Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: d_1533

Schott v. Egenolph: The first copyright case heard at the Imperial Chamber Court

Friedemann Kawohl

Centre for Intellectual Property Policy & Management, Bournemouth University, UK

Please cite as:
Kawohl, F. (2008) ‘Commentary on Schott v. Egenolph (1533)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 

1. Full title

2. Abstract

3. Protection of woodprints and the question of jurisdictional competence

4. References

1. Full title
Writ of the Strasbourg printer Johannes Schott, filed at the Imperial Chamber Court on 14 July 1533 in Schott v. Egenolph

2. Abstract
This is a writ submitted to the Imperial Chamber Court on 14 July 1533 by Johann (Hans) Schott. Schott claims that the Frankfurt printer Christian Egenolph has reprinted his publication of a German translation (Contrafayt Kräuterbuch) of Otto Brunfels's herbal Portrait of Living Plants (Herbarium vivae eicones ad naturae imitationem, 1st part 1530), thereby violating the Imperial privilege that had been granted for the original Latin edition. He focuses on the excellent woodcuts produced for Schott's edition by Hans Weiditz (a pupil of Dürer), accusing Egenolph of having used copies of these drawings, albeit on a smaller scale, for his Frankfurt edition. Schott v. Egenolph is the first reprint case in the Holy Roman Empire and the first of three such cases heard before the Imperial Chamber Court (Reichskammergericht) over the course of the sixteenth century. Although a verdict on this case has not been found in the records, it has been concluded from the editorial history of Brunsfels's book that the court adjudicated in favour of the plaintiff.

3. Protection of woodprints and the question of jurisdictional competence
Johann Schott had published several editions of the herbal by Otto Brunfels (1488-1534) in folio format and bearing a reference to a six years' privilege on the title-page.[1] Schott's writ focuses on the fine woodcuts that had been produced on his behalf by Hans Weiditz, and he claims that Egenolph had used copies of these illustrations, even if executed on a smaller scale, for his Frankfurt edition which appeared as a German version of the herbal.

Schott v. Egenolph is the first reprinting case in the Holy Roman Empire and the first of at least three to have been heard before the Imperial Chamber Court (Reichskammergericht) in the course of the sixteenth century. Although a verdict on the case has not been found, it has been concluded from the editorial history that the court adjudicated in favour of the claimant. The facts were presented in the summons:

"In spite of the fact that we had issued him with Imperial privileges on previous occasions (in 1520 and 1530), to the effect that no one may reprint, offer for sale, or sell the books printed by him within a specified period, on pain of a fine of 10 mark of pure gold, it is reported that you have nevertheless been re-cutting and re-engraving ["nachreißen und nachschneiden"] all the plants which he arranged for the Strasbourg painter Hans Wyditz to portray ["abconterfeyt"] in a praiseworthy manner - that is, by artistic observation of these plants' ages, leaves, seeds, shrubs, and roots: a task which required great effort, expense, and labour - and that you have published these in a work that you purport to be new and never seen in print before; and that you have, moreover, scaled down, line by line, a number of these counterfeit illustrations and publicly sold them in a most abject manner at the recent autumn fair in Frankfurt, despite your having been sufficiently warned and admonished not to do this by our privilege; and that you have therefore contributed greatly to Schott's losses and detriment."[2]

The Court acknowledged Schott's investments in the work of the woodcut artist and even follows the claimant's assertion that scaling down the images is a breach of the exclusive right granted by the privilege. (The privilege text itself has not been found in the archives.)

Unclear competence of jurisdiction was a problem already in 1533, when this first copyright case was heard before the Imperial Chamber Court. This can be seen from the respondent's claim, in which Egenolph first of all called into question the very competence of the court:

"He protested against the venue on the grounds that the Chamber Court regulation [the 1495 Kammergerichts-Ordnung of Maximilian I] clearly stipulates that everyone should have his case heard before his judge-in-ordinary [i.e. the judge at the place where the alleged offence was committed] unless the administration of justice is denied to him there, or if the case concerns a breach of the public peace or a similar violent act; so that, consequently, this case should be tried by his judge-in-ordinary in Frankfurt - a right which no one could deprive him of, he argued."[3]

So under which jurisdiction was this case to be treated? Frankfurt was the place of printing and Frankfurt was the place where the alleged reprint was published at the fair. Schott's privilege had been bestowed by Emperor Charles V for the whole Empire. Schott did not base his claim on a specific privilege for the herbal, but on a general privilege that he claimed to have received in Worms in 1520 and which stipulated that "no one was allowed to reprint or offer for sale, throughout the whole territory of the Holy Roman Empire, Schott's published works for a period of six years from the date of publication of each of these works".[4]

As Free Imperial Cities, both Frankfurt and Strasbourg were directly subject to Imperial jurisdiction. Egenolph, who had learned the art of printing in Strasbourg, an early centre of the printing industry, had come to Frankfurt in 1530. He had successfully applied for citizenship and was admitted to the printers' guild on the condition that he "promised not to print anything without having first presented it to the Honourable Council".[5]

Egenolph was probably right in indicating that this case did not fall within the jurisdiction of the Imperial Chamber Court, which was competent for civil actions against persons or corporations that were ‘immediate' subjects of the Empire (e.g. sovereign princes or Imperial Cities). The Imperial Chamber Court was, moreover, a court of appeal - though only for major civil actions. The following example will serve to illustrate this: in 1514, still during the reign of Maximilian, the City of Cologne, seeking to strengthen its local jurisdiction, had secured an Imperial privilegium de non appellando (privilege of having the right to not be appealed), specifying that only cases involving sums greater than 100 Rhenish guilders were eligible to be brought before the Imperial Chamber Court for revision.[6]

In Schott v. Egenolph the civil action was brought forward not against the City of Frankfurt, but against an individual subject of the city. It was reasonable to expect that the court of first instance should be that of Frankfurt, especially given that the sum in question amounted to just the 10 guilders specified as a fine in the privilege. Schott claimed that he had actually applied to the Frankfurt authorities so that they would ban Egenolph's edition, but to no avail, as he said.

We can assume that according to the promise he had made to the Frankfurt City Council three years earlier, Egenolph had presented his book to the municipal authorities before proceeding with its publication, and had received their approval. Thus, he probably expected that the judges in Frankfurt would be favourably disposed towards him. Schott in his turn had good reason to believe that Frankfurt would naturally try to protect one of its citizens, and this may have induced him to file his claim at the Imperial Chamber Court.

4. References

Books and articles [in alphabetical order]

Brunfels, Otto. Herbarium (Strasbourg: Schott, 1530). Available online at:

<http://imgbase-scd-ulp.u-strasbg.fr/displayimage.php?album=174&pos=3>

Eisenhardt, Ulrich. Die kaiserlichen Privilegia de non appellando (Cologne: Böhlau, 1980)

Jäcker, Carsten. Christian Egenolff (Limburg: Glaukos, 2002)

Wigand, Paul. "Der Büchernachdruck im 16. Jahrhundert. Aus Akten des Reichskammergerichts", in his Wetzlar‘sche Beiträge für Geschichte und Rechtsalterthümer (Wetzlar: Carl Wigand, 1836), 227-241

[1] Scans of a copy held at Strasbourg University are available online at:

<http://imgbase-scd-ulp.u-strasbg.fr/displayimage.php?album=174&pos=3>.

[2] "Wiewohl wir ihn hievor (1520 und 1530), Inhalt kaiserlicher Freyheit, begnadet und begabt, also daß ihm Keiner seine Bücher, von ihm gedruckt, in einer benannten Zeit, bei 10 Mark löthigen Goldes Strafe nachdrucken, oder feil haben und verkaufen soll, so sollst du doch darwider ihm alle Kräuter, die er durch Hans Wyditz, Mahler zu Strasburg, nach löblicher Art, aus künstlicher Wahrnehmung ihres Alters, Krauts, Blätter, Saamen, Steudlin und Wurzeln, mit großer Mühe, Kosten und Arbeit abconterfeyt, als ein neu Werk, vormahls im Druck nie gesehen, dazu auch viele conterfeysch Figuren, haben nachreißen, und nachschneiden, von Strich zu Strich verjüngen, und in Druck ausgehen lassen, auch vergangenen Frankfurter Herbstmeß, unangesehen, daß du bewährter unser Freiheit zuvor genugsam erinnert und gewarnt, ganz verächtlicher Weise offenen Markts verkauft, und damit seinen Schaden und Nachteil zum höchtsen gemehrt." Quoted from Paul Wigand, "Der Büchernachdruck im 16. Jahrhundert. Aus Akten des Reichskammergerichts", in the same author's Wetzlar‘sche Beiträge für Geschichte und Rechtsalterthümer (Wetzlar: Carl Wigand, 1836), 227-241 (227).

[3] "Er protestirte gegen den Gerichtsstand indem die Kammergerichts-Ordung klar bestimme, daß Jeder bei seinem ordentlichen Richter solle gelassen werden, es wäre denn, daß ihm hier Recht versagt würde oder daß die Sache einen Landfriedensbruch, oder dergleichen gewaltsame Handlung belange, dieser Gegenstand gehöre demnach vor seinen ordentlichen Richter in Frankfurt, deß man ihn nicht berauben könne." Wigand (1836), 227.

[4] "Niemand seine in Druck gegebenen Werke durchs ganze römische Reich, binnen 6 Jahren, vom Tage der Edition jedes Werkes an, nachdrucken, oder zu feilem Verkauf vorlegen solle." Wigand (1836), 229.

[5] "Doch das er eyn abschaittsbrieff bringe und zusage, on besichtigung eyns erbarn raths nichts zu drucken". Quoted in Carsten Jäcker, Christian Egenolff (Limburg: Glaukos, 2002), 33. Egenolph was a printer of popular works. Most of his books were in German rather than in Latin, which at the time was still the dominant language of writing across Europe.

[6] Ulrich Eisenhardt, Die kaiserlichen Privilegia de non appellando (Cologne: Böhlau, 1980), 96. Quoted here from: <http://www.zeitenblicke.de/2004/03/dirr/dirr.pdf>