Print in Motion: The Expansion of Publishing and Reading in the United States, 1880-1940

By Carl F. Kaestle; Janice A. Radway | Go to book overview

CHAPTER 5
Copyright in Transition

Peter Jaszi and Martha Woodmansee

.  .  .

The first important treatise on American copyright, Eaton S. Drone’s influential A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States, was published in Boston in 1879. In 1944 two New York lawbook publishers issued a standard survey of the subject for another generation: The Law of Copyright and Literary Property by Horace G. Ball.1 A comparison of these volumes reveals that in the intervening decades the law of copyright in the United States had undergone a marked transformation. That transformation facilitated the emergence of the American book trade as an enterprise engaged in commercially oriented, large-scale, commodity-text publishing.2

The period from 1880 to 1940 was an eventful one in American copyright history. A series of important legislative actions culminated in the general revision of the copyright statute in 1909. In addition, the numbers of reported copyright decisions from the federal courts increased significantly. Finally, a specialized legal literature concerning copyright developed. This chapter examines the evolving infrastructure of legal doctrine that facilitated developments in the publishing industry. Significant changes in the law included the judicial articulation of the “work- for-hire” doctrine, the passage of legislation ushering in international copyright relations between the United States and the rest of the world, and the rise of the doctrine of “substantial similarity.” All three developments contributed to the expansion and consolidation of the book trade by providing a firmer legal foundation for the effective assertion of publishers’ claims to the literary productions of individual writers. Although these legal changes seem to have chiefly served publishers, their justification was rooted in appeals to the rights of “authors.”

The rhetoric of authorship invoked in this body of law casts authors as individuals of superior talent, or genius, who break with tradition to create something new and unique, in a word, “original.” This distinctly modern way of representing the craft of writing emerged in the course of the eighteenth century and gathered such force in Romantic poetic theory as to effectively efface the social or collaborative aspects of writing.

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