

sheets” were “common”).

81. The Harper firm noted that “[i]n many cases when the English authors send us early

sheets of their books, and for some reason we fail to use them, we endeavor to sell them

on the author’s account to other American houses.” Letter from Harper & Bros. to

M.O.W. Oliphant (Feb. 11, 1873), quoted in H

ARPER, supra note 32, at 357, 358. This

suggests that publishers enjoyed the power to transfer courtesy rights. See infra notes

129-30, 171 and accompanying text.

82. Groves, supra note 41, at 140.

83. MADISON, supra note 32, at 26; Groves, supra note 41, at 140-41.

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69 STAN. L. REV. 637 (2017)

656

Ticknor established courtesy title to Tennyson’s Poems in 1842,

other

publishers acknowledged the Boston firm’s associational rights to Tennyson’s

later works.

There were additional refinements, as well. For example, if a

publisher reprinted the work of a new or untried author as an experiment, the

publisher would have the first refusal of the author’s later books only if it made

satisfactory payment to the author for the first publication.

With variations,

the foregoing rules crystallized over time into a coherent and consensual

system of imbricated rules and subrules.

Publishers sometimes paid very substantial sums for advance sheets.

early as the 1820s and 1830s, the Carey & Lea firm of Philadelphia was making

payments to Sir Walter Scott or his publisher.

Scott received £75 for advance

sheets of each of the Waverley novels

and £300 for his Life of Napoleon

Buonaparte.

In 1849, Harper and Brothers brought out Thomas Babington

Macaulay’s celebrated History of England from the Accession of James II

after

announcing the book and paying his English publisher £200 for first proofs.

84. 1 ALFRED TENNYSON, POEMS (Boston, William D. Ticknor 1842).

85. Groves, supra note 41, at 141.

86. For details of this courtesy practice and those mentioned in the foregoing paragraphs,

see Holt, supra note 34, at 29-31.

87. Cf. Richard A. Posner & Eric B. Rasmusen, Creating and Enforcing Norms, with Special

Reference to Sanctions, 19 I

NT’L REV. L. & ECON. 369, 369-70 (1999) (discussing group

consensus and the “crystalliz[ing]” of norms).

88. Scholars have disagreed about the amounts paid to foreign authors as well as the

number of authors who received payments. Compare Breyer, supra note 41, at 282, 300

(stating that nineteenth-century “American publishers sold countless copies of British

works and paid their authors royalties” and that “many English writers earned more

from the sale of advance proofs to American publishers . . . than from the copyright

royalties on their English sales”), with Liebowitz, supra note 41, at 20 (“[E]ven with trade

courtesy, British authors were either not paid at all or paid less than what they would

have been expected to receive had they been protected by copyright.”).

89. Groves, supra note 41, at 141.

90. E.g., 1 SIR WALTER SCOTT, KENILWORTH (Philadelphia, M. Carey & Son 1821) (1821).

91. 1 SIR WALTER SCOTT, THE LIFE OF NAPOLEON BUONAPARTE, EMPEROR OF THE FRENCH:

WITH A PRELIMINARY VIEW OF THE FRENCH REVOLUTION (Philadelphia, Carey, Lea &

Carey 1827) (1827). For the sums paid by the Carey firm for Scott’s works, see S

HEEHAN,

supra note 42, at 62. According to a calculation employing the consumer price index

and the retail price index, the average value in 2014 of £300 from 1827 was $32,600.

Computing ‘Real Value’ over Time with a Conversion Between U.K. Pounds and U.S. Dollars,

1774 to Present, M

EASURINGWORTH, https://www.measuringworth.com/exchange (to

locate, enter “1827” into the “Initial year” text box; enter “£” and “300” into the “Initial

value” text boxes; enter “2014” into the “Desired year” text box; and then follow the

“Calculate” hyperlink).

92. 1 THOMAS BABINGTON MACAULAY, THE HISTORY OF ENGLAND FROM THE ACCESSION OF

JAMES II (New York, Harper & Bros. 1849) (1849).

93. EXMAN, supra note 41, at 264-65.

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The Harpers paid Charles Dickens £360 for magazine rights to Bleak House,

£250 for Little Dorrit,

£1000 each for A Tale of Two Cities

and Our Mutual

Friend,

£1250 for Great Expectations,

and £2000 for the never-finished

Mystery of Edwin Drood.

Until fierce competition from cheap reprints made it

difficult to offer remuneration in the 1880s, the Appleton firm paid the Welsh

author Rhoda Broughton $1000 for each of her novels.

100

One publisher in

1876 estimated that payments for advance sheets averaged between £25 and

£100,

101

and payments were sometimes made to a deceased author’s estate.

102

Methods of payment varied. Instead of offering upfront sums for advance

sheets, publishing houses sometimes paid post hoc honoraria as a “voluntary

94. CHARLES DICKENS, BLEAK HOUSE (London, Bradbury & Evans 1853). In the United

States, Bleak House appeared serially in twenty parts in 1852-1853 in Harper’s Magazine.

HE CHARLES DICKENS ENCYCLOPEDIA 19 (comp. Michael Hardwick & Mollie Hardwick

1973).

95. CHARLES DICKENS, LITTLE DORRIT (London, Bradbury & Evans 1857). The novel

appeared serially in Harper’s Magazine in 1855-1857. T

HE CHARLES DICKENS

ENCYCLOPEDIA, supra note 94, at 21.

96. CHARLES DICKENS, A TALE OF TWO CITIES (London, Chapman & Hall 1859). The novel

appeared serially in Harper’s Weekly in 1859. T

HE CHARLES DICKENS ENCYCLOPEDIA,

supra note 94, at 23.

97. 1 CHARLES DICKENS, OUR MUTUAL FRIEND (London, Chapman & Hall 1865). The novel

appeared serially in Harper’s Magazine in 1864-1865. T

HE CHARLES DICKENS

ENCYCLOPEDIA, supra note 94, at 27.

98. 1 CHARLES DICKENS, GREAT EXPECTATIONS (London, Chapman & Hall 3d ed. 1861). The

novel appeared serially in Harper’s Weekly in 1861. T

HE CHARLES DICKENS

ENCYCLOPEDIA, supra note 94, at 26.

99. CHARLES DICKENS, THE MYSTERY OF EDWIN DROOD (London, Chapman & Hall 1870).

The novel appeared serially in a supplement to Harper’s Weekly in 1870. T

HE CHARLES

DICKENS ENCYCLOPEDIA, supra note 94, at 29. For the sums paid by the Harpers to

serialize the above-mentioned Dickens novels, see M

ADISON, supra note 32, at 26. A

contemporary source confirms these sums, with the exception that it figures the

amount paid for Bleak House at £400. The Dickens’ Controversy, A

M. LITERARY GAZETTE &

PUBLISHERS’ CIRCULAR, June 1, 1867, at 68, 68-69. This source does not include the then-

unpublished Mystery of Edwin Drood.

1 0 0 . Raymond Howard Shove, Cheap Book Production in the United States, 1870 to 1891, at

119 (1936) (unpublished M.A. thesis, University of Illinois) (on file with the University

of Illinois Library).

1 0 1 . ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 91 (testimony of George Haven

Putnam).

1 0 2 . Id. at 63 (testimony of John Murray) (stating that £1000 had been obtained from an

American publisher for the family of the deceased author and explorer David

Livingstone). Livingstone died in 1873. Christopher K. Schuele, Healing the Congo’s

Colonial Scars: Advocating for a Hybrid Approach to Conflict Minerals Reporting Regulations

in the European Union, 33 W

IS. INT’L L.J. 755, 755 n.1 (2015).

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recognition” of authors whose books had reaped profits.

103

In 1836, for

example, the Carey firm reprinted 1500 copies of the initial parts of Dickens’s

Pickwick Papers,

104

sold at 45 cents per volume.

105

Two years later, the firm sent

Dickens £50 in acknowledgment of the book’s success.

106

As courtesy practices

took hold, publishers began to offer foreign authors royalties on copies sold,

either instead of or as a supplement to simple honoraria for successful sales or

initial payments for advance sheets.

107

Henry Holt paid a 10% royalty on

numerous editions of Thomas Hardy’s works in the 1870s and 1880s until

widespread piracies made reprinting Hardy unprofitable.

108

Courtesy thus

imitated a practice inspired by formal copyright law: royalties were becoming

the usual form of payment to authors who controlled the exclusive rights

conferred by copyright.

109

The artificial property system fashioned by trade courtesy even had its

own public domain, a commons of foreign works to which no American

publisher was exclusively entitled. Courtesy could not be used, for example, to

claim an association with a long-dead or classic author or for collected editions

of standard foreign writers.

110

These materials remained available to all

publishers. Moreover, if a courtesy title became subject to reprinting by

multiple publishers, it might lose its informal protection and return to trade

courtesy’s commons.

111

Thus, American publishing came to recognize a two-

tiered public domain: First, there was the familiar legal public domain, the

1 0 3 . ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 136 (testimony of the Reverend

Canon Farrar).

1 0 4 . THE POSTHUMOUS PAPERS OF THE PICKWICK CLUB: CONTAINING A FAITHFUL RECORD OF

THE PERAMBULATIONS, PERILS, ADVENTURES AND SPORTING TRANSACTIONS OF THE

CORRESPONDING MEMBERS (“Boz” ed., Philadelphia, Carey, Lea & Blanchard 1836). “Boz”

was Dickens’s pseudonym early in his career. R

OBERT MCPARLAND, CHARLES DICKENS’S

AMERICAN AUDIENCE 50 (2010).

1 0 5 . EXMAN, supra note 41, at 58-59.

1 0 6 . Id. Previously, the Carey firm had offered a gratuity of £25, but Dickens politely

declined it. Letter from Charles Dickens to Carey, Lea & Blanchard (Oct. 26, 1837), in 1

THE LETTERS OF CHARLES DICKENS 322, 322 & n.1 (Madeline House & Graham Storey

eds., Pilgrim ed. 1965).

1 0 7 . Groves, supra note 41, at 146; see also ROYAL COMMISSION ON COPYRIGHT, supra note 29,

at 314 (testimony of John Tyndall) (noting that the Appleton firm gave annual

accounts of an English author’s American sales and “a certain percentage on the retail

price of [his] books”); W

INSHIP, supra note 41, at 138-39 (discussing the publisher

Ticknor and Fields’s use of royalties and payments for advance sheets in the 1850s).

1 0 8 . GILBERT, supra note 41, at 164, 166.

1 0 9 . SHEEHAN, supra note 41, at 69, 73; see also TEBBEL, supra note 41, at 90 (discussing royalty

payments made to Thomas Hardy after the Chace Act went into effect).

1 1 0 . Groves, supra note 41, at 144.

1 1 1 . Id. at 145.

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result of nonexistent or expired copyright protection. Second, there was the

ethical public domain, where a work already lacking copyright also lost the

protection of trade courtesy because it had been so frequently reprinted that no

publisher would attempt to claim the text as exclusive moral property.

It might strike modern legal sensibilities as bizarre for an uncopyrighted

work to be described as having become “public property,”

112

but it is a

redundancy explained by the institution of trade courtesy. Courtesy raised a

work out of the public domain, gave it the status of private property, and

caused the market to treat it as a public good clothed with the privileges of

legal monopoly. The magic of this informal system would sometimes continue

undisturbed for years, until one day a discourteous reprinter decided to seize

upon some courtesy-protected work and to issue it in a cheap, flimsy edition.

The spell broken, other reprint houses would leap in and try their luck with

the same title.

113

Suddenly, the artificial order of courtesy was temporarily

wrecked by the anarchy of an unregulated commons. The trade now regarded

the foreign work as having returned to its original condition among the

heterogeneous mass of materials in the commons. For courtesy adherents, this

loss of recognized exclusivity was a lapse into a renewed public domain, a

second death of protection.

B. Trade Courtesy: Punishments

Henry Holt described nineteenth-century American publishing as

perhaps the greatest paradox in human experience . . . . At one end, its principal

material was not protected by law, and the business lived to a large extent on

what was morally, if not legally, thievery; while at the other end, there was honor

among thieves, in the respect they paid each other’s property.

114

Holt may have believed that trade courtesy was an embodiment of business

virtue, but the courtesy system itself did not share the assumption that

publishers, left to their own devices, would be good. Instead, along with rules

for acquiring and maintaining exclusive rights, trade courtesy evolved a series

1 1 2 . The common perception has been that the American public domain is unitary and

unchanging. For much of its history, U.S. intellectual property law recognized that

“matter once in the public domain must remain in the public domain.” Kewanee Oil

Co. v. Bicron Corp., 416 U.S. 470, 484 (1974) (discussing patents and trade secrets). This

policy has been in doubt at least since Golan v. Holder, 132 S. Ct. 873 (2012), which upheld

the constitutionality of a federal statute restoring U.S. copyright protection to foreign

works that had lost or failed to obtain protection as a result of noncompliance with

U.S. copyright formalities, id. at 894.

1 1 3 . See Groves, supra note 41, at 145.

1 1 4 . GILBERT, supra note 41, at 31 (quoting HENRY HOLT, GARRULITIES OF AN OCTOGENARIAN

EDITOR 97 (1923)).

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of carefully calibrated penalties for transgressors. If informal exclusive rights

to foreign titles were the carrots of the system, escalating sanctions were the

sticks. These sanctions included, in order of increasing severity, mild

remonstrance, angry protest, public shaming, refusal to deal, predatory

pricing, and outright retaliation.

A gentlemanly rebuke, often expressed as a simple, urbane inquiry, was

usually the first step in enforcing exclusive courtesy rights.

115

When the

Harpers announced plans to reprint the French critic Hippolyte Taine’s On

Intelligence in 1870,

116

Henry Holt wrote the firm, “Doesn’t the fact that we have

published several of his books entitle us to that if we want it?”

117

The Harpers

agreed to withdraw, acknowledging the rule of association whereby a

publisher that had issued an author’s earlier work was entitled to his or her

later books.

118

Several years later, Holt calmly objected when the Harpers

planned to publish The Return of the Native,

119

reminding Joseph Harper that

Holt had been Thomas Hardy’s authorized publisher in America.

120

The

Harpers again relented, and Holt later remarked that the Harpers had done

“what the notions of honor then prevalent among publishers of standing

required.”

121

Mild remonstrance sometimes became angry protest when a threat to

courtesy persisted. A heated dispute arose between the Harper and Scribner

firms in 1881 over James Anthony Froude’s edition of Thomas Carlyle’s

Reminiscences.

122

The Harpers claimed an arrangement with the late Carlyle

himself;

123

Scribner’s, which claimed an association with Froude, insisted that

Froude was the work’s chief author and that in any case, as Carlyle’s executor,

he had authorized Scribner’s to publish the work.

124

After bitter exchanges, the

1 1 5 . See EVERTON, supra note 41, at 126-27 (describing a dispute in 1851 over the works of

Swedish novelist Fredrika Bremer in which the Harper and Putnam publishing firms

initially exchanged private protests and then took their complaints to a trade journal).

1 1 6 . H. TAINE, ON INTELLIGENCE (T.D. Haye trans., New York, Holt & Williams 1872) (1870).

1 1 7 . MADISON, supra note 32, at 98.

1 1 8 . Id.

1 1 9 . THOMAS HARDY, THE RETURN OF THE NATIVE (New York, Henry Holt & Co. 1878)

(1878), advertised in P

UBLISHERS’ WKLY., Dec. 14, 1878, at 811, 811.

1 2 0 . TEBBEL, supra note 41, at 90.

1 2 1 . Id.

1 2 2 . THOMAS CARLYLE, REMINISCENCES (James Anthony Froude ed., New York, Charles

Scribner’s Sons 1881) (1881).

1 2 3 . Harper & Bros., supra note 32, at 316.

1 2 4 . Charles Scribner’s Sons, supra note 32, at 322.

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two houses issued their respective editions

125

and then took to the trade

journals.

126

The Harpers placed a full-page notice in the Publishers’ Weekly,

listing the works by Carlyle that they published and detailing the history of

their dealings with Carlyle for Reminiscences.

127

The Harpers reminded readers

of the courtesy of the trade:

The trade usage is familiar, and accepted by all the leading publishers of the

country. It concedes to the house which has issued the works of an English

author, either by agreement with him or with his English publishers, the option

of republishing, upon mutually satisfactory terms, the subsequent works of the

same author as they appear.

128

Essentially, the Harpers claimed, by virtue of the principle of association,

first courtesy rights to works by Carlyle that the firm had acquired “by

purchase and transfer from former publishers, and by purchase and direct

authorization from Mr. Carlyle.”

129

The implication was that an association

with a foreign author could be established both by direct dealings with the

author and by transfer from other publishers who had presumably held

associational rights in the past. The “usage” thus permitted transfer of courtesy

rights between publishers.

130

Moreover, the Harpers claimed that their

association with Carlyle survived his death and should have been recognized

by his executor as posthumously binding on Carlyle’s estate, as if this courtesy

“arrangement,” as the Harpers called it, was like any other claim that a creditor

might assert against a decedent’s estate.

131

The Harper firm was arguing, in

essence, that its claim to Carlyle’s work had a dual character as a contractual

right that bound the author and his estate (the vertical axis) and an informal,

norms-based right that should be respected by other publishers (the horizontal

axis).

Scribner’s responded the following week with its own full-page notice in

the Publishers’ Weekly, pointing to arrangements both with Froude and with

Carlyle’s niece and noting that the firm had received advance sheets from

1 2 5 . Id.; see also CARLYLE, supra note 122; THOMAS CARLYLE, REMINISCENCES (James Anthony

Froude ed., New York, Harper & Bros. 1881) (1881). The Scribner edition contained the

courtesy paratext “Authorized Edition.” C

ARLYLE, supra note 122, at iv.

1 2 6 . MADISON, supra note 32, at 67-68.

1 2 7 . Harper & Bros., supra note 32, at 316.

1 2 8 . Id.

1 2 9 . Id.

1 3 0 . See supra note 81 (discussing the power to transfer courtesy rights); see also Sheldon v.

Houghton, 21 F. Cas. 1239, 1239 (C.C.S.D.N.Y. 1865) (No. 12,748) (quoting the plaintiffs’

bill as averring that the “good will” generated by courtesy practices “is often very

valuable, and is often made the subject of contracts, sales, and transfers, among

booksellers and publishers”).

1 3 1 . Harper & Bros., supra note 32, at 316.

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Froude and had duly announced that the volume was “in press.”

132

The

Scribner firm’s claim was based primarily on its earlier negotiations with

Froude as executor of Carlyle’s estate and editor of Reminiscences, as well as on

its prior announcement of the book, reinforced by acquisition of advance

sheets from Froude.

133

Scribner’s denied that the Harper firm was the exclusive

associated publisher of Carlyle in the United States and asserted that Carlyle

had authorized Froude to make any disposition of Reminiscences he pleased.

134

In effect, Scribner’s was claiming that its understanding and relationship with

Froude (the vertical axis) trumped any courtesy claims that the Harpers might

assert (the horizontal axis). Invoking “the courtesy of the trade” by name,

Scribner’s concluded that “[t]he public will choose between this edition, put

forth by the clearly expressed authority of Mr. Carlyle’s executor, and a reprint

from our sheets under a claim to which he has distinctly refused his

acknowledgment.”

135

Although they disputed the facts and relevant rules

concerning Reminiscences, the Harper and Scribner firms plainly acknowledged

several important features of trade courtesy: the use of announcement fortified

by advance sheets to acquire courtesy title; the claim of prior associational

(option) rights when properly obtained; the need to seek a contract-like

“arrangement” with the author, his publisher, or his executor; and the

propriety of paying a royalty (or “copyright”) to the author or his posthumous

representatives.

136

The noisy skirmishing of the Harper and Scribner firms over Carlyle’s

Reminiscences is an example of a further courtesy sanction. Because private

remonstrance had failed, the two houses resorted to the more severe

punishment of public shaming, trading charges that their courtesy claims had

been violated. The Boston firm of Roberts Brothers had used the same tactic a

year earlier when John W. Lovell of New York brought out an edition of the

poems of Jean Ingelow,

137

an English writer who had been associated with

Roberts Brothers for years.

138

The Boston firm promptly took out

1 3 2 . Charles Scribner’s Sons, supra note 32, at 322.

1 3 3 . Id.

1 3 4 . Id.

1 3 5 . Id.

1 3 6 . What the Harpers called “a royalty” paid to Carlyle’s niece, Harper & Bros., supra note

32, at 316, Scribner’s referred to as “a full copyright,” which it paid to Carlyle’s

representatives, Charles Scribner’s Sons, supra note 32, at 322. The terms “royalty” and

“copyright” were interchangeable in this period, whether referring to copyrighted

works or courtesy-protected works. See K

HAN, supra note 26, at 280.

1 3 7 . JEAN INGELOW, THE POETICAL WORKS OF JEAN INGELOW (New York, John Wurtele

Lovell 1880). For the Roberts Brothers’ first edition, see J

EAN INGELOW, POEMS (Boston,

Roberts Bros. 1863).

1 3 8 . Roberts Bros., Jean Ingelow’s Poems, PUBLISHERS’ WKLY., Aug. 21, 1880, at 216, 216.

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advertisements “[t]o Booksellers throughout the United States,” reminding

them that Roberts Brothers had been publishing Ingelow’s poems ever since

announcing the volume as “[i]n [p]ress” in 1863 and that she had “received from

us her copyright [that is, her royalty payment] semi-annually, precisely the

same as though she were legally entitled to it.”

139

Not until now had anyone in

“the entire fraternity of American Book Publishers” tried “to interfere.”

140

Roberts Brothers implored booksellers not to “sanction a moral wrong by

vending this unauthorized edition” but rather “to show their admiration for

this beloved authoress by favoring only the Author’s Editions, issued by her

own publishers.”

141

By broadcasting its disgust, Roberts Brothers was

subjecting the transgressor Lovell to public shaming.

142

If such shaming did

not cause offenders to mend their ways, then it might at least have the effect of

persuading others—publishers, booksellers, and purchasers—to engage in a

further type of sanction: refusal to deal.

143

Multilateral refusal to carry on

business with the transgressing firm would force it to conform or to take its

chances as a pariah outside the publishing comity.

Disputes between courtesy publishers sometimes became more aggressive.

Harsher than private protest or public shaming was the sanction of predatory

pricing. If a firm “printed on” a publisher with a claim to priority, the latter

1 3 9 . Id.

1 4 0 . Id.

1 4 1 . Id.; see also Groves, supra note 41, at 147 (noting Roberts Brothers’ shaming of Lovell

over his reprinting of Ingelow’s poems). Roberts Brothers also employed the courtesy

sanction of price-slashing, see infra notes 144-53 and accompanying text, announcing

that it was reducing prices on its editions of Ingelow’s poems by as much as 50%,

Roberts Bros., Reduced Prices for the Author’s Editions of Jean Ingelow’s Poems, A

BOOKSELLER, Aug. 16, 1880, at 146, 146. Roberts Brothers aimed this sanction directly at

Lovell’s “pirated edition.” Correspondence, A

M. BOOKSELLER, Aug, 16, 1880, at 95, 96. Ten

years later, Lovell published Ingelow’s fictional work Quite Another Story with the

courtesy paratext “Authorized Edition.” J

EAN INGELOW, QUITE ANOTHER STORY 3 (New

York, John W. Lovell Co. 1890) (1890). In the supplementary materials to a different

novel, Lovell claimed to have issued the work “by special arrangement” with Ingelow.

ICHARD DOWLING, A BAFFLING QUEST 377 (New York, U.S. Book Co. 1891) (1891).

1 4 2 . Scholars of social norms refer to communal reprimand as “coordinated punishment,”

Barak D. Richman, How Community Institutions Create Economic Advantage: Jewish

Diamond Merchants in New York, 31 L

AW & SOC. INQUIRY 383, 402-03 (2006), or

“[m]ultilateral costly sanctions,” Posner & Rasmusen, supra note 87, at 372. Robert

Ellickson calls it “negative gossip.” Robert C. Ellickson, Of Coase and Cattle: Dispute

Resolution Among Neighbors in Shasta County, 38 S

TAN. L. REV. 623, 677 (1986).

1 4 3 . See supra notes 139-42 and accompanying text (discussing Roberts Brothers’ call for

booksellers to refuse to deal with a discourteous publisher); cf. Lisa Bernstein, Private

Commercial Law in the Cotton Industry: Creating Cooperation Through Rules, Norms, and

Institutions, 99 M

ICH. L. REV. 1724, 1745 (2001) (describing refusal to deal in the cotton

industry); Oliar & Sprigman, supra note 37, at 1815-16 (describing refusal to deal among

stand-up comics).

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would sometimes reissue the disputed title at a reduced price in an effort to

undersell the pirate.

144

For example, when the New York publisher T.L.

McElrath issued an unauthorized edition of Hard Times in 1854,

145

the Harpers

protected their courtesy investment in Dickens by putting out an edition of the

novel at half McElrath’s price, purportedly causing McElrath’s firm to fail.

146

In 1855, the Boston firm of Ticknor and Fields explained that attempts to

interfere with another publisher’s courtesy claim would cause that publisher to

“print at any rate, and at a cheaper rate, and perhaps set on our other books full

chase, & try to injure us in every way.”

147

If a publishing house was powerful, it

“could afford to undersell a rival.”

148

When the English novelist Anthony

Trollope angered Harper and Brothers, his established publisher, by giving

advance sheets of his book North America to a rival house,

149

the Harpers rushed

out a cheap edition

150

that destroyed the book’s American market.

151

The

Harpers and other houses would sometimes price their books so low that they

could not recover their own costs, believing that “any pecuniary sacrifice”

152

was worth teaching pirates that their behavior had created a climate in which

no one could profit.

153

The severest punishment of all was reserved for the worst outrages against

courtesy. This was the sanction of retaliation, occasionally employed even by

publishers of the first rank when their rights were threatened by another

1 4 4 . See SHEEHAN, supra note 41, at 217.

1 4 5 . CHARLES DICKENS, HARD TIMES (New York, T.L. McElrath & Co. 1854) (1854).

1 4 6 . MCPARLAND, supra note 104, at 58.

1 4 7 . Letter from James T. Fields to Robert Browning (Sept. 25, 1855), quoted in Groves, supra

note 41, at 143, 143.

1 4 8 . ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 316 (testimony of John Tyndall).

1 4 9 . 1 ANTHONY TROLLOPE, NORTH AMERICA (Philadelphia, J.B. Lippincott & Co. 1862)

(1862). Proclaiming itself the “Author’s Edition,” the Lippincott volume contained a

forceful courtesy paratext: “This Edition of Trollope’s ‘North America’ is published by

special arrangement with the Author, Anthony Trollope, Esq., at whose urgent request

it was undertaken, and to whom we pay the regular copyright [courtesy payment].” Id.

at ii.

1 5 0 . ANTHONY TROLLOPE, NORTH AMERICA (New York, Harper & Bros. 1862) (1862). The

Harper edition contained no courtesy paratext but instead included a list of other

Trollope books published by the Harpers, id. at ii, implying that North America

belonged to the firm by virtue of the courtesy principle of association.

1 5 1 . CATHERINE SEVILLE, THE INTERNATIONALISATION OF COPYRIGHT LAW: BOOKS,

BUCCANEERS AND THE BLACK FLAG IN THE NINETEENTH CENTURY 195 (2006).

1 5 2 . ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 308 (testimony of Thomas Henry

Huxley).

1 5 3 . See LEHMANN-HAUPT, supra note 42, at 167; MADISON, supra note 32, at 53-54; SHEEHAN,

supra note 41, at 62, 217.

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house.

154

Retaliation meant “printing on” a transgressor by issuing one or more

of its foreign titles at a competitive price. “If a publisher declined to comply

with the requirements of trade courtesy,” wrote Joseph Harper, “some method

would be adopted to discipline the offender—generally by the printing of

lower-priced editions of his foreign reprints by his aggrieved competitor.”

155

Reprisal was sometimes devastating. In 1870, Harper and Brothers responded

to what it considered a breach of courtesy on the part of Fields, Osgood & Co.

by issuing an illustrated edition of Tennyson’s works.

156

Other publishers piled

on with rival editions, further eroding a thirty-year relationship between

Tennyson and the Fields firm.

157

The Harpers’ reprisal triggered the very

behavior that trade courtesy had been created to avoid.

When a publisher proved to be a hopeless deviant from courtesy, utterly

indifferent to the gentlemanly code, sanctions like negative gossip, predatory

pricing, and even retaliation had no effect. During the feverish cheap book

competition of the 1870s and 1880s, such renegades became increasingly

common; they were less interested in acquiring respectability and maintaining

author associations than free riding on the successful experiments of other

firms.

158

They rarely offered royalties or honoraria to authors, frequently

printed in cheap formats, and exploited the publicity for which the first

publisher had paid.

159

These “upstart publishers” were often new entrants that

had nothing immediately to gain by adhering to courtesy and little to lose by

flouting it.

160

The close-knit publishing community unraveled at the edges

when new or opportunistic firms saw a chance to build a list quickly at little

cost to themselves. Trade courtesy “was broken up by the cheap piracies” of

independent houses.

161

1 5 4 . See EXMAN, supra note 41, at 53 (discussing the Harper and Carey firms’ “reprisal against

trespassers”); L

EHMANN-HAUPT, supra note 41, at 166-67 (discussing publishers’

retaliations); M

ADISON, supra note 32, at 26 (discussing the Harpers’ use of reprisal).

1 5 5 . HARPER, supra note 32, at 111-12.

1 5 6 . ALFRED TENNYSON, THE POETICAL WORKS OF ALFRED TENNYSON, POET LAUREATE (New

York, Harper & Bros. 1870). Predecessors in interest of the Fields publishing house had

been issuing Tennyson’s collected poems since the 1840s. E.g.,

TENNYSON, supra note 84.

1 5 7 . Groves, supra note 41, at 145.

1 5 8 . See id. at 147.

1 5 9 . LEHMANN-HAUPT, supra note 41, at 166-67.

1 6 0 . McLaughlin, supra note 72, at 174; see also infra notes 318-25 (discussing the new cheap

reprinters of the 1870s and 1880s who defied trade courtesy and considered it

detrimental to their interests and the public).

1 6 1 . Ouida, International Copyright, PUBLISHERS’ WKLY., Aug. 11, 1883, at 165, 165. “Ouida”

was the pseudonym of the English author Maria Louise Ramé.

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C. The Dickens Controversy

The salient features of trade courtesy can be seen in action in a controversy

that broke out in 1867 over Charles Dickens’s alleged disloyalty to his

associated American publishers. The controversy shows that in some cases,

American publishers had come to expect courtesy from their remunerated

foreign authors (on the vertical axis) no less than from their fellow publishers

(on the horizontal axis). The dispute also reveals that a foreign author’s massive

popularity could disrupt the courtesy system and tempt publishers to cast aside

their vows of forbearance.

Dickens had long been a fiercely contested prize among American reprint-

ers. Hundreds of thousands of pirated copies of his works had circulated in the

United States beginning in the 1830s.

162

In the frenzied competition for new

English fiction among the weekly and daily periodicals of the 1830s and 1840s,

firms like the Harpers’

163

that regarded themselves as Dickens’s authorized

publishers retaliated against rival reprinters by issuing his novels in unbound

parts at 12.5 cents and 6 cents.

164

The Philadelphia publisher Lea and Blanchard

sought to stabilize the market for Dickens’s books by claiming courtesy in his

early works and paying him sums for advance sheets.

165

Unappeased, Dickens

raged against the “scoundrel-booksellers” who “grow rich [in the United States]

from publishing books, the authors of which do not reap one farthing from

their issue.”

166

In 1867, two prominent American publishing houses boasted courtesy

associations with Dickens. Harper and Brothers of New York claimed

exclusive magazine rights in his novels.

167

T.B. Peterson and Brothers of

1 6 2 . DIANA C. ARCHIBALD, DOMESTICITY, IMPERIALISM, AND EMIGRATION IN THE VICTORIAN

NOVEL 140 (2002); MCPARLAND, supra note 104, at 44, 49.

1 6 3 . The Harper firm, which came to dominate American publishing, was known for its

early piratical aggressions. M

ADISON, supra note 32, at 22. The Harpers pirated at least

two of Charles Dickens’s early works, American Notes (1842) and The Life and Adventures

of Martin Chuzzlewit (1844). T

EBBEL, supra note 41, at 89.

1 6 4 . MADISON, supra note 32, at 25.

1 6 5 . MCPARLAND, supra note 104, at 49-50. The firm paid Dickens £60 for the last part of

Oliver Twist, £112.10 for The Old Curiosity Shop, and Other Tales, and £107.10 for Barnaby

Rudge. 1

THE LETTERS OF CHARLES DICKENS, supra note 106, at 322 n.2; see also BARNABY

RUDGE (Philadelphia, Lea & Blanchard 1842) (1841); THE OLD CURIOSITY SHOP, AND

OTHER TALES (Philadelphia, Lea & Blanchard 1841) (1841); OLIVER TWIST (Philadelphia,

Lea & Blanchard 1839) (1838).

1 6 6 . Letter from Charles Dickens to Henry Austin (May 1, 1842), in 3 THE LETTERS OF

CHARLES DICKENS 228, 230 (Madeline House et al. eds., 1974). On Dickens’s efforts to

influence American opinion on international copyright, see M

CGILL, supra note 48, at

109-40; and S

EVILLE, supra note 151, at 165-69.

1 6 7 . See The Dickens’ Controversy, supra note 99, at 68. The Harpers also published Dickens in

book form. E.g., C

HARLES DICKENS, BLEAK HOUSE (New York, Harper & Bros. 1853)

footnote continued on next page

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69 STAN. L. REV. 637 (2017)

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Philadelphia asserted the exclusive right to issue his novels in book form.

168

These concurrent claims were based on payments that the two firms had made

to Dickens or his English publisher. The Harpers had given substantial sums,

sometimes more than £1000, for advance proof sheets of each of Dickens’s

novels;

169

the Petersons had contributed to the Harpers’ purchase money and

bought the printing plates and illustrations that the Harpers had previously

used in serializing the novels.

170

The Petersons had also purchased plates and

illustrations from other American houses that had issued Dickens’s earlier

novels.

171

In treating their respective courtesy entitlements as applying to

different publishing media—serial rights and book rights—the Harper and

Peterson firms in effect constituted themselves beneficiaries of a sublicensing

arrangement. But in many bargaining scenarios in this period, the copyright

(1853); see also MCPARLAND, supra note 104, at 50, 57 (discussing the Harpers’ reprinting

of Dickens in book form).

1 6 8 . Letter from T.B. Peterson & Bros. to George W. Childs, Publisher, Am. Literary Gazette

& Publishers’ Circular (May 25, 1867), in The Dickens’ Controversy, supra note 99, at 69,

69; see also M

CPARLAND, supra note 104, at 57-60 (discussing the rights claimed in

Dickens’s works by the Harper and Peterson publishing firms).

1 6 9 . See supra note 99 and accompanying text.

1 7 0 . Letter from T.B. Peterson & Bros. to George W. Childs, supra note 168, at 69. According

to a calculation employing the consumer price index and the retail price index, the

average value in 2014 of £1000 from 1860 was $113,000. Computing Real Value over Time

with a Conversion Between U.K. Pounds and U.S. Dollars, 1774 to Present, supra note 91 (to

locate, enter “1860” into the “Initial year” text box; enter “£” and “1000” into the “Initial

value” text boxes; enter “2014” into the “Desired year” text box; and then follow the

“Calculate” hyperlink).

1 7 1 . Letter from T.B. Peterson & Bros. to George W. Childs, supra note 168, at 69; see also

CPARLAND, supra note 104, at 58 (“[The Petersons] had assumed the rights to publish

Dickens and were known as Dickens’s publishers, . . . although they had no contractual

agreement with him.”). The Petersons acted on a common belief that courtesy rights

were acquired when a firm purchased the plates or other printing materials used by a

former courtesy house to publish a foreign author. This was a courtesy counterpart to

transferring exclusive rights under a copyright. Whereas many assignments of

ATON S. DRONE, A TREATISE ON

THE LAW OF PROPERTY IN INTELLECTUAL PRODUCTIONS IN GREAT BRITAIN AND THE

UNITED STATES: EMBRACING COPYRIGHT IN WORKS OF LITERATURE AND ART, AND

PLAYRIGHT IN DRAMATIC AND MUSICAL COMPOSITIONS 318-21 (Boston, Little, Brown &

Co. 1879), courtesy transfers could be evidenced by the transfer of tangible printing

assets. For example, the Boston publisher Houghton, Mifflin and Company indicated

that it had obtained courtesy rights in the English essayist Thomas De Quincey’s works

through its parent company’s transfer of “stereotype plates.” T

HOMAS DE QUINCEY,

BIOGRAPHICAL AND HISTORICAL ESSAYS, at iv (Boston, Houghton, Mifflin & Co. 1877). In

other cases, the selling of advance sheets to another firm evidenced a transfer of

courtesy rights—again the sale of tangible property standing in for the transfer of

intangible rights. See supra notes 81, 129-30 and accompanying text.

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69 STAN. L. REV. 637 (2017)

668

owner played a role in determining his or her publisher-licensees.

172

contrast, under the courtesy system, when rival publishers agreed to split a

lucrative piece of the public domain, the publishers often arrived at

sublicensing solutions on their own, without the active participation of the

foreign author. The dividing up of Dickens in America was accomplished

largely through his publishers’ mutual understandings and adjustments.

The controversy of 1867 resulted when Dickens appeared to turn his back

on the Harper and Peterson firms by actively negotiating a deal that made the

Boston house of Ticknor and Fields the exclusively authorized American

publisher of his collected works.

173

Ticknor’s offer had been an attractive one:

a £200 advance and a 10% royalty on sales of Dickens’s books, coupled with an

arranged speaking tour of America for the celebrated author.

174

In a letter that

was widely reproduced in the trade press, Dickens rubbed salt in the wounds of

his established courtesy publishers by stating that “[i]n America the occupation

of my life for thirty years is, unless it bears [the Ticknor and Fields] imprint,

utterly worthless and profitless to me.”

175

Though Dickens acknowledged that

the Harpers had paid him for advance sheets of serialized novels, he denied

deriving or expecting to derive “pecuniary advantage” from any “republica-

tions of [his] collected works in the United States not issued by [Ticknor and

Fields].”

176

The Harper and Peterson firms felt the double snub keenly. Certain

American trade journals rushed to their defense. The American Literary Gazette

and Publishers’ Circular called Dickens “ungenerous, illiberal, and ungentleman-

like” in his failure to acknowledge the “voluntary liberality” of the courtesy

arrangements from which he had benefited in the past.

177

The same journal

accused him of ignoring the rules of “courtesy” or the “usage of the trade,” as his

goal was to “injure or drive out of the market long-established editions . . .

1 7 2 . See DRONE, supra note 171, at 343-82 (discussing numerous lawsuits involving

1 7 3 . The Dickens’ Controversy, supra note 99, at 68-69; see also MCPARLAND, supra note 104, at

57-59.

1 7 4 . TEBBEL, supra note 41, at 89. Ticknor and Fields claimed in a trade advertisement that

Dickens was to receive “a copyright [that is, a royalty] on every volume of his works

bearing the imprint of Messrs. Ticknor and Fields.” Important Announcement from

Charles Dickens, A

M. LITERARY GAZETTE & PUBLISHERS’ CIRCULAR, June 1, 1867, at 84, 84.

The ad quoted Dickens as saying that he would be “retrospectively as well as prospec-

tively . . . a sharer in the profits of [Ticknor and Fields’s] Diamond Edition of [his]

books.” Id. (quoting Letter from Charles Dickens to Ticknor & Fields (Apr. 8, 1867)).

1 7 5 . Letter from Charles Dickens to Ticknor & Fields (Apr. 16, 1867), in The Dickens’

Controversy, supra note 99, at 68, 68.

1 7 6 . Id.

1 7 7 . The Dickens’ Controversy, supra note 99, at 69.

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669

which have been for years before the public, and which represent a heavy

amount of capital.”

178

Dickens, the American Literary Gazette claimed, was “a

flagrant violator of usage, for he or his publisher having sold advance-sheets of

his latest novels to one firm, and received good pay therefor, he now seeks to

transfer to another house an exclusive interest in those very works!”

179

Here, the publishing trade seemed to be turning the tables on Dickens, who

years earlier had vociferously assailed lawful piracy in the United States.

180

Now Dickens himself had become a pirate, the American Literary Gazette seemed

to charge; he had deviated from established courtesy norms and deserved the

sanction of public shaming. In an unusual public quarrel over courtesy’s

vertical axis, a famous foreign author was being accused of violating norms

ordinarily confined to the horizontal relations of genteel publishers. As a

prominent English author of the period put it, “a publisher who has published

one or two of your books in the United States would think himself very hardly

used if you allowed any other publisher to publish for you.”

181

Dickens had plainly attained a level of celebrity that allowed him to dictate

the terms of courtesy rather than remain a passive, grateful recipient of

publishers’ largesse. He now treated the Harper firm’s payments as a thing of

the past, mere remuneration for serial rights that imposed no further

obligation after he had transmitted the advance sheets. He scarcely

acknowledged the Petersons’ claim that they enjoyed a courtesy relationship by

virtue of having assisted the Harpers with their courtesy payments. These

dealings among publishers, Dickens seemed to say, were their own affair; he

would not allow an exclusive association to be permanently imposed on him

just because it benefited publishers in their self-serving efforts to repair the

defects of an unjust copyright law. In Dickens we see the restlessness of a bold

free agent, a literary giant who had outgrown courtesy’s inherent paternalism

toward its authors and rejected a collusive practice that excluded him from the

bargaining table.

We also see the use of royalties—payments on copies sold—as an increas-

ingly favored mechanism for remunerating successful authors, preferable to

the older system of paying lump sums either ex gratia or as consideration for

1 7 8 . Id.

1 7 9 . Id.

1 8 0 . See supra note 166 and accompanying text.

1 8 1 . ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 308 (testimony of Thomas Henry

Huxley); cf. Elsevir, International Copyright: The Anthony Trollope Charge, B

OST. HERALD,

Oct. 8, 1883, reprinted in P

UBLISHERS’ WKLY., Nov. 24, 1883, at 809, 809 (criticizing

English novelist Anthony Trollope for not acknowledging substantial courtesy

payments made to his English publishers).

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670

advance sheets.

182

For a novelist as popular as Dickens, the idea of receiving a

percentage from sales of his collected works in a market the size of the United

States was irresistible, and Ticknor and Fields was eager to make such a deal for

the courtesy right to claim Dickens as its exclusive author.

183

In essence,

Dickens regarded his relationship with the Harpers as having terminated with

the completed serialization of his novels; he simply ignored the Petersons’

derivative courtesy claim.

184

He was receiving no continuing payments from

those firms, and they had no reasonable expectation of a continued exclusive

association with him. He had transferred his fealty to Ticknor, a firm that

would earn an ongoing association by making ongoing payments. What

seemed dishonest and discourteous to some traditional courtesy adherents was

just good financial sense to Dickens. Moreover, he apparently viewed

Ticknor’s collected edition of his works as a third form of publication—

different from serializations and single editions—which justified a new

courtesy relationship.

185

He now enjoyed the celebrity clout to choose his own

forms of sublicensing, rather than have sublicensing imposed on him.

An editorial in the Nation seemed to see the matter through Dickens’s eyes.

The Harpers had paid for advance sheets of serialized novels, the Nation

observed.

186

It was reasonable for Dickens to contend that “buying advance-

sheets is a very different thing from buying manuscripts [of books], and while

[the former] gives the purchaser the possibility of early publication, [it] cannot

be held to give him any property in the novel as a book.”

187

The Petersons’

claim, the Nation pointed out, simply derived from their alleged participation

in the purchase of advance sheets.

188

Like Dickens, the Nation made sharp,

unsentimental distinctions between serializations and collected editions and

between one-time payments and ongoing royalties.

189

The courtesy mystique

of association, if it was based solely on payments for advance sheets made a

decade or more ago, could not command Dickens’s permanent loyalty. The

1 8 2 . See Groves, supra note 41, at 146 (noting that by the 1870s, the courtesy practice of

purchasing advance sheets with single payments had been largely replaced, at least for

popular works, by a voluntary royalty system).

1 8 3 . See supra note 174 and accompanying text.

1 8 4 . While Dickens felt that his courtesy ties to the Harpers had ended with the

serialization of his novels, some American courtesy adherents believed that the

Harpers’ original payments for magazine rights created an ongoing relationship that

Dickens was now flouting. The Dickens’ Controversy, supra note 99, at 68-69.

1 8 5 . Letter from Charles Dickens to Ticknor & Fields, supra note 175, at 68.

1 8 6 . Literary Note, NATION, May 23, 1867, at 408, 408.

1 8 7 . Id.

1 8 8 . Id.

1 8 9 . See id.

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671

Nation was not denying the existence of trade courtesy or its associational

principles, but there was plainly a difference of opinion in the publishing

world as to how much courtesy could be claimed on the basis of old

associations and former one-time payments, at least with respect to an author

of Dickens’s stature.

The Harper and Peterson firms resorted to the courtesy punishment of

public shaming and negative gossip, as their rebukes in the American Literary

Gazette and Publishers’ Circular show.

190

These chastisements seemed to be aimed

more at Dickens than at Ticknor and Fields: Dickens was the grossly faithless

and ungrateful one, even if the Boston firm had worked to alienate his

affections. Meanwhile, the Petersons, who planned to continue to issue

“uniform editions,” took out full-page advertisements with banner headings in

the trade journals: “GREAT REDUCTION ON DICKENS’ WORKS.”

191

The

Petersons’ handsomely printed Illustrated Duodecimo Edition now sold for $3

per cloth volume, the Illustrated Octavo Edition for $2, the People’s Duodecimo

Edition for $1.50, and most of the Cheap Editions on buff paper for $0.75.

192

The Petersons were employing price-slashing to attempt to match the various

editions of Dickens’s collected works offered by Ticknor and Fields at prices

ranging from $1.25 to $2 per volume.

193

The Dickens controversy shows that the carefully evolved practices of

trade courtesy could not consistently stabilize the American public domain for

an author as popular as Dickens. Temptations to cast courtesy aside for easy

profits infected all parties: respectable houses, noncourtesy firms, and even

Dickens himself. In 1864, prior to the triangular courtesy quarrel, at least

twelve American firms had been printing Dickens without regard for courtesy

principles.

194

Other houses in this period were directly importing British

editions of Dickens and marketing them in the United States.

195

The Harpers’

courtesy expectations, based on direct dealings with Dickens, were vulnerable

to the Dickens craze, as were the Petersons’ expectations, based on their

1 9 0 . The Dickens’ Controversy, supra note 99, at 68-69.

1 9 1 . E.g., T.B. Peterson & Bros., Great Reduction on Dickens’ Works: T.B. Peterson & Brothers’

Uniform Editions, A

M. LITERARY GAZETTE & PUBLISHERS’ CIRCULAR, June 1, 1867, at 86,

86.

1 9 2 . Id. Two years earlier, in 1865, the Petersons were selling the Illustrated Duodecimo

Edition for $4 per copy, the Illustrated Octavo Edition for $2.50, the People’s Duodeci-

mo Edition for $2.50, and most of the Cheap Editions at the same price of $0.75 per

copy. C.W.

DENISON, ILLUSTRATED LIFE, CAMPAIGNS AND PUBLIC SERVICES OF PHILIP H.

SHERIDAN app. at 1-2 (Philadelphia, T.B. Peterson & Bros. 1865).

1 9 3 . Important Announcement from Charles Dickens, supra note 174, at 84-85.

1 9 4 . MCPARLAND, supra note 104, at 59.

1 9 5 . Id. at 59-62.

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672

dealings with the Harpers. Although Ticknor and the Harpers later adjusted

their dispute by splitting future Dickens titles along the familiar divide of

serial and book printings,

196

the Petersons were left out of this compromise.

197

Even so, the Petersons continued to sell Dickens for years to come in their

“Cheap Edition for the Million.”

198

The Dickens controversy, with its

indignant public shaming, reveals many aspects of the courtesy system and

shows that courtesy could be a fragile contrivance when it came to massive

sales and authorial celebrity.

II. Courtesy Paratexts: Binding Norms in Authorized American

Editions

The detailed rules, subrules, and sanctions of trade courtesy, examined in

Part I above, constituted what might be called the grammar, or basic structure,

of that system of private ordering.

199

Developed over decades, courtesy’s

intricate grammar spelled out everything from the acquisition of exclusive

publishing rights to the punishment for violators.

200

But grammatical rules

were not enough to guarantee the full operation of trade courtesy’s norms.

Courtesy also had a rhetorical dimension in which participating publishers

praised the virtues of the informal code and exhorted rival reprinters and the

purchasing public to respect their claims to exclusivity.

201

This Part examines

a particular rhetorical device by which publishers signaled to each other and

the public their adherence to these fragile norms: the courtesy paratext.

Evidence of the existence of informal norms within close-knit communi-

ties, Robert Ellickson has noted, sometimes includes “aspirational statements”

testifying to the virtues of the ordering system.

202

Practitioners and admirers

1 9 6 . See TEBBEL, supra note 41, at 90 (noting that Ticknor agreed to issue Dickens’s The

Mystery of Edwin Drood in book form while the Harpers brought it out serially).

1 9 7 . See MCPARLAND, supra note 104, at 59.

1 9 8 . See GEORGE LIPPARD, WASHINGTON AND HIS MEN 193 (Philadelphia, T.B. Peterson &

Bros. 1876).

1 9 9 . I use “grammar” here in the sense suggested by Kenneth Burke: “a concern with the

terms [of a system] alone, without reference to the [rhetorical] ways in which their

potentialities have been or can be utilized in actual statements about motives.”

ENNETH BURKE, A GRAMMAR OF MOTIVES, at xvi (Univ. of Cal. Press 1969) (1945).

2 0 0 . See supra Part I.A-B.

2 0 1 . See KENNETH BURKE, A RHETORIC OF MOTIVES 41 (Univ. of Cal. Press 1969) (1950)

(defining the “basic function of rhetoric” as “the use of words by human agents to form

attitudes or to induce actions in other human agents”).

2 0 2 . ELLICKSON, supra note 74, at 129-30. That aspirational statements existed alongside

courtesy punishments, supra Part I.B, is further proof that courtesy operated as a

distinct normative system, see E

LLICKSON, supra note 74, at 129-30.

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673

of trade courtesy often praised the practice as a sign of business morality and a

spur to fair dealing.

203

For example, the English editor Hepworth Dixon stated

that from “a sense of natural fairness,” American publishers “act as though they

were restrained by law. This generosity is seen on every side. No law compels

[them] . . . . It is their voluntary act.”

204

The Irish author and physicist John

Tyndall, who had received substantial courtesy payments, regarded himself as

“in the hands of a most high-minded [American] publisher.”

205

Even in the

midst of their squabble over Carlyle’s Reminiscences,

206

the Harper and Scribner

firms took the opportunity to pay homage to courtesy’s virtues.

207

Whether

such encomia were the self-serving utterances of homo economicus or evidence

of punctilious honor, or both, is a question with which scholars have

struggled.

208

But many such aspirational statements in this period reveal the

contours of the norms-based courtesy code.

209

Aspirational statements often took an unusual paratextual form. Courtesy

publishers frequently printed testimonial statements by their foreign authors

as prefatory matter in their volumes.

210

These statements, sometimes in the

form of a letter addressed to the author’s American publisher,

211

described the

special courtesy association between author and publisher and appealed, openly

or by implication, to other American publishers to respect that association by

not reprinting the volume. The literary text thus came to embody a normative,

legitimizing paratext—the courtesy counterpart, in a sense, of the copyright

notice

212

—as well as an acknowledgment of remuneration received from the

publisher and a testimonial extolling the virtues of the courtesy system in

general. By binding such authorizing statements into their books, publishers

hoped to fortify their informal claims to exclusivity and enhance the

legitimacy of their editions, signaling the morality of their own business

2 0 3 . See supra text accompanying note 114.

2 0 4 . HARPER, supra note 32, at 355; see also INTERNATIONAL COPYRIGHT LAW REPORT, supra

note 12, at 59 (statement of the D. Van Nostrand Company) (“The moral tendencies of

the better class of American publishers before the existence of the [Chace Act] induced

them to pay foreign authors for their works . . . .”).

2 0 5 . ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 315 (testimony of John Tyndall).

2 0 6 . CARLYLE, supra note 122.

2 0 7 . See supra notes 128-36 and accompanying text.

2 0 8 . See, e.g., EVERTON, supra note 41, at 44-47, 125-27.

2 0 9 . For praise of courtesy by a practitioner, see Holt, Competition, supra note 41, at 522-24;

and Holt, supra note 34, at 27-32.

2 1 0 . See infra notes 227-65 and accompanying text.

2 1 1 . See infra notes 232-65 and accompanying text.

2 1 2 . See supra notes 6-9 and accompanying text.

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69 STAN. L. REV. 637 (2017)

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dealings and distinguishing themselves from lawful though unethical “pirates”

operating outside the courtesy pale.

One of the prized benefits of association was that a firm could boast of

being the “authorized” publisher of a foreign author. Such a relationship

conferred respectability on the firm, lifting it up out of the mass of mere

reprinters and indicating to other publishers and to the purchasing public at

large that the firm enjoyed the prestige of honorable dealings.

213

Often a

courtesy association was signaled in a book’s opening pages or on its cover by

the simple phrase “Author’s Edition.”

214

Editions of the English poet Robert

Browning published by Ticknor and Fields carried that paratextual boast on

the verso of the title page, where the copyright notice would ordinarily have

appeared.

215

In its editions of the poems of Elizabeth Barrett Browning (Robert

Browning’s spouse), the New York publisher C.S. Francis and Company placed

the “Author’s Edition” paratext on the title page’s verso or on the following

page, sometimes at the head of an authorizing statement by Barrett Browning

herself.

216

In some cases, this succinct paratext was expanded slightly to

indicate a contractual or other basis for the courtesy relationship: “Author’s

Edition, From Advance Sheets.”

217

The purchase of advance proof sheets from

2 1 3 . See WINSHIP, supra note 41, at 138 (discussing courtesy publishers’ direct appeal to the

public to buy only their “authorized” editions of foreign authors’ works); Breyer, supra

note 41, at 301 (noting the advantage of proclaiming an “authorized” edition); Henry

Holt, The Publishing Reminiscences of Mr. Henry Holt, P

UBLISHERS’ WKLY., Feb. 12, 1910, at

928, 930-31 (contrasting “reputable” courtesy publishers with the producers of “cheap

reprints”); Holt, supra note 34, at 27-31 (distinguishing between honest courtesy

publishers and pirate “adventurers”).

2 1 4 . The “author’s” and “authorized” editions discussed in this Article are all genuine

examples of courtesy publications. However, some reprints in this period may have

contained spurious authorizing paratexts. See J

ESSICA DESPAIN, NINETEENTH-CENTURY

TRANSATLANTIC REPRINTING AND THE EMBODIED BOOK 1 (2014).

2 1 5 . E.g., ROBERT BROWNING, DRAMATIS PERSONAE 8 (Boston, Ticknor & Fields 1864) (1864)

[hereinafter B

ROWNING, DRAMATIS PERSONAE]; ROBERT BROWNING, MEN AND WOMEN,

at ii (Boston, Ticknor & Fields 1863) (1855); 1 R

OBERT BROWNING, POEMS (eighth

unnumbered page) (Boston, Ticknor & Fields 1856) (1849) [hereinafter 1 B

ROWNING,

POEMS]. For a complete list of “Author’s Editions” of Browning’s works issued by

Ticknor and its successors in interest, see L

OUISE GREER, BROWNING AND AMERICA

app. F at 231-43 (1952).

2 1 6 . E.g., ELIZABETH BARRETT BROWNING, AURORA LEIGH (seventh unnumbered page) (New

York, C.S. Francis & Co. 1857) (1856) [hereinafter B

ARRETT BROWNING, AURORA LEIGH];

LIZABETH BARRETT BROWNING, NAPOLEON III IN ITALY AND OTHER POEMS 2 (New

York, C.S. Francis & Co. 1860) (1860).

2 1 7 . E.g., ROBERT BROWNING, BALAUSTION’S ADVENTURE: INCLUDING A TRANSCRIPT FROM

EURIPIDES 4 (Boston, James R. Osgood & Co. 1871) (1871); 1 ROBERT BROWNING, THE

RING AND THE BOOK 3 (Boston, Fields, Osgood & Co. 1869) (1869).

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69 STAN. L. REV. 637 (2017)

675

foreign authors or their publishers was a recognized method of perfecting a

courtesy claim.

218

Figure 1

Author’s Edition Paratext in Robert Browning, The Ring and the Book (Boston, Fields,

Osgood & Co. 1869)

Another typical abbreviated courtesy paratext was “Authorized Edition,”

which one early commentator called “a guarantee for the accuracy of the

reproduction, and . . . an excellent advertisement.”

219

This legitimizing phrase

appeared, for example, on the title pages of Rudyard Kipling’s works reprinted

by the John W. Lovell Company of New York and its successors in the

1890s.

220

To reflect the fact that some American editions of foreign authors’

2 1 8 . See supra notes 80-81 and accompanying text. Louise Greer states that in Ticknor’s

editions of Robert Browning, the paratexts “Author’s Edition” and “From Advance

Sheets” “indicate that some financial arrangement was made with the poet.” G

REER,

supra note 215, app. F at 231.

2 1 9 . WILLIAM BRIGGS, THE LAW OF INTERNATIONAL COPYRIGHT: WITH SPECIAL SECTIONS ON

THE COLONIES AND THE UNITED STATES OF AMERICA 113 (1906).

2 2 0 . E.g., RUDYARD KIPLING, MINE OWN PEOPLE (title page) (New York, U.S. Book Co. 1891)

(1891) [hereinafter K

IPLING, MINE OWN PEOPLE]; RUDYARD KIPLING, SOLDIERS THREE: A

COLLECTION OF STORIES SETTING FORTH CERTAIN PASSAGES IN THE LIVES AND

ADVENTURES OF PRIVATES TERENCE MULVANEY, STANLEY ORTHERIS, AND JOHN

LEAROYD (title page) (New York, John W. Lovell Co. 1890) (1888) [hereinafter KIPLING,

SOLDIERS THREE]; RUDYARD KIPLING, THE STORY OF THE GADSBYS AND UNDER THE

footnote continued on next page

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69 STAN. L. REV. 637 (2017)

676

works contained both copyrighted and public domain material, the seeming

oxymoron “Authorized Copyright Edition” came into vogue. This paratext

appeared, for example, in the vocal scores of Gilbert and Sullivan’s comic

operas Iolanthe and The Pirates of Penzance, published by J.M. Stoddart and

Company of Philadelphia in the 1880s.

221

While the vocal scores themselves

lacked copyright protection in the United States,

222

publishers like Stoddart

included certain variants not found in the English versions, such as additional

lyrics or scenes, as a basis for claiming some copyright protection.

223

Publishers

used the paratextual signals “Authorized Edition,” “Authorized Copyright

Edition,” and “American Copyright Edition” for the spectrum of protection

available in the period, from public domain texts shielded by courtesy, to

blends of public domain and copyrighted matter, to texts entitled to full

statutory copyright.

224

These distinctions were common after 1891, when

foreign authors’ works became eligible for full copyright protection in the

United States if manufacturing requirements were met.

225

With pre- and post-

1891 foreign titles circulating freely in the trade,

226

these works might

variously claim protection under courtesy principles, copyright law, or both.

American publishers took special pride in printing courtesy-attesting

letters or statements by their foreign authors. These celebrity paratexts were

badges of exclusivity and respectability. A notable example is the statement of

Charles Dickens printed in the opening pages of his novels issued by Ticknor

DEODARS (title page) (New York, Lovell, Coryell & Co. 1891) [hereinafter KIPLING, THE

STORY OF THE GADSBYS].

2 2 1 . W.S. GILBERT & ARTHUR SULLIVAN, IOLANTHE OR THE PEER AND THE PERI 1

(Philadelphia, J.M. Stoddart & Co. 1882); W.S.

GILBERT & ARTHUR SULLIVAN, THE

PIRATES OF PENZANCE OR, THE SLAVE OF DUTY 1 (Philadelphia, J.M. Stoddart & Co. 1880)

[hereinafter G

ILBERT & SULLIVAN, THE PIRATES OF PENZANCE].

2 2 2 . Cf. supra notes 26-27 and accompanying text.

2 2 3 . See Hal Kanthor, Collecting American Librettos 1, 6, 8-9 (2007), http://www.gilbertand

sullivanarchive.org/articles/american_librettos/librettos.pdf; see also J

OHNS, supra note

32, at 296-97 (discussing publishers’ strategy of making changes to a foreign text in an

effort to obtain U.S. copyright protection).

2 2 4 . For example, in 1889, C.W. Bardeen, a New York publisher, used the phrases

“Authorized Edition” and “Authorized Copyright Edition” to describe different foreign-

origin offerings in an advertisement. C.W. Bardeen, New Books on Education, Now Ready,

M. TEACHER, Feb. 1889, at 240, 240. In 1894, the Boston publisher Roberts Brothers

used the phrase “American copyright edition” to indicate foreign authors’ works for

which the firm had secured U.S. copyrights. Roberts Bros., Roberts’ New Books: Out To-

Day, C

RITIC, Dec. 15, 1894, at viii, viii.

2 2 5 . See supra notes 12-15 and accompanying text.

2 2 6 . For a discussion of the blend of copyrighted and uncopyrighted foreign titles issued by

publishers after 1891, see I

NTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 36

(statement of R.F. Fenno & Co.); id. at 42 (statement of Harper Brothers); and id. at 85

(statement of Street & Smith).

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69 STAN. L. REV. 637 (2017)

677

and Fields beginning in 1867: “By a special arrangement made with me and my

English Publishers, (partners with me in the copyright of my works,) Messrs.

Ticknor and Fields, of Boston, have become the only authorized representa-

tives in America of the whole series of my books.”

227

Dickens’s language was

almost legalistic in its careful rationalizing of the norms-based courtesy title

claimed by Ticknor. The phrase “the copyright of my works” referred to

Dickens’s British copyright, which, he suggested, formed the initial property

basis for a contractual understanding (“a special arrangement”) between his

American and English publishers and himself. This special understanding

extended the courtesy association with Ticknor beyond any particular

volume—in this case, Our Mutual Friend—to his collected works (“the whole

series of my books”). While Dickens’s paratext stressed the vertical dimension

of courtesy—the arrangement between publisher and author—the phrase “the

only authorized representatives in America” pointed to the horizontal

exclusivity that courtesy publishers were eager to establish. Dickens here

became a witness to an exclusive publishing association and a celebrated

spokesperson for Ticknor’s courtesy claim against the rest of the publishing

world. The confident brevity of Dickens’s statement gave no sign of the

controversy his relationship with Ticknor would soon stir up among other

American courtesy claimants to Dickens’s writings.

228

2 2 7 . E.g., 1 CHARLES DICKENS, OUR MUTUAL FRIEND, at ii (Boston, Ticknor & Fields 1867)

(1865). The statement was signed by Dickens and dated “London, April, 1867.” Id. (italics

omitted). This paratext was printed in all volumes in Ticknor’s “Library Edition” of

Dickens’s works. E.g., C

HARLES DICKENS, A TALE OF TWO CITIES, at iii (Boston, Ticknor

& Fields 1867) (1859).

2 2 8 . See supra Part I.C. Ticknor and Fields occasionally included variant authorial paratexts

in their Dickens editions. For example, Child-Pictures from Dickens, which contained

selections from Dickens’s works, included his paratextual assurance that “this

compilation is made for American children with my free consent.” C

HARLES DICKENS,

CHILD-PICTURES FROM DICKENS (ninth unnumbered page) (Boston, Ticknor & Fields

1868) (1867). The volume bore a copyright notice in Ticknor’s name, id. (eighth

unnumbered page), perhaps referring to the selection of passages and to illustrations by

Solomon Eytinge, Jr., an American artist who illustrated many of Ticknor’s Dickens

editions. The presence of both a copyright notice and a courtesy paratext was common

in volumes containing unprotected foreign matter and potentially protectable content

introduced by American authors, illustrators, or publishers themselves. See supra notes

221-26 and accompanying text. A copyright notice and Dickens’s courtesy paratext

appeared together on the same page of Ticknor’s edition of The Uncommercial Traveller,

and Additional Christmas Stories,

which contained a selection of Dickens’s works and

illustrations by Eytinge. C

HARLES DICKENS, THE UNCOMMERCIAL TRAVELLER, AND

ADDITIONAL CHRISTMAS STORIES (thirteenth unnumbered page) (Boston, Ticknor &

Fields 1868). A copyright notice and a courtesy paratext also appeared on the same page

of The Readings of Mr. Charles Dickens, as Condensed by Himself, where Dickens’s paratext

read: “The edition bearing the imprint of Messrs. Ticknor and Fields is the only correct

and authorized edition of my Readings.” C

HARLES DICKENS, THE READINGS OF MR.

CHARLES DICKENS, AS CONDENSED BY HIMSELF 2 (Boston, Ticknor & Fields 1868). The

footnote continued on next page

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69 STAN. L. REV. 637 (2017)

678

Figure 2

Courtesy Paratext in Charles Dickens, Our Mutual Friend (Boston, Ticknor & Fields

1867)

Robert Browning was also one of Ticknor and Fields’s prized authors. In

1849, the firm (then Ticknor, Reed, and Fields) issued an unauthorized

reprinting of Browning’s Poems,

229

but in 1855 the firm offered Browning £60

for advance sheets of his volume of poems, Men and Women.

230

From that point

on, Browning treated Ticknor as his exclusive courtesy publisher in

America.

231

The firm’s 1856 reprint of his Poems reproduced the text of a letter

he wrote to Ticknor, dated November 29, 1855:

I take advantage of the opportunity of the publication in the United States of my

“Men and Women,” for printing which you have liberally remunerated me, to

express my earnest desire that the power of publishing in America this and every

subsequent work of mine may rest exclusively with your house.

232

Browning’s grateful letter came to serve as an authorizing paratext printed

in several of Ticknor’s editions of his writings.

233

In a single sentence, this

letter assured readers that Browning had been “liberally” paid by Ticknor and

that he favored that house as the one with which he wished to be exclusively

volume also contained illustrations by Eytinge. Id. (seventh unnumbered page). For a

discussion of Ticknor’s experiments in obtaining U.S. copyrights for its Dickens

editions in this period, see S

EVILLE, supra note 151, at 194-95.

2 2 9 .

GREER, supra note 215, at 34. American publishers often extended courtesy only after a

foreign author had achieved popularity or success. See R

OYAL COMMISSION ON

the author of reputation may . . . be paid, the American publisher would not be likely,

without copyright, to give anything to an unknown English author.”).

2 3 0 .

KHAN, supra note 26, at 280; Groves, supra note 41, at 142-43.

2 3 1 .

See Groves, supra note 41, at 142-43; see also supra note 215 (citing Ticknor editions of

Browning’s works beginning in 1856).

2 3 2 .

1 BROWNING, POEMS, supra note 215 (ninth unnumbered page).

2 3 3 .

E.g., ROBERT BROWNING, SORDELLO, STRAFFORD, CHRISTMAS-EVE AND EASTER-DAY

(tenth unnumbered page) (Boston, Ticknor & Fields 1864).

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69 STAN. L. REV. 637 (2017)

679

associated in the United States.

234

In exchange for remuneration, Browning

expressed his “earnest desire” that courtesy rights—“the power of publishing in

America”—“may rest exclusively” with Ticknor.

235

The paratext was thus a

blend of formal and informal norms, an acknowledgment, on the vertical axis,

of a contract-like transaction with Ticknor and, on the horizontal axis, a mere

precatory hope that other American publishers “may” respect Ticknor’s

informal courtesy entitlements.

Figure 3

Courtesy Paratext in Robert Browning, Men and Women (Boston, Ticknor & Fields

1863)

By the early 1850s, Ticknor and Fields was actively publishing the writings

of the English essayist Thomas De Quincey, apparently at first without any

arrangement with the author,

236

as was initially the case with Browning.

237

Quincey’s works, especially his autobiographical Confessions of an English

2 3 4 . 1 BROWNING, POEMS, supra note 215 (ninth unnumbered page).

2 3 5 . Id.

2 3 6 . See ROBERT MORRISON, THE ENGLISH OPIUM EATER: A BIOGRAPHY OF THOMAS DE

QUINCEY 363-64 (2010).

2 3 7 . See GREER, supra note 215, at 34.

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69 STAN. L. REV. 637 (2017)

680

Opium-Eater,

238

were popular with Americans, and by 1853 Ticknor had sold

more than 45,000 copies of his various books.

239

In that same year, grateful for

the substantial sums that Ticknor had paid him from profits on these

editions,

240

De Quincey wrote Ticknor a letter that the firm printed at the start

of many of its editions of his writings for years to come. The letter, written in

De Quincey’s ornate confessional style,

241

authorized Ticknor “exclusively” as

his American publisher and acknowledged that Ticknor had “made [him] a

participator in the pecuniary profits of the American edition, without

solicitation or the shadow of any expectation on [his] part, without any legal

claim that [he] could plead, or equitable warrant in established usage, solely and

merely upon [Ticknor’s] own spontaneous motion.”

242

De Quincey was confessing here, almost abjectly, that he had neither the

thank for Ticknor’s payments;

243

with no prior courtesy association or

arrangement with Ticknor, he felt that he was completely dependent on the

firm’s sheer generosity for the post hoc honoraria that he had received. In a

melancholy paradox typical of his literary style,

244

De Quincey cast himself as

a recipient of courtesy who was somehow outside the church of courtesy, a

chief sinner who could only hope for supervenient grace.

2 3 8 . THOMAS DE QUINCEY, CONFESSIONS OF AN ENGLISH OPIUM-EATER, AND SUSPIRIA DE

PROFUNDIS (Boston, Ticknor, Reed & Fields 1850) (1821).

2 3 9 . MORRISON, supra note 236, at 364.

2 4 0 . Id.

2 4 1 . George Saintsbury, De Quincey, MACMILLAN’S MAG., June 1890, at 101, 110-12 (noting

De Quincey’s “ornate” style).

2 4 2 . E.g., 1 THOMAS DE QUINCEY, HISTORICAL AND CRITICAL ESSAYS, at vi-vii (Boston,

Ticknor & Fields 1864); 1 T

HOMAS DE QUINCEY, MEMORIALS, AND OTHER PAPERS, at v

(Boston, Ticknor & Fields 1856).

2 4 3 . For a discussion of Ticknor’s courtesy payments to De Quincey, see GREVEL LINDOP,

THE OPIUM-EATER: A LIFE OF THOMAS DE QUINCEY 371-72, 374 (1981).

2 4 4 . See Lawrence D. Needham, De Quincey’s Rhetoric of Display and Confessions of an

English Opium-Eater, in R

HETORICAL TRADITIONS AND BRITISH ROMANTIC LITERATURE,

at 48, 48-50 (Don H. Bialostosky & Lawrence D. Needham eds., 1995) (discussing De

Quincey’s rhetorical taste for paradox).

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69 STAN. L. REV. 637 (2017)

681

Figure 4

Courtesy Paratext in Thomas De Quincey, Memorials, and Other Papers (Boston,

Ticknor & Fields 1856)

The almost humble mood with which Robert Browning expressed his

desire for courteous treatment of Ticknor’s editions was not an isolated

instance. The same publisher’s 1861 edition of The Poetical Works of Alfred

Tennyson carried that author’s personal “wish that with Messrs. Ticknor and

Fields alone the right of publishing [his] books in America should rest.”

245

2 4 5 . ALFRED TENNYSON, THE POETICAL WORKS OF ALFRED TENNYSON, at iv (Boston,

Ticknor & Fields 1861).

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69 STAN. L. REV. 637 (2017)

682

Ticknor’s other editions of Tennyson contained the same authorizing

paratext.

246

Again, a foreign author benefitting from legally uncompelled

payments articulated a “wish” that Ticknor would remain the exclusive

publisher of his works in the United States. And just as Browning had

expressed the hope that the “power of publishing [his works] in America . . .

may rest exclusively with [Ticknor’s] house,”

247

Tennyson desired that the

“right of publishing [his] books in America” might “rest” solely with

Ticknor.

248

The rhetorical similarities between Browning and Tennyson

suggest that these courtesy paratexts had attained a formulaic status in

American publishing, or perhaps that Ticknor was encouraging its foreign

authors to write to a formula, or both. In any case, Tennyson and Browning

urged forbearance from piracy in the most courteous, even modest terms, as if

the shared norm of courtesy required only the gentlest reminder by a grateful

foreign author.

Figure 5

Courtesy Paratext in Alfred Tennyson, Idyls of the King (Boston, Ticknor & Fields 1866)

Elizabeth Barrett Browning echoed this style in her own authorizing

paratexts. The New York firm of C.S. Francis and Company had begun

reprinting her poems, apparently without authorization, in 1850.

249

A few

years later, it paid her £100 for her long poem Aurora Leigh,

250

which it

published in 1857.

251

Francis included in the opening pages of its edition a

2 4 6 . E.g., ALFRED TENNYSON, IDYLS OF THE KING, at ii (Boston, Ticknor & Fields 1866) (1859).

Ticknor’s courtesy claim on Tennyson began in 1842 when the firm remunerated him

for an edition of his work. Jeffrey D. Groves, Judging Literary Books by Their Covers:

House Styles, Ticknor and Fields, and Literary Promotion, in R

EADING BOOKS: ESSAYS ON

THE MATERIAL TEXT AND LITERATURE IN AMERICA 75, 98 n.33 (Michele Moylan & Lane

Stiles eds., 1996); see also J

UNE STEFFENSEN HAGEN, TENNYSON AND HIS PUBLISHERS 180-

82 (1979) (discussing payments Tennyson received from American sales of his works).

2 4 7 . BROWNING, DRAMATIS PERSONAE, supra note 215, at 11.

2 4 8 . TENNYSON, supra note 245, at iv.

2 4 9 . See GARDNER B. TAPLIN, THE LIFE OF ELIZABETH BARRETT BROWNING 236 (1957). The

Francis firm’s edition of The Poems of Elizabeth Barrett Browning appeared in two

volumes in 1850. E

LIZABETH BARRETT BROWNING, THE POEMS OF ELIZABETH BARRETT

BROWNING, IN TWO VOLUMES (New York, C.S. Francis & Co. 1850).

2 5 0 . BARRETT BROWNING, AURORA LEIGH, supra note 216.

2 5 1 . TAPLIN, supra note 249, at 304-05; Samantha Matthews, Marketplaces, in THE OXFORD

HANDBOOK OF VICTORIAN POETRY 655, 660 (Matthew Bevis ed., 2013). C.S. Francis and

footnote continued on next page

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69 STAN. L. REV. 637 (2017)

683

letter by Barrett Browning, dated October 21, 1856: “Having received what I

consider to be sufficient remuneration for my poem of ‘Aurora Leigh,’ from

Mr. Francis, of New York, it is my earnest desire that his right in this and

future editions of the same, may not be interfered with.”

252

Barrett Browning

here acknowledged receiving “sufficient remuneration” from Francis (her

husband had thanked Ticknor for “liberally remunerat[ing]” him

253

), in

exchange for which she provided her authorizing letter with its precatory

wording. Again, as with Robert Browning, Barrett Browning recorded her

“earnest desire” that trade courtesy be observed, but she avoided the more

common indirection of merely noting her publisher’s exclusive “right” or

“power” to reprint in America.

254

Pointedly alluding to the possibility that

pirates might “interfere[]”

255

with Francis’s courtesy claim, her letter

discouraged any such acts of norm-flouting deviancy.

256

Company published several earlier volumes of Barrett Browning’s poems without any

indication of a courtesy arrangement. E.g., E

LIZABETH BARRETT BROWNING,

PROMETHEUS BOUND, AND OTHER POEMS (New York, C.S. Francis & Co. 1851); see also

APLIN, supra note 249, at 240 (noting that Francis “pirated” the poems in Prometheus

Bound). Francis’s edition of The Poems of Elizabeth Barrett Browning contained a preface

in which she declared her “love and admiration” for “the great American people,” 2

LIZABETH BARRETT BROWNING, THE POEMS OF ELIZABETH BARRETT BROWNING, at ix

(New York, C.S. Francis & Co. 1st American ed. 1850), but gave no indication of a

courtesy relationship with the firm. Ticknor and Fields, the authorized American

publisher of Robert Browning, hoped to add Barrett Browning to its list but recognized

the superior courtesy claim of Francis. See G

REER, supra note 215, at 75. Reluctant to

meddle with prior associational rights, Fields remarked to Robert Browning, “We are a

funny set of christians over the waves.” Groves, supra note 41, at 143 (quoting Letter

from James T. Fields to Robert Browning (Sept. 25, 1855)).

2 5 2 . BARRETT BROWNING, AURORA LEIGH, supra note 216 (sixth unnumbered page).

2 5 3 . BROWNING, DRAMATIS PERSONAE, supra note 215, at 11.

2 5 4 . See, e.g., id.; TENNYSON, supra note 245, at iv.

2 5 5 . BARRETT BROWNING, AURORA LEIGH, supra note 216 (sixth unnumbered page).

2 5 6 . For Barrett Browning’s posthumously published volume Last Poems, Robert Browning

provided a paratextual statement that drew on elements from both his and her

previous courtesy paratexts: “The right of publishing this Book in the United States

having been liberally purchased by Mr. James Miller, it is hoped that there will be no

interference with the same.” E

LIZABETH BARRETT BROWNING, LAST POEMS 8 (New

York, James Miller 1862) (1862). James Miller was successor to C.S. Francis and

Company. Id. at 5.

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69 STAN. L. REV. 637 (2017)

684

Figure 6

Courtesy Paratext in Elizabeth Barrett Browning, Aurora Leigh (New York, C.S. Francis

& Co. 1857)

The intimate “wish” or “earnest wish” of Tennyson and the Brownings

personalized the courtesy claims of publishers, reminding rivals and readers

alike that piracy had a human impact apart from any horizontal damage it

might inflict on business interests. In contrast to the stern command of the

familiar copyright notice, these privately endorsed paratexts practically

whispered their exhortations, urging the moral earnestness that scholars have

argued was a feature of Victorian culture.

257

The ideal of moral earnestness

stressed serious work habits and an industrious spirit; it shunned frivolity and

selfish pleasures and deprecated love of money and materialism.

258

Barrett

Browning’s “earnest wish” that courtesy claims not be piratically interfered

with was a kind of quasi-religious plea for the righteous use of the American

public domain. To conduct oneself morally in the tempting commons was to

behave as an earnest publisher should or, to invoke another concept of the

period, to justify oneself as an unstained American Adam.

259

Not all courtesy paratexts invoked earnestness. The “Authorized Edition”

of Rudyard Kipling’s The Story of the Gadsbys and Under the Deodars, published

by Lovell, Coryell and Company of New York in 1891, contained the brief,

2 5 7 . See, e.g., WALTER E. HOUGHTON, THE VICTORIAN FRAME OF MIND, 1830-1870, at 220-22

(1957) (discussing earnestness as a defining characteristic of nineteenth-century British

thought).

2 5 8 . Houghton describes Victorian earnestness and related qualities as pervasive, secularized

products of the various strands of evangelical reform that marked the era. Id. at 222,

242, 251-59.

2 5 9 . See R.W.B. LEWIS, THE AMERICAN ADAM: INNOCENCE, TRAGEDY, AND TRADITION IN THE

NINETEENTH CENTURY 1-12 (1955) (describing the nineteenth-century myth of

American culture as innocent liberation from Europe’s tainted history and characteriz-

ing the idealized American self as adventurous and self-reliant).

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69 STAN. L. REV. 637 (2017)

685

blunt message: “This edition of my collected writings is issued in America with

my cordial sanction.”

260

Kipling had been openly indignant about American

piracies of his books,

261

and he made peace with one of the culprits, the Lovell

firm, only after Lovell arranged to pay him a small lump sum along with a

royalty on reprints of his books.

262

In its 1891 edition of Kipling’s Mine Own

People, the United States Book Company (a large “book trust” of cheap

reprinters that Lovell had organized

263

) included a facsimile letter in which

Kipling affirmed that the edition “ha[d] [his] authority” and that he owed “to the

courtesy of [his] American publishers that [he] ha[d] had the opportunity of

[him]self preparing the present book.”

264

Kipling’s courtesy paratexts did not always conceal his seething contempt

for U.S. copyright laws. In an 1890 edition of his story collection Soldiers Three,

Lovell reproduced another facsimile letter by Kipling:

Gentlemen[,] [y]our country takes the books of other countries without paying

for them. Your firm has taken some books of mine and has paid me a certain price

for them though it might have taken them for nothing. I object to the system

altogether but since I am helpless, authorize you to state that all editions of my

property now in your hands have been overlooked by me.

265

Lovell might not have been pleased by the implication that, in a country

whose laws permitted the uncompensated taking of foreign authors’ works,

2 6 0 . KIPLING, THE STORY OF THE GADSBYS, supra note 220, at 1. The edition also contained a

U.S. copyright notice in the publisher’s name, id. (eighth unnumbered page), probably

referring to the publisher’s selection of stories rather than to the stories themselves,

which had been published in England prior to the Chace Act and therefore individually

enjoyed no U.S. copyright, see supra notes 26-27 and accompanying text.

2 6 1 . Kipling had been outraged by Harper and Brothers’ unauthorized use of his stories.

Letter from Rudyard Kipling to the Editor of the Athenaeum (Nov. 8, 1890), in 2

THE

LETTERS OF RUDYARD KIPLING 25, 25-26 (Thomas Pinney ed., 1990).

2 6 2 . See generally David Alan Richards, Kipling and the Pirates, 96 PAPERS BIBLIOGRAPHIC

SOC’Y AM. 59, 65-77 (2002) (discussing Lovell’s authorized and unauthorized editions of

Kipling’s works).

2 6 3 . See MADISON, supra note 32, at 55; Shove, supra note 100, at 43-45; see also TEBBEL, supra

note 41, at 148.

2 6 4 . E.W. MARTINDELL, A BIBLIOGRAPHY OF THE WORKS OF RUDYARD KIPLING (1881-1921), at

33 (1922) (quoting facsimile letter in K

IPLING, MINE OWN PEOPLE, supra note 220). For a

discussion of Kipling’s dealings with his American publishers, see S

EVILLE, supra note

151, at 297-99.

2 6 5 . KIPLING, SOLDIERS THREE, supra note 220 (second unnumbered page). This volume also

bore a regular copyright notice: “Copyright, 1890, By John W. Lovell Company.” Id.

(fourth unnumbered page). Such notices usually did not refer to the uncopyrighted

foreign work but rather to the publisher’s selection or arrangement of texts, new

illustrations, or additional notes or other features. See supra notes 221-26 and accompa-

nying text; see also supra note 228. For a reprint (with annotations) of Kipling’s 1890

letter to the John W. Lovell Company, see 2

THE LETTERS OF RUDYARD KIPLING, supra

note 261, at 31.

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69 STAN. L. REV. 637 (2017)

686

Lovell had distinguished himself merely by paying “a certain price” after

“tak[ing]” Kipling’s books, as if the publisher were only a cut above a

categorically thieving nation. Kipling portrayed himself here as the grudging

recipient of a bit of quasi-piratical booty, paradoxically authorizing the use of

“property” that he was “helpless” to protect and consoling himself that at least

he had “overlooked” Lovell’s editions (in the sense of “supervising” them, but

also with a faint quibble, perhaps, on “ignoring” them).

Far from the groveling tone of De Quincey’s letter or Tennyson’s earnest

wishing,

266

Kipling’s discourteous paratext suggests that not all foreign authors

viewed normative courtesy as the antithesis of lawful piracy. Some, like

Kipling, saw courtesy as a qualified form of piracy, an institution that offered a

kind of insulting consolation or hush money to outraged authors.

267

After all,

for passive foreign authors, courtesy resembled more a compulsory license

than a robust property rule typical of exclusive copyright ownership.

268

Kipling understood his status under American copyright law deontologically,

not pragmatically, as if no amount of trade courtesy could redeem the law’s

original sin of depriving him of his natural rights as an author.

269

A tainted

public domain could not be cleansed by businessmen’s self-interested gratuities.

2 6 6 . See supra notes 242-48 and accompanying text.

2 6 7 . See SPOO, WITHOUT COPYRIGHTS, supra note 15, at 14-16 (discussing the Scottish author

Andrew Lang’s outrage over the American publisher Thomas Bird Mosher’s unauthor-

ized reprinting of one of his uncopyrighted books in 1895 and his rejection of Mosher’s

post hoc offer of payment).

2 6 8 . See Henry E. Smith, Intellectual Property as Property: Delineating Entitlements in

Information, 116 Y

ALE L.J. 1742, 1775-76, 1811-12 (2007) (discussing compulsory licenses

as liability rules that permit unauthorized uses and merely require compensation, as

opposed to property rules that empower intellectual property owners to forbid uses).

2 6 9 . See Eli M. Salzberger, Economic Analysis of the Public Domain, in THE FUTURE OF THE

PUBLIC DOMAIN: IDENTIFYING THE COMMONS IN INFORMATION LAW 27, 31 (Lucie

Guibault & P. Bernt Hugenholtz eds., 2006) (contrasting the deontological natural law

paradigm of intellectual property with the positivist incentive paradigm).

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69 STAN. L. REV. 637 (2017)

687

Figure 7

Facsimile Letter Paratext in Rudyard Kipling, Soldiers Three (New York, John W.

Lovell Co. 1890)

Kipling’s discourteous courtesy, so different from the earnest wishing of

English authors thirty years earlier,

270

was in part a reaction to the chaotic,

price-slashing competition that American publishers had practiced during the

1880s, when horizontal and vertical courtesy was often thrown aside in the

interest of quick returns on inexpensive reprints.

271

In this fierce competition

for foreign titles, which led to the overproduction of cheap paper-covered

books and a glutting of the market, Robert Louis Stevenson’s uncopyrighted

works were widely reproduced, as were Mrs. Humphry Ward’s Robert

Elsmere

272

and H. Rider Haggard’s Cleopatra,

273

the latter appearing in ten

2 7 0 . See supra notes 232, 252, 254, 257-59 and accompanying text.

2 7 1 . See supra notes 100, 108, 158-66 and accompanying text.

2 7 2 . MRS. HUMPHRY WARD, ROBERT ELSMERE (London, MacMillan & Co. 1888).

2 7 3 . H. RIDER HAGGARD, CLEOPATRA: BEING AN ACCOUNT OF THE FALL AND VENGEANCE OF

HARMACHIS, THE ROYAL EGYPTIAN, AS SET FORTH BY HIS OWN HAND (London, Long-

mans, Green & Co. 1889).

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69 STAN. L. REV. 637 (2017)

688

different editions.

274

When Holt published an authorized edition of The Mayor

of Casterbridge in 1886,

275

he assured Thomas Hardy that although the market

was overrun with pirates, “[h]e [would] do the best [h]e [could] with it in th[o]se

distressing times when it seem[ed] next to impossible to do anything with

anything.”

276

Later, in the 1890s, Alexander Grosset brought out a string of

Kipling’s unprotected works, including his popular poems done up as booklets

selling for ten cents a copy.

277

The profits from reprinting Kipling helped lay

the financial foundation of the noted publishing house Grosset and Dunlap.

278

Kipling, like the immensely popular Dickens fifty years before,

279

denounced a

volatile industry that lurched between open piracy and sporadic courtesy and

that rendered foreign authors the helpless victims of lawful lawlessness or the

passive recipients of unpredictable largesse.

III. Gilbert and Sullivan’s Paratext: Courtesy Rationalized

In the 1880s, W.S. Gilbert and Arthur Sullivan, the celebrated English

creators of comic operas, attempted to overcome the defects of U.S. copyright

law by devising a plan for obtaining an American copyright in The Mikado

280

so as to prevent piratical performances of the work in the United States. To

this end, they hired George Lowell Tracy, an American citizen, to come to

London and prepare a piano arrangement of the full operatic score.

281

Tracy

then registered the copyright in this arrangement with the Library of Congress

and assigned the rights to Richard D’Oyly Carte, the theatrical impresario and

partner of Gilbert and Sullivan.

282

With an American copyright apparently

secured, the team felt it was safe to publish the libretto, the vocal score, and the

piano arrangement in England.

283

But the enormous popularity of Gilbert and Sullivan inspired audacity in

American entrepreneurs. When an unauthorized production of the opera was

2 7 4 . MADISON, supra note 32, at 54.

2 7 5 . THOMAS HARDY, THE MAYOR OF CASTERBRIDGE (New York, Henry Holt & Co. 1886)

(1886).

2 7 6 . MADISON, supra note 32, at 99-100.

2 7 7 . DUNLAP, supra note 71, at 272.

2 7 8 . Id.

2 7 9 . See supra note 166 and accompanying text.

2 8 0 . W.S. GILBERT & ARTHUR SULLIVAN, THE MIKADO; OR THE TOWN OF TITIPU (New York,

Wm. A. Pond & Co. 1885).

2 8 1 . Carte v. Duff, 25 F. 183, 183-84 (C.C.S.D.N.Y. 1885).

2 8 2 . Id.; MICHAEL KENNEDY & JOYCE BOURNE KENNEDY, D’Oyly Carte, Richard, in THE

OXFORD DICTIONARY OF MUSIC 242 (Tim Rutherford-Johnson ed., 6th ed. 2012).

2 8 3 . See Carte, 25 F. at 183-84.

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69 STAN. L. REV. 637 (2017)

689

announced in New York, Carte sued for an injunction, claiming that the rival

orchestration, which had been craftily recreated from the piano arrangement,

would infringe the American copyright in the latter work.

284

A federal court

rejected Carte’s claim, however, holding that U.S. copyright law did not grant

an exclusive right of public performance for musical compositions and that

Gilbert and Sullivan had forfeited American rights in the libretto and the vocal

score by publishing those works initially abroad.

285

The defendant was free to

stage his version of The Mikado, “however unfair commercially or reprehensi-

ble in ethics his conduct may be.”

286

The celebrated team’s efforts to enjoy

protection for the whole opera by copyrighting a part of it had run aground on

the technical distinctions and protectionist policies of U.S. copyright law.

Gilbert and Sullivan also looked to trade courtesy for protection of their

operas in America. One of the century’s most elaborate courtesy paratexts

appeared in editions of their comic operas published by J.M. Stoddart and

Company of Philadelphia in the 1880s. Stoddart called these reprints

“Authorized Copyright Editions,” possibly because the firm had introduced

potentially copyrightable variants into otherwise public domain librettos.

287

The lengthy authorizing paratext, surrounded by a box on the cover and

signed by Gilbert and Sullivan, began in the usual way by stating that Stoddart,

by special and satisfactory arrangements with our English publishers and

ourselves, ha[s] secured the exclusive authority to publish our Opera “The Pirates

of Penzance; or, The Slave of Duty,” in the United States of America. We hereby

express the earnest wish that [it] may suffer no invasion of the rights derived

from us, as the sole publishers of our work, through any attempt to put upon the

market unauthorized editions.

288

Here were the familiar elements of the courtesy paratext: an acknowledg-

ment, on the vertical axis, of an exclusive authorization derived from special

arrangements and, on the horizontal axis, an earnest wish that courtesy rights

would not be invaded by unauthorized versions. The operatic team was both

pointing to contractual rights and acting as celebrity sponsors of American

publishing norms.

But the courtesy paratext did not end there. Gilbert and Sullivan went on

to articulate three “reasons” for making their request for courtesy treatment.

“First,” they wrote, “we are satisfied there exists a general desire on the part of

the people of both continents to come to an agreement upon the question of an

2 8 4 . Id. at 184.

2 8 5 . Id. at 185-87.

2 8 6 . Id. at 186.

2 8 7 . See supra notes 221-25 and accompanying text.

2 8 8 . GILBERT & SULLIVAN, THE PIRATES OF PENZANCE, supra note 221, at 1.

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69 STAN. L. REV. 637 (2017)

690

international copyright, affording compensation to authors in their literary

and artistic productions.”

289

They were partly right. There had been multiple

efforts to establish a reciprocal Anglo-American copyright law in previous

years, but these efforts had repeatedly met with obstacles.

290

For example, in

response to a petition presented by British authors, Senator Henry Clay

introduced a bill in Congress in 1837 that would have recognized British

copyrights in the United States.

291

The bill encountered strong opposition

from the American book trade, however, and never became law.

292

In 1854,

President Franklin Pierce signed an Anglo-American copyright treaty

providing for reciprocal recognition of the rights of authors and publishers in

the two countries.

293

Once again, stubborn resistance from publishers and

booksellers caused the treaty to fall short of ratification by the Senate.

294

Writing in 1880, the year of Gilbert and Sullivan’s courtesy paratext, British

poet and essayist Matthew Arnold remarked that the United States had

repeatedly “refused to entertain the question of international copyright.”

295

Numerous Anglo-American copyright bills failed in Congress prior to 1890.

296

Gilbert and Sullivan quietly alluded to these legislative dead ends when

they referred in their paratext to a “general desire on the part of the people of

both continents”

297

to establish an international copyright law. The particular

desire of Congress, they implied, had yet to assemble the votes needed for

2 8 9 . Id.

2 9 0 . See SEVILLE, supra note 151, at 160-64, 173-74, 180-84, 199-236.

2 9 1 . Id. at 160-61.

2 9 2 . Id. at 161-62.

2 9 3 . JOHN FEATHER, PUBLISHING, PIRACY AND POLITICS: AN HISTORICAL STUDY OF COPYRIGHT

IN BRITAIN 167 (1994).

2 9 4 . Id.

2 9 5 . Matthew Arnold, Copyright, FORTNIGHTLY REV., Mar. 1, 1800, at 319, 331. By contrast,

for much of the nineteenth century, a non-British author could obtain copyright

protection in Britain if she published her work in the United Kingdom, there was no

previous publication, and she was within the British dominions at the time of

publication. D

RONE, supra note 171, at 230; SIMON NOWELL-SMITH, INTERNATIONAL

Matthew Arnold observed that American authors could satisfy the third requirement

by simply visiting England or Canada at the time their book was published in Britain.

Arnold, supra, at 331. Some English publishers attempted a kind of trade courtesy with

respect to unprotected American books, but the system was not as cohesive or

successful as its American counterpart. George Haven Putnam, Property, Literary, in 3

YCLOPÆDIA OF POLITICAL SCIENCE, POLITICAL ECONOMY, AND OF THE POLITICAL

HISTORY OF THE UNITED STATES 392, 410 (John J. Lalor ed., Chicago, Melbert B. Cary &

Co. 1884).

2 9 6 . Wilf, supra note 41, at 186, 205.

2 9 7 . GILBERT & SULLIVAN, THE PIRATES OF PENZANCE, supra note 221, at 1.

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69 STAN. L. REV. 637 (2017)

691

legislative action. The paratext seemed to justify courtesy as both an informal

property norm and a precursor to real lawmaking, a contrivance of respectable

publishers that not only protected business interests but also served as an

expression of the popular will to ensure compensation for all authors, foreign

and domestic. Stoddart’s courtesy claim should be respected, the paratext

suggested, because authors’ rights were already supported by the people,

however dilatory their elected representatives might be. So conceived, courtesy

was a harbinger of and a moral incitement to a genuine law protecting foreign

authors.

Gilbert and Sullivan’s second reason for requesting courteous treatment

was that “[they were] by this arrangement enabled to secure the publication of

[their] work under [their] own personal supervision, greatly to the benefit of

the public and [themselves].”

298

Here was another justification for courtesy: the

ability of creators to control the aesthetic integrity of their creations. The

informal courtesy monopoly, this paratext implied, did more than safeguard

economic interests; it also generated informal moral rights that guaranteed the

accuracy of works, enhancing the reputation of authors and minimizing the

harm to consumers from the unfair competition of cheap, unauthorized

knockoffs.

299

In the chaotic publishing scene of these years, textual accuracy

could be ensured only if authors had the ability to “supervise” texts that

enjoyed exclusive norms-based protection.

300

It was this ability to oversee

aesthetic quality that Kipling was referring to when he stated in his own

paratexts that his editions had been “overlooked by [him].”

301

Moral rights,

historically a byproduct of copyright protections and other laws rather than a

distinctly recognized area of American law,

302

were also the byproduct of

2 9 8 . Id.

2 9 9 . Cf. BRIGGS, supra note 219, at 113 (noting that courtesy paratexts served as “a guarantee

for the accuracy of the reproduction”). Nineteenth-century American publishers often

complained that noncourtesy books were “cheap and slovenly printed reprints,”

NTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 20 (statement of Small,

Maynard & Co.), “imperfect and inaccurate,” id. at 26-27 (statement of the Burrows

Brothers Company), or marred by “the cutting out of many pages,” id. at 28 (statement

of the Helman Taylor Company).

3 0 0 . See LEHMANN-HAUPT, supra note 41, at 167-68 (discussing cheap, shoddy reprints in this

period).

3 0 1 . See supra note 265 and accompanying text.

3 0 2 . See PETER BALDWIN, THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC

BATTLE 225-26, 235-40 (2014) (discussing the attenuated protection for moral rights in

the United States and Britain, in contrast to the robust protection in continental

Europe).

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69 STAN. L. REV. 637 (2017)

692

Gilbert and Sullivan’s third reason for claiming courtesy was that “by the

present contract [their] publications w[ould] be wholly manufactured in the

United States.”

303

This portion of the paratext guaranteed that Stoddart’s vocal

scores would be manufactured solely by American typesetters, printers, and

bookbinders, an assurance that related to another aspect of the movement for

international copyright. Many legislators and lobbyists had insisted that any

manufacture of protected editions. The bill that Henry Clay proposed in 1837

would have granted copyright to British and French authors on the basis of

American manufacture of their books within a month of publication abroad.

304

In 1884, the Harper firm argued for manufacturing provisions that would

require protected foreign books to be printed in the United States, “chiefly in

order that they may not be made inconvenient and unobtainable, which would

be the case if the base of supplies were as remote as London.”

305

Like the

Harpers, Gilbert and Sullivan were assuring the public that American workers

would be rewarded and that books would remain plentifully available, without

risk of shortages that might result if printing took place abroad. These

arguments, along with others, eventually prevailed with legislators who

approved the Chace Act of 1891 with its strict manufacturing provisions.

306

Gilbert and Sullivan’s paratext also promised that Stoddart’s courtesy

editions would sell at “as low a price, with . . . as wide a circulation, as if they

were issued by a number of rival and unauthorized persons.”

307

In essence, this

was a promise that any artificial scarcity created by courtesy collusion would

not, in contrast to the effects of classic public goods monopolies like

copyrights,

308

result in an elevation of prices and a reduced supply of copies.

The one thing that unrestricted piracy guaranteed, at least while “rival and

unauthorized” reprinters competed to sell the same title, was that supply would

remain abundant and cost would stay low.

309

The public often benefited from

3 0 3 . GILBERT & SULLIVAN, THE PIRATES OF PENZANCE, supra note 221, at 1.

3 0 4 . SEVILLE, supra note 151, at 29.

3 0 5 . Letter from Harper & Bros. to Henry C. Lea (Mar. 13, 1884), quoted in HARPER, supra

note 32, at 431, 431-32.

3 0 6 . See supra notes 12-15 and accompanying text. Trade courtesy anticipated the Chace Act

by effectively confining book manufacturing to the United States.

3 0 7 . GILBERT & SULLIVAN, THE PIRATES OF PENZANCE, supra note 221, at 1.

3 0 8 . See Lemley, supra note 28, at 468 (discussing how intellectual property rights create

artificial scarcity in public goods).

3 0 9 . See INTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 22, 36, 43, 54, 77, 79-81,

84-87 (presenting statements of various American publishers concerning the benefits of

pre-1891 “piracy” to purchasers and book manufacturers).

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69 STAN. L. REV. 637 (2017)

693

aggressive competition for cheap, popular books.

310

The Harpers acknowl-

edged in 1877 that during occasional breakdowns of the courtesy system “the

people are benefited . . . by a free fight, in the course of which, while rival

publishers are fighting over some tempting morsel, the reading public devours

it.”

311

Gilbert and Sullivan were addressing the fear Thomas Macaulay

articulated in his classic 1841 critique of copyright—that “the effect of

monopoly generally is to make articles scarce, to make them dear, and to make

them bad”

312

—and reassuring purchasers that Stoddart’s courtesy editions

would not suffer from the evils of contrived scarcity. They had already

guaranteed that the vocal scores would not be of inferior quality by noting that

the scores would be under their “own personal supervision.”

313

3 1 0 . Id. at 11-13, 22, 25-26, 36, 43, 45, 47, 50, 54, 66-67, 71-73, 76, 78-79, 82-83, 85-87

(presenting statements of various American publishers concerning increases in the

price of foreign works printed in the United States after enactment of the 1891 Chace

Act).

3 1 1 . Letter from Harper & Bros. to Wilkie Collins (Feb. 1877), quoted in HARPER, supra note

32, at 392, 393.

3 1 2 . T.B. Macaulay, A Speech Delivered in the House of Commons on the 5th of February,

1841, in 1 S

PEECHES OF THE RIGHT HONORABLE T.B. MACAULAY, M.P. 273, 279 (Leipzig,

Bernhard Tauchnitz copy. ed. 1853).

3 1 3 . GILBERT & SULLIVAN, THE PIRATES OF PENZANCE, supra note 221, at 1.

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69 STAN. L. REV. 637 (2017)

694

Figure 8

Full-Page Courtesy Paratext in Gilbert and Sullivan, The Pirates of Penzance

(Philadelphia, J.M. Stoddart & Co. 1880)

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69 STAN. L. REV. 637 (2017)

695

IV. Monopolistic Practices and the Decline of Trade Courtesy

The defensive note in Gilbert and Sullivan’s paratext, examined in Part III

above, was a response to critiques that the practice of trade courtesy was a

bullying “trust” in which privileged publishers colluded to keep the price of

books high and to prevent price-reducing competition.

314

Courtesy, when

horizontally successful, mirrored copyright law in its creation of publishers’

monopolies in public goods. Some of the familiar costs of monopoly—increased

prices and artificially induced scarcity of goods

315

—were likely experienced

under trade courtesy just as in markets controlled by formal laws.

316

However,

the unusual position of courtesy publishers, under pressure from the

competing activities of lawful pirates, may have helped mitigate the effects of

monopoly pricing to some extent.

317

This Part discusses the perceived

monopolistic tendencies of courtesy and the forces—notably antitrust law and

the enactment of conditional U.S. copyright protection for foreign authors—

that caused courtesy to decline as a highly visible, openly cartelized trade

practice.

3 1 4 . See Groves, supra note 41, at 140, 146 (discussing the charge that courtesy was a price-

inflating trust); see also M

ADISON, supra note 32, at 52 (discussing the same).

3 1 5 . See Lemley, supra note 28, at 466-67.

3 1 6 . It is difficult to say whether and to what extent trade courtesy resulted in monopolistic

pricing of foreign authors’ works absent an extensive empirical study of book prices in

the nineteenth century—a task beyond the scope of this Article. There is anecdotal

evidence that the 1891 Chace Act had little or no impact on the price of most books in

the United States—a fact that, if true, might suggest that courtesy and copyright had

similar effects on book pricing. See I

NTERNATIONAL COPYRIGHT LAW REPORT, supra

note 12, at 23 (statement of A.C. McClurg & Co.); id. at 45 (statement of the S.S. McClure

Company); id. at 58 (statement of the Frederick A. Stokes Company); see also id. at 20

(statement of Small, Maynard & Co.) (“The price for a well-made standard book would

probably be about the same [in 1900 as before the Chace Act], since scrupulous

[courtesy] publishers have been quite generally in the habit of making some compensa-

tion to a foreign author, even in the absence of copyright.”). But the same report offers

anecdotal evidence that the Chace Act caused book prices to rise—a fact that, if true,

might suggest that courtesy pricing was not significantly monopolistic. See id. at 22

(statement of the Blakely Printing Company); id. at 36 (statement of R.F. Fenno & Co.);

id. at 63 (statement of Drexel Biddle); see also id. at 47 (statement of the Publishers’

Printing Company) (“The book-purchasing public has not been at all benefited by the

[Chace Act], as they are certainly obliged to pay a larger price for copyrighted books

than they paid formerly when pirate [courtesy?] publishers were able to produce books

at a much lower rate than that at which they are now sold.”). The report provides

rather ambiguous data on book pricing because it formulated its questions in terms of

the difference between “copyright law” and “piracy” without clearly controlling for

courtesy. See id. at 8-9. It is therefore unclear whether the respondents were measuring

the effects of the Chace Act against courtesy practices or unqualified piracies, or some

blend of the two.

3 1 7 . See infra notes 342-47 and accompanying text.

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69 STAN. L. REV. 637 (2017)

696

Trade courtesy’s anticompetitive practices did not go unnoticed, and the

system had its detractors. Notably, certain cheap, noncourtesy reprinters,

denying the accusation that they were pirates, portrayed themselves as

reformers seeking to abolish the privileges enjoyed by the genteel firms that

had selfishly adopted the courtesy code.

318

For example, in 1884, George P.

Munro, founder of the Seaside Library of inexpensive books, argued that the

cheap libraries had broken down “the Chinese or rather American wall of trade

courtesy and privilege” that had been erected solely for the “monopoly of

publishers in this country.”

319

These arrogant book barons, Munro asserted,

“dictated terms, and precious low ones too, to the [foreign] authors, on the basis

of non-interference among themselves.”

320

Munro was claiming, in essence,

that courtesy operated horizontally to benefit participating publishers but did

not work vertically to help foreign authors or to make books more affordable

for the masses.

Courtesy publishers responded by portraying themselves as honorable and

decent. Henry Holt denied that the large publishing houses were a bullying

cartel held together by promises of reciprocity. There was “no close

corporation about it,” he averred. “[A]nybody is welcome who will behave

himself.”

321

But cheap reprint firms and new startups disagreed. They spurned

a welcome mat that required them to recognize the courtesy claims of the

veteran houses, even as it withheld the prestige and leverage necessary to enjoy

the benefits such a system conferred.

322

These so-called pirates justified their

methods by invoking the strict letter of the law. Foreign works were lawfully

in the American public domain and were freely available to all; any attempt to

claim such works and call it “courtesy” was simply a game played by the haves

to the detriment of the have-nots.

323

Unrestrained competition would break

down courtesy and benefit the book-reading public by placing “good cheap”

editions of important works “within the reach of students, schoolteachers, and

others of moderate means.”

324

The American publisher Isaac K. Funk attacked

3 1 8 . TEBBEL, supra note 41, at 148-49; Groves, supra note 41, at 146-47.

3 1 9 . Groves, supra note 41, at 146 (quoting MADISON, supra note 32, at 53).

3 2 0 . MADISON, supra note 32, at 53.

3 2 1 . “The Evening Post’s” Libel Suit, supra note 59, at 360 (quoting testimony of Henry Holt).

3 2 2 . See John W. Lovell, Letter to the Editor, The Canadian Incursion, PUBLISHERS’ WKLY.,

Apr. 19, 1879, at 470, 471 (criticizing courtesy as disadvantaging newer, smaller

publishers and sometimes the public).

3 2 3 . See id.

3 2 4 . Id. at 470.

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69 STAN. L. REV. 637 (2017)

697

courtesy as a “law” that had not been “framed in the interest of authors or of the

public.”

325

Congress enacted the Sherman Antitrust Act in 1890,

326

one year before

passage of the Chace Act. The Sherman Act prohibited “[e]very contract,

combination in the form of trust or otherwise, or conspiracy, in restraint of

trade or commerce,” and it criminalized the acts of “[e]very person who shall

monopolize, or attempt to monopolize, or combine or conspire with any other

person or persons, to monopolize any part of the trade or commerce.”

327

The

law was aimed at monopolies, combinations, and cartels that harmed

competition in the marketplace. Horizontal restraints on trade have been

thought especially pernicious and have often been deemed violations of the

Sherman Act.

328

For example, in 1898, six manufacturers of cast-iron pipe that

had conspired to allocate among themselves the right to serve particular

customers in certain regions were held to have violated the Sherman Act.

329

The U.S. Court of Appeals for the Sixth Circuit arrived at this conclusion even

though the conspiracy was only a partial restraint on trade and other cast-iron

manufacturers had remained outside the cartel.

330

The participating

manufacturers had divided up the market and insulated themselves from

competition in ways that tended toward monopoly and potentially deprived

the public of the advantages flowing from free competition.

331

The courtesy houses were plainly combining in a horizontal restraint on

trade that ensured that they would “not bid against one other.”

332

Instead of

splitting the market into exclusive territories and customers, as the cast-iron

cartel did, publishers divided the free cultural commons into exclusively

assigned books and authors, each publisher tacitly honoring every other

publisher’s courtesy title to a public domain work. This agreement to refrain

from poaching on other houses potentially injured foreign authors because it

limited other offers that might have bettered the proposal of the first publisher

to claim courtesy. “When two publishers are seeking an author,” wrote

publisher George Haven Putnam, “the proportion of the proceeds offered to the

3 2 5 . I.K. Funk & Co., Letter to the Editor, Foreign Authors and “the Standard Series,”

UBLISHERS’ WKLY., May 15, 1880, at 499, 499.

3 2 6 . Sherman Act, ch. 647, 26 Stat. 209 (1890) (codified as amended at 15 U.S.C. §§ 1-7 (2015)).

3 2 7 . 15 U.S.C. §§ 1-2.

3 2 8 . Mark A. Lemley & Christopher R. Leslie, Categorical Analysis in Antitrust Jurisprudence,

93 I

OWA L. REV. 1207, 1219-20 (2008).

3 2 9 . United States v. Addyston Pipe & Steel Co., 85 F. 271, 272, 291 (6th Cir. 1898).

3 3 0 . Id. at 292-93.

3 3 1 . Id. at 292-94.

3 3 2 . ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 273 (testimony of Thomas Henry

Farrer) (quoting a letter received from an American publisher).

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69 STAN. L. REV. 637 (2017)

698

author[] goes up.”

333

The concerted alignment of publishers against authors’

mobility, and the many attested refusals of publishers to negotiate with any

author belonging to another house,

334

suggest that some authors may have

been harmed financially by the courtesy cartel.

There was also a form of oligopoly—control of the market by a few

sellers—here. Publishers adhering to courtesy allowed fellow publishers to fix

the price of public domain works at levels artificially heightened by courteous

treatment of authors and to control the supply of copies. While above-

marginal-cost pricing and reduced supply occur as a result of ordinary

335

copyrights are legal monopolies granted by Congress

under the authority of the U.S. Constitution.

336

Trade courtesy, in contrast,

created extralegal monopoly effects, fabricated through publishers’ mutual

forbearance to compete for free public goods.

In many respects, courtesy resembled the Fashion Originators’ Guild, an

American fashion design cartel that in the 1930s acted to limit “design piracy”

within the ranks of American garment and textile manufacturers.

337

foreign authors’ works in the nineteenth century, fashion designs were not

protected by copyright.

338

The Guild, determined to stamp out piracy, refused

to sell garments to retailers who sold pirated fashions and compelled retailers

to sign agreements pledging to forswear the sale of such copies.

339

In 1941, the

U.S. Supreme Court held that the Guild’s program violated the Sherman Act

because it narrowed the outlets for buying and selling textiles and garments,

took away the freedom of members, and suppressed competition in the sale of

3 3 3 . SHEEHAN, supra note 41, at 59 (quoting G.H.P. & J.B.P., AUTHORS AND PUBLISHERS: A

MANUAL OF SUGGESTIONS FOR BEGINNERS IN LITERATURE 72 (New York, G.P. Putnam’s

Sons 7th ed. 1897)).

3 3 4 . See, e.g., GREER, supra note 215, at 75 (noting that when Robert Browning in 1854

suggested that his American publisher, Ticknor and Fields, publish a poem by his wife,

Elizabeth Barrett Browning, Ticknor refused because C.S. Francis and Company had

already been publishing Barrett Browning). The publisher Henry Holt urged his editors

not to pursue authors associated with other houses; such practices, he remarked, were

“utterly opposed to my habits and old-fashioned sense of dignity of the business.”

ADISON, supra note 32, at 225-26.

3 3 5 . Lemley, supra note 28, at 467-68.

3 3 6 . U.S. CONST. art I, § 8, cl. 8.

3 3 7 . For a discussion of the Fashion Originators’ Guild, see Kal Raustiala & Christopher

Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92

A. L. REV. 1687, 1697-98 (2006).

3 3 8 . See Fashion Originators’ Guild of Am., Inc. v. FTC, 312 U.S. 457, 461 (1941).

3 3 9 . Id. at 461-62.

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69 STAN. L. REV. 637 (2017)

699

unregistered textiles and copied designs—all tending to deprive the public of

the benefits of free competition.

340

There are obvious differences between courtesy and the fashion design

cartel, not least that there is no evidence that American publishers regularly

organized boycotts of booksellers that handled pirated stock or forced

booksellers to sign pledges to carry only courtesy-protected books. Yet the

horizontal agreement to control competition in uncopyrighted garments,

which the Supreme Court deemed illegal under the Sherman Act,

341

broad features with the tacit agreement of powerful publishers to eliminate

competition among themselves for a foreign author’s book and allow one of

their number to dictate the price and supply of copies. Had courtesy remained a

conspicuous practice after 1890, the U.S. government or an injured private

party would likely have challenged its apparent tendency to deprive authors

and book buyers of the benefits of real competition.

Despite the anticourtesy rhetoric of Munro, Lovell, and other mass-

market publishers, it is possible that trade courtesy did not always result in

supracompetitive pricing of foreign titles. Nineteenth-century publishers often

pointed to a special vulnerability of the courtesy cartel as the main reason for

this phenomenon: courtesy-abiding firms lived with the ever-present threat of

competition from noncourtesy publishers who were legally free to disregard

all norms of self-regulation and forbearance.

342

As an informal system

operating in the shadow of deviant though lawful reprinting, trade courtesy

was a monopoly that could not consistently maintain monopoly pricing.

343

Courtesy was a menaced monopoly that was unable to enforce its claims in

court

344

and inspired no allegiance in unaffiliated pirates who defied the

courtesy “trust” and flew the flag of statutory privilege.

345

As a menaced

monopoly, trade courtesy often kept the cost of foreign works at reasonable,

3 4 0 . Id. at 465.

3 4 1 . Id.

3 4 2 . E.g., Letter from Harper & Bros. to M.O.W. Oliphant, supra note 81, at 358 (“It must be

remembered . . . that in view of possible competition [from lawful pirates], [American

publishers’] prices for English reprints must be low . . . .”); see also H

ARPER, supra note 32,

at 113 (“[I]t was necessary to keep the prices of foreign books as low as possible so as not

to invite competition.”); L

EHMANN-HAUPT, supra note 41, at 165 (describing “bitter

price-cutting battles” and “ridiculous prices, sometimes as low as twenty or even ten

cents for an entire novel”).

3 4 3 . For courtesy publishers’ practice of reducing book prices as a sanction for unauthorized

reprinting of their titles, see notes 144-53, 311 and accompanying text above. For the

general price-reducing effects of lawful piracy in the book trade, see notes 309-10 and

accompanying text above.

3 4 4 . See Sheldon v. Houghton, 21 F. Cas. 1239, 1241-42 (C.C.S.D.N.Y. 1865) (No. 12,748).

3 4 5 . See supra notes 318-25 and accompanying text.

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69 STAN. L. REV. 637 (2017)

700

resilient levels, so that participating firms could respond to the competitive

assaults of reprinters outside the norm-abiding community.

346

Because the

threat of free competition helped control book prices, consumers sometimes

benefited financially from the courtesy cartel.

347

Although trade courtesy did not always burden consumers’ pocketbooks

and was never challenged as anticompetitive in the courts, the legal climate at

the turn of the century disfavored the kind of horizontal restraint on trade that

the major publishing houses pursued as a matter of honor and self-interest.

348

The openly anticompetitive nature of their arrangements likely contributed to

the decline and seeming disappearance of courtesy in the early years of the

twentieth century. The cheap reprint houses had mercilessly assailed the

genteel publishers as a trust or monopoly,

349

and the antitrust laws condemned

horizontal restraints as illegal.

350

Trade courtesy withered in this inhospitable

climate.

In addition to the pressures of fierce competition and antitrust law,

dramatic changes in American copyright law had a direct impact on courtesy.

As noted above, the Chace Act at last granted formal legal protection to foreign

authors on the condition that their editions were typeset on American soil.

351

The Chace Act was a compromise between advocates of international

foreign authors were allowed to secure American copyrights unconditional-

ly.

352

If foreign books suddenly received statutory protection, these industries

would be forced to compete against copyrighted imports and editions printed

from type set overseas and thus lose the benefits they had enjoyed when

foreign works lacked copyright protection altogether. The Chace Act, like

courtesy, protected foreign authors while resisting the transatlantic control

3 4 6 . See INTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 41 (statement of Harper

Brothers) (“In the absence of international copyright, the works of foreign authors

were printed at low prices, with a view to discouraging competition.”); Plant, supra

note 41, at 173 (noting that “the low-price policy which the American publishers

adopted” served as a check on rival reprinting of books); cf. Breyer, supra note 41, at 306

n.96 (“Without copyright protection, the threat of competition should force down the

price of subsequent printing of popular texts.”).

3 4 7 . Cf. Letter from Harper & Bros. to Wilkie Collins, supra note 311, at 393 (noting that

“the people are benefited occasionally” when multiple publishers reprint the same

book).

3 4 8 . See supra notes 314-40 and accompanying text.

3 4 9 . See supra notes 314-25 and accompanying text.

3 5 0 . See supra notes 326-40 and accompanying text.

3 5 1 . See supra notes 12-15 and accompanying text.

3 5 2 . See MADISON, supra note 32, at 59-60; see also Jaszi & Woodmansee, supra note 26, at 95.

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69 STAN. L. REV. 637 (2017)

701

and heightened prices that might have resulted from the much-feared “English

publisher’s monopoly.”

353

Some historians have suggested that the Chace Act essentially put an end

to trade courtesy because actual copyright protection for foreign works

rendered the system of informal norms unnecessary.

354

But the conditional and

technical nature of protection under the Chace Act ensured that many foreign

authors would still fail to obtain U.S. copyrights.

355

Although some foreign

authors or their domestic publishers were able to satisfy the onerous

requirements, many others were not.

356

Under the 1909 U.S. Copyright Act,

which in some ways increased the burden of the manufacturing require-

ments,

357

the American public domain remained an aggressive acquirer of new

foreign works.

358

Yet vulnerable authors were not always exploited, because a

sense of honor and propriety still underlay the practices of American

publishers. The former spirit of trade courtesy continued to influence the

practices of conscientious publishers, less overtly and rigorously than in the

previous century but often with as keen a sensitivity for foreign authors’

rights.

359

The “ghost of courtesy”

360

persisted well into the twentieth century.

3 5 3 . ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 210 (testimony of Thomas Henry

Farrer).

3 5 4 . See, e.g., LEHMANN-HAUPT, supra note 41, at 210 (“The American publisher of an English

book [after the Chace Act] was not dependent any more upon the good will of his

colleagues, but he could rely on the government’s legal protection.”); S

HEEHAN, supra

note 41, at 73 (“After 1891, payment for advance sheets substantially disappeared, and

pirates vanished with them.”).

3 5 5 . For remarks by various American publishers suggesting that foreign authors

effectively lacked U.S. copyright protection even after passage of the Chace Act, see

NTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 17, 58, 74. See also id. at 19,

29, 55, 64 (presenting statements by various American publishers that the Act’s

manufacturing requirements made it difficult for foreign authors to obtain U.S.

copyrights); B

RIGGS, supra note 219, at 114 (noting that the Chace Act was “taken

advantage of only in particular cases” because of the manufacturing costs it imposed on

foreign authors).

3 5 6 . See INTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 17 (statement of L.C.

Page & Co.) (noting, with respect to the Chace Act’s manufacturing requirements, that

“American publishers will not make arrangements for buying the American market

[for publishing a foreign work] unless they are very certain of the success of the book

in question”); see also id. at 63 (statement of Drexel Biddle) (“[I]t sometimes happens that

under the present requirements of the American copyright law American publishers

lose copyrights for themselves and for their authors, American as well as foreign.”).

3 5 7 . See supra notes 12-15 and accompanying text.

3 5 8 . See SPOO, WITHOUT COPYRIGHTS, supra note 15, at 79-80, 108.

3 5 9 . Id. at 108; see also id. at 107-15.

3 6 0 . Groves, supra note 41, at 147.

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702

V. Paratextual Ghosts of Courtesy: James Joyce and J.R.R. Tolkien

The authorizing paratext had a long life (and afterlife). By the dawn of the

twentieth century, trade courtesy was no longer practiced openly and

extrovertly. The climate of trust-busting, the advent of the literary agent,

361

and the passage of the Chace Act combined to render the proud collusiveness of

the genteel publishers a suspect and antiquated chivalry. Yet the Chace Act and

its successor, the 1909 Act, did not make copyright effortlessly available to

foreign authors. As noted in Part IV above, the manufacturing requirements in

those statutes perpetuated, to some degree, the commons problem that

international copyright had been enacted to solve.

362

For foreign authors and

publishers who could not satisfy its rigors, the manufacturing clause raised

barriers similar to those created by the affirmative withholding of copyrights

in earlier statutes.

363

Improvised solutions, including recourse to the equitable

principles of courtesy, were still necessary for preventing widespread

unauthorized reprinting of foreign authors’ writings.

364

This Part explores the

survival of courtesy and its paratexts in American publishers’ treatment of two

iconic twentieth-century authors: James Joyce and J.R.R. Tolkien.

The courtesy paratext proved its value again in the 1930s in the aftermath

of a federal customs litigation in which James Joyce’s Ulysses

365

was judicially

declared to be nonobscene under the Tariff Act.

366

Bennett Cerf, cofounder of

Random House, had instigated the lawsuit in the hope of becoming the first

authorized publisher of a lawful American edition of Joyce’s masterpiece, a

work that up until then had circulated in unauthorized editions in the

American booklegging market.

367

When, in late 1933, Judge John M. Woolsey

declared that Ulysses was not obscene and could be “admitted into the United

3 6 1 . For a discussion of the role of literary agents in eroding the associational practices of

courtesy, see S

POO, WITHOUT COPYRIGHTS, supra note 15, at 58-59.

3 6 2 . See supra notes 355-58 and accompanying text.

3 6 3 . See supra notes 26-27 and accompanying text.

3 6 4 . See SPOO, WITHOUT COPYRIGHTS, supra note 15, at 90-107 (describing noncourtesy

stratagems employed to obtain U.S. copyright for foreign authors in the early

twentieth century).

3 6 5 . JAMES JOYCE, ULYSSES (1922).

3 6 6 . United States v. One Book Called “Ulysses,” 5 F. Supp. 182, 185 (S.D.N.Y. 1933), aff’d, 72

F.2d 705 (2d Cir. 1934).

3 6 7 . JAY A. GERTZMAN, BOOKLEGGERS AND SMUTHOUNDS: THE TRADE IN EROTICA, 1920-1940,

at 31-32, 228, 235 (1999) (discussing open and underground piracies of Ulysses); J

OSEPH

M. HASSETT, THE ULYSSES TRIALS: BEAUTY AND TRUTH MEET THE LAW 125-29 (2016)

(noting Cerf’s goal of being the authorized American publisher of a lawful edition of

Ulysses).

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69 STAN. L. REV. 637 (2017)

703

States,”

368

Random House set to work preparing the book for nationwide

release in early 1934.

369

The 1934 Random House edition of Ulysses contained three legitimizing

paratexts: a foreword by Morris L. Ernst—Random House’s lead attorney in the

Ulysses litigation—celebrating the convergence of the repeal of Prohibition and

the lifting of the customs ban on Ulysses,

370

the full text of Judge Woolsey’s

urbane decree sparing Joyce’s book from legal forfeiture,

371

and a letter from

Joyce to Bennett Cerf describing the troubled legal history of Ulysses and

naming Random House as the exclusively authorized publisher of the book in

the United States.

372

The first two documents—Ernst’s foreword and

Woolsey’s opinion—represented yet another form of legal paratext from this

period, one that certified that a work had undergone a legal test of its decency

and had been exonerated. These “no obscenity” paratexts sought to discourage

further official attempts at censorship and assured readers that a court had

deemed the book safe for consumption.

373

They prepared readers in the

vestibule for an experience of strong but lawful authorial candor and

discouraged the view that the work had been written for the salaciously

minded.

374

These paratexts often combined interpretive aesthetic guidance for

3 6 8 . One Book Called “Ulysses,” 5 F. Supp. at 185.

3 6 9 . For the foregoing details, drawn from a longer discussion of the Ulysses litigation, see

POO, WITHOUT COPYRIGHTS, supra note 15, at 233-62. For other accounts of the

litigation, see J

OSEPH KELLY, OUR JOYCE: FROM OUTCAST TO ICON 85-140 (1998); PAUL

VANDERHAM, JAMES JOYCE AND CENSORSHIP: THE TRIALS OF ULYSSES 115-49 (1998); and

Robert Spoo, Judging Woolsey Judging Obscenity: Elitism, Aestheticism, and the Reasonable

Libido in the Ulysses Customs Case, 50 J

AMES JOYCE Q. 1027, 1027-33 (2013). See generally

HE UNITED STATES OF AMERICA V. ONE BOOK ENTITLED ULYSSES BY JAMES JOYCE:

DOCUMENTS AND COMMENTARY—A 50-YEAR RETROSPECTIVE (Michael Moscato &

Leslie LeBlanc eds., 1984) [hereinafter U

LYSSES RETROSPECTIVE] (reproducing the texts of

letters, litigation documents, and other materials bearing on the Ulysses case).

3 7 0 . Morris L. Ernst, Foreword to JOYCE, supra note 44, at vii, vii-viii.

3 7 1 . The Monumental Decision of the United States District Court Rendered December 6, 1933, by

Hon. John M. Woolsey Lifting the Ban on “Ulysses,” in J

OYCE, supra note 44, at ix, ix-xiv

[hereinafter Monumental Decision].

3 7 2 . A Letter from Mr. Joyce to the Publisher, Reprinted in This Edition by Permission of the

Author, in J

OYCE, supra note 44, at xv, xv-xvii [hereinafter A Letter from Mr. Joyce].

3 7 3 . For other “no obscenity” paratexts, see Havelock Ellis, Commentary to RADCLYFFE HALL,

THE WELL OF LONELINESS (eleventh unnumbered page) (Covici Friede 1929) (1928);

Morris L. Ernst, Foreword to T

HE DECAMERON OF GIOVANNI BOCCACCIO, at xxi, xxi-xxii

(John Payne trans., Modern Library 1931) (1353); Morris L. Ernst, Preface to M

ARIE

CARMICHAEL STOPES, ENDURING PASSION: FURTHER NEW CONTRIBUTIONS TO THE

SOLUTION OF SEX DIFFICULTIES, at xvii, xvii-xxi (Blue Ribbon Books 1931) (1928); and

Publisher’s Note to H

ALL, supra (first to fourth unnumbered page).

3 7 4 . See, e.g., Ernst, supra note 370, at vii (“Writers need no longer seek refuge in

euphemisms. They may now describe basic human functions without fear of the law.”);

Monumental Decision, supra note 371, at xii (“[W]hen such a real artist in words, as Joyce

footnote continued on next page

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69 STAN. L. REV. 637 (2017)

704

serious readers with a negative injunction for those who might wish to search

the text for a lascivious experience. The “no obscenity” paratext, like the “all

characters are fictitious” paratext, was a sorting mechanism that divided

genuine readers from lustful opportunists.

Figure 9

“No Obscenity” Paratext in Radclyffe Hall, The Well of Loneliness (Covici Friede 1929)

undoubtedly is, seeks to draw a true picture of the lower middle class in a European

city, ought it to be impossible for the American public legally to see that picture?”).

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69 STAN. L. REV. 637 (2017)

705

Figure 10

“All Characters Are Fictitious” Paratext in Radclyffe Hall, The Well of Loneliness (Covici

Friede 1929)

After Judge Woolsey’s decree opened the harbors to Ulysses, Cerf had

reason to worry that pirates would quickly go to work with their greatest legal

fear much allayed: prosecution for publishing obscenity.

375

In banning

controversial modern works, obscenity law had come to function as a sort of

super-copyright, vesting the government with exclusive power to control

publication and making it impossible for anyone else, even authors, to

disseminate such works legally.

376

American copyright law, in contrast, often

failed to protect transgressive foreign works at all. One work that suffered

from impaired copyright protection was Ulysses, which had entered the

3 7 5 . Prior to Judge Woolsey’s decree, two courts had found Ulysses wholly or partially

obscene. In 1921, the New York Court of Special Sessions convicted two editors of

publishing obscenity in violation of New York law when they issued an excerpt from

Ulysses in their magazine. David Weir, What Did He Know, and When Did He Know It:

The Little Review, Joyce, and Ulysses, 37 J

AMES JOYCE Q. 389, 394-95, 400 (2000). Several

years later, the U.S. Customs Court upheld the seizure, for obscenity, of several copies

of Ulysses at a port in Minnesota. Heymoolen v. United States, 54 Treas. Dec. 119 (Cust.

Ct. 1928), in U

LYSSES RETROSPECTIVE, supra note 369, at 142, 142-44. For a discussion of

the Ulysses cases and the changing obscenity law, see Stephen Gillers, A Tendency to

Deprave and Corrupt: The Transformation of American Obscenity Law from Hicklin to

Ulysses II, 85 W

ASH. U. L. REV. 215, 250-95 (2007).

3 7 6 . See generally EDWARD DE GRAZIA, GIRLS LEAN BACK EVERYWHERE: THE LAW OF

OBSCENITY AND THE ASSAULT ON GENIUS, at xi-xiv, 3-53 (1992) (surveying government

censorship of literature in the early twentieth century); C

HARLES REMBAR, THE END OF

OBSCENITY: THE TRIALS OF LADY CHATTERLEY, TROPIC OF CANCER AND FANNY HILL 3-26

(Andre Deutsch 1969) (1968) (surveying the same).

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69 STAN. L. REV. 637 (2017)

706

American public domain in 1922, shortly after Joyce published the full,

unexpurgated version in France without complying with the manufacturing

provisions of the 1909 Copyright Act.

377

Cerf reasonably feared that lawful

pirates would quickly free ride on his success in liberating Ulysses from state

censorship.

378

Joyce’s letter, the third of the Ulysses paratexts, invoked the tradition of

courtesy. The Random House edition, he wrote, was “the authenticated text of

my book,” in contrast to any pirated version that might be issued by “some

unscrupulous person [with the] purpose of making profit for himself alone out

of the work of another to which he can advance no claim of moral

ownership.”

379

Joyce’s careful phrase “moral ownership” glanced at the

I was unable to acquire the copyright in the United States since I could not comply

with the requirements of the American copyright law which demands the

republication in the United States of any English book published elsewhere

within a period of six months after the date of such publication . . . .

380

Joyce coupled this technically accurate account of the copyright-depriving

effects of the manufacturing clause with a traditional courtesy plea:

It is therefore with the greatest sincerity that I wish you all possible success in

your courageous venture both as regards the legalisation of Ulysses [in the customs

litigation] as well as its publication and I willingly certify hereby that not only

will your edition be the only authentic one in the United States but also the only

one there on which I will be receiving royalties.

381

Joyce’s letter to Cerf plainly hearkened back to the nineteenth-century

authorizing paratext and its role in reinforcing the informal claims of courtesy.

Joyce’s “wish” for Random House’s success, offered with “the greatest sincerity,”

echoed the earnest wishing of the Brownings and other courtesy-protected

authors eighty years earlier.

382

And like those authors, Joyce certified the

exclusivity of the “only authentic” text, citing the remuneration he would

receive in the form of royalties.

383

Operating in the ghostly aftermath of

3 7 7 . For detailed discussions of Joyce’s inability to obtain a copyright for Ulysses in the

United States, see S

POO, WITHOUT COPYRIGHTS, supra note 15, at 156-65; and Spoo,

3 7 8 . Cerf expressed these fears in a letter to Robert Kastor, a businessman at the firm

Sartorius and Smith, dated March 22, 1932. For the text of this letter, see U

LYSSES

RETROSPECTIVE, supra note 369, at 102-04. See also SPOO, WITHOUT COPYRIGHTS, supra

note 15, at 236-40 (discussing Cerf’s fears of lawful piracy of Ulysses).

3 7 9 . A Letter from Mr. Joyce, supra note 372, at xvii.

3 8 0 . Id. at xvi.

3 8 1 . Id. at xvii.

3 8 2 . See supra notes 232-35, 252-59 and accompanying text.

3 8 3 . A Letter from Mr. Joyce, supra note 372, at xvii.

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69 STAN. L. REV. 637 (2017)

707

courtesy’s heyday, Random House drew upon residual courtesy principles, and

the respect Cerf had earned in the publishing world for litigating a watershed

obscenity case, for the informal right to be recognized as the exclusive

American publisher of Ulysses.

384

Like the courtesy publishers of the 1850s and

1860s, Random House was able to rely on the tacit forbearance of other

publishing firms for decades to come.

385

Courtesy principles and the courtesy paratext survived in American

publishing into the 1970s.

386

In 1965, the publishing house Ace Books decided

to exploit the rising popularity of J.R.R. Tolkien’s The Lord of the Rings,

387

which, published initially in Britain, enjoyed questionable copyright

protection in the United States.

388

Selling at $0.75 per copy, the unauthorized

Ace paperbacks quickly eroded the market for the $6 authorized Houghton

Mifflin hardback.

389

Realizing that he must hurry to repair his American sales,

Tolkien permitted Ballantine Books to issue “authorized” paperbacks of The

Lord of the Rings and The Hobbit,

390

selling at $0.95 per copy and heavily

promoted to college students.

391

Trade courtesy was the key to Tolkien’s recovery of the American market.

He spread negative gossip by launching a letter campaign that branded Ace

Books as unauthorized and unscrupulous, and the press took up his cause with

3 8 4 . For a discussion of Cerf’s exploitation of the courtesy tradition to obtain informal

protection for Ulysses, see S

POO, WITHOUT COPYRIGHTS, supra note 15, at 245-57.

3 8 5 . Id. at 255-57. It was not until the late 1960s that a pornographic publisher in California

issued an unauthorized edition of Ulysses, complete with advertisements for racy

paperbacks, nude photographs, and sexual devices. Id. at 257-59.

3 8 6 . For example, in the early 1970s, editors at Harper and Row requested courtesy

treatment for Sylvia Plath’s The Bell Jar when they learned that Random House planned

to issue the uncopyrighted novel in America. Random House ceded the volume to

Harper and Row. Frances McCullough, Foreword to S

YLVIA PLATH, THE BELL JAR, at ix,

xii-xiii (Harper Perennial Modern Classics deluxe ed. 2006) (1963).

3 8 7 . E.g., J.R.R. TOLKIEN, THE FELLOWSHIP OF THE RING (Ace Books, Inc. 1965) (1954).

3 8 8 . One court held that a U.S. copyright in The Lord of the Rings had not been invalidated

for failure to include copyright notices in copies of the trilogy. Eisen, Durwood & Co. v.

Tolkien, 794 F. Supp. 85, 88 (S.D.N.Y. 1992), aff’d 990 F.2d 623 (2d Cir. 1993). But see

Joseph Ripp, Middle America Meets Middle-Earth: American Publication and

Discussion of J.R.R. Tolkien’s Lord of the Rings, 1954-1969, at 25-33 (Nov. 2003)

(unpublished M.S. thesis, University of North Carolina at Chapel Hill),

https://ils.unc.edu/MSpapers/2908.pdf (discussing legal difficulties for U.S. copyright

protection of Tolkien’s trilogy).

3 8 9 . J.R.R. TOLKIEN, THE FELLOWSHIP OF THE RING (Houghton Mifflin 1954) (1954); see also

Ripp, supra note 388, at 35 (discussing the prices of the Ace and Houghton Mifflin

volumes).

3 9 0 . J.R.R. TOLKIEN, THE HOBBIT (Ballantine Books 1965) (1937). For the Ballantine edition

of The Lord of the Rings, see note 45 above.

3 9 1 . Ripp, supra note 388, at 35-37.

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69 STAN. L. REV. 637 (2017)

708

articles on the flaws of American copyright law, the plight of foreign authors,

and the ethical implications of Ace’s conduct.

392

The back cover of the

Ballantine edition carried an aspirational paratext bearing Tolkien’s stamp of

approval and his direct appeal to the morals of the common reader: “This

paperback edition, and no other, has been published with my consent and co-

operation. Those who approve of courtesy (at least) to living authors will

purchase it, and no other.”

393

Here, Tolkien’s paratextual appeal, in contrast to

the “earnest desire” of nineteenth-century British authors,

394

reached beyond

the American publishing community to readers themselves, as if courtesy

principles now occupied the full vertical axis, binding authors and purchasers

together by their civilizing power.

395

By the 1960s, courtesy was no longer an

openly celebrated system of business morality in the publishing trade, but it

continued to exist as a residual business ethic, a dimming memory of good

behavior in the old copyright vacuum. The ghost of courtesy could still be

invoked at need to stamp out sporadic piracies or to shame a deviant pirate.

3 9 2 . Id. at 37-40.

3 9 3 . TOLKIEN, THE TWO TOWERS, supra note 45 (back cover). Now-Justice Stephen Breyer

noted the lack of U.S. copyright protection for Tolkien’s trilogy and observed that

Tolkien’s approved publisher “reaped some advantage by proclaiming his the

‘authorized edition.’” Breyer, supra note 41, at 301 n.83.

3 9 4 . See supra notes 232-35, 252-59 and accompanying text.

3 9 5 . In furtherance of his antipiracy campaign, Tolkien wrote directly and individually to

many of his American fans to alert them that Ace Books was an unauthorized reprinter

and to urge them to tell their friends. H

UMPHREY CARPENTER, J.R.R. TOLKIEN: A

BIOGRAPHY 229 (1977). American readers began to demand that booksellers refuse to

carry the Ace Books editions; the Tolkien Society of America and the Science Fiction

Writers of America also took up the cause. Id. In the end, Ace Books sent Tolkien a

“courteous” letter voluntarily offering to pay him a 4% royalty on sales of its remaining

stock of Tolkien books. See Letter from J.R.R. Tolkien to W.H. Auden (Feb. 23, 1966), in

ETTERS OF J.R.R. TOLKIEN 367, 367 (Humphrey Carpenter ed., 1981).

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69 STAN. L. REV. 637 (2017)

709

Figure 11

Courtesy Paratext on Back Cover of J.R.R. Tolkien, The Two Towers (Ballantine Books

1965)

Conclusion

Trade courtesy arose as an informal surrogate for international copyright

protection in America and as a way for American publishers to insulate

themselves from injurious competition for free resources. The copyright law

that provided a windfall of foreign materials to publishers failed to create

artificial scarcity in those materials. Therefore, publishers developed the

system of trade courtesy to fill the legal vacuum, salve their consciences, and

install a signaling system by which good players could be distinguished from

bad players—courtesy publishers from pirates. Courtesy privatized a plentiful

commons that, had it not been artificially enclosed, might have been lost or

severely eroded as a profitable resource for publishers. Whether a monopolistic

practice or an ethical improvisation of conscientious businessmen, or both,

trade courtesy bears out the scholarly thesis that nonlegal forms of protection

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69 STAN. L. REV. 637 (2017)

710

may sometimes avert, or at least mitigate, a kind of market failure for public

goods.

396

Courtesy was a necessary fiction told and retold by prominent members of

the publishing community. Copyright is itself a kind of fiction, an arbitrary

signifier, backed by state sanctions, that treats unfenced public goods as if they

could be contained within a legal monopoly and a contrived scarcity economy.

Trade courtesy, in this respect, might be viewed as a metafiction which, in the

absence of law, reimagined monopoly as authored not by a legislature but

rather by the private collusion of businessmen. To be a courtesy publisher was

to agree to participate in a communal fiction that the publisher Henry Holt

proudly referred to as a form of “philosophical anarchism—self-regulation

without law.”

397

Those who defied the fiction, who insisted on taking the

public domain literally, were viewed as deviant, scurrilous pirates by the

courtesy fraternity.

The authorizing paratext lent its policing power to this informal system of

ordering by cautioning readers and publishers to remember that these public

goods should be consumed only in morally approved ways. While other

threshold paratexts taught readers to locate the text’s meanings, courtesy

paratexts inculcated a proper respect for the text as equitable property. The

earnest wishes of British authors that their American publishers’ informal

claims not be interfered with were a kind of personified copyright notice, a

negative injunction. Yet they were also aspirational encomia to a norm that,

whatever its basis in self-interest, sought to repair a defect of the U.S. copyright

law that many saw as both a moral and a practical failing. These paratexts

attest to, and serve as historical records of, an informal practice that made

publishing order out of copyright chaos for significant periods of the

nineteenth century and after.

3 9 6 . See Oliar & Sprigman, supra note 37, at 1860. For other communities that employ

informal norms to discourage copying of unprotected public goods, see notes 37-40 and

accompanying text above.

3 9 7 . Holt, Competition, supra note 41, at 522-23.