Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: uk_1737a
Commentary on Baller v. Watson (1737)
Ronan Deazley
School of Law, University of Birmingham, UK
Please cite as:
Deazley, R. (2008) ‘Commentary on Baller v. Watson (1737)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
1. Full title
2. Abstract
3. John Gay, Robert Walpole, and the banning of Polly
4. Polly and the Perpetual Injunction
5. Polly and the Account for Profits
6. Polly and Lord Talbot
7. References
1. Full title
Baller v. Watson (1729-1737), NA, c.11 1739/34, 1272/7, 2427/24, 1272/17, 1272/18, 1727/16, 2433/14, 2434/18, 1738/35; c.33 351/305, 353/5, 353/38, 353/153, 353/202, 353/292, 353/401, 355/20, 355/27, 357/132, 357/249, 357/271, 357/272, 357/273, 357/419, 357/547, 359/378, 361/14, 361/17, 367/5, 367/23, 367/37, 367/83, 367/188, 369/315.
2. Abstract
This case marks the first occasion, following the passage of the Statute of Anne 1710 (uk_1710), on which a living author sought to prevent the infringement of his own copyright before the courts, as well as the first time on which a ‘perpetual' injunction was granted to prevent the further unauthorised reproduction of the work.
The commentary describes the circumstances which led Gay to publish the work himself, by subscription, as well as the success he enjoyed (albeit posthumously) in preventing unauthorised versions of the work from being published. That a ‘perpetual' injunction was granted at the conclusion of the litigation was subsequently interpreted, by advocates of common law copyright, to suggest that, regardless of the Statute of Anne, the Lord Chancellor considered copyright to be a perpetual right.
3. John Gay, Robert Walpole, and the banning of Polly
In 1726, the year in which a concerted political opposition to Robert Walpole's (1676-1745) Whig administration first emerged in the guise of Henry Bolingbroke (1678-1751) and William Pulteney (1684-1764), there was also a revival of anti-government literary and cultural commentary. This was the age of the ‘Tory wits' (Alexander Pope (1688-1744), John Gay (1685-1732), Jonathan Swift (1667-1745) and John Arbuthnot (bap.1667, d.1735)), a critical cultural renaissance marked by the publication of Gulliver's Travels in November 1726, and followed two weeks later by the first issue of the Craftsman, which quickly became the chief literary periodical of the political opposition.[1] When John Gay's The Beggar's Opera first opened in January 1728, although the satiric elements of the work were directed at the wider political culture in general, contemporaries found it easy to draw specific allusions to Walpole in a number of Gay's different characterizations.[2] The opera was as embarrassing to Walpole as it was successful for Gay, running for an unprecedented 62 performances in its first season,[3] and netting Gay approximately £700.[4] Polly, Gay's sequel to The Beggar's Opera, proved to be a more vicious satirical attack on both the court and Walpole's administration; unlike The Beggar's Opera, however, it was not to reach the stage, at least not during Gay's lifetime.[5] In December 1728, with rehearsals for Polly well under way, the Lord Chamberlain (Charles FitzRoy, the Duke of Grafton (1683-1757)) ordered that the play was not to be performed. Behind the Lord Chamberlain's decision, many contemporary (and subsequent) commentators detected the hand of Walpole himself; as David Nokes writes, "[t]he banning of Polly was Walpole's revenge for the success of The Beggar's Opera".[6]
As a result of the Lord Chamberlain's ban, Gay decided to publish the work himself, by subscription,[7] with the help and support of a number of his aristocratic patrons and in particular Catherine Douglas, the Duchess of Queensberry (1701-1777).[8] Whereas Gay had sold his copyright in both The Beggar's Opera and his first collection of Fables to the publisher Jacob Tonson (1655/56-1736) and the printer John Watts for 90 guineas, the decision to publish Polly in his own name would prove far more lucrative. Burgess, for example, estimates that as a result of publishing the work, Gay amassed something in the region of £1200 which, as he notes, was "more than Gay could have hoped for had the play been produced".[9] Not surprisingly, however, Polly's status as the cultural cause célèbre of early 1729 virtually guaranteed that unauthorised versions of the work would emerge. Gay published Polly in early April 1729 priced six shillings; within a week pirate editions of his work were available in octavo format for one shilling (without the music) or a shilling and sixpence (with the music).[10] Gay responded in two ways to the appearance of these unauthorised editions. As a measure of first resort he dropped the price of his quarto edition of Polly to two shillings and sixpence;[11] following this, he entered a bill of complaint with the Court of Equity and on 12 May was granted an injunction preventing the sale and distribution of unauthorised copies of Polly until further answer.[12]
4. Polly and the Perpetual Injunction
Gay v. Read (1729) is a remarkable case if for no other reason than the fact that it was the first action, after the Statute of Anne, in which a living author, who held the copyright in his own work, sought to protect his copyright before the courts. That in itself marks it out as a significant moment in the history of copyright within the UK,[13] and yet it is worthy of comment for so many other reasons as well. Unlike most other actions taken before the Chancery Court at this time, Gay proceeded to a final hearing, culminating in the decision of Baller v. Watson (1737).[14] Deciding the case in the plaintiff's favour, Lord Chancellor Talbot (bap.1685, d.1737) made two highly significant pronouncements. First, he decreed that "the injunction formerly granted in this cause ... be perpetual";[15] second, he ordered that a Master of the Court "take an account against the several Defendants ... of the profits of the books mentioned in the Bill printed published or sold by the said Defendants [and that they] do respectively pay the same to the plaintiffs as the Master shall direct".[16] In years to come, those who would argue that copyright existed at common law, prior to and independent of the legislation, would make much of both decrees.
Consider first the meaning and significance of the decree that the injunction "be perpetual". Unfortunately, no copy of the bill originally filed by John Gay appears to have survived. The Court of Chancery's Book of Records from 1729 does, however, provide some indication of the manner and tone of Gay's original application to the court. Gay set out that he had written the work in question, and that he had published and registered it in accordance with the Statute of Anne. He continued that the defendants had printed his work "contrary to the intent of the said Act of Parliament ... without the plaintiff's consent". The various answers, twelve in all, submitted throughout the course of this litigation have little more to offer. The first joint answer of Thomas Read, James Watson and Robert Walker (c.1709-1761) did suggest that the plaintiff's registration of his work in some way failed to satisfy the statutory requirements; for example, they had "heard and believe that some copies of the book were published before the complainants title to the same was registered".[17] This was the first and last time that they proffered such a defence. Rather, the mainstay of this first answer lay in their demurrer to the author's call for discovery regarding the numbers of pirate copies printed, the profits made, and so on. Gay contested the sufficiency of the response and on 3 March 1730 Lord Talbot declared it to be inadequate.[18] The remaining eleven answers, repetitive in nature and form, were given over to setting out the very details which Gay had sought in his initial call for discovery: how many editions had been printed; by whom; in what quantities; at what price; how many were sold; and for what profit. And so, given that there is nothing in any of this to suggest that Gay was arguing or asking for any period of protection other than that set out in the legislation,[19] the precise significance of the Lord Chancellor's perpetual injunction raises something of a conundrum.
Today one might turn to any number of modern authorities to establish that the perpetual injunction is one "directed towards the final settlement and enforcement of the rights of the parties that are in dispute".[20] That is, the perpetual injunction is to be understood in simple contradistinction to the interlocutory; the latter is effective only until the day of the trial, while the former provides the final order that settles the dispute in question.[21] Moreover, it is also clear that such an injunction can be granted in respect of rights that are limited in duration.[22] However, what exactly did it mean to grant a perpetual injunction in Talbot's time? Was the injunction simply perpetual as to the process before him, or did the Lord Chancellor actually grant an injunction to perpetually protect what was otherwise a statutorily defined wasting asset? Early treatises on the law of equity in general, and on injunctions in particular, provide little assistance in this regard. Eden, in his work A Treatise on the Law of Injunctions, writes about injunctions "to restrain the Infringement of Copyright" noting that "[i]t rarely happens" that such suits are brought to a hearing. He continues: "The plaintiff is generally satisfied with having an injunction continued, and it becomes unimportant to seek for an account of profits". Of the perpetual injunction in particular, Eden simply observes that it "is final, and it is not necessary to revive upon the death of either of the parties, in order to keep it on the foot".[23] None of Fowler,[24] Hinde,[25] Turner,[26] or Lord Nottingham's (Heneage Finch (1621-1682)) Manual of Chancery Practice,[27] contributes anything of any greater instruction. And so, the basic ambiguity remains. Given the nature and the terms of the action brought by Gay in the first place, it is perhaps more likely that the injunction was simply perpetual as to the process, and yet, this can by no means be stated with great conviction. An argument could be made for either reading throughout the course of the eighteenth century. In Millar v. Taylor (1765), when the plaintiff prayed for a perpetual injunction, it is reported that Lord Chancellor Northington (Robert Henley (c.1708-1772)) considered such an injunction might be improper, as it seemed to imply a perpetual right. Rather, he observed that the "injunction ought to be continued, but it ought to be so framed as not to imply a right beyond the two terms of fourteen years".[28] Whatever Lord Talbot intended remains unresolved. What is certain, however, is that later proponents of the common law right would make much of his decree. In the case of Tonson v. Collins (1761),[29] for example, Alexander Wedderburn (1733-1805) would later recount how the Lord Chancellor in Baller "made the injunction perpetual; which he could not have done merely under the Act".[30] In this regard, determining the actual meaning of the decree for the perpetual injunction in Baller is perhaps beside the point; rather, what is important is how the decree was subsequently represented, by whom and to what end.
5. Polly and the Account for Profits
Turning to the Lord Chancellor's decree for an account of profits, this too represented a novel departure for the courts in relation to allegations of copyright infringement. Prior to this action, it was generally the case that a plaintiff filing a bill would seek both writs of injunction and subpoena from the court, to prevent the defendant printing any more infringing books, and require him to answer to the plaintiff's charges. In a handful of cases, however, the plaintiffs included some other form of request in their bill. In Knaplock v. Curl (1722) they sought "such further and other relief as Your Lordship shall seem meet and shall be agreeable to Right, Equity and Good Conscience".[31] In Eyre v. Walker (1735) the plaintiffs requested "such further order and decree as to Your Lordship shall seem meet".[32] In Motte v. Faulkner (1735) they followed for "such further or other relief in all and singular the premises as the nature of their case shall require".[33] In each instance, precisely what the plaintiffs had in mind was left unsaid, but in any event both Eyre and Motte failed to proceed to a full hearing, and while Knaplock did, the Lord Chancellor made no such order for any "other relief". Following the Lord Chancellor's decree in Baller however barely an action goes by without the plaintiffs making some reference to, or call for, an account of the profits which the defendants may have made from their unauthorised editions. For example, the first application to the court after Baller was Watson v. Jeffries (1738) in which the plaintiff sought discovery of the amount of profits made by the defendant with the request that "such further or other relief in the premises as the circumstances of this case requires".[34] With Tonson v. Mechell (1739) a tradition emerged in which the complainants began to assert their claims somewhat more stridently. In this case, taking a more direct cue from Baller, the plaintiffs claimed that they: "[O]ught in justice and equity to have a satisfaction and compensation made ... for the violation and injury ... committed upon our said right and property ... [seeking that the defendants] each of them come to an account ... for the profits by them respectively made from or by the printing ... the book".[35]
While the Lord Chancellor's decree in Baller was responsible for this new trend in claiming an account of profits, a question remains as to whether or not the decree was legitimate.[36] Upon what basis, authority or principle did Talbot make his decree? Seven years later, in Jesus College v. Bloom (1745) the question facing Lord Chancellor Hardwicke (Philip Yorke (1690-1764)) was whether a bill for account "ought to be entertained merely for satisfaction for timber cut down, after the estate of the tenant that cut it down is determined". As the tenant was no longer resident upon the land there had been no necessity to seek an injunction. Lord Hardwicke refused relief commenting that waste was a tort that was actionable at law. However, he did observe that, where the bill is for an injunction, and waste has already been committed, "the court to prevent a double suit, will decree an account, and satisfaction for what is past". He continued: "[I]n all these cases, this court has gone further, merely upon the maxim of preventing multiplicity of suits, which is the reason that determines this court in many cases ... So in bills for injunctions, the court will make a complete decree, and give the party a satisfaction, and not oblige him to bring an action at law as well as a bill here".[37] The decree for an account of profits in Baller may have been granted by the court along similar lines; that is, as ancillary to the injunction for reasons of expediency on the plaintiff's behalf.[38] The problem with this explanation is that the possibility of an order to account for profits must have been one that was available at common law, and this had never yet been tested in the courts. Prior to this, only one action had been initiated before the common law courts, Ponder v. Bradyll (1679), and that action was never brought to a conclusion.[39]
Again, as with the perpetual injunction, arguably what matters more about the Lord Chancellor's decree is how it was subsequently received and represented. Clearly the decree had an almost immediate impact upon the manner and form of subsequent submissions before the court; whatever the legality of the decree, the legal practice of petitioning the court for an account of profits became well established. Moreover, this aspect of the Lord Chancellor's decree was also relied upon by the London booksellers in Midwinter v. Hamilton (1743-1748) as evidence of the fact that in the forty years since the passing of the Statute of Anne, "frequent Occasions have occured in England" wherein the "consequent Practice" of the Court of Equity has been to give relief by way of injunction as well as decrees "to account to the Proprietors for all the Profits" made by the sale of the unauthorised editions.[40] In fact, the only time such a decree had been made before Midwinter was in Baller alone.
6. Polly and Lord Talbot
And yet, questions still linger about the reasons for the decree by the Lord Chancellor in Baller: why grant a perpetual injunction? And, why decree an account of profits? What was it that motivated Talbot to act in such an unprecedented manner? Perhaps he simply granted an account of profits because Gay had asked for such an account to be made. Adam Budd suggests that Gay's close connection with the Duchess of Marlborough (Henrietta Godolphin (1681-1733)) may provide the real explanation:
"The young Duchess ... among other notables in the royal court was known to have paid Gay as much as £100 for one copy [of Polly].[41] One might speculate that her parents, having recently helped Talbot to reorganize his family's country estates by using their opposition influence (to Talbot's financial advantage), were owed a favour. By handing Gay such a splendid legal victory, Talbot offered indirect support for the Duchess's patronage while avoiding speaking directly to the satirical import of Gay's play."[42]
Alternatively, perhaps Talbot shared the political sentiments of his son William (1710-1782), an opposition Whig MP for Glamorgan, that a real Whig was one who would "indiscriminately oppose the measures of Sir Robert Walpole",[43] and was happy to provide Gay (or rather his estate) with a robust protection for a work which Walpole, though the office of the Lord Chamberlain, had otherwise sought to censure.[44] Certainly, when James Thomson (1700-1748) - himself an opposition poet, one of the so called ‘Patriot Poets' - and author of The Seasons, wrote his Poem to the Memory of the Right Honourable the Lord Talbot,[45] he portrayed Talbot as a man who represented everything that Walpole was not: a man of letters and learning,[46] and an individual immune from the vices and corruption which the opposition writers identified with Walpole's administration.[47] Or, perhaps it was simply that Talbot considered himself to be acting as a patron of the arts in providing Gay, the first author to come before the Chancery Courts, with an injunction to prevent the future unauthorised printing of his work, as well as an account of profits for what unauthorised editions had already been published and sold. In Thomson's words: "Let Learning, Arts, let universal Worth/ Lament a Patron lost, a Friend and Judge".[48]
7. References
Governmental papers and legislation
Statute of Anne, 1710, 8 Anne, c.19
Cases
Burnet v. Chetwood (1721) 2 Mer. 441
Gay v. Read (1729) NA, c.33 351/305
Millar v. Taylor (1765) 4 Burr. 2303
Tonson v. Collins (1761) 1 Black W 301
Knaplock v. Curl (1722) NA, c.11 690/5
Eyre v. Walker (1735) NA, c.11 1520/29
Motte v. Faulkner (1735) NA, c.11 2249/4
Watson v. Jeffries (1738) NA, c.11 1541/37
Tonson v. Mechell (1739) NA, c.11 2462/49
Austen v. Cave (1739), NA, c.11 1552/3
Rivington v. Cooper (1740), NA, c.11 1566/42
Read v. Hodges (1740), NA, c.11 538/36
Forrester v. Walker (1741), NA, c.11 867/54
Pope v. Gilliver (1743), NA, c.11 549/39
Pope v. Bickham (1744), NA, c.11 626/30
Tonson v. Stevens (1745), NA, c.11 2558/47
Jesus College v. Bloom (1745) 3 Atk. 262
Ponder v. Bradyll (1679) 1 Lilly's Modern Entries 67
Midwinter v. Hamilton (1743-1748) 9 December 1747, Bodleian Library, 4 Jur.X.136
Savory (Lim.) v. Gyptian Oil Co. (Lim.) (1904) 48 Solicitor's Journal 573
Books and Articles
Ashburner, W., Principles of Equity, 2nd ed. (London: Butterworth, 1933)
Baker, P.V., and Langan, P.St.J., ed., Snell's Principles of Equity, 29th ed. (London: Sweet & Maxwell, 1990)
Burgess, C.F., ed., The Letters of John Gay (Oxford: Clarendon Press, 1966)
Burgess, C.F., "John Gay and Polly and a Letter to the King", Philological Quarterly, 47 (1968): 596-98
Campbell, J.L., The Lives of the Lord Chancellors and Keepers of the Great Seal of England, 8 vols. (London: John Murray, 1846-1869)
Conolly, L.W., "Anna Margaretta Larpent, The Duchess of Queensberry and Gay's Polly in 1777", Philological Quarterly, 51 (1972): 955-57
Copinger, W.A., The Law of Copyright, 3rd ed. (London: Sweet & Maxwell, 1893)
Eden, R., A treatise on the law of Injunctions (London: n.p., 1821)
Fowler, D.B., The practice of the Court of Exchequer upon proceedings in equity (London: n.p., 1817)
Goldgar, B.A., Walpole and the Wits: The Relation of Politics to Literature, 1722-1742 (Lincoln & London: University of Nebraska Press, 1976)
Greene, J., The Trouble with Ownership: Literary Property and Authorial Liability in England, 1660-1730 (Philadelphia: University of Pennsylvania Press, 2005)
Harrison, F.M., "Nathaniel Ponder: The Publisher of the Pilgrim's Progress", The Library, 4th ser., 15 (1934-35)
Hinde, R., The modern practice of the High Court of Chancery methodized and digested in a manner wholly new (London: n.p., 1785)
Kerr, W.W., A Treatise on the Law and Practice of Injunctions in Equity (London: William Maxwell & Son, 1867)
Martin, J.E., Hanbury & Modern, Modern Equity, 17th ed. (London: Sweet & Maxwell, 2005)
Nokes, D., John Gay: A Profession of Friendship (Oxford: Oxford University Press, 1995)
Paterson, J.M., Kerr on Injunctions, 6th ed. (London: Sweet & Maxwell, 1927)
Spry, I.C.F., The Principles of Equitable Remedies, 4th ed. (London: Sweet & Maxwell, 1990)
Stoljar, S.J. "The Transformations of Account", Law Quartery Review 80 (1964): 203-221
Thomson, J., Poem to the Memory of the Right Honourable the Lord Talbot (London: Millar, 1737)
Turner, S., An Epitome of the Practice on the Equity Side of the Court of Exchequer (London: W Clarke & Sons, 1806)
Winton, C., John Gay and the London Theatre (Kentucky: University of Kentucky Press, 1993)
Yale, D.E.C., ed., Lord Nottingham's ‘Manual of Chancery Practice' and ‘Prolegomena of Chancery and Equity' (Cambridge: Cambridge University Press, 1965)
Other
Budd, A., "Old monopoly", Times Literary Supplement, 15 July 2005
[1] The first issue of the Craftsman was published on 5 December 1726.
[2] Nokes writes that "contemporary pundits and subsequent commentators have shown equal confidence in identifying Walpole [a] principal target of Gay's satire"; David Nokes, John Gay: A Profession of Friendship (Oxford: Oxford University Press, 1995), 433. Goldgar writes: "of the political implications of Gay's satire there can be no doubt"; Betrand A. Goldgar, Walpole and the Wits: The Relation of Politics to Literature, 1722-1742 (Lincoln & London: University of Nebraska Press, 1976), 69.
[3] Nokes writes that "The Beggar's Opera was a phenomenal success, enjoying a run of 62 performances in its opening season, and inspiring a host of imitations, parodies, and Beggar-mania bric-a-brac"; Nokes, 414.
[4] See Nokes, 423.
[5] Goldgar writes that: "Though its satiric sections are vastly outweighed by romantic and moralistic passages ... many lines in the play are indeed ‘more abusive' than the good-humoured ridicule of The Beggar's Opera, especially when viewed in the light of the popular motifs in the anti-Walpole press"; Goldgar, 81. See however Nokes who suggests that "as published, Polly is far less politically risqué than The Beggar's Opera"; Nokes, 456.
[6] Nokes, 455.
[7] Those who subscribed included Bollingbroke and Pulteney, as well as the Duchess of Marlborough (who is reported to have given Gay £100 for a single copy of the work), Lord Bathurst, Sir William Wyndham, Lord Gower and Lord Oxford; see Nokes, 429. The Duchess of Marlborough's generous contribution of £100 has been variously interpreted. Most critics have assumed that the £100 was merely a generous gesture on her part at the time subscriptions for the play were solicited. The Duchess Sarah, however, who placed the figure at ‘100 guineas', was quoted as saying that the money was in payment for Gay's Epistle to Her Grace, Henrietta, Duchess of Marlborough (1722); C.F. Burgess, ed., The Letters of John Gay (Oxford: Clarendon Press, 1966), 79, n.3. See also Gay's letter to Swift in which he writes that "[t]he Dutchess of Marlborough hath given me a hundred pound for one copy, & others have contributed very handsomely but as my account is not yet settled I cannot tell you the particulars"; Gay to Swift, 18 March 1729, in Burgess, 79-80. Gay was certainly very familiar with the Duchess of Marlborough; indeed following the success of The Beggar's Opera, Gay retreated to Bath for the summer, as part of Marlborough's retinue, during which time he worked on Polly; see Nokes, 449. Just before Polly was banned, Gay wrote to Swift in the following terms: "I have been confin'd about ten days but never to my bed, so that I hope soon to get abroad about my business, which is, the care of the second part of the Beggar's Opera which was almost ready for rehearsal. But Rich receiv'd the Duke of Grafton's [the Lord Chamberlain] commands ... not to rehearse any new Play whatever ‘till his Grace hath seen it; what will become of it I know not, but I am sure I have writen nothing that can be legally supprest, unless the setting vices in general in an odious light, and virtue in an amiable one may give offence. I past five or six months this year with the Dutchess of Marlborough, and then, in view of taking care of myself, writ this piece"; Gay to Swift, 2 December 1728, in Burgess, 77-78.
[8] For evidence of the Duchess of Queensberry's support for Gay following the banning of the play see his letter to Swift in which he writes: "You must undoubtedly have heard that the Dutchess [of Queensberry] took up my defence with the King and Queen in the case of my Play, and that she hath been forbid the Court for interesting herself to increase my fortune for the publication of it without being acted"; Gay to Swift, 18 March 1729, in Burgess, 79-80. See also: C.F. Burgess, "John Gay and Polly and a Letter to the King", Philological Quarterly, 47 (1968): 596-98; L.W. Conolly, "Anna Margaretta Larpent, The Duchess of Queensberry and Gay's Polly in 1777", Philological Quarterly, 51 (1972): 955-57; see also Nokes, 463-65.
[9] Burgess, 79, n.3.
[10] See C. Winton, John Gay and the London Theatre (Kentucky: University of Kentucky Press, 1993), 134-35; see also Jody Greene, The Trouble with Ownership: Literary Property and Authorial Liability in England, 1660-1730 (Philadelphia: University of Pennsylvania Press, 2005), 211-16.
[11] Ibid.
[12] Gay v. Read (1729), NA, c.33 351/305. After the appearance of the unauthorised editions Gay took out an advertisement in the Evening Post on 10 April 1729 to the following effect: "Yesterday two illegal, false and spurious editions of Polly, An Opera; being the Second Part of the Beggar's Opera were published; the one in octavo without the music, printed for Jeffrey Walker in the Strand, the other in octavo with the music at the end, printed for J. Thomson. This is to advertise to all booksellers, printers, publishers, hawkers, etc. not to sell or cause to be sold any of the said editions, the sole property of the said book being, according to Act of Parliament, vested in the author, for whom the book is printed with the music on copper plates in quarto. Prosecutions with the utmost severity will be put in execution against anyone who shall presume to sell any of the aforesaid illegal, spurious editions"; reproduced in Nokes, 470.
[13] As Jody Greene observes: "Gay's case has the distinction of being the first case brought by an author in his own name during his lifetime and thus constitutes the first instance in which an author would actively participate in - and pay for - the defense of his legal rights under the statute of Anne"; Greene, 212. Previously in Burnet v. Chetwood (1721) 2 Mer. 441, which concerned an English edition of Dr Thomas Burnet's latin treatise Archaeologia Philosophica, an action was taken by the author's son, who was also the executor of his father's estate.
[14] John Gay died in December 1732 before the conclusion of the case; the action was continued by his sisters Catherine Baller and Joanna Fortescue who entered a Bill of Reviver against the defendants in May 1733; Baller v. Watson (1729-1737), NA, c.11 1739/34, 1272/7, 2427/24, 1272/17, 1272/18, 1727/16, 2433/14, 2434/18, 1738/35; c.33 351/305, 353/5, 353/38, 353/153, 353/202, 353/292, 353/401, 355/20, 355/27, 357/132, 357/249, 357/271, 357/272, 357/273, 357/419, 357/547, 359/378, 361/14, 361/17, 367/5, 367/23, 367/37, 367/83, 367/188, 369/315.
[15] NA, c.33 369/315.
[16] NA, c.33/369.
[17] NA, c.11 1739/34.
[18] NA, c.33 353/153.
[19] That is, fourteen years; Statute of Anne, 1710, 8 Anne, c.19, s.1.
[20] I.C.F. Spry, The Principles of Equitable Remedies, 4th ed. (London: Sweet & Maxwell, 1990), 373. See also: J.E. Martin, Hanbury & Modern, Modern Equity, 17th ed. (London: Sweet & Maxwell, 2005), 777 and following.
[21] See for example the distinction drawn in the first edition of Kerr on Injunctions: "Injunctions are either interlocutory or perpetual ... Perpetual injunctions are such as form part of the decree made at the hearing upon the merits, whereby the defendant is perpetually inhibited from the assertion of a right or perpetually restrained from the commission of an act which would be contrary to equity and good conscience. The perpetual injunction is in effect a decree, and concludes a right. The interlocutory injunction is merely provisional in its value, and does not conclude a right. The effect and object of the interlocutory injunction is merely to preserve the property in dispute in statu quo until the hearing or further order"; W.W. Kerr, A Treatise on the Law and Practice of Injunctions in Equity (London: William Maxwell & Son, 1867), 11.
[22] Spry, 373.
[23] R. Eden, A treatise on the law of Injunctions (London, 1821).
[24] D.B. Fowler, The practice of the Court of Exchequer upon proceedings in equity (London, 1817).
[25] R. Hinde, The modern practice of the High Court of Chancery methodized and digested in a manner wholly new (London, 1785).
[26] S. Turner, An Epitome of the Practice on the Equity Side of the Court of Exchequer (London: W Clarke & Sons, 1806).
[27] D.E.C. Yale, ed., Lord Nottingham's ‘Manual of Chancery Practice' and ‘Prolegomena of Chancery and Equity' (Cambridge: Cambridge University Press, 1965).
[28] Hinton v. Donaldson (1773), see Information for Alexander Donaldson, 2 January 1773, British Library, B.M. 515.f.15.(2). Indeed, this judicial uncertainty as to the proper way to proceed in such cases was still evident nearly one hundred and fifty years later. In Savory (Lim.) v. Gyptian Oil Co. (Lim.) (1904) 48 Solicitor's Journal 573, the plaintiffs, who owned the copyright in four pictures copied by the defendants, sought an injunction from the court "perpetually restraining infringement". Farwell J, in response, commented that "a perpetual injunction ought not to be granted to protect a right having only a limited duration", and granted an injunction lasting the length of the plaintiff's copyright only. It was this decision in Savory which led Paterson to observe in the sixth edition of Kerr on Injunctions that "[a] perpetual injunction should not however be granted to protect a right having only a limited duration; in such a case the injunction should be limited to the period of the plaintiff's interest in the subject-matter of the action"; J.M. Paterson, Kerr on Injunctions, 6th ed. (London: Sweet & Maxwell, 1927), 31.
[29] Tonson v. Collins (1761) 1 Black W. 301.
[30] Ibid., 305-306.
[31] NA, c.11 690/5.
[32] NA, c.11 1520/29.
[33] NA, c.11 2249/4.
[34] NA, c.11 1541/37; see also Austen v. Cave (1739), NA, c.11 1552/3, and Rivington v. Cooper (1740), NA, c.11 1566/42.
[35] NA, c.11 2462/49. For similar examples after Tonson (1739) see: Read v. Hodges (1740), NA, c.11 538/36; Forrester v. Walker (1741), NA, c.11 867/54; Pope v. Gilliver (1743), NA, c.11 549/39; Pope v. Bickham (1744), NA, c.11 626/30; and Tonson v. Stevens (1745), NA, c.11 2558/47.
[36] For a discussion of the development of the remedy of account at common law and in equity see S.J. Stoljar, "The Transformations of Account", Law Quartery Review 80 (1964): 203-221 (220-21).
[37] Jesus College v. Bloom (1745) 3 Atk. 262.
[38] See also: W. Ashburner, Principles of Equity, 2nd ed. (London: Butterworth, 1933), 349-50; P.V. Baker and P.St.J. Langan, eds., Snell's Principles of Equity, 29th ed. (London: Sweet & Maxwell, 1990) 637-38.
[39] This involved an unauthorised edition of John Bunyan's The Pilgrim's Progress. Nathaniel Ponder had registered the work with the Stationers' Company, and just three months later, in the wake of the lapse of the Licensing Act in 1679, began an action against his printer, Bradyll whom he accused of printing and selling more than Ponder had originally ordered. Harrison, writing about the action, provided an account of the case, taken from John Lilly's Modern Entries: "Nathaniel Ponder complains concerning Thomas Braddill for the following reason: because when the aforesaid Nathaniel Ponder on the first day of May 30 Car:II [1678] in London namely in the parish of the Blessed Marie de Arcubus St. Mary-le-bow in the Cheap Ward was and up till now the manifestly true proprietor of the same book entitled The Pilgrims Progress and which because he the aforesaid Nathaniel Ponder printed two thousand books of the same copy and the 20 day of January 30 Car:II [1679] in London had in his hands a hundred books and more of the impression on the same 20th January was printing four thousand books of the same copy although Thomas Braddill ... afterwards (in fact on the same 20th January)... printed four thousand copies of the book itself of the aforesaid Nathaniel Ponder entitled The Pilgrims Progress ... printed and at this time and in the same place exposed for sale". Harrison himself commented: "The so-called Licensing Act of 1662, which had actually lapsed in May 1679, and had not been renewed, made the case Ponder v. Bradyll, of considerable interest to the legal profession, for it was evidently a moot point regarding Ponder's claim of copyright; and he had for his advocate John Lilly. The suit was really an ‘action on the case', in the Court of Common Pleas in Hilary Term, 30 Car.II [1679]; and the comment on it by the late Mr. W.A. Copinger, shows that the case was evidently not proceeded with ... Ponder was a victim of circumstances, without the ghost of a chance of procuring redress". See F.M. Harrison, "Nathaniel Ponder: The Publisher of the Pilgrim's Progress", The Library, 4th ser., 15 (1934-35), 257-94.
Harrison's reference to Copinger's comment on the case, was to the following passage: "In this case an action was brought for printing 4000 copies of the ‘Pilgrim's Progress' of which the plaintiff was the true proprietor, whereby he lost the profit and benefit of the copy. There is no account of the case having been proceeded with"; W.A. Copinger, The Law of Copyright, 3rd ed. (London: Sweet & Maxwell, 1893), 23.
[40] The Petition of Daniel Midwinter, William Innes, Aaron Ward, and others, all of London Booksellers, and William Elliot Writer in Edinburgh their Attorney or Factor, Pursuers, 9 December 1747, Bodleian Library, 4 Jur.X.136. It is interesting to note that the plaintiffs were actually relying upon an opinion prepared for them by the then Solicitor-General, William Murray, later Lord Mansfield.
[41] See n.7.
[42] Adam Budd, "Old monopoly", Times Literary Supplement, 15 July 2005.
[43] Quoted in Goldgar, 138.
[44] In the general election following the succession of George I, Talbot was returned as an MP for Tregony, and while Campbell notes that although "[h]is name is hardly ever mentioned in the printed debates" he continues that "it is quite certain that he spoke frequently and well"; he continues: "As a politician we read hardly any thing of Lord Talbot from the time of his appointment as Chancellor"; J.L. Campbell, The Lives of the Lord Chancellors and Keepers of the Great Seal of England, 8 vols. (London: John Murray, 1846-1869), 4: 652, 671.
[45] J. Thomson, Poem to the Memory of the Right Honourable the Lord Talbot (London: Millar, 1737).
[46] Thomson wrote: "I too remember well that mental Bowl,/ Which round his table flow'd. The Serious, There,/ Mix'd with the Sportive, with the Learn'd the Plain:/ Mirth softn'd Wisdom, Candor temper'd Mirth;/ And Wit its Honey lent, without the Sting. ... Nor yet in Athens, at an Attic Meal,/ Where Socrates presided, Fairer Truth,/ More elegant Humanity, more Grace,/ Wit more refin'd, or deeper Science reign'd"; ibid.
[47] Similarly: "Happy the State! When wakes a ruling Eye/ Of such Inspection keen, and general Care./ Beneath a Guard so vigilant, so pure,/ All-trust'd, All-rever'd, and All-belov'd,/ Toil may resign his careless Head to Rest,/ And ever-jealous Freedom sleep in Peace./ Ah! lost untimely! Lost in downward Days!/ And many a Patriot Counsel with him lost!/ Counsels, that might have humbled Britain's Foe, Her native Foe, from eldest Time by fate/ Appointed, as did once a Talbot's Arms"; ibid.
[48] Ibid.