The Genius Which Conceived & the Toil
Which Compiled the Book
Just as both patents and unpatented workplace knowledge were regarded as an asset of skilled labor, so too did antebellum law treat copyrights as the property of the individual author regardless of whether the work was created for hire. Although employee-authors, like authors everywhere for centuries, routinely assigned their copyrights to those who would pay for them (including their employers), the law required there to be an express assignment of the copyright before it would divest an author of the right to his work over his objection. Judges found very good philosophical and economic reasons for this rule, at least in the context of the few cases that litigated authorship.
In this chapter, I examine the law and practice of copyright ownership in the three sectors of the antebellum American economy where copyright disputes arose: law publishing, theater, and map publishing. These were also the three sectors that continued to produce the majority of the employeremployee copyright disputes for much of the nineteenth century. Judges developed rules to protect employee-authors because they were persuaded by the morality of saving creative geniuses from improvident bargains. Judges also considered it economically expedient for a new country that wished to cultivate its own homegrown culture industry to protect the rights of the author who worked for hire. Later in the century, the arguments of economic expedience seemed to favor the employer, but in the antebellum period the moral claims of the author coincided perfectly with the economic incentives for protecting the author’s rights to the fruits of creative work.