Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: us_1847

Commentary on George Ticknor Curtis's Treatise on the Law of Copyright (1847)

Oren Bracha

School of Law, University of Texas

Please cite as:
Bracha, O. (2008) ‘Commentary on George Ticknor Curtis's Treatise on the Law of Copyright (1847)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. George Ticknor Curtis and his Massachusetts Milieu

4. The Treatise: General Themes and Significance

5. The Treatise: Theory and History

6. The Treatise: Copyright Doctrine

7. The Significance and Influence of the Treatise

8. References

1. Full title

George Ticknor Curtis, A Treatise on the Law of Copyright in Books, Dramatic and Musical Compositions, Letters and Other Manuscripts, Engravings and Sculpture as Enacted and Administered in England and America; With Some Notices of the History of Literary Property 1847

2. Abstract

The First American legal treatise on the subject of copyright. The treatise, written by George Ticknor Curtis and published in 1847, anticipated the major developments of copyright law and doctrine during the nineteenth century. The commentary describes the intellectual environment that may have sparked the interest of Curtis in the field and helped to shape his outlook. It goes on to describe the general themes of the treatise, its theoretical, historical, and doctrinal content, and its reception by contemporary observers.

3. George Ticknor Curtis and his Massachusetts Milieu

Two treatises written by George Ticknor Curtis (1812-1894), one on copyright law[1] and another on patent law,[2] were the most substantial and comprehensive works produced in these fields in the United States before the Civil War. Until it was overshadowed by Eaton Drone's (1842-1917) momentous treatise in 1879, A Treatise on the Law of Copyright continued to tower high above anything else that was written and published about copyright law in the United States.[3] Seeing patent and copyright as closely related fields, Curtis originally planned to write one comprehensive work on the two, but realizing "that very different classes of persons, out of the legal profession, are interested in the two subjects" he created two distinct treatises and published them separately in 1847 and 1849.[4]

What exactly prompted Curtis to become interested in those fields of law and to write the two treatises remains a mystery, but much of the political, social, and intellectual context in which his interests took root can be traced. Curtis was born in Watertown Massachusetts, studied at Harvard College, went on to study law at Harvard Law School, and joined the bar in 1836. He was the younger brother of Benjamin R. Curtis (1809-1874) who in 1851 became a Justice of the Supreme Court. Curtis was a practicing attorney, a prolific writer, a historian, and an active public figure[5] though never "a machine politician."[6] As a young attorney and writer in Boston, Curtis moved in literary and legal circles and among those who stood at the intersection between the two groups. It is likely that within those circles he was exposed to issues relating to copyright. Curtis' life was interwoven with two specific Massachusetts figures who left their mark on the fields of patent and copyright. The first was Justice Joseph Story (1779-1845) who almost certainly taught Curtis at Harvard Law School. In 1844 Story, the inaugural Dane Professor and a Justice of the Supreme Court, became Curtis' father-in-law when Curtis married his daughter Mary Oliver Story.[7] Story had a special interest in patent and copyright law. He was involved in many cases in these fields and wrote some of the more known and influential opinions of the first half of the nineteenth century. From the bench Story played a prominent role in transforming the principles of copyright law and expanding its protection beyond the traditional English concept of making and selling verbatim copies of a book.[8] As will be explained, Curtis played a similar role as a treatise writer.

Curtis was also closely associated with Daniel Webster (1782-1852). Webster was the most famous lawyer of his time and a prominent statesman. He too took a special interest in patents and copyright and was personally involved in the developments of those fields. In 1823 Webster represented in Congress the interests of a group of Waltham and Lowell mill owners known as the Boston Associates who attempted to strengthen patent rights mainly through reforms of remedies and jurisdiction.[9] In 1831 he was involved in the lobbying that resulted in the reform of copyright and the extension of its duration.[10] As a lawyer Webster took part in several important patent and copyright cases. He represented the plaintiff Henry Wheaton in the 1834 Wheaton v Peters, the first Supreme Court copyright case.[11] He also represented Charles Goodyear in a very high-profile patent case involving his vulcanized rubber invention.[12] Curtis was a devoted political follower and associate of Webster.[13] He was a member of the Whig party in Massachusetts and later followed Webster to become one of the many "Cotton Whigs," a group of Old Line Whigs who joined the Democratic party in the late 1850s. In 1870 Curtis would publish a lengthy biography of Webster.[14] There are some indications that Webster and Curtis cooperated in their legal work on some cases, including the Goodyear case. It is likely that the influential figures of Story and Webster sparked Curtis' interest in patent and copyright and informed his views on these subjects.

4. The Treatise: General Themes and Significance

When the Treatise on the Law of Copyright was published in 1847 it was greeted with enthusiastic reviews and was generally recommended to both legal professionals and to "every man who would keep up with the enduring and respectable literature of the age."[15] The North American Review captured the general sentiment when it wrote: "[s]o far as we know, there is in our language no work upon Literary Property so complete and satisfactory as this treatise by Mr. Curtis."[16] The work was universally perceived as an important contribution to a battle to broaden and secure the rights of authors. As observed by one reviewer: "The circulation of Mr. Curtis's work will doubtless help, with other agencies, to secure for authors the full enjoyment of their just claims, which are now but partially protected."[17] Emphasizing this aspect of the treatise, most reviews, having little interest in the more doctrinal and technical parts, focused on the two opening chapters of the treatise. These chapters dealt with the theory and history of the rights of authors. The reviewers found in those chapters ample support for the two common causes of non-jurists who took interest in copyright from the perspective of supporters of literature: international copyright, and perpetual or at a minimum extended duration. The Literary World phrased this in particularly strong terms. It found that Curtis' achievement "must place his name hereafter with that of Talfourd, among the benefactors of literature and civilization."[18] The writer placed Curtis on a par with the famous English crusader for the extension of the copyright term because it found in his treatise support for his views on the two troubling questions of copyright. The first, as the reviewer observed, was "the American people" and "their semi-civilized representatives in Congress, who would still keep the mind of the country in a provincial condition at the expense of common honesty-plundering Englishmen for the sake of Anglifying Americans. And this they call ‘the dissemination of cheap knowledge!'" The second was the "tyrannical" insistence that a man "must only enjoy a fourteen years' lease of the estate which his father created out of nothing."[19] Most other reviewers, even if in less dramatic language, lauded the treatise's support for term extension and international copyright. In the two opening chapters Curtis supplied a natural-right-based theory and history of copyright, the logical conclusion of which was perpetual protection, although Curtis also suggested, as a practical compromise, a limited term extending beyond the author's life.[20] Although the subject of international copyright was deliberately avoided in the treatise, reviewers were quick in identifying that Curtis' theoretical outlook strongly supported such protection. Curtis himself concluded his short preface by confessing that "I could not dismiss this work from my hands, without avowing myself an advocate of an international copyright."[21]

The reviews more specifically written for a legal audience noted a similar trend in the doctrinal parts of the treatise: the common thread of these chapters was the drive to expand the scope and strength of copyright protection. Most striking to reviewers in this respect was Curtis' analysis of abridgments, where he unleashed a fierce attack on traditional English doctrine that exempted good faith abridgments as non-infringing. The North American Review, for example, found that "Mr. Curtis has completely disposed of this doctrine; his argument is unanswerable." To drive home this point the review paraphrased Mr. Bumble, Charles Dickens' character in Oliver Twist: "If an abridgment in the eye of the law, is no piracy, - then the law is not an author; and the worst we wish the law is, that his eye may be opened by abridgement, - by abridgement."[22]

The copyright and patent treatises written by Curtis were an important contribution to the emerging tradition of treatise writing in the United States. They were published at the end of a period in which comprehensive and original American law treatises were still rare.[23] Given their subject-matter Curtis' treatises were probably not as widely read as some of the more successful treatises of the period. Nevertheless, they were impressive attempts to organize in an analytically coherent way an entire field of law. Curtis explicitly explained that a legal writer "should never forget that he is dealing with principles; that it is his task, to exhibit the doctrine of the law, which is its life; and that unless he does this, his work, however accurately he may have strung the cases together, will be a mere collection of husks, the shell without the germinating principle that lies wrapt in the meat." He saw his task as "eliminating the principle of a rule of decision, tracing it in all its bearings and following it by the thread of analogy into other systems of jurisprudence, in order to ascertain whether it be really part of the general science, and not a local idea."[24] But Curtis also observed that "I have not hesitated to express my own opinion;" a style which he contrasted with "the dry abstract of the decisions" he imputed to "[w]riters of treatises, in the manner of the English bar."[25] Whether it was Curtis' quest for general principles or the dearth of American cases on some copyright issues, the treatise had a strong multi-jurisdictional character. Each chapter treated both English and American law and there were many anecdotes and references to other jurisdictions scattered in the text and footnotes. The treatise was published both in Boston and in London. The British publisher - Maxwell - must have assessed that there would be significant demand in the British market, despite the existence of several British treatises on the subject. At least in America the Treatise on the Law of Copyright was seen as part of an ongoing transatlantic conversation. When in 1870 W.A. Copinger (1847-1910) published his seminal copyright treatise[26] in Britain, one American reviewer described it as "an indispensable supplement" to Curtis' work.[27] There may have been something to that observation. In a move uncharacteristic for British treatise writers, Copinger included references to American cases and borrowed heavily from Curtis in substantial and crucial parts of his text.[28]

5. The Treatise: Theory and History

Curtis opened his treatise with two lengthy chapters about the "theory of rights of authors" and "the history of literary property." These introductory chapters merit special attention because they reveal much about Curtis' fundamental concepts and beliefs about copyright, the recurring themes of his treatise, and the internal tensions underlying it. The theory section was devoted to developing a natural rights justification of copyright as a property right and to reconciling this justification with copyright's limited and restrictive statutory regime. The treatise opens by asking "whether the right, to which jurists have given the name of Literary Property, has any foundation in the principles of that code of general law, which defines and establishes other kinds of property."[29] By "that code of general law" Curtis meant "natural law" and "the principles of general right."[30] Curtis answered this question using a strategy that had become a fixture of copyright's discourse since the British literary property debate a century earlier: developing a general theory of property rights within which copyright could take its proper place as having all the essential characteristics of property.[31] Interestingly, however, Curtis denied the need "to enter into elaborate disquisitions upon the origin of property, or even to select from the various theories which different jurists or ethical writers have pronounced concerning it."[32] His was to be a social (rather than legal) positivist theory of property. It started with the undisputable social fact of "the existence of property" and looked at prevailing social practices to find "certain great characteristics which mankind have universally attributed to the right thus found to exist." Those universal social practices, Curtis explained, would "answer the question - most material in the present discussion - What constitutes property?" Once this question was answered it could be established whether copyright "possess the general attributes of property."[33] Despite this official positivist method of inquiry, normative assumptions about just desserts to those who create intellectual works through their intellectual labor would spring up and sneak in through the backdoor in critical junctures later in Curtis' analysis.

Furthermore, to find the universal traits of property Curtis would not turn "to any speculations upon the condition of man in that imaginary state, which has been called the state of nature." Rather, he would look to the point after "society is formed and an advanced stage of civilization has been reached." Within civilized society Curtis could find the two social phenomena he saw as constitutive preconditions of copyright: "[t]he art of printing as well as every other systematic art of exhibiting ideas to the eye by means of characters in any form and or any substance;" and "the exchange of what is thus created for any other valuable commodity, or for the common representatives of value."[34] These would be recurring themes in the treatise: the protection of any communication of ideas through signs irrespective of form and substance; and the goal of protecting market value.

What, then, were the essential characteristics defining property? Curtis identified three essential conditions. First, there was individual as opposed to community possession and entitlement, what Curtis called a thing "that is not common to the whole race, but belongs to a less number than the whole human family, whether one or more individuals."[35] Second, property entailed the individual right to use and exclude, referred to by Curtis as the full and exclusive "right of possession and use."[36] The third hallmark of property was alienability or "the faculty of transmission, by exchange, or sale, or gift."[37] Generalizing on this, Curtis found that "whatever admits of occupancy and of the transmission of occupancy may be the subject of property."[38]

How did the "claim of authors" fare under these criteria? Was it part of the commons identified by Curtis as the air, light and ocean or part of private property such as "the earth, and everything upon or beneath it"[39]? Here Curtis used another rhetorical move common in the literary property debate both in Britain[40] and more recently the United States:[41] limiting the author's claim to "exclusive multiplication and sale of copies,"[42] rather than "the exclusive possession or appropriation intellectually, of the ideas and sentiments which he originates."[43] While admitting that exclusive occupancy of the latter after publication was impossible, Curtis found that the former "involves the general attributes that belong to property" and that "there is no reason why it should not be placed among the rights of property."[44] In Curtis' account "[t]he author of every original literary composition creates both the ideas and the particular combination of characters which represents those ideas."[45] At this initial point "[b]oth are new, both have never existed before, and both are capable of being retained in the exclusive possession of the original inventor."[46] However, "[a]s soon as publication takes place" the two are decoupled: the author rescinds his right in the ideas but retains the "exclusive multiplication of copies of that particular combination of characters."[47] According to Curtis two factors assure the power of the author to reserve his property right in regard to the published copy: "his exclusive title to his invention, and... the fact that each copy constitutes a valuable commodity, which he can exchange for other possessions."[48] But how was the "exclusive title" after publication different in regard to the ideas and the specific expression used? Here Curtis turned to a fiction of an implied contract explaining that when the author assigns a copy of his work he also "tacitly annex the condition, that other copies shall not be multiplied from the copy that he sells."[49] At the end the "exclusive title" based on the fiction of an implied contract collapsed into the protection of value rationale. As Curtis explained:

"When the purchaser of a single copy of a book pays for it whatever may be the current price set by the author, if he can by the rules of natural law, be supposed to acquire thereby all the uses of which the copy is capable, including the faculty of indefinite multiplication, he purchases for a grossly inadequate consideration what is perhaps a mine of wealth. The profits which may be derived from the indefinite multiplication of copy justly belong to some one. The author has created the opportunity of reaping them, and is the sole owner of the original copy from which all others must be taken... To hold that he intends to sell it, when he parts with a single copy of his composition for a price... is wholly inconsistent with the rules of natural justice."[50]

Curtis' natural property right argument pivoted on this point. The argument was built on conceiving the author's work as a market commodity - a generator of profits - and identifying the author, the creator of the source of wealth, as justly entitled to all the market value associated with it. It also was the main place where the normative assumptions which Curtis' positivist attitude rejected at the outset crept back into the analysis.

It was at this point of the argument that an inherent tension, one which would underlie the entire treatise, became apparent. Using a familiar trope from the literary property debate and anticipating the modern idea/expression dichotomy, Curtis relied heavily on the assumption that copyright was limited to the right of reproducing the exact characters of the original or to the "multiplication of copies" and did not extend to the ideas embodied in the composition. At the same time, however, Curtis based his justification of the author's right on his entitlement to the market profits generated by his work, now conceived as a commodity. The market value orientation, as evidenced in the later chapters of the treatise, would create a tendency to conceptualize increasingly remote and derivative uses of the original work, far removed from the making of copies, as capitalizing on profits attributable to it. This, in turn, would exert constant pressure to abstract and expand the scope of copyright protection well beyond verbatim copying. Thus the claim of copyright as the protection of expression only and its conceptualization in terms of market value would be in constant tension throughout the treatise.

It was well after completing his natural property right argument, on page 18, that Curtis finally turned to the more common justification of copyright on the grounds of social utility, or what he termed "policy." Here he offered the standard incentive argument explaining that "literature flourishes most when it reaps the rewards consequent upon" copyright protection.[51] Blurring the line between the two modes of justification, he also argued in length that "the highest policy of society is justice."[52]

Curtis concluded the theoretical introduction by trying to tackle the obvious disjunction between his sweeping natural rights theory of copyright and the limited statutory copyright regime. "[I]t may be asked," he pointed out, "how the actual legislation of most countries, limiting the duration of an author's right, is to be reconciled with the theory which gives him, if it gives anything, a perpetuity?"[53] The answer was less than satisfactory. "The actual legislation on this subject," Curtis wrote, "should be regarded as a compromise." Giving effect to the natural rights of authors required remedies, penalties, and enforcement supplied by the state, which was willing to supply them only to the extent "it finds such a course beneficial to its own interests."[54] Thus the specific issue of perpetual duration involves "some inconveniences," resulting in society requiring "as the price of its active protection by stringent enactment, that the author and his representatives should surrender a part of their full right regarded as a right according to the general principles of natural justice."[55] Duration thus becomes "a mixed question of policy and justice", but "the interests of literature, as well as the dictates of natural justice, require that the children of an author should be secured in the enjoyment of the right, for some period after his capacity to provide for them has ceased."[56] This expressed another recurring tension in the treatise: a strong appeal to natural rights justification of copyright, accompanied by a begrudging acceptance of the imperfections of the actual positive regime, accompanied, in turn, by arguments for expansion of protection under that regime in the name of justice and natural rights.

The second chapter dealt with similar themes from an historical perspective. Curtis' difficulty, here, was again to reconcile his natural property rights conception of copyright with its origin in both England and the United States in various statutory enactments and royal prerogative measures. The solution was a fictitious but elaborate account of the origin of copyright in England and the United States in the common law. In Curtis' words, "[t]he question whether, at the common law, the author... formerly had a perpetual right of property in his work, has been attended with difficulty; but whoever, at the present time, carefully considers the various authorities upon the question, and the manner in which it came finally to be settled against the perpetual right of property, can have little doubt that such a right once existed in England." It followed that "subsequent legislation, so far as it abridged this right of property, took away what once belonged to authors by the common law of England."[57] In regard to the pre-Statute of Anne period Curtis surveyed the various decrees and regulations of the press in England, weaving two motifs into the account. The first was the claim that throughout this period a common law right of authors existed and that the various regulations of the press recognized or assumed such a right. As a historical assertion this claim was baseless.[58] Nonetheless, Curtis relied on an assortment of textual hints and interpretive inferences to prove it. The second theme distinguished between the alleged common law copyright and the despised framework of censorship and press regulation within which it was embedded, or what Curtis called "lights to which we should not turn for safe guidance upon any question of public nature."[59] Curtis tried to both trace common law copyright to the sixteenth century and prevent it from being tainted by any association with the infamous Star Chamber. When discussing the post-Statute of Anne British case law Curtis praised the various common law and equity cases that recognized common law copyright or that Curtis interpreted as providing support for such a claim. The problem was, of course, the 1774 Donaldson v. Becket in which the House of Lords overruled prior precedents and refused to recognize common law copyright.[60] Relying on the opinions of the common law judges in the case, Curtis explained that a clear majority of the eleven judges were of the opinion that a common law copyright previously existed in England, although a thin majority of six found that the common law right was "impeached" by the Statute of Anne. What Curtis neglected to emphasize, was that the opinions of the judges were merely non-binding advisory opinions.[61]

Turning to the United States, Curtis constructed a similar account of a common law right that was later preempted by judicial interpretation of statute. The basis of this claim was the allegedly established fact of common law copyright in England, coupled with the principle that "the colonist brought with them into each colony all the body of the common law of England which was applicable to their situation."[62] Curtis' application of these assumptions was that in any colony where any books were "published... at any time before they legislated on the subject" there were no conditions inconsistent with common law copyright. Therefore common law copyright existed in those colonies and later states although "the right lay dormant... for a long period of time."[63] Curtis was treading on dangerous ground here. Thirteen years before in Wheaton v. Peters a majority of the Supreme Court found that no common law copyright existed in the United States.[64] His late father-in-law Justice Joseph Story voted with the majority and played an active role behind the scenes of the case.[65] While recognizing some conflict between his views and Wheaton v. Peters, Curtis also found a way of reading the main thrust of that decision in a way that was consistent with his argument.[66] Wheaton v. Peters, he explained, was correct in finding that the Constitution and the 1790 Copyright Act "created copyright throughout the United States" in the sense that preexisting common law copyright was limited to the boundaries of the states and could not supply national protection.[67] In other words, national copyright was statutory only, but common law copyright existed within the jurisdictions of the older states.

Curtis' history of common law copyright in England and the United States appears to have been written mainly to serve and fit his theoretical claim about copyright as a natural property right. It is possible, however, that the historical account, based on the assumption of preexisting copyright that was preempted by statute, was the basis of the entrenched doctrine of common law copyright in unpublished works. As Curtis explained in his discussion of manuscripts, while common law copyright in published works had been preempted by statute "the author or owner of an unpublished manuscript possesses a property therein... [t]his is a right at common law, and is of course wholly independent of the statutes which create property after publication."[68] Curtis cited a long list of English cases supporting this proposition, but the only American case he referred to was Folsom v. Marsh, which did not explicitly recognize such a rule.[69] Nevertheless, the myth that common law copyright existed prior to the statute and was not preempted in regard to unpublished works was eventually entrenched. In the second half of the nineteenth century, possibly following Curtis' views, the dichotomy between statutory copyright in published works and common law copyright in unpublished ones became the accepted rule in the United States.[70]

The themes that shaped the introductory, theoretical, and historical chapters at the outset would recur throughout the treatise and inform the doctrinal discussions: an uneasy combination of a concept of copyright as a natural property right and an acceptance of the limited statutory regime; an underlying understanding of copyright as premised on the principle of protecting the market value of the work; and a tension between the claim that copyright is a limited control of the multiplication of copies and a constant drive to abstract and expand the scope of protection.

6. The Treatise: Copyright Doctrine

The most striking aspect of the 1847 treatise to the present observer is the similarity of its organization and classification to modern copyright law. The treatise includes certain topics such as originality or infringement by non-literal copying that traditionally did not occupy a dominant position in copyright law and thought. In this respect as well as in terms of his substantive views, it seems that Curtis played an important role in constructing the modern understanding of copyright in the United States. The doctrinal chapters of the treatise treated the following issues: subject matter, persons entitled to protection, content control and restrictions, originality, formalities, assignment, infringement, and remedies. The subject matter section reflected the transitional state of copyright in the middle of the nineteenth century. On the one hand, Curtis' discussion was not limited to books or even to the traditional product of the printing press. It included, inter alia: letters, lectures, dramatic compositions, engravings, maps, sculptures and printed music. Nevertheless, printed materials were still treated as the core area of copyright protection, or in the words of one reviewer "[t]he literary part of the subject, however, has the most comprehensive application, and involves the largest interest."[71]

The chapter on content control or "the character of the work claiming protection" signified Curtis' break with traditional British approaches to copyright. Although since 1710 English copyright law was formally detached from its origin in censorship regulation, there were still important remnants of these origins in British case law. Various cases and doctrines denied copyright protection on the basis of the "bad inclinations" of the work's content as in the case of works deemed "injurious to public morals," "injurious to religion," or "injurious to the public peace." While Curtis acknowledged "the general right in every political society, to declare upon grounds of public policy in what things it will permit its members to claim and exercise the right of property," he was very critical of what he saw as the overzealousness of British judges to evaluate the content of works.[72] Throughout the chapter Curtis tried to interpret each doctrine in a restrictive manner that minimized the discretion of courts to deny copyright protection on the basis of their judgment of the work's content. In this respect Curtis was a forerunner of what by the end of the century would harden into a strict content-neutrality attitude by American courts.

Another innovative chapter was the one devoted to the originality requirement. Earlier in the century, copyright in Britain and the United States, still shaped by its origin as the publisher's trade privilege, did not contain any such requirement. In the decades preceding the publication of the treatise the originality of the work began to emerge as a prerequisite for protection. Curtis elevated the doctrine to a new dominant position in copyright thought. He devoted a whole chapter to the originality requirement and traced it to copyright's focus on authorship. As he explained at the outset of the chapter, "an author cannot have been the author of what he borrowed from another" and the term Author "ex vi termini imports originality."[73] To the last observation, however, Curtis added the qualifier "to some extent." Thus when it came to the content of the originality requirement he followed the line set by Justice Story in Emerson v. Davies and argued in earnest that originality required neither utility or merit of the work nor novelty in relation to existing works.[74] Indeed, Curtis pointed out that "[t]he law does not require that the subject of a book should be new, or that the materials of which it is composed be original."[75] This duality of a fundamental originality requirement that does not require originality would become a main feature of American copyright law.

The longest, most innovative, and most indicative of new copyright thought as molded by Curtis was the chapter dealing with infringement. Two related intellectual shifts dominated this chapter. The first was a decline of an intentionalist concept of infringement. Traditionally, the question of copyright infringement, at least when non-verbatim reproduction was involved, was understood in terms of bad intentions by the copier. Older English cases inquired whether the defendant's version involved merely "colourable and fraudulent variations"[76] on the original, and whether it used the original with "animus furandi" (meaning the intent to steal).[77] In the second edition of his treatise published in 1844, the English commentator Richard Godson still discussed "animus furandi" in this context.[78] Curtis, establishing the "objective" character of modern copyright infringement, explicitly rejected this formula and purged the infringement analysis of any intentionalist ingredients:

"the question of intention does not enter directly into the determination of the question of piracy. The exclusive privilege that the law secures to authors, may be equally violated, whether the work complained of was written with or without the animus furandi- the intention to take what belongs to another, and thereby to do an injury."[79]

The second shift was the expansion and abstraction of the scope of copyright protection. Traditional copyright doctrine limited protection to the making of copies conceived of as verbatim reproduction and an additional narrow penumbra of reproduction with merely "colourable" changes. The focus of this approach was on the extent to which the secondary use made some new independent contribution beyond the original on which it drew. This left ample breathing space to many secondary uses such as abridgements, translations, and adaptations as long as they were created bona-fide, that is, not simply as evasion of the verbatim copying prohibition.[80] Curtis, following several seminal cases decided by Justice Story, rejected this approach.[81] He set an altogether different principle that was intimately connected to his understanding of the work as a commodity and of copyright as the protection of market value:

"while the public enjoys of reading the intellectual contents of the book to the author belongs the exclusive right to take all the profits of publication which the book can, in any form, produce."[82]

The outcome of this principle was destabilization of the traditional rule that shielded secondary uses and an expansion of the scope of protection. Curtis devoted lengthy discussions to various secondary uses such as abridgments, translations, quotations, and extracts. The same pattern recurred in each discussion: instead of the old rules that allowed such uses unless found to be evasive or colorable reproduction, Curtis advocated new tests that were much more likely to yield a finding of infringement, unless exceptional circumstances could be shown.

Curtis' discussion of abridgements was representative of this shift and at the time was the most cited and influential example of it. In the same year that Curtis published his treatise, the traditional rule shielding abridgments from copyright liability came under strain in the courts. In Story v. Holcombe[83] Justice McLean observed that "the inquiry is, what effect" secondary uses "have upon the original work," and that whenever such uses "render it less valuable by superseding its use, in any degree, the right of the author is infringed."[84] This test of infringement was satisfied in relation to an abridgement almost by definition because "an abridgment, if fairly made, contains the principle of the original work, and this constitutes its value."[85] This led McLean to view the traditional abridgement rule as baseless. He accepted it begrudgingly as a binding precedent noting that "I yield to it in this instance more as a principle of law, than a rule of reason or justice."[86] Curits, by contrast, carried the logic of this analysis to its natural conclusion. He observed that "the general doctrine of English law on the subject of Abridgements needs revision" since its principle "cannot be carried out consistently with the established rights of literary property."[87] He reached this conclusion by shifting the focus from the contribution of the new work to its effect on the market value of the original:

"When we consider the incorporeal nature of literary property, it will be apparent that no writer can make and publish an abridgment, without taking to himself profits of literary matter which belong to another...the very form in which this matter is reproduced, of necessity tends to the injury of the true proprietor. The real object of most abridgements is to undersell the original work."[88]

Framing the question as "whether the property of the original author can be taken, and the taking be justified by any amount of learning, judgment, or invention,"[89] Curtis had no hesitation in answering it in the negative and classifying the abridgement as an infringement.

The objective analysis of infringement, free from any inquiries about intentions, and the expansion of the protection of the work's market value, as epitomized by Curtis' attack on the abridgement, anticipated and shaped the core developments of American copyright law. In the ensuing half century those two features would gradually become the new dominant principles of the copyright paradigm in the United States.

7. The Significance and Influence of the Treatise

It is hard to assess the impact of the Treatise on the Law of Copyright. As noted earlier, when it was published reviewers unanimously praised the work, recommending it to professionals and laymen alike. It dominated the American scene for more than thirty years until the publication of Drone's treatise, and it even had a substantial influence on one of the leading British writers on the subject. Yet in reported federal cases up to the end of the nineteenth century one finds only two citations to the treatise.[90] This may be a poor indication of the treatise's status. During its heyday, citations of treatises in American court opinions was not a very common practice. Moreover, a cursory glance at versions of copyright decisions different than the official reports reveals more references to the treatise.[91] It is plausible that the Treatise on the Law of Copyright, with its coherent and comprehensive organization of the field and its longstanding exclusivity, was a resource widely used by American jurists whose work touched copyright law. Be that as it may, the treatise was a major landmark in the transition from traditional eighteenth-century copyright law and thought to modern copyright. It foreshadowed all the important features of modern copyright law in the United States, and quite possibly contributed to their development.

8. References

Cases

British

Cary v. Kearsley (1802) 4 Esp. 170.

Donaldson v. Becket (1774) 4 Burr. 2408.

Millar v. Taylor (1769) 4 Burr. 2302.

American

Bartlett v. Crittenden, 2 F. Cases 967, 970 (C.C.D.Oh.1849).

Callaghan v. Myers, 128 U.S. 617 (1888).

Emerson v. Davies, 8 F. Cases 615 (C.C.D.Mass. 1845).

Folsom v. Marsh, 9 F.Cases 342 (C.C.D.Mass. 1841).

Goodyear v. Day, 10 F. Cases 678 (C.C.D.N.J. 1852).

Gray v. Russell, 10 F. Cases 1035 (C.C.D.Mass. 1839).

Lawrence v. Dana, 15 F. Cases 26 (C.C.D. Mass. 1869).

Paige v. Banks, 80 U.S. 608 (1872).

Parton v. Prang, 18 F. Cases 1273 (C.C.D.Mass. 1872).

Story v. Holcombe, 23 F. Cases 171 (C.C.D.Oh. 1847).

Wheaton v. Peters, 33 U.S. 591 (1834).

Primary Sources

Curtis, George Ticknor. The Last Years of Daniel Webster, a monograph (New York: D. Appleton, 1878)

________. The Life of Daniel Webster. 2 vols (New York: D. Appleton and Company, 1870)

________. A treatise on the law of patents for useful inventions: as enacted and administered in the United States of America (Boston: C.C. Little and J. Brown, 1849)

________. A Treatise on the Law of Copyright in Books, Dramatic and Musical Compositions, Letters and Other Manuscripts, Engravings and Sculpture as Enacted and Administered in England and America; With Some Notices of the History of Literary Property (Boston: C.C. Little and J. Brown, 1847)

Copinger, Walter Arthur. The Law of Copyright in Works of Literature and Art including that of the drama, music, engraving, sculpture, painting, photography and ornamental and useful designs, together with international and foreign copyright, with the statutes relating thereto, and references to the English and American decisions (London: Stevens and Haynes, 1870)

Drone, Eaton S. A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States: Embracing Copyright in Works of Literature and Art, and Playwright in Dramatic and Musical Compositions (Boston: Little, Brown, 1879)

Godson, Richard. A Practical Treatise on the Law of Patents for Inventions and Copyright, illustrated by notes of the principal cases, with an abstract of the laws in force in foreign countries, 2nd ed (London: W. Benning 1844)

Owen, Samuel, ed. "U. S. Circuit Court; [Southern District of New-York] IN EQUITY. Before the Honorable SAMUEL NELSON, one of the Assistant Justices of the Supreme Court of the United States. SAMUEL C. JOLLIE V. JOHN D. JAQUES and JAMES M. JAQUES. COPYRIGHT OF MUSICAL COMPOSITION--DELIVERING A COPY OF COMPOSITION TO LIBRARIAN OF SMITHSONIAN INSTITUTE AND A COPY TO THE LIBRARIAN OF THE CONGRESS LIBRARY, NOT A PRE-REQUISITE TO A TITLE TO A COPYRIGHT--COPYRIGHT TO THE TITLE OF A BOOK, COMPOSITION, ETC.--INJUNCTION--ISSUE OF LAW." The New-York Legal Observer, 9 (1851): 11-18

________. "U. S. Circuit Court [Rhode Island] Before the Honorable LEVI WOODBURY, one of the Assistant Justices of the Supreme Court of the United States, and Hon. Mr. Justice PITMAN, District Judge for Rhode Island District. Tried at Newport, on the 17th and 18th July, 1850. JAMES STEVENS V. ROYAL GLADDING and ISAAC T. PROUD. PURCHASER OF ENGRAVED PLATE-COPYRIGHT." The New-York Legal Observer 8 (1850): 297-304

"United States Circuit Court; Southern District of New York.--In Equity. Before the Hon. SAMUEL NELSON, one of the Assistant Justices of the Supreme Court of the United States. SAMUEL C. JOLLIE v. JOHN D. JAQUES and JAMES M. JAQUES. Copyright of Musical Composition--Delivering a copy of Composition to Librarian of Smithsonian Institute, and a copy to the Librarian of the Congress Library, not a prerequisite to a title to a copyright--Copyright to the title of a book, composition, etc.--Injunction--Issue of Law." American Law Journal 10 (1851): 402-410

"Curtis on Literary Property." Unsigned review of A Treatise on the Law of Copyright in Books, Dramatic and Musical Compositions, Letters and Other Manuscripts, Engravings and Sculpture as Enacted and Administered in England and America; With Some Notices of the History of Literary Property by George Ticknor Curtis. The North American Review 67, no. 1 (1848): 161-173

Unsigned review of A Treatise on the Law of Copyright in Books, Dramatic and Musical Compositions Letters and Other Manuscripts, Engravings and Sculpture as Enacted and Administered in England and America; With Some Notices of the History of Literary Property, by George Ticknor Curtis. Christian Examiner and Religious Miscellany 44, no. 3 (1848): 464-465

Unsigned review of The Law of Copyright in works of Literature and Art, including that of the Drama, Music, Engraving, Sculpture, Painting, Photography, and ornamental and useful Designs; together with International and Foreign Copyright, with the Statistics relating thereto, and references to the American and English Decisions, by Walter Arthur Copinger. The American Law Review 5, no.2 (1871): 337-338

Unsigned review of A Treatise on the Law of Copyright... by George Ticknor Curtis. The Literary World (New York) 3 (February 1848): 1-3

Unsigned review of A Treatise on the Law of Copyright...by George Ticknor Curtis. The Southern Literary Messenger 14, no. 2 (1848): 128

Books and Articles

Abrams, Howard B. "The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright." Wayne Law Review 29 (1983): 1119-1192

Calhoun, Richard Frank. "George Ticknor Curtis: Nineteenth-Century Constitutional Historian and Publicist." (PhD diss., University of Maryland at College Park, 2001)

Friedman, Lawrence Meir. A History of American Law, 2nd ed (New York: Simon and Schuster, 1985)

Kaplan, Benjamin. An Unhurried View of Copyright (New York: Columbia University Press, 1967)

Leach, Richard H. "George Ticknor Curtis and Daniel Webster's ‘Villainies.'" The New England Quarterly 27 (1954): 391-395

Lubar, Steven. "The Transformation of Antebellum Patent Law," in "Patents and Inventions." Special Issue, Technology and Culture 32, no. 4 (1991): 932-959

Prince, Carl E. and Seth Taylor. "Daniel Webster, the Boston Associates and the U.S. Government's Role in the Industrialization Process, 1851-1830." Journal of the Early Republic 2 (1982): 283-299

[1] George Ticknor Curtis, A Treatise on the Law of Copyright in Books, Dramatic and Musical Compositions, Letters and Other Manuscripts, Engravings and Sculpture as Enacted and Administered in England and America; With Some Notices of the History of Literary Property (Boston: C.C. Little and J. Brown, 1847).

[2] George Ticknor Curtis, A Treatise on the Law of Patents for Useful Inventions: as Enacted and Administered in the United States of America (Boston: C.C. Little and J. Brown, 1849).

[3] Eaton S. Drone, A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States: Embracing Copyright in Works of Literature and Art, and Playwright in Dramatic and Musical Compositions (Boston: Little, Brown, 1879). See the us_1879a commentary.

[4] Curtis, A Treatise on the Law of Copyright, iii.

[5] Dictionary of American Biography, 1958 ed., s.v. "Curtis, George Ticknor."

[6] "George Ticknor Curtis Dead," New York Times, March 29, 1894.

[7] Dictionary of American Biography, 613

[8] See the us_1841 commentary.

[9] Steven Lubar, "The Transformation of Antebellum Patent Law," in "Patents and Invention," special issue, Technology and Culture 32, no. 4 (1991): 932, 938; Carl E. Prince and Seth Taylor, "Daniel Webster, the Boston Associates and the U.S. Government's Role in the Industrialization Process, 1851-1830," Journal of the Early Republic 2 (1982): 283-299.

[10] See the us_1831 commentary; us_1826; us_1826a.

[11] 33 U.S. 591 (1834). See the us_1834 commentary.

[12] Goodyear v. Day, 10 F. Cas. 678 (C.C.D.N.J. 1852).

[13] See Richard H. Leach, "George Ticknor Curtis and Daniel Webster's ‘Villainies'," The New England Quarterly 27 (1954): 391.

[14] George Ticknor Curtis, The Life of Daniel Webster 2 vols. (New York: D. Appleton and Company, 1870). See also George Ticknor Curtis, The Last Years of Daniel Webster, a monograph (New York: D. Appleton, 1878).

[15] "Notices of New Works," unsigned review of A Treatise on the Law of Copyright in Books, Dramatic and Musical Compositions, Letters and other Manuscripts, Engravings and Sculpture, as enacted and administered in England and America, with some notices of the History of Literary Property, by George Ticknor Curtis, The Southern Literary Messenger 14, no. 2 (1848): 128.

[16] "Curtis on Literary Property," unsigned review of A Treatise on the Law of Copyright in Books, Dramatic and Musical Compositions... by George Ticknor Curtis, The North American Review 67, no. 1 (1848): 161, 166.

[17] Unsigned review of A Treatise on the Law of Copyright in Books, Dramatic and Musical Compositions...by George Ticknor Curtis, Christian Examiner and Religious Miscellany 44, no. 3 (1848): 464-465.

[18] "Reviews," unsigned review of A Treatise on the Law of Copyright in Books, Dramatic and Musical Compositions...by George Ticknor Curtis, The Literary World (New York) 3 (February 1848): 1, 2-3.

[19] Ibid., 3.

[20] Curtis, A Treatise on the Law of Copyright, 25

[21] Ibid., vii.

[22] "Curtis on Literary Property," 173.

[23] Lawrence Meir Friedman, A History of American Law, 2nd ed. (New York: Simon and Schuster, 1985), 326-333.

[24] Curtis, A Treatise on the Law of Copyright, vi.

[25] Ibid., v.

[26] Walter Arthur Copinger, The Law of Copyright in Works of Literature and Art including that of the drama, music, engraving, sculpture, painting, photography and ornamental and useful designs, together with international and foreign copyright, with the statutes relating thereto, and references to the English and American decisions (London: Stevens and Haynes,1870). See Ronan Deazley's commentary on uk_1870.

[27] "Book Notices," unsigned review of The Law of Copyright in works of Literature and Art, including that of the Drama, Music, Engraving, Sculpture, Painting, Photography, and ornamental and useful Designs; together with International and Foreign Copyright, with the Statistics relating thereto, and references to the American and English Decisions, by Walter Arthur Copinger, The American Law Review 5, no.2 (1871): 337.

[28] See the uk_1870 commentary.

[29] Curtis, A Treatise on the Law of Copyright, 1-2.

[30] Ibid.

[31] See uk_1774e.

[32] Curtis, A Treatise on the Law of Copyright, 3.

[33] Ibid., 4.

[34] Ibid., 2.

[35] Ibid., 5.

[36] Ibid., 6.

[37] Ibid.

[38] Ibid., 6-7.

[39] Ibid., 8.

[40] See uk_17?_com

[41] See the us_1834 commentary.

[42] Curtis, A Treatise on the Law of Copyright, 11.

[43] Ibid., 9.

[44] Ibid., 11.

[45] Ibid., 11-12.

[46] Ibid., 12.

[47] Ibid., 13.

[48] Ibid., 12-13.

[49] Ibid., 14.

[50] Ibid., 15-16.

[51] Ibid., 19.

[52] Ibid., 18.

[53] Ibid., 24.

[54] Ibid., 23-24.

[55] Ibid., 25.

[56] Ibid., 25.

[57] Ibid., 26-27

[58] Howard B. Abrams, "The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright," Wayne Law Review 29 (1983): 1119.

[59] Curtis, A Treatise on the Law of Copyright, 27.

[60] (1774) 4 Burr. 2408.

[61] See Abrams, "The Historic Foundation of American Copyright Law," 1156-1171. Indeed according to Abrams (1166) the generally accepted view that a majority of six judges found that the common law right was preempted by the Statute of Anne is mistaken and derived from an error in the tally of the results in the most popular report of the case.

[62] Curtis, A Treatise on the Law of Copyright, 74.

[63] Ibid., 76.

[64] 33 U.S. 591 (1834).

[65] See the us_1834 commentary.

[66] Curtis, A Treatise on the Law of Copyright, 75.

[67] Ibid., 80-81.

[68] Ibid., 83.

[69] 9 F.Cases 342 (C.C.D.Mass. 1841).

[70] See e.g. Bartlett v. Crittenden, 2 F. Cas. 967, 970 (C.C.D.Oh.1849); Paige v. Banks, 80 U.S. 608, 614 (1872); Parton v. Prang, 18 F. Cas. 1273 , 1277 (C.C.D.Mass. 1872).

[71] "Curtis on Literary Property," The North American Review, 166.

[72] Curtis, A Treatise on the Law of Copyright,147-148.

[73] Ibid.,169n:1.

[74] Emerson V. Davies, 8 F. Cas, 615 (C.C.D. Mass. 1845)

[75] Curtis, A Treatise on the Law of Copyright, 173.

[76] Millar v. Taylor (1769) 4 Burr. 2302, 2310.

[77] Cary v. Kearsley (1802) 4 Esp. 170.

[78] Richard Godson, A Practical Treatise on the Law of Patents for Inventions and Copyright, illustrated by notes of the principal cases, with an abstract of the laws in force in foreign countries, 2nd ed. (London: W. Benning 1844), 477.

[79] Curtis, A Treatise on the Law of Copyright, 328.

[80] Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia University Press, 1967), 9-12.

[81] Gray v. Russell, 10 F. Cas. 1035 (C.C.D.Mass. 1839); Folsom v. Marsh, 9 F. Cas. 342 (C.C.D.Mass. 1841).

[82] Curtis, A Treatise on the Law of Copyright, 237-238.

[83] 23 F. Cas. 171 (C.C.D.Oh. 1847).

[84] Curtis, A Treatise on the Law of Copyright, 173.

[85] Ibid.

[86] Ibid.

[87] Ibid., 265.

[88] Ibid., 267.

[89] Ibid., 271.

[90] Callaghan v. Myers, 128 U.S. 617, 650 (1888); Lawrence v. Dana, 15 F. Cas. 26, 60 (C.C.D. Mass. 1869).

[91] See e.g. "U. S. Circuit Court [Rhode Island] Before the Honorable LEVI WOODBURY, one of the Assistant Justices of the Supreme Court of the United States, and Hon. Mr. Justice PITMAN, District Judge for Rhode Island District. Tried at Newport, on the 17th and 18th July, 1850. JAMES STEVENS V. ROYAL GLADDING and ISAAC T. PROUD. PURCHASER OF ENGRAVED PLATE-COPYRIGHT," The New-York Legal Observer, 8 (1850): 297-304; "U. S. Circuit Court; [Southern District of New-York] IN EQUITY. Before the Honorable SAMUEL NELSON, one of the Assistant Justices of the Supreme Court of the United States. SAMUEL C. JOLLIE V. JOHN D. JAQUES and JAMES M. JAQUES. COPYRIGHT OF MUSICAL COMPOSITION--DELIVERING A COPY OF COMPOSITION TO LIBRARIAN OF SMITHSONIAN INSTITUTE AND A COPY TO THE LIBRARIAN OF THE CONGRESS LIBRARY, NOT A PRE-REQUISITE TO A TITLE TO A COPYRIGHT--COPYRIGHT TO THE TITLE OF A BOOK, COMPOSITION, ETC.--INJUNCTION--ISSUE OF LAW," The New-York Legal Observer 9 (1851): 11-18; "United States Circuit Court.; Southern District of New York.--In Equity. Before the Hon. SAMUEL NELSON, one of the Assistant Justices of the Supreme Court of the United States. SAMUEL C. JOLLIE v. JOHN D. JAQUES and JAMES M. JAQUES. Copyright of Musical Composition--Delivering a copy of Composition to Librarian of Smithsonian Institute, and a copy to the Librarian of the Congress Library, not a prerequisite to a title to a copyright--Copyright to the title of a book, composition, etc.--Injunction--Issue of Law," American Law Journal 10 (1851): 402-410.