Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: f_1749

Commentary on the Crébillon case

Frédéric Rideau

Faculty of Law, University of Poitiers, France

Please cite as:
Rideau, Frédéric. "Commentary on the Crébillon case (1749)." Primary Sources on Copyright (1450-1900). Edited by L. Bently and M. Kretschmer, www.copyrighthistory.org.

1. Full title

2. Abstract

3. The recognition of a specific bond between the author and his work?

4. The remuneration of the author for the sake of public interest

5. References

1. Full title
Decree of the King's Council of State, in favour of M. de Crébillon, author of the tragedy Catilina, which rules that the products of the intellect are in no way on a par with seizable effects. 21 March 1749.

2. Abstract
In the Crébillon case the King's Council of State ruled on 27 March, 1749, that the fruits accruing from literary works are not seizable. This decision has been interpreted by some as the recognition of the specific nature of the bond tying an author to his work, and indeed it does represent an important stage in the legal protection of the author's interests, in particular, those that have to do with the remuneration of his work. Nevertheless, despite the fact that this latter point was accepted at the time, one can clearly also see that Crébillon had to concentrate a significant part of his plea on how it was in the public's interest for authors not to be subject to such acts of seizure. There is no doubt that because of this a somewhat subtler interpretation of the Royal Council's judgement in this case is called for.

3. The recognition of a specific bond between the author and his work?
Prosper Jolyot, sieur de Crébillon (or Crais-Billon), a member of the Académie française since 1731, belonged, like Luneau de Boisjermain (see f_1770), to those authors who were eager to defend their interests when confronted with the effective monopoly of the Parisian guild of booksellers. One can see this, as far as the right of exploitation is concerned, from the way that Crébillon, in the early 1750s, decided to apply for a privilege to protect his works when the royal patent which the Parisian booksellers had obtained for them was reaching the end of its duration.[1] In the case in question here, Crébillon faced the actions of his creditors, who had the "temerity" to carry out the seizure of his author's share, directly from the hands of the Comédiens Français (the actors of the Comédie Française), as well as from his bookseller, Prault, who was the transferee of the play. When the case was heard before the Council, Crébillon apparently neglected of his own accord to follow the strict procedural means of defence, in order to immediately uphold instead a legal remedy which he claimed to be a general principle: namely, that, regardless of whether they derived from printing or from public performance, it was "incredible that one has ever endeavoured to place in the rank of seizable Effects the fruit of the products of the human mind."[2] In its decision of 27 March, 1749, the Council ruled completely in favour of Crébillon's demands by ordering the provisional replevin (main levée) of these seizures from his creditors, moreover instructing that notwithstanding these, the Comédiens Français and Prault would still be bound to pay him the sums that they owed for the performance and printing of Catalina. This in accordance with the principle that the products of the mind were not in the same rank as seizable effects.[3]

This ruling has thus been interpreted as an "implicit recognition of literary property."[4] If we leave aside the actual label of "literary property," such an affirmation probably meant that the author's specific interests, deriving from the link with his creation, had been legally recognised by the king.[5] Paul Olagnier, a specialist in this field from the first half of the twentieth century, argued in the same vein that "one cannot overemphasize the fundamental importance of this ruling, the underlying principle of which was observed right up to the end of the French monarchy," adding that "[this ruling] enshrines the personal nature of the [author's] economic right...."[6] Renouard discerned in this decision of the King's Council, coming as it did in the wake of Louis d'Héricourt's memorandum (f_1725b), "an ever increasing attention being devoted to examining the rights of authors, whose social status, having improved gradually over the years, was becoming quite significant."[7] Laurent Pfister, however, taking a more cautious approach, tempers the enthusiasm which these interpretations might otherwise elicit in the context of copyright theory by pointing out that the Council's ruling did not establish a general principle: rather, it merely served "to settle a private lawsuit", even though he acknowledged that the solution reached by the King's Council did seem "to implicitly acknowledge the specific nature of literary works as such."[8]

At any rate, the King's Council's ruling of 1749 definitely became an essential precedent and source of authority in the mind of French jurists right up to the end of the ancien régime, as witnessed, for example, by the statement of a case which took place in 1774. Courtin, lawyer, in this case, explicitly invoked for his client's defence the Crébillon case and endeavoured to extend the scope of its application. Indeed, his argumentation was clearly based on the idea that "it is inconceivable that the products of the intellect, that the fruits of genius should be seizable effects". But in the case in point, apart from the author's income and profits, it was "the book itself" (l'Ouvrage lui-même) which was to prove to be nonseizable, on the grounds that "the works of a Scholar form part of his person, of his being; they constitute his thoughts, his very soul even."[9] This formulation, ambiguous as it was - did "the Work itself" refer to the original manuscript as the symbolical medium of the work and of all the rights attached to it?[10] - resembled, incidentally, that of Linguet, made at around the same time, for in the latter's view "a manuscript is part of the external substance the writer produces."[11]

We may conclude by noting that the facts and arguments of the Crébillon case do not suggest a recognition of literary and artistic property as clear as that which informed Louis d'Héricourt's championing of this concept from 1725 onwards.

4. The remuneration of the author for the sake of public interest
Even before those attempts at definition which aimed to describe literary property more explicitly as relating to a fundamentally personal thing, and which, alongside Linguet, in particular, also included that undertaken by Diderot (see f_1763), the Crébillon case also seems to have been at the crossroads of these developments. Indeed, it was in the years immediately following this case, namely from 1750 to 1763, that Malesherbes held the post of Director of the Librairie in France, and the years that he was in charge were perceived even by the booksellers of the provinces as heralding a period that was on the whole more favourable towards the situation of authors, as well as towards their own: 

"Malesherbes did not take long to notice the causes of this strange competition [between booksellers], which on the one hand had to do with the all too great proliferation of privileges and the ease with which they had been granted to all applicants, and, on the other, with the way that a far too rigorous censorship of authors' works had established itself in France. Realizing, therefore, the need to return to the State the full scope of this trade, as it should be, he adopted the only truly reliable means to achieve this: he expanded the career of the men of letters by giving them more room in which to freely unfold their genius; he granted a great deal of tacit permissions, yet very few privileges; and, lastly, he made sure to free the book trade and literature from the unjust fetters imposed by all those exclusive rights which were being extended in perpetuity or granted without any valid reasons."[12]

The ruling issued in Crébillon's favour would in this sense be an early judicial evidence of these progressive developments in the book trade relating to the "profession" of letters. Seen from this perspective, it anticipates the striking verdict in the case of La Fontaine's granddaughters (f_1761) and the prolonged conflict which would shortly thereafter be waged by the Parisian booksellers against another author, Luneau de Boisjermain.[13] Nevertheless, even though Renouard saw in the Council's decision "a remarkable example of how it was then considered right to treat men of letters indulgently," to us it seems that the real significance of this ruling remains somewhat ambiguous, because of the way Crébillon, in his judicial argument, attached a significant importance to interests which went beyond his own author's property interests.[14] Indeed, his plea also drew attention both to expedients that were "useful to the nation" and to the "appreciable inconveniences" which the State might have to suffer in the absence of proper protection for the income of authors. If such practices were allowed to continue, Crébillon insisted, it would certainly be the public interest which would suffer as a consequence, since writers would "find themselves in the cruel position of not daring to bring to light their Works, often precious & interesting for the State."[15]

In this sense a reading of the Council's decision could encompass equally well the point of view of the defenders of literary property, whose object was tied to the specificity of the literary creation, and that of its detractors. For the latter - in particular, the booksellers of the provinces and their lawyers, such as Gaultier - even though the writer was still considered to be pursuing as his main goal the enlightenment of his fellow men, the financial incentives were to be regarded as a most valuable means for them to exert their useful art.[16] At any rate, at least as much as the specificity of the bond between an author and his work, it was that "dangerous consequence for the public" referred to by Crébillon which is considered to have been decisive in persuading the King's Council to issue this ruling. Incidentally, the argument advanced in this case could be applied to all the ‘free professions' as well - for example, to that seizure of lawyers' fees which Crébillon alluded to, in order to illustrate his point better.[17]

5. References

Books and articles

Dock, M.C. Contribution historique à l'étude des droits d'auteur. Paris: LGDJ, 1962.

Olagnier P. Le droit d'auteur, volume 1. Paris: Librairie générale de droit et de jurisprudence, 1934.

Pfister, L. L'auteur, propriétaire de son œuvre? La formation du droit d'auteur du XVIe siècle à la loi de 1957. PhD thesis, Strasburg, 1999.

Renouard, A.C. Traité des droits d'auteur dans la littérature, les sciences et les Beaux-Arts, volume 1. Paris: Jules Renouard & Co., 1838.

[1] This case, however, was not brought to a conclusion. On this point, that is to say conflict of privileges between booksellers and authors after the latter have transferred their original manuscript, see the case of La Fontaine's granddaughters (f_1761).

[2] Ruling of 21 March, 1749, 2 (f_1749).

[3] Ruling of 21 March, 1749, 1 (f_1749).

[4] M.C. Dock, Contribution historique à l'étude des droits d'auteur (Paris: LGDJ, 1962), 119.

[5] It is well-known how the question of the incorporeal object of this legal protection presented could pose considerable problems at the time. We find a good illustration of this across the Channel, in Pope v. Curl (uk_1741a).

[6] P. Olagnier, Le droit d'auteur, vol. 1 (Paris: Librairie générale de droit et de jurisprudence, 1934), 50. ["il est inutile de souligner l'importance capitale de cet arrêt, dont le principe a été observé jusqu'à la fin de l'ancienne monarchie," ajoutant qu'il "consacre le caractère personnel du droit pécuniaire..."].

[7] A.C. Renouard,Traité des droits d'auteur dans la littérature, les sciences et les beaux-arts, vol. 1 (Paris: Jules Renouard & Co., 1838), 160. He then adds, apparently lamenting this development: ‘'The more we move forward in time, the more we see them [the authors] stepping up their attempts to make use of and enjoy their rights, sometimes making common cause with the booksellers, and at other times attacking them, so as to overturn their privileges of commercial exploitation." ["Plus nous avancerons, plus nous les verrons redoubler d'efforts pour user et jouir de leurs droits ; tantôt faisant cause commune avec les libraires, tantôt se mettant en guerre contre ceux-ci pour renverser leurs privilèges d'exploitation commerciale"] It is worth noting, though, that publishing contracts did not always fully reflect this development (see, for example, the d'Anville-Desaint contract, f_1759).

[8] L. Pfister, L'auteur, propriétaire de son œuvre? La formation du droit d'auteur du XVIe siècle à la loi de 1957 (PhD thesis, Strasburg, 1999), 324 ["reconnaître implicitement la nature particulière des œuvres litttéraires elles-mêmes"].

[9] Pfister, L'auteur, propriétaire de son œuvre?, 325. These two extracts (and the references) are provided by Pfister, who notes that apparently no decision was ultimately reached in this case ("It is not only the royalty which he is claiming here, but the Work itself" - B.I.U.M Recueil de pièce n°153 231, pièce n° 36, 21). ["les travaux du Sçavant font partie de lui-même, c'est une portion de son être, c'est sa pensée, c'est son âme même "]

[10] The meaning of the word is complicated even more in translation into English, since "Ouvrage" can perfectly well also be translated as the more abstract "work" (whilst the latter can also be the translation of "l'œuvre" itself).

[11] Linguet, 32 (f_1777b).

[12] We are quoting here from the 1776 memorandum of the lawyer Gaultier (Mss. Fr. 22073, n°144 - f_1776), note 16. [Il [Malesherbes] ne tarda pas à voir les causes de cette étrange concurrence, soit dans la trop grande multiplication des Privileges & la facilité avec laquelle ils s'étoient accordés à tous requerans, soit dans une censure trop rigoureuses établie en France sur les Gens de Lettres. Il sentit cependant la nécessité de rendre à l'Etat toute l'étendue de ce commerce qui lui est propre, & il prit pour y parvenir les seuls véritables moyens ; il étandit la carriere des Gens de Lettres, en laissant le champ plus libre à leur génie ; il accorda beaucoup de Permissions tacites & très - peu de Privileges ; il s'occupa enfin à délivrer la Librairie & la Littérature des entraves injustes de tous ces droits exclusifs perpétuellement prorogés, ou accordés sans motifs valables].

[13] Cf. f_1761 and f_1770, respectively.

[14] Renouard, 161. Renouard's formulation strikes one as being eventually symptomatic of the importance attached to this ruling in the history of the recognition of intellectual property, as M.C. Dock argued. Indeed, it is worth bearing in mind that the ruling in question represented a juridical definition which Renouard was to oppose in his treatise and in the course of his endeavours to bring about reforms to the 1793 Copyright Act (on this matter, see the parliamentary debates of 1841: f_1841). He adds that if Crébillon had been born a century later and had again fallen into debt, he wouldn't have been entitled to such indulgent treatment - Renouard supports his argument by quoting from Pellison's L'histoire de l'Académie: "Since M. de Vaugelas had always had less personal fortune than intellectual merit, after his death the notebooks for his Dictionary, together with his other writings, were seized, amongst other things, by his creditors, who were determined to make a considerable sum of money by publishing them. As a result, the Academy, in order to recover what was its rightful due, had no choice but to take legal action, the case being resolved in its favour by a verdict pronounced in the [Grand] Châtelet on 17 May, 1651" ["Comme M. de Vaugelas avait eu moins de fortune que de mérite, après sa mort les cahiers du Dictionnaire, avec le reste de ses écrits, furent saisis, parmi d'autres choses, par ses créanciers, qui prétendaient d'en tirer une somme considérable de quelque imprimeur ; de sorte que l'Académie n'a pu retirer ce que lui appartenait qu'en plaidant, et après une sentence du Châtelet du 17 mai 1651"].

[15] Ruling of 21 March, 1749, 2 (f_1749).

[16] Cf., in particular, the lawyer Gaultier's memorandum on behalf of the booksellers of Lyon (f_1776). For Condorcet, as he argued in his Fragments on the Freedom of the Press, a subscription system seemed a better way of remunerating the author than book trade privileges (see the commentary on f_1776a). As for Diderot, we should note that considerations of public interest and the dissemination of knowledge in France were by no means absent from his famous Letter on the book trade. On the contrary, in fact, for he always showed himself to be especially sensitive to this aspect. To put it simply, perpetual literary property, as he saw it, was not supposed to contribute to an increase in the market price of books, which would of course be to the ultimate detriment of readers (f_1763).

[17] Ruling of 21 March, 1749, 2 (f_1749).