Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: us_1781

Andrew Law's Petition 1781

Oren Bracha

School of Law, University of Texas

Please cite as:
Bracha, O. (2008) ‘Commentary on Andrew Law's Petition 1781', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Andrew Law and the First Author's Privilege in America

4. John Ledyard and Other State Printing Privileges

5. References

1. Full title

Andrew Law's Petition for Legislative Privilege from the State of Connecticut 1781

2. Abstract

A petition by the musician Andrew Law for an exclusive printing privilege in his book of tunes. The petition was granted by the Connecticut legislature that passed an act awarding Law exclusive printing rights in various tunes for the term of five years. The act is considered the first author's copyright in America. The commentary describes the grant and the circumstances surrounding it. It explains that Law's grant and many of the other individual grants of the states during the first two decades of the Republic were a transitory stage between the traditional publisher's privilege and the modern author's copyright regime.

3. Andrew Law and the First Author's Privilege in America

The few printing privileges granted in the North American British colonies before the Revolution[1] had little to do with authorship. The recipients of those privileges were printers or publishers. The justification of the grants was encouraging a useful initiative, rather than rewarding authorial labor or securing authorial rights. The typical texts - most commonly the colony's laws - had no definite individual author. In short, authors hardly played any role in regard to those early grants. In 1772 William Billings came close to being the first grantee of an author's printing privilege in America, but his Massachusetts legislative grant for his book of psalms was vetoed by Governor Hutchinson.[2] The Billings episode marked a new age. After the Revolution the practical and ideological gravity center of copyright entitlements shifted to authors. During the first two decades of independence publishers' grants disappeared and were supplanted by authors' grants. These legislative grants were similar to colonial printing and patent grants. However, the grantees were now authors and pervading the grant practices there gradually appeared a discourse about authors' rights.

The 1781 Connecticut grant to Andrew Law (1749-1821) is usually credited as the first author's copyright in America. However, the search for the first author's grant tends to obscure the complexity of the episode, the gradual character of the transition from publisher's copyright to authorial rights, and the ironies woven into Law's relationship with the emerging concepts of copyright and authorship. Andrew Law, born in Milford Connecticut, was the grandson of the colony's governor Jonathan Law. He studied divinity at Rhode Island College (later Brown University). He was ordained in 1787, but his main occupation on which he embarked years earlier was his musical career. Law taught music and singing and wrote mostly simple hymn tunes. His success and fame, however, came chiefly from compiling, arranging and publishing tunes by other composers. His printer and publisher was his brother, William Law of Cheshire, Connecticut.

Law's pioneering attempt to obtain exclusive exploitation rights may have originated in his strong awareness of the commercial aspects of his occupation. Law was a shrewd businessman who relentlessly sought ways of expanding and capitalizing on his music enterprises. In the 1780s Law traveled extensively throughout the country, established singing schools and promoted the use of his texts. Ever ambitious in his plans, Law created contractual arrangements with young college graduates music teachers who promised to exclusively use his books or to exclusively sell them on a commission basis. Law sent several of these teacher-salesmen to the South and other rural areas in the hope of establishing a singing school movement based on his books and creating a steady stream of income.[3] These plans went sour due to, among other things, competition from cheaper and more accessible music books including those of Law's former Philadelphia associate Andrew Adgate (d. 1793). Law was also jealous for what he saw as his publication rights and vigilant in attempting to enforce them. Over a period of three decades he was involved in numerous intellectual property skirmishes and disputes.[4]

Law's Connecticut privilege was probably the result of his commercial awareness and his protective approach toward his publications. In October 1781 he petitioned the Connecticut legislature[5] explaining that "after much application to gain a competent Degree of Knowledge in the Art of singing to qualify himself for teaching of Psalmody; he in the year 1777 made a large Collection of the best & most approved Tunes." Law further explained that publishing the collection cost him "nearly £500,--Lawful Money" and that "by the rapid Depreciation of the Continental Currency the three last Years he has received very little Compensation." Next came the allegation of piracy:

"To his great Surprize he know finds that some person or persons unknown to your Memorialist who are acquainted with the Art of Engraving are making attempts to make a plate in Resemblance of that procured by your Memorialist & to strike books under the Name of your Memorialist thereby to defeat the interest of your Memorialist in his plate & in the Sale of his books"

Observing that "works of Art ought to be protected in this Country & all proper encouragement given thereto as in other Countries," Law asked for "an exclusive patent for imprinting and vending the Tunes following for the Term of five Years."

The Connecticut legislature was duly impressed. It passed an act[6] describing how Law "hath with great Trouble & Expense prepared for the Press & produced to be engraved & imprinted a Collection of the best & most approved Tunes & Anthems for the Promotion of Psalmody." It awarded Law "free & full Liberty & License... for the sole printing, publishing & vending the several Tunes & Anthems above-mentioned... for the Term of five Years." The grant enumerated by name the protected tunes and imposed a £500 penalty per violation as well as "just Damages." Despite a somewhat obscure phrasing the grant was probably stipulated upon Law's "printing & furnishing a sufficient number of Copies of the sd. Tunes for the use of the Inhabitants of this State at reasonable prices."

On first blush, Law's privilege seems to be a classic author's copyright. The published original creations of a composer were copied by others, which resulted in the grant of a limited-time exclusive right to publish and sell his tunes. Reality, however, was more complicated. To begin with, there is much confusion about the exact work that Law composed and which was copied by others. Commentators rely on Law's petition to conclude that the work was Collection of the Best and Most Approved Tunes and Anthems for the Promotion of Psalmody. Unfortunately, it is very probable that such a work never existed.[7] There is neither direct nor indirect evidence that it was ever created or published. The assumption that there was such a work was the result of a bibliographical mistake by modern scholars originating from the references in Law's petition and the Connecticut act.[8] The Connecticut legislature may have believed that Law published or intended to publish a collection encompassing all the enumerated tunes. In reality Law published the tunes in several separate works. Significantly, Law was not the composer of the overwhelming majority of the tunes protected under his grant. As he admitted in his petition: "Copies of some of which he purchased of the original Compilers, others he took from Books of Psalmody printed in England which were never printed in America." In other words Law copied most of his protected tunes from English publications, from manuscripts he obtained from American composers or publishers (who had no legal rights they could assign), and possibly from American published works.

In light of these facts, the question arises: in what exactly did the protection awarded by the grant consist? A modern copyright lawyer's instinctive reaction would be that Law received protection for the particular selection and arrangement of his collection. This, however, was not the case. First of all, as explained, there was no actual work that constituted a collection of the works mentioned in the grant. Moreover, Law asked for protection in the "Tunes following," and the Connecticut legislature specifically declared that the act prohibited "all the Subjects of this State, to reprint the same, & each & every of the sd. Tunes or Anthems, in the like, or in any other Volume, or Form whatsoever." Thus Law received exclusive rights in the individual tunes of which he was not the author. In this respect the grant, though bestowed on an authorial figure was close to the traditional publisher's privilege. Law was simply the first one to publish those tunes in America, or so he claimed.

The extent to which Law's grant and his proprietary attitude were the exception rather than the rule is demonstrated by examining some of the instances of piracy of "his" works. The piracy of which Law complained in his petition was probably of his 1777 A Select Number of Plain Tunes Adapted to Congregational Worship.[9] Although not named in the petition, the most probable culprit was John Norman (1748-1817), one of the few expert music engravers on the scene. The book printed by Norman was New Collection of Psalm Tunes Adapted to Congregational Worship that had a similar title, structure and engraving style to Law's Select Number. Twenty-three out of the fifty-one tunes in the New Collection were identical to those in the Select Number.[10] It is likely that Norman imitated Law's work, but Law's accusations may have been exaggerated. A closer look at the two works reveals that out of the twenty three shared tunes twenty one were old popular tunes that were published in England and America well before Law's Select Number and were readily accessible from other sources. Surviving copies of the New Collection do not support Law's petition claim that the unauthorized reprint was under his name, but the resemblance of the engraving style supports the claim of "a plate in Resemblance of that procured by your Memorialist." This last complaint was somewhat disingenuous. The practice was not uncommon in the period's music publishing. Indeed, the engraved title page by Joel Allen of Law's 1779 edition of Select Harmony was an exact copy of Henry Dawkins' design for the title page of the 1761 Urania by James Lyon.[11]

Law was involved in numerous other disputes over printing rights of his works, including with the famous American printer Isaiah Thomas.[12] Out of these many disputes, Law's tussle with Daniel Bayley (b. 1729) of Newburyport , Massachusetts sheds the most light on the gradual development of proprietary attitudes toward publications. In the title page of his 1783 Rudiments of Music Law, referring to his earlier work-Select Harmony, expressed his hope "that it will not be pirated as the other was, by those who look, not at the public good, but at their own emolument."[13] Law most probably was aiming here at Bayley who published a collection of tunes[14] with the following text on its title page:

"Select Harmony, containing in a plain and concise manner, the rules of singing chiefly by Andrew Law, A.B. To which are added a number of psalm tunes, hymns and anthems, from the best authors. With some never before published. Printed and Sold by Daniel Bayley, at his house in Newbury-port..."

Forty-two out of the one hundred forty-four tunes in Bayley's collection appeared in Law's Select Harmony. Half of those were tunes for which Law received protection in his Connecticut grant. Legally, there was little Law could do. Bayley was printing in Massachusetts and Law's state grant was limited to Connecticut. Law's only remaining option was public denunciation. On November 17, 1784 he published the following in the Essex Journal:

"Andrew Law informs the public, that a book entitled ‘Select Harmony, chiefly by Andrew Law,' which is printed by Daniel Bayley of Newburyport is not chiefly, nor any part of it by him. The title is absolutely false. There are in that book ten or fifteen capital errors in a single page, and whoever purchases that book for Law's collection, will find it a very great imposition."[15]

Two weeks later Bayley published the following response in the Essex Journal:

"I would inform the publick, in answer to Mr. A. Law's charge, that the rules for singing, laid down in my book, as to the scales, characters, and examples are very nearly the same with Mr. Law, excepting some few emendations- as to the music, out of 65 pieces in Mr. Law's book, I have 45 of them in mine, with the addition of 100 psalms and hymn tunes and anthems. As to the errors, let him who is without cast the first stone."[16]

A few features of this exchange are noteworthy. The first thing to notice is that the focus of the public exchange was the allegedly misleading use of Law's name, leaving untouched the issue of copying. As mentioned, the claim that Bayley reproduced Law's tunes raised no formal legal problem. The marginalization of the question in the public exchange implies that it also did not raise serious issues of propriety. Reprinting tunes published by others was a very common practice in the time's music publishing business. It does not appear that anyone saw Bayley's behavior in this respect as particularly reprehensible. In fact, a close look at the content of Bayley's book reveals how unusual and novel was Law's later outraged reaction to the alleged piracy. Many of the tunes that appeared in both publications were published years earlier in other sources. Moreover, out of the forty-two shared tunes, sixteen, including three protected by Law's Connecticut grant, were published by Bayley himself in a 1774 book: John Stickney's, Gentleman and Lady's Musical Companion. This was years before Law published his Select Harmony and before he applied for copyright protection. Bayley used the same plates from the 1774 book to print the reprinted tunes in his new collection. In fact, it is very likely that it was Law who used tunes previously published in Bayley's very popular books in his later collections of tunes.[17]

The other issue raised in the debate was the allegedly misleading use of Law's name. Again, trying to capitalize on familiar names of authors and publishers and use them to attract customers was not an uncommon practice in the music publishing business of the time. Thus, the main thrust of Bayley's public defense of the propriety of his actions was claiming that there was nothing misleading in his book. His book, he explained, was "chiefly by Andrew Law" because of the similarities and overlap in content between the two works. The very element that under modern copyright thought may cause Bayley's actions to look questionable was the foundation of the public justifications he offered. The entire episode, demonstrates the novel and exceptional character at the time of Law's protective attitudes as a matter of both law and propriety. It also indicates, however, that Law embodied a newly appearing possessive approach and a strong, if not always consistent or entirely good-faith, sense of entitlement toward "his" publications.

Given his commercial awareness and protective attitude, it is not surprising that Andrew Law was one of the most active figures in the early American copyright system. He was responsible for many of the known registrations under the states' copyright statutes.[18] He registered works in Massachusetts (possibly in order to block his rival Bayley), Pennsylvania, New York and Maryland.[19] Once the federal regime was launched in 1790, [20] he attained no less than thirty-one registrations and deposited thirty works.[21] Law's 1781 Connecticut privilege grant towers up as the most important of his many dealings with the copyright system. Though not exactly the author's copyright that some later accounts made it, it remains an important landmark. The grant marked the beginning of the shift toward authors in American copyright thinking, the emergence of a new proprietary approach to the circulation of texts, and some early legal recognition to such an approach. It also reflected the extent to which this process was gradual and replete with ambiguities at this early stage.

4. John Ledyard and Other State Printing Privileges

During the 1780s several authors petitioned various state legislatures for individual privileges in their works. Noah Webster (1758-1843) is most known for his journeys in search of legislative privileges for his book,[22] but other authors too petitioned for and sometimes received such grants. State grants persisted after the states legislated general copyright statutes in the 1780s,[23] and even after the creation of the federal regime in 1790.[24] Authors probably kept applying for individual privileges either because they did not qualify under the general regimes, or because they hoped for better terms than the standard entitlements bestowed by these regimes. Connecticut, perhaps because of the precedent set by Andrew Law, was particularly industrious in this field. It awarded individual privileges to Robert Ross (1726-1799) in his Latin Grammar,[25] to Joel Barlow (1754-1812) for his book of psalms,[26] and to William Blodgett (1754-1809) for his map of the state of Vermont.[27]

The states' individual legislative grants were a transitory stage between the traditional publishers' legislative privileges and the new general regimes of authors' rights. Unlike colonial privileges, the grants were awarded to authors in their works. Equally important was the fact that for the first time arguments based on the notion of authors' rights in the fruit of their intellectual labor started to appear in the public discourse surrounding these grants. At the same time the grantees, the justifications they offered, and the grants themselves often relied on tropes taken from the more traditional vocabulary. The grant was frequently described and justified not so much in terms of authorship as in terms of "encouraging" an entrepreneur who offered a specific useful service to the public.

John Ledyard's (1751-1789) 1783 Connecticut petition for protection is demonstrative of this ambivalent character of state grants. Ledyard, who is considered to be the cause of Connecticut's general copyright statute, was an appropriately romantic figure. In 1773 at the end of his first year at Dartmouth College Ledyard was forced to leave the institution due to financial problems. He made a dugout canoe and paddled home to Hartford, Connecticut down the Connecticut River, in an event that left a lasting impression on Dartmouth.[28] Ledyard followed the common trail of young men in his position: he went to sea. In 1776 after some journeys and adventures, he joined as a mariner in the British Navy the crew of Captain James Cook's expedition. After the voyage, Ledyard was sent to America as a member of the British Navy. He deserted and returned to Hartford where he wrote his Journal of Captain Cook's Last Voyage.[29] The printer and bookseller Nathaniel Patten (1752-1834) agreed to pay him twenty guineas for the manuscript, a sum almost equal to Ledyard's entire pay for his four year journey with Cook. The fact that Ledyard wrote the account of the journey in four months and Patten's rush to publish it were reflected in the quality of the work. Nevertheless, the book was probably very popular and sold well.[30]

In January 1783 Ledyard petitioned the Connecticut legislature and asked for "the exclusive right of publishing the said Journal or history in this State for such a term as shall be thot fit."[31] Ledyard's petition is striking in its lack of emphasis on authorship and on authors' rights as the foundation of his claim. Following a lengthy description of his journeys, Ledyard's first plea was for patronage in the form of employment, or in the words of the petition:

"your Memorialist having lost his pecuniary assistance by his abrupt departure from the British is thereby incapacitated to move in a circle he could wish without the Assistance of his friends & the patronage & recommendations of the Government under which he was born & whose favour and esteem he hopes he has never forfeited: he therefore proposes as a matter of consideration to your Excellency and Council that he may be introduced into some immediate employment wherein he may as well be usefull to his country as himself during the War."

This was the plea of a subject asking for state patronage in exchange for what he saw as a useful public service. The same spirit pervaded the plea for printing rights that followed. His book, he wrote, "he thinks will not only be meritorious in himself but may be essentially usefull to America in general but particularly to the northern States by opening a most valuable trade across the north pacific Ocean to China & the east Indies." In return for this public benefit Ledyard asked for exclusive printing rights as yet another form of patronage.

A committee appointed by the legislature to consider the petition reported that "in their Opinion a publication of the Memorialist Journal in his voyage round the Globe may be beneficial to this United States & to the world, & it appears reasonable & Just that the Memorialist should have an exclusive right to publish the same for a Reasonable Term." Here came a surprising turn of events since the committee instead of recommending an individual bill for Ledyard suggested a general copyright statute. It observed that "it appears that several Gentlemen of Genius & reputation are also about to make similar Applications for the exclusive right [to] publish Works of their Respective Compositions," and recommended to "pass a general bill, for that purpose."[32] This recommendation resulted in the first general copyright regime in America, the Connecticut copyright statute enacted in January 1783.[33] Thus, Ledyard, together with the anonymous "Gentlemen of Genius" supplied the trigger for the first general American copyright regime. As the legislature probably assumed that the general act made an individual privilege redundant, Ledyard never received the grant for which he petitioned. Some accounts seem to assume that he or his publisher registered the book for protection under the state regime,[34] but there is no direct evidence of that.

The irony of the role played by Ledyard's petition in the rise of authorship-based copyright and in triggering an act specifying its purpose as the "Encouragement of Literature and Genius" was the fact that he borrowed extensive parts of his account and straightforwardly plagiarized others. Ledyard worked with John Hawkesworth's An Account of the Voyages Undertaken by the order of his Present Majesty for Making Discoveries in the Southern Hemisphere[35] that was based on the logs of several of Cook's first voyage officers, an anonymous 1781 book about the third voyage, and probably several other publications.[36] Apart from the use of anecdotes, factual information and occasional sentences from those sources, Ledyard copied verbatim the last thirty eight pages of his book from the 1781 anonymous publication.[37] The significant fact is that nobody seemed to care. Ledyard's biographer appears to be shocked by the "the appalling theft." He finds that Ledyard's behaviour was "blatantly in violation of the copyright ethos," and even attempts to absolve Ledyard by suggesting that his publisher Patten who was left with an incomplete manuscript may have been the culprit.[38] Contemporaries were less shocked. Since the 1781 anonymous book was circulating in the United States, readers would have known of the copying, but there is no evidence that anybody, including the Connecticut legislature, was concerned. The point is exactly that the original-authorship "copyright ethos" did not yet exist or was only in its early infancy. Ledyard was not presenting himself to the assembly as a genius creator of original ideas, but rather as an entrepreneur offering a useful service to the state. Thus, his literary borrowing was of little relevance.

The era of individual state printing grants that lasted until the end of the century was marked by the ambiguity and duality that characterized Law's and Ledyard's petitions. Like these two, many of the other state grants were still rooted in the old patterns of state patronage extended to a person who offered a useful public service. Another example of this is Joseph Purcell's 1792 South Carolina grant for a map of the state. Purcell was in charge of producing the map, but was not necessarily the person who actually created it. The grant of exclusivity was part of his appointment to the position of state Geographer.[39] On the other hand, the state grants were an important site where the reorientation of copyright toward authorship began to appear. The grantees were now authors rather than publishers, or at least held an ambiguous status in between these two categories. The public discourse surrounding the grants and the general state's acts often triggered by individual petitions sometimes showed signs of a new authorship-based ideology. The notions that the state encouragement was given to authors for their original creation and that authors deserved a just reward for the expense and labor that was invested in their intellectual creation gradually appeared and took root in this discourse. By the end of the century that would become the official ideology of American copyright. Episodes like Law's and Ledyard's grants would be re-conceptualized as instances of authors' grants, and the irony and ambiguities that pervaded them would be forgotten.

5. References

Bugbee, Bruce W. The Genesis of American Patent and Copyright Law (Washington: Public Affairs Press, 1967)

Crawford, Richard A. Andrew Law, American Psalmodist (Northwestern University Press: Evanston, 1968)

Gray, Edward G. The Making of John Ledyard: Empire and Ambition in the Life of an Early American Traveler (New Haven: Yale University Press, 2007)

Lehmann-Haupt, Helmut. The Book in America: A History of the Making, the Selling, and the Collecting of Books in the United States (New York: R.R. Bowker Co., 1939)

Lowens, Irving. "Copyright and Andrew Law." Papers of the Bibliographical Society of America 53 (1959): 150-59

Lowens, Irving. "Andrew Law and the Pirates." Journal of American Musicological Society 13 (1960): 206-23

Sanjek, Russell. American Popular Music and Its Business: The First Four Hundred Years (New York: Oxford University Press, 1988)

Zug, James. American Traveler: The Life and Adventures of John Ledyard, the Man Who Dreamed of Walking the World (New York: Basic Books, 2005)

Zug, James, ed. The Last Voyage of Captain Cook: The Collected Writings of John Ledyard (Washington D.C.: National Geographic Society, 2005)

[1] See the commentary for us_1672.

[2] Ibid.

[3] Russell Sanjek, American Popular Music and Its Business: The First Four Hundred Years, vol. 1 (New York: Oxford University Press, 1988), 5-6.

[4] See Irving Lowens, "Andrew Law and the Pirates," Journal of American Musicological Society 13 (1960): 206-23.

[5] See us_1781.

[6] See us_1781a.

[7] Lowens, "Andrew Law and the Pirates," no. 6, 210. Irving Lowens, "Copyright and Andrew Law," Papers of the Bibliographical Society of America 53 (1959): 150-59.

[8] The seminal bibliographical work on early American publications Charles Evans' American Bibliography has several references to a work entitled Collection of the Best and Most Approved Tunes and Anthems for the Promotion of Psalmody by Andrew Law. Lowens explains that these "would appear to be ghosts manufactured by Evans." Lowens, "Andrew Law and the Pirates," no. 6, 210. In another work Lowens explains in detail the circumstances that led to the mistake by Evans and others and to the entrenchment of the mistaken assumption that such a work existed. Lowens, "Copyright and Andrew Law," 158-59.

[9] Andrew Law, A Select Number of Plain Tunes Adapted to Congregational Worship (1775).

[10] Lowens, "Andrew Law and the Pirates," 212.

[11] See ibid., 208. Lowens reproduced the title pages of Law's Select Harmony and of Urania. Ibid., plate 1.

[12] For a comprehensive survey see ibid.

[13] Andrew Law, Rudiments of Music (Cheshire, Conn.: William Law, 1792).

[14] Complicating the matter is the fact that the only known copy of Bayley's collection is later than Law's Rudiments of Music where he deplored the piracy. Lowens explains that indirect evidence indicate the existence of a prior edition by Bayley and makes it possible to deduce its content. Lowens, "Andrew Law and the Pirates," 211-12. All further references in the text are to this presumed 1783 edition by Bailey.

[15] Cited in Lowens, "Andrew Law and the Pirates," 212.

[16] Cited in ibid.

[17] See ibid., Lowens, "Andrew Law and the Pirates," 212-13.

[18] See the commentary for us_1783a.

[19] Lowens, "Copyright and Andrew Law," 154-55.

[20] See the commentary for us_1790.

[21] See Lowens, "Copyright and Andrew Law," 154-58. The large number of registered items is in part the result of the fact that Law published some of his works in many parts.

[22] See the commentary for us_1783.

[23] See ibid.

[24] See the commentary for us_1790.

[25] Bruce W. Bugbee, The Genesis of American Patent and Copyright Law (Washington: Public Affairs Press, 1967), 110.

[26] Ibid.

[27] Ibid.

[28] James Zug, American Traveler: The Life and Adventures of John Ledyard, the Man Who Dreamed of Walking the World (New York: Basic Books, 2005), 19-20.

[29] John Ledyard, Journal of Captain Cook's Last Voyage to the Pacific Ocean (Hartford: Nathaniel Patten, 1783).

[30] Zug, American Traveler, 124.

[31] See us_1783.

[32] Ibid.

[33] See the commentary for us_1783a.

[34] Edward G. Gray, The Making of John Ledyard: Empire and Ambition in the Life of a an Early American Traveler (New Haven: Yale University Press, 2007), 95-6.

[35] John Hawkesworth, An Account of the Voyages Undertaken by the order of his Present Majesty for Making Discoveries in the Southern Hemisphere (London, 1773).

[36] Zug, American Traveler, 127-28.

[37] Ibid.

[38] Ibid., 128-29.

[39] See us_1792.