Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: us_1853b

Commentary on Stowe v. Thomas 1853

Oren Bracha

School of Law, University of Texas

Please cite as:
Bracha, O. (2008) ‘Commentary on Stowe v. Thomas (1853)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Copyright as the Exclusive Right to Print a Text and Translations

4. The Stowe v. Thomas Litigation

5. The Aftermath of Stowe v. Thomas and Copyright's New Paradigm

6. References

1. Full title

Stowe v. Thomas, 23 F. Cas. 201 (C.C.E.D.Pa. 1853).

2. Abstract

A case decided by Justice Robert Grier. The case involved a claim of copyright infringement by Harriet Beecher Stowe against a publisher of an unauthorized German translation of her book Uncle Tom's Cabin. The court decided that a translation was not a copy of the original and, therefore, did not infringe copyright. The decision epitomized the traditional approach that conceptualized copyright protection in terms of the limited right to print copies. From this approach followed a narrow understanding of the scope of copyright protection and of the entitlements it included. When Stowe v. Thomas was decided this traditional approach was in decline. It was superseded by a new understanding of copyright as the protection of an intellectual work, irrespective of the exact form or medium of reproduction. The transition was reflected in the fact that nineteenth century copyright commentators harshly criticized the Stowe v. Thomas decision and in the explicit legislative addition of the translation entitlement to copyright protection in 1870. The commentary discusses the case, the related doctrinal and conceptual changes in copyright law, and some of the economic and social context of these changes.

3. Copyright as the Exclusive Right to Print a Text and Translations

In 1883 the popular Bouvier Law Dictionary described copyright as "confined to the exclusive right secured to the author or proprietor of a writing or drawing which may be multiplied by the arts of printing in any of its branches."[1] The dictionary's definition was behind its time, but it accurately conveyed the conception of copyright that dominated American jurisprudence during the early nineteenth century. By the 1880s this traditional conception of an exclusive right to multiply copies by the art of printing was superseded by a much broader understanding of copyright as a general right to control an intellectual work and enjoy the market value of its exploitation. The emergence of a standard entitlement of translation as part of copyright protection is illustrative of this process of which it was a part.

At the dawn of the nineteenth century American copyright, which was now conferred on authors as part of a general statutory regime, was still rooted in its origins as the publisher's trade privilege. One of the main aspects of this ongoing connection to the past was the limited scope and strength built into the prevalent understanding of copyright. Copyright was still conceptualized as the book trade's privilege - the exclusive right of making copies, namely printing verbatim or near-verbatim reproductions of a specific text. The ancient problem of frustrating copyright protection by introducing minor variations to a copied text was dealt with by adding a minimal penumbra of additional protection to the hard core of verbatim reproduction. Under the eighteenth century English rule attempts to "colour the publication of the original essay, and make that a pretext for pirating it"[2] were treated as verbatim reproduction, but anything beyond such evasive copying was permitted. As a consequence any secondary use of a copyrighted text that went beyond a mere attempt to evade protection was not deemed infringing. Under this scheme good faith abridgments, translations, adaptations, and other derivative uses enjoyed immunity and were considered new and meritorious works in their own right. As Justice Willes, a copyright maximalist in terms of his time and a staunch supporter of common law copyright, put it in Millar v. Taylor: "bona fide imitations, translations and abridgments are different, and in respect of the property may be considered new works: but colourable and fraudulent variations will not do."[3]

The changing treatment of translations in America should be understood against this backdrop. In the first half of the nineteenth century copyright protection against unauthorized translations was a moot subject. No serious attempt to obtain such protection either in the courts or the legislature is known. A combination of conceptual and economic factors account for this situation. Under conditions of a small and often fragmented market, domestic demand for translations of copyrighted works was limited and the economic stakes in obtaining an exclusive translation entitlement was small. On the conceptual level, the entrenched conception of copyright as a right to print a text constructed a translation as a new and independent work rather than an infringing copy of a protected original.

By 1850, however, things were different. A national market for books had emerged in the United States together with a growing publishing industry that was ever-eager to expand markets and find new ways of exploiting works.[4] The raised stakes in an exclusive translation market was reflected in the fact that the pertinent legal struggle erupted over a translation of the first best seller in America in modern terms - Harriet Beecher Stowe's (1811-1896) Uncle Tom's Cabin. Converging with the economic changes was the increasing conceptual strain on copyright's traditional paradigm. Although the traditional immunity of various secondary uses was not abandoned, new British and American cases[5] began to expand copyright protection and move away from its narrow understanding as the right to make verbatim copies of a text. Stowe v. Thomas, which was the first attempt of the courts to deal with the new claim to a translation entitlement and the new paradigm of copyright in which it was grounded, produced a decision that was an eloquent statement of the traditional narrow view of the field. This, however, was the swansong of the traditional view. The decision was bitterly attacked by commentators and was overturned by Congress in 1870. The transformation of the court's copyright jurisprudence in the preceding decades not only made the addition of a translation entitlement seem just and natural, it expanded the scope of copyright protection across the board and undermined the formerly sheltered status of many other secondary uses.

4. The Stowe v. Thomas Litigation

Uncle Tom's Cabin was a market success of unprecedented scale.[6] It sold over 300,000 copies during the first year following its publication in March 1852 and probably over a million copies before the Civil War.[7] Harriet Beecher Stowe wrote that "the idea of making money by a book which I wrote just because I could not help it never occurred to me" and that it was "an agreeable surprise to receive ten thousand dollars as the first-fruits of three months' sale."[8] Those observations notwithstanding, Stowe was revealed as a savvy player in the literary marketplace. Unlike many others, she had the foresight to register the copyright in Uncle Tom's Cabin prior to its early publication by serialization,[9] thus avoiding a forfeiture of the copyright. Stowe registered the copyright in her own name and did not assign any of her rights in her work to her publisher or others. Although she would later accuse her publisher John P. Jewett of exploiting her naiveté by leading her to prefer a ten percent royalty agreement to the riskier half-profit arrangement, Stowe learned quickly. During the 1850s she became a sophisticated business player, conscious, among other things, of the commercial possibilities offered by calculated use of copyright law.[10]

When the book's success became apparent Stowe moved quickly to exploit the local translation markets whose scale was negligible in the context of earlier less widely distributed work. According to the Bill of Complaint in Stowe v. Thomas and the affidavit she submitted in that case, Stowe authorized a Welsh translation of the work.[11] The other authorized translation tried to capture the demand of the substantial German-speaking community of Pennsylvania. Given Stowe's husband - Calvin Ellis Stowe (1802-1886)'s skills in the German language and his ties to the German academic community it was a natural move. According to the Bill of Complaint, "some time in the year 1852 she employed at much expense Mayor Rudolph Hutton, a competent German scholar of ability and skill and critical knowledge of the German and English languages to translate and copy into the German language" the book. Stowe also claimed that "said German scholar was assisted in his labors by the above Complainant Calvin E. Stowe" and that "by these individuals... said Book has been fully and completely accurately and carefully translated and copied into the German."[12]

Stowe and her publisher Jewett were, thus, much dismayed to learn that others had discovered the lucrative market niche of the German readership. F.W. Thomas, the Philadelphia publisher of the German American Newspaper Die Freie Presse, contracted the services of Adolf Strodmann's for producing a German translation of Uncle Tom's Cabin. Thomas published the translation as a serialization in his newspaper and in pamphlet form beginning on January 1, 1853, just a few weeks before Jewett planned to launch the authorized translation. Thomas also had plans to publish a full book version of his translation.[13]

Stowe and Jewett contacted Thomas with a demand "to desist from the translating and copying, and printing, publishing, selling and exposing to sale, and causing to be translated and copied, and printed, published, sold and exposed to sale" the book and "to account... for the profits which have been received by him."[14] Thomas flatly refused. As his lawyers later claimed in his Answer he took the position that "Harriet Beecher Stowe hath not the sole and exclusive right to translate the said work"[15] Thus, Thomas never denied he published an unauthorized translation, he simply asserted that he only did what "he had and still has a right to do under the laws of the United States."[16]

On March 11, 1853 Stowe and her husband filed suit in equity against Thomas in the federal Circuit Court of the Eastern District of Pennsylvania seeking a permanent injunction, account of profits and the surrender of infringing copies. On March 22 the court issued a preliminary injunction against Thomas ordering him to stop "printing, publishing, selling and exposing to sale any part or parts of his said translation."[17] Against a backdrop of limited factual disagreements between the parties, the case was dominated by one crucial legal question. Stowe argued that she, as the copyright owner of the book, "ever had, and still hath the sole and exclusive right, to translate, print, publish and sell the same, for her own private benefit and advantage."[18] Therefore, Thomas' unauthorized translation caused her to be "greatly injured and damnified, in respect of the profits which she reasonably expected to receive from the sale thereof" and to be "deprived of the receipt of a large amount of profits, which she reasonably expected to receive therefrom."[19] Thomas, on the other hand, denied that a copyright owner had an exclusive entitlement of translation or that a translation constituted an infringement, and, therefore, denied that Stowe sustained any damage recognizable by the law. The only extensive commentary published on the case summed up the issue as follows:

"It is an interesting question that is raised in this suit, namely, Whether the property of an author in his book extends beyond the language in which it is written, or whether a version of it into another idiom forms a new and distinct property belonging solely to the translator by whom it is made."[20]

Inasmuch as any law existed on the subject it favored Thomas' position. The very fact that the question was novel and undecided in the United States pointed in this direction. This situation, no doubt, can be attributed to the low economic stakes in the secondary translation markets in America prior to the rise of a large national market in the second half of the century. Nevertheless, the fact that the question was never openly discussed or ruled upon meant that American law was still firmly located within the traditional eighteenth century framework that limited copyright's scope to verbatim reproductions. The detailed commentary published in the New York Weekly Tribune, despite its support of Stowe's moral position, acknowledged this situation. "[I]t is far from certain," it observed "that our legislation is such as Mrs. Stowe's complaint against Mr. Thomas would seem to suppose." Rather "the case is not directly foreseen or provided for by the statute; and unless Mrs. Stowe's position can be established inferentially from its spirit, or from the construction of some hitherto unnoticed phrase in its language, the Court will have to decide against her."[21] The writer also identified the fact that denial of protection against unauthorized translations was the natural outcome of the paradigm that dominated existing American copyright law.[22] The commentary referred to "the established right of any one to take an author's work and rewrite it, or abridge it, putting the same ideas into other words," a right that received explicit recognition in American case law.[23] It concluded that "[t]his is a very considerable limitation upon the absolute right of property, and may very easily be construed to extend to translations," a conclusion which rested on an a fortiori reasoning:

"It is not possible to say that a translation is in the same words as the original, for not only is it in a different language, but the construction of the sentences and the very form of expression are often entirely changed. Certainly it is a less infringement of the author's right than an abridgement, for it is addressed to a public quite different from that for which the work was first written, while an abridgement may come into direct competition with the original." [24]

English law - the immediate comparative source turned to by American jurists - pointed in the same directions. The general English rule, established in a series of unchallenged dicta from eighteenth century cases-most importantly in the 1721 Burnett v. Chetwood[25]-was that translations did not constitute infringement. In 1844 the influential English commentator Richard Godson repeated the Burnett rule in the second edition of his treatise on patent and copyright observing that "a translation was not similar to reprinting the original, because the translator had bestowed his pain and care upon it."[26] By the early 1850s any challenges to this view in England were very minor. Only later in the century would a gradual change occur in England.[27] Even in the 1890s when the majority of English commentators came to support a translation entitlement, they usually acknowledged that the actual legal situation was somewhat unclear.[28]

If Thomas could rely on existing law and traditional concepts, Stowe's claims found their own support in novel sentiments and a rising alternative understanding of copyright protection that started to put stress on the established one. A growing number of voices supplanted the traditional concept of copyright as the right of verbatim reproduction with Stowe's claim that an author had a right to the profits derived from his work in the secondary market of translation. The New York Weekly Tribune commentary that was skeptical about Stowe's chances was quite decisive about the desirable answer to the translation entitlement question:

"As for the absolute moral right, we see nothing in the nature of things to limit the ownership of the author. It is his work, and it ought to be for him to say on what terms others shall enjoy it, in whatsoever time, place, or tongue."[29]

It commended Stowe's refusal to reach a settlement with Thomas "for the sake of having the principle determined" and observed that should the case be decided as predicted "a revision of the statute on copyright will be more than ever necessary."[30]

George Ticknor Curtis (1812-1894), the writer of the only substantial American treatise on copyright, shared that view. Curtis presented the issue of translations as an open question which he phrased as follows: "whether a work, under the protection of the statute, if printed in a foreign or a dead language, can be thus taken as the subject of a translator's labor, so that by merely incorporating with the matter of the book the fruit of his own industry, he can entirely absorb the rights of the original author."[31] Given the question's phrasing Curtis' answer was not surprising. "Upon principle," he wrote "I can have no doubt that this cannot be done."[32]

The argument of counsel before the court reflected the fact that the case signified a moment of paradigm shift in American copyright law. Stowe was represented by a father-son team of Philadelphia lawyers, Samuel H. Perkins and Samuel C. Perkins. Their Argument conceded at the outset the novelty of the question and the absence of any statutory or case law guidance on it. Interestingly, the argument is also prefaced by a sociological reflection on the reasons why "the question is more important in America than elsewhere."[33] The reason laid in "the originally mixed character of our people, and the constant emigration of foreigners to our countries, most of whom become our citizens long before they can read our language."[34]

As often happened in advocacy before the legislature and the courts for novel expansions of copyright protection, the argument had a strong comparative dimension. Given the unfavorable character of English law, all that could be done on this front was to emphasize the status of the Burnett v. Chetwood treatment of translations as dicta and, somewhat less convincingly, to find some support in it for such an entitlement.[35] A better support was found in a claimed express statutory recognition of translation as encompassed by copyright in Prussia, Russia, and Belgium.[36] The argument's main comparative source, however, was the 1853 French decision of the Cour de Cassation in Lumley C. Bayard.[37] A substantial English abstract of the decision was published that year in the American Law Register - a rather unusual occurrence in regard to a French decision.[38] In its decision the Cour de Cassation affirmed the decree of the lower court that found that the performance of a protected opera was infringing despite the fact that the lyrics were translated from French to Italian, and that the translation made "only an unimportant (insignificante) difference" between the two pieces.[39] While the decision could be read as limited on the peculiar facts of a live performance of the music in conjunction with the translated lyrics, it also contained broad language about "the right of property" in the words which is infringed by "a mere translation" - language which Stowe's lawyers' quoted in length.[40]

The substantive part of the plaintiff's argument was stated on various levels of strength. Much of it departed only slightly form the traditional concept of copyright as a narrow right of verbatim reproduction and attempted to make Stowe's case by relying on minor adjustments to this concept. The main thrust here was to present the translation as the close equivalent of verbatim reproduction:

"The translator aims to convey to the mind of his reader the ideas and thoughts of the author; nay, the very shades of his ideas and thoughts; his exact manner and form of expression, and even his words, so far as represented by similarly constructed expressions in the new language. All changes, all variations in any of these particulars, are failures, and are studiously guarded against."

The argument hinged on an objectivist conception of language. Thus, "language-words of one tongue as distinguished from words of another are but the signs of... ideas. A perfect translation will present the identical creation and mental production, in a way that the sign is never thought of."[41] Lingual signifiers were presented as mechanical inconsequential referents to the signified ideas. Hence, in the case of a translation, where the main purpose was to represent the same ideas, the change of signifiers was completely insignificant. The point of this exercise in linguistic theory was that it kept the argument within the familiar bounds of copyright. A "mere translation," unlike "paraphrase or rendering from prose to poetry," was "the same book" and fell within the traditional core of copyright protection.[42]

Only toward its end did the plaintiff's argument became more ambitious and groped more clearly for a new concept of copyright. Curtis' treatise, published six years earlier, was the main support and inspiration of this direction. Quoting Curtis, the argument explains that the touchstone of infringement is: "Has the original author suffered, or will suffer injury from the act complained of?"[43] It goes on to ask rhetorically "[h]as any one doubted that congress meant to secure to authors the profits from their work throughout the length and breadth of this country?" and assert that an unauthorized translation "would deprive them of any profits as respects a vast class of our people."[44] Injury in the market due to the taking of "peculiar and intrinsic value" of the original work was the hallmark of a new understanding of copyright protection which was no longer limited to the sphere of reprints.

It is interesting that when the claimed injury was delineated the argument did not refer to the actual market whose exploitation Stowe was trying to monopolize-the domestic market for translations. Instead two other injuries were complained of. If it is "a perfect translation," the argument went, sales in the primary market of the English original will suffer because of the substantial number of American bilingual readers who "will read it" in the language "which costs the least."[45] By contrast, "[i]f it is a bad translation" the author will be injured "in her reputation" due to the "vast class who will have no conception of the book other than that which comes through a translation."[46]

Thomas was represented by Benjamin H. Brewster (1816-1888) - a prominent Philadelphia lawyer and a future Attorney General - and Charles Goepp. As Brewster and Goepp were relying on the traditional framework of copyright, their argument was relatively short. Its main premise was straightforward: the Copyright Act "uses the term ‘copy' in the sense of reprint"; "[i]n no parlance-either ordinary or legal-does ‘copy' mean ‘translation'"; and "the prohibition is only against printing, publishing or importing ‘any copy of such book.'"[47] This was no mere reference to a technical oversight of the statute, but an appeal to what used to be the established principles of copyright. Under these principles infringement was constituted only by "verbatim copy", "colourable variations", or "servile and mechanical imitation." Since no one argued for the first two alternatives the only remaining option was the third one. Brewster and Goepp dismissed this alternative by rebutting the plaintiff's characterization of the translation as a mechanical labor devoid of any creative spark. "A translation of a romance or any like work," they argued "depends entirely for its success upon its individuality and for that reason it is original with the translator."[48] It was not a "work such that any body, if ordered like a tradesman or mechanic, to make it, would have produced substantially in the same shape." Therefore rather than "servile," "it is the creation of genius."[49]

Arguing within copyright's traditional paradigm, this settled the question. A secondary use which was neither a reprint nor a servile copy could not be infringing. From this perspective the issue of market injury stressed by the plaintiff was turned on its head. Instead of treating market injury as the touchstone for an infringing use, the nature of the secondary use (as verbatim copying or otherwise) operated to circumscribe the scope of cognizable market damage. Thus, driving to the real motive behind the litigation, the defendant's argument conceded that the sale of Stowe's sponsored translation "indeed was impaired." It proceeds, however, to observe: "we are not charged with a piracy of it: and the reason why it is injured, is that her translation has less genius than ours."[50] This painted an image in which any secondary use that went beyond reprinting was governed only by the rules of free competition, rules that worked to ensure that quality will triumph.

Outside commentators, whether sympathetic or hostile to Stowe's case, tended to confirm the last point. In the German-language press, enraged by the looming possibility of a recognized translation right, Stowe's authorized translation was described as replete with "entirely un-German expressions, grave language mistakes, or other refutable flaws."[51] Stowe's assertions in her affidavit of the quality of her translation was mocked as attributable either to the fact that "Mrs. Stow understands absolutely no German" or to the possibility that "she understands German, in which case she gave an oath even more frivolously false."[52] Even the otherwise supportive of Stowe New York Weekly Tribune commentary observed in respect to the competing translations that "from some specimens we have seen, we judge the one published by Mr. Thomas to be superior to that made for Mrs. Stowe. At any rate, the latter has some very gross faults, which prove that the translator neither understands English thoroughly, nor knows how to write German with respectable correctness." [53]

Presiding over the case was Justice Robert Grier (1794-1870) of the United Sates Supreme Court in his capacity as a Circuit Court judge. Grier was an active and outspoken enforcer of the Fugitive Slave Act in the important Third Circuit. The unique subtext of the litigation created by the encounter between Grier in his judicial capacity with Stowe and her Uncle Tom's Cabin was lost on neither contemporaries nor later scholars.[54] On the copyright front, Grier's opinion was probably the most eloquent statements written in America of the traditional view of copyright as the limited commercial right of making reprints.

The opinion opens by declaring that the decision hinges upon the question of "what constitutes literary property." Grier's answer was unequivocal. The author's "exclusive property in the creation of his mind, cannot be vested in the author as abstractions, but only in the concrete form which he has given them, and the language in which he has clothed them... the only property which he reserves to himself, or which the law gives to him, is the exclusive right to multiply the copies of that particular combination of characters which exhibits to the eyes of another."[55] This was not the legal construct that would develop half a century later for separating protected from non-protected subject matter on the basis of a distinction between expressions and ideas. Grier did not engage in an analysis that relied on an elusive line between various levels of abstraction. His opinion was grounded in the traditional understanding of copyright that limited protection to verbatim reproduction. This quickly became apparent when Grier based his conclusion on the concept of the "copy." "A copy," he wrote, "must... be a transcript of the language in which the conceptions of the author are clothed" and the author's right "consists only in the right to multiply copies of his book."[56] This view limited copyright's scope to verbatim or near-verbatim reproduction and treated any other secondary use as a new and original work:

"Hence, in questions of infringement of copyright, the inquiry is not, whether the defendant has used the thoughts, conceptions, information or discoveries promulgated by the original, but whether his composition may be considered a new work, requiring invention, learning and judgment, or only a mere transcript of the whole or parts of the original, with merely colourable variations."

Under this scheme it was self-evident that Thomas' translations and translations in general were new and non-infringing works. Grier put this poignantly: "I have seen a literal translation of Burns' poems into French prose; but to call it a copy of the original, would be as ridiculous as the translation itself."[57]

As Grier acknowledged, his views on copyright differed markedly from those on patents. As Grier was writing, the most important patent cases of the time-the telegraph cases-were making their way through the lower courts. The cases involved an attempt by Samuel F.B. Morse (1791-1872) to claim broad and abstract patent protection whose scope extended well beyond the concrete configuration of his telegraph. Judge John Kintzing Kane (1795-1858) in the Circuit Court for the Eastern District of Pennsylvania wrote an opinion that upheld Morse's claims in strong terms.[58] In all likelihood Grier was the other judge in the panel. When in 1854 the Supreme Court in O'Rielly v. Morse[59] invalidated the broad patent claim, Grier wrote a strong dissent. Grier insisted there that the object of the inventor's protection was the "essence of his invention" which included the "application of a principle" and not merely "the machinery, apparatus, or other means, by which the principle is applied."[60] One could have expected Grier to deploy a similar reasoning in copyright law, analogizing the specific design of the machinery to the literal copy and the essence of the invention to a broad intellectual work protected by copyright. In Stowe, however, Grier explicitly rejected such an analogy. He described plaintiff's argument as premised on an "analogy assumed between copy-right and patents for inventions, and where the infringing machine is only a change of the form or proportions of the original, while it embodies the principle or essence of the invention" and observed that "the argument from the supposed analogy is fallacious."[61] Thus, Grier already saw patents as "intellectual property" in the new sense, as legal rights in broad informational entities that could take many concrete embodiments. His view of copyright, by contrast, was still rooted in older notions that resisted the abstraction and expansion of the right.

5. The Aftermath of Stowe v. Thomas and Copyright's New Paradigm

Stowe v. Thomas proved to be the swan song of copyright's traditional paradigm. In the following years it was bitterly attacked and its outcome was overturned by statute seventeen years later after it was decided. In fact, the attacks on Stowe's holding and on the view of copyright it strongly represented started a few years before it was decided. As mentioned, in his 1854 treatise George Ticknor Curtis took on what he characterized as the open question of translations as copyright infringement. Curtis' starting point was no longer the old definition of a copy. It was, rather, the proposition that the author is "exclusively entitled to take the profits of the book which he has published...under every form in which that literary composition can be reproduced." This new focus on market profits from every form of the book brought about a new concept of the object of protection as an intellectual essence that could take many concrete forms:

"The property of the original author embraces something more than the words in which his sentiments are conveyed. It includes the ideas and sentiments themselves, the plan of the work, and the mode of treating and exhibiting the subject. In such cases his right may be invaded, in whatever form his own property may be reproduced. The new language in which his composition is clothed by translation affords only a different medium of communicating that in which he has an exclusive property."[62]

In 1870, as part of the general copyright reform, an explicit translation right was introduced to the Copyright Act. Little is known of the reasons that induced Congress to include this new entitlement. The text that created the translation right was somewhat ambiguous. It stated that "authors may reserve the right to dramatize or to translate their works."[63] This arguably meant that only authors who explicitly reserved the translation right could enjoy it, although the statute did not provide for a specific reservation form or process.[64] It is likely that the somewhat curious requirement of reservation found its way to the American statute from the British International Copyright Act, 1852.[65] The Act in compliance with British obligations under the 1851 Anglo-French Copyright Treaty[66] introduced for the first time a right of translation to British copyright law. It did so, however, in a very limited and qualified way.[67] The translation right was limited to five years. It required a publication of an authorized translation within one year of registration and deposit of the original, and was subject to a long list of formal requirements. Most importantly in our context, the translation right had to be publicly reserved by giving notice on the title page of the original work.[68] While the burdensome formal requirements radically limited the use of the translation right in Britain, it is unclear to what extent the reservation requirement was enforced in the United States and whether there was an extensive use of the new translation entitlement.

When Eaton Drone published his extensive treatise in 1879, he was writing against this backdrop. Thus, it was important for him to demonstrate the existence of a translation right in the United States that was derived from "established principles"[69] of copyright and which was independent of the new statutory entitlement and its reservation requirement. To that end, Drone included in his treatise an entire section that he called "Stowe v. Thomas Criticised."[70]

Drone's analysis directly rejected the main premise of Grier's decision. "The definition that a copy is a literal transcript of the language of the original," he explained "finds no place in the jurisprudence with which we are concerned."[71] Drone supplied an alternative definition of copyright protection, one that was very different from the notion of the copy as verbatim reproduction:

"Literary property, as has been shown, is not in the language alone; but in the matter of which language is merely a means of communication. It is in the substance and not in the form alone. That which constitutes the essence and value of literary composition... may be capable of expression in more than one form of language different than the original."[72]

Defining copyright as the protection of the market value of an elusive intellectual essence that could take many different concrete forms made it plain that the translator "takes the entire creation of another, and simply clothes it in new dress." This led Drone to conclude that "[t]he doctrine that an unlicensed translation of a protected work is no invasion of the copyright in the original, as was held in Stowe v. Thomas, is contrary to justice, recognized principles, and the copyright statutes of the United States as judicially construed."[73]

By the end of the nineteenth century the translation entitlement was a natural and integral part of American copyright. Any remaining doctrinal limitations were abolished in the 1891 amendment of the Copyright Act.[74] The rise of a translation entitlement and the demise of Stowe v. Thomas were part of a broader paradigm shift in American copyright law. Curtis and Drone offered the most explicit theoretical version of the new understanding of copyright, but the shift was also embedded in doctrinal changes. In the second half of the nineteenth century American copyright law deserted the idea that protection was limited to verbatim reproduction in print. The specific precedents that sheltered secondary uses such as translations, abridgments or quotations declined, the scope of protection was extended and abstracted, and new entitlements were gradually added. At the dawn of the twentieth century copyright's doctrinal terrain came much closer to the theoretical notion of protecting an abstracted intellectual essence irrespective of the many concrete forms that it could take.

6. References

Governmental papers and legislation

Statutes

American

Copyright Act 1790, 1 Stat. 124 (1790)

Copyright Act 1870, 16 Stat. 198 (1870)

International Copyright Act, 26 Stat. 1106 (1891)

British

International Copyright Act, 1852, 15 & 16 Vict., c. 12

Cases

American

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

French v. Rogers, 9 F. Cas. 790 (C.C.E.D.Pa. 1851)

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

O'Rielly v. Morse, 56 U.S. 86 (1854)

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

British

Bramwell v. Halcomb, (1886) 2 My. & Cr. 737

Burnett v. Chetwood, (1721) 2 Mer. 441

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

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

Books and Articles

Best, Stephen M. The Fugitive's Properties: Law and the Poetics of Possession (Chicago: University of Chicago Press, 2004)

Coultrap-McQuin, Susan. Doing Literary Business: American Women Writers in the Nineteenth Century (Chapel Hill: University of North Carolina Press, 1990)

Geary, Susan. "Harriet Beecher Stowe, John P. Jewett, and Author-Publisher Relations in 1853." Studies in The American Renaissance (1977): 345-367

Homestead, Melissa J. "'When I can Read my Title Clear': Harriet Beecher Stowe and the Stowe v. Thomas Copyright Infringement Case," Prospects 27 (2002): 201-245

____, American Women Authors and Literary Property, 1822-1869 (New York: Cambridge University Press, 2005)

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

Reese, R. Anthony. "Innocent Infringement in U.S. Copyright Law: A History", Colum. J. of L. & Arts 30 (2006-2007): 133-84

[1] Quoted in Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53, 56 (1884).

[2] Cary v. Kearsley, (1802) 4 Esp. 170, 170 Eng. Rep. 680 (K.B.).

[3] Millar v. Taylor, (1769) 4 Burr. 2310, 98 Eng. Rep. 205 (K.B.).

[4] John Tebbel, A History of Book Publishing in the United States, vol. 1 (New York: R. R. Bowker Co., 1972), 206-7.

[5] See e.g. Gray v. Russell, 10 F. Cas. 1035 (C.C.D.Mass. 1839); Folsom v. Marsh, 9 F. Cas. 342 (C.C.D.Mass. 1841); Bramwell v. Halcomb, (1836) 2 My. & Cr. 737, 40 Eng. Rep. 1110 (Ch.).

[6] Susan Geary, "The Domestic Novel as a Commercial Commodity: Making a Best Seller in the 1850s," Bibliographical Society of America, Papers 70 (1976): 365, 367, 375-77. Sales of 10,000 copies and more became common in the 1850s. Sales of 100,000 copies and more became common only in the 1890s. Richard M. Ohmann, Selling Culture: Magazines, Markets, and Class at the Turn of the Century (New York: Verso, 1996), 22-24.

[7] Melissa J. Homestead, American Women Authors and Literary Property, 1822-1869 (New York: Cambridge University Press, 2005), 108; Ohmann, Selling Culture, 21. Widespread claims that the novel sold millions of copies before the Civil War were recently challenged. See Michael Winship, "'The Greatest Book of Its Kind': A Publishing History of Uncle Tom's Cabin," 109 Proceedings of the American Antiquarian Society 109 (1999): 309. There is no doubt, however, that the book was sold in substantial and unprecedented numbers in the American market.

[8] Harriet Beecher Stowe to Eliza Follen, 16 February 1853, in Life and Letters of Harriet Beecher Stowe, ed. Annie Fields (Boston: Houghton Mifflin, 1897), 176.

[9] E. Bruce Kirkham, The Building of Uncle Tom's Cabin (Knoxville: University of Tennessee Press, 1977), 70.

[10] See Susan Coultrap-McQuin, Doing Literary Business: American Women Writers in the Nineteenth Century (Chapel Hill: University of North Carolina Press, 1990), 89.

[11] See us_1853c; us_1853e. Homestead, American Women Authors, 124, note 46. Homestead notes that the American Welsh translation bears no copyright notice and may have been a reprint of a Welsh translation published in London.

[12] See us_1853c. 23 F. Cas. 201. In the report of the case the translator is referred to as "Hugo Rudolph Hutton."

[13] Thomas published his translated version in book form after the decision in Stowe v. Thomas.

[14] See us_1853c. Thomas denied in his answer that he was repeatedly asked by Stowe to cease the publication of his translation and to account for his profits, but he conceded that Stowe's lawyer, Samuel H. Perkins, demanded once that he would stop publishing. See us_1853d, 21.

[15] See us_1853d, 4.

[16] Id.

[17] Id., 6.

[18] See us_1853c.

[19] Id.

[20] "'Uncle Tom' at Law," New York Weekly Tribune, April 16, 1853. See us_1853f.

[21] Id.

[22] The commentary, seemingly due to a phrasing oversight, refers to this point as "[a] point in the law, which would seem to be in favor of Mr. Thomas."

[23] Story v. Holcombe, 23 F. Cas. 171 (C.C.D.Oh. 1847) where Justice McLean, albeit grudgingly, accepted as an established principle the rule that a bona fide abridgement was not an infringement.

[24] See us_1853f.

[25] (1721) 2 Mer. 441 (Ch.).

[26] Richard Godson, A Practical Treatise on the Law of Patents for Inventions and Copyright, 2nd ed. (London: Saunders and Benning, 1844), 347.

[27] See Ronan Deazley's commentaries on uk_1852 and uk_1886.

[28] Lionel Bentley, "Copyright, Translations, and Relations between Britain and India in the Nineteenth and Early Twentieth Century," Chicago Kent L. Rev. 82 (2007): 1181, 1194-95.

[29] See us_1853f.

[30] Id.

[31] George Ticknor Curtis, A Treatise on the Law of Copyright (Boston: C.C. Little and J. Brown, 1847), 291.

[32] Id.

[33] 23 F. Cas. 201.

[34] Id., 201-2.

[35] Id., 204-5.

[36] Id., 201.

[37] Lumley C. Bayard et les héritiers Donizetti, Cour de Cassation. Du 12 janvier 1853. See f_1853.

[38] See "Recent French Decision," Am. L. Reg. 1 (1853): 499.

[39] Id.

[40] 23 F. Cas. 204.

[41] Id., 206.

[42] Id., 202.

[43] Id., 203.

[44] Id., 204.

[45] Id., 203.

[46] Id.

[47] Id., 205.

[48] Id.

[49] Id.

[50] Id., 206.

[51] Quoted in Homestead, American Women Authors, 127. Translation from German by Melissa Homestead.

[52] Quoted in Melissa Homestead, American Women Authors, 128. Translation from German by Melissa Homestead.

[53] See us_1853f.

[54] See Homestead, American Women Authors, 129-44; Melissa J. Homestead, "'When I can Read my Title Clear': Harriet Beecher Stowe and the Stowe v. Thomas Copyright Infringement Case," Prospects 27 (2002): 201.

[55] 23 F. Cas. 206.

[56] Id., 207.

[57] Id.

[58] French v. Rogers, 9 F. Cas. 790 (C.C.E.D.Pa. 1851).

[59] 56 U.S. 86.

[60] 56 U.S. 130.

[61] 23 F. Cas. 207.

[62] Curtis, Law of Copyright, 293.

[63] 1870 Copyright Act, 16 Stat. 198, §86.

[64] Eaton Drone thought that "[a] notice to that effect, printed on the title-page or that following, would doubtless be enough" to reserve the translation right. Eaton S. Drone, A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States (Boston: Little, Brown, 1879), 445.

[65] 15 & 16 Vict., c.12. See uk_1852.

[66] Anglo-French Copyright Treaty, 1851, Paper No.1432, LIV.,103. See uk_1851.

[67] See the commentary for uk_1852.

[68] 15 & 16 Vict., c.12, sec. VIII(2). See uk_1852.

[69] Drone, Treatise on the Law, 446.

[70] Id., 454-455.

[71] Id., 454.

[72] Id.

[73] Id.

[74] International Copyright Act, 26 Stat. 1106, §1 (1891).