They Claim to Own Him, Body & Soul
Popular entertainment looms large in the nineteenth-century picture of contractual allocations of employees’ creative output. It was one of the few areas where creative people worked as employees (rather than for themselves) and where the results were sufficiently valuable commercially to make it sensible to litigate over ownership. This was an area in which courts most explicitly and self-consciously considered the line between the inalienable traits of human personality and the commodified knowledge and talent that could be sold through a contract of employment.
Litigation over control of the talent of singers, actors, writers, and others in popular entertainment from 1860 to 1895 reflected an evolving understanding of the nature of creativity and the role of employment contracts in creating property rights in employee innovation. Creativity and its products became commodities. The scope of intellectual property expanded, especially in the area of copyrights, trade secrets, and trademarks. Markets to sell intellectual property expanded in the growing consumer culture. These developments, combined with the transformation of working conditions and the rise of bureaucratic employment practices associated with factories and the emerging science of management, prompted firms to contract for ownership of employee innovations to an unprecedented degree. As such, courts were now persuaded to enforce such contracts or, if necessary, to imply contractual terms that had not been made. Judges enforcing the contracts had to define free labor to include ever-greater restrictions on employees’ use of their talent. Enforcement of onerous sharecropping contracts was reconciled with free-labor ideology and came to define what freedom meant for southern black agricultural workers, and injunctions against strikes by factory and railroad workers came to define what freedom meant for industrial workers.