United States: Charles Dickens And Copyright Law: Five Things You Should Know

Last Updated: January 20 2017
Article by David A. Kluft

One hundred and seventy five years ago, on January 22, 1842, Charles Dickens first set foot in America, specifically in Boston, after a twenty day steamship voyage from Liverpool. Dickens, only a few days shy of his thirtieth birthday, was already an acclaimed author, and was greeted with great adulation. However, the trip was soon ruined by, and was to become best-remembered for, Dickens' ugly spat with the American press over the issue of international copyright.

In commemoration of the dodransbicentennial anniversary of Dickens' landing in Boston and the copyright controversy that followed, here are five things you should know about Charles Dickens and copyright law.

  1. The Pickwick Papers Dedication

Dickens' relationship with copyright law goes at least as far back as his first serialized novel, the Pickwick Papers, which he completed in 1837. Dickens dedicated the work to lawyer and Minister of Parliament Thomas Talfourd, on account of Talfourd's campaign for copyright legislation that would provide to "the authors of this and succeeding generations . . and their descendants a permanent interest in the copyright of their works." Dickens wrote to Talfourd: "Many a widowed mother and orphan child will bear higher testimony to the value of your labours."

  1. Nicholas Nickleby and the Literary Gentleman

Two years later, Dickens appears to have included in the plot of Nicholas Nickleby a shout-out to Talfourd's legislative fight for copyright protection. When Nicholas interviews for the job of secretary to a member of parliament, he is informed that his duties would include preparing speeches to counter "any preposterous bill ... for giving poor grubbing devils of authors a right to their own property." Later in the story, Nicholas speaks with a "literary gentleman" who claims to be following in the footsteps of Shakespeare by pirating serialized fictional works in order to make unauthorized dramatic productions. Nicholas challenges him:

You take the uncompleted books of living authors, fresh from their hands, wet from the press, cut, hack and carve them . . . all this without permission, and against his will; and then, to crown the whole proceeding, publish in some mean pamphlet, an unmeaning farrago of garbled extracts from his work, to which your name as author, with the honourable distinction annexed, of having perpetrated a hundred other outrages of the same description. Now, show me the distinction between such pilfering as this, and picking a man's pocket in the street: unless, indeed, it be that the legislature has a regard for pocket-handkerchiefs, and leaves men's brains, except when they are knocked out by violence, to take care of themselves.

The "literary gentleman" shrugged his shoulders and replied: "Men must live, sir."

  1. The American Visit

The backstory to Dickens' American visit began in about 1837, when a group of prominent English authors led by Harriet Martineau petitioned the United States Congress — in vain — to enter into a bilateral treaty with the United Kingdom to provide copyright protection for foreign authors in the United States. There is some dispute as to whether Dickens was among the petitioners, but there is no dispute that Dickens was quickly becoming one of the chief victims of American literary piracy or, as he called himself, "the greatest loser alive by the present law." Even before Dickens completed the Pickwick Papers, the Philadelphia publishing house of Carey, Lea & Blanchard began selling an unauthorized edition in the United States, and W.T. Moncrieff staged an unauthorized and plagiarized dramatic version of the work in New York.

At this time, American pirating of English (and other foreign) authors was common, perfectly legal, and considered to be consistent with developing First Amendment jurisprudence. In fact, when Carey, Lea & Blanchard published the Pickwick Papers without Dickens' permission, Mr. Carey wrote him a letter proudly telling him so:

On the first appearance of the Pickwick Papers we undertook their publication in this country... we have thought of the author and have requested our agent . . . to furnish you with a draft ... for £25 . . . which we beg you will accept not as a compensation, but as a memento of the fact that unsolicited a bookseller has sent an author, if not money, at least a fair representative of it . . . The amount is small [but] . . . it is but seldom that [American publishers] will admit of any payment to authors.

By 1842, Dickens' celebrated tour of America was celebrated precisely because all of these pirated copies of his work had made him a virtual rock star. But when Dickens told Americans they would be even further enriched by a national literature of their own, the "universal answer (out of Boston)" was:

We don't want one. Why should we pay for one when we can get it for nothing? Our people don't think of poetry, sir. Dollars, banks and cotton are our books.

So Dickens used his trip as an opportunity to change American opinion by lobbying both Congress and his audiences to support copyright protection in the United States for foreign authors. At one speaking event, Dickens reportedly stated:

Gentlemen . . . I would beg leave to whisper in your ears two words, International Copyrights. I use them in no sordid sense, believe me, and those who know me best, best know that. For myself, I would rather that my children coming after me, trudged in the mud, and knew by the general feeling of society that their father was beloved, and had been of some use, than I would have them ride in their carriages, and know by their banker's books that he was rich. But I do not see, I confess, why one should be obliged to make the choice, or why fame, besides playing that delightful reveille for which she is so justly celebrated, should not blow out of her trumpet a few notes of a different kind from those with which she has hitherto contented herself.

This didn't go over well. Dickens' pleas for authorial recompense were interpreted by many Americans as a challenge to the cherished freedom of the press, and Dickens was widely attacked by newspapers as a "mere mercenary scoundrel," "no gentleman," and no better than John C. Colt (the brother of firearms maker Sam Colt), who had recently been convicted of murdering a New York printer over the publication of a textbook. The Boston Morning Post put it more directly: "You must drop that, Charlie, or you will be dished."

Dickens wrote that these critics, and the publishing interests that backed them, were "mislead[ing] the American public" in order to "gain a very comfortable living out of the brains of other men, while they would find it very difficult to earn bread by the exercise of their own." In the end, however, Dickens' attempts to change American copyright policy and opinion failed, and he returned to England somewhat embittered about his American experience, as reflected in Martin Chuzzlewit and the American Notes.

  1. Sheldon v. Houghton

The first copyright opinion in the United States to mention Dickens, two years before his death in 1867, was the 1865 matter of Sheldon v. Houghton. Dickens – who of course had no rights at all in the United States – was not a party. Rather, the case concerned a dispute between what Dickens would have called a "pirate" on the one hand and a "plunderer" on the other.

In the 1860's, Massachusetts printer Henry O. Houghton (founder of Houghton Mifflin and later Mayor of Cambridge) and New York City publisher Smith Sheldon got together and jointly published a very successful uniform edition of Dickens' work, without of course paying Dickens a cent. When the business partnership came to an end, the parties sued each other in the Southern District of New York to determine their respective ownership rights in the valuable edition.

But how were they going to decide who owned a written work that wasn't protected by copyright? Well, in the absence of international copyright, the American publishing industry had developed a custom. Whoever published a pirated foreign work first was seen as owning an ersatz form of "good will" in the volume, and other publishers generally respected that "good will." Here, the parties' partnership had acquired this good will in the eyes of the publishing industry, and the parties each argued that the Court should award that good will to them now that the partnership was dissolving.

However, Judge William Davis Shipman wasn't interested in publishing industry custom. Judge Shipman held:

I do not find from the contract, or from any evidence in the cause, that the partnership acquired any title, either legal or equitable, to any corporeal property about which any dispute has arisen . . . If anything which can be called, in any legal sense, property, was transferred to this partnership, it must have been that incorporeal right of publishing this edition of Dickens, which is described in the bill as a "good will" . . . I apprehend that it is very far from . . . a solid foundation upon which an inviolable title to property can rest, which courts can protect from invasion. It can, therefore, hardly be called property at all . . . I know of no way in which the publishers of this country can republish the works of a foreign author, and secure to themselves the exclusive right to such publication [except to the extent it is] a subject of copyright.

As a practical matter, this left the established publishing houses of New York without a way to enforce their perceived rights against competition from upstarts with lower overhead and no respect for industry custom. Over the next few decades, the industry's realization that it had no legal protection for editions of foreign literature, combined with the growing recognition of an American literature deemed worthy of protection, wore down the opposition to international copyright and helped lead to the 1891 passage of the Chace Act, which for the first time established copyright protection in the United States for works by foreign authors.

  1. The Copyright Room at the Charles Dickens Museum

Just as I was nearing the end of my tour of the Charles Dickens Museum in London last August, I was delighted to find a room dedicated entirely to "Dickens & Copyright." Well, truth be told, it wasn't so much a room as a vestibule to the museum's tiny elevator. Nevertheless, the walls are covered with a fascinating timeline of Charles Dickens' relationship to copyright law, including the disappointing American tour.

According to these walls, when English law provided insufficient protection for other authors who had not enjoyed the same level of economic success, Dickens put his money where his pen was. He organized fundraisers to benefit the descendants of writers who were left penniless, lobbied for state pensions for deserving writers, and helped establish the Guild of Literature and Art as a welfare and housing scheme for writers, artists and journalists, thus creating a model for modern organizations such as the Authors' Licensing and Collecting Society.

The author is indebted to David Perdue's Charles Dickens Page; Professor Thomas Hoeren's Charles Dickens and International Copyright Law, 63 J. Copyright Soc'y 341 (2016); the Life of Charles Dickens by John Forster; the excellent Charles Dickens Museum at 48 Doughty Street in London; and the article Charles Dickens, Copyright Pioneer by Lucinda Hawksley (an author who happens to be Dickens' great great great granddaughter). With one obvious exception, the illustrations are 19th Century public domain images from the British Library Flickr collection.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
25 Oct 2017, Webinar, Boston, United States

Foley Hoag will present a 60-minute webinar on Wednesday, October 25 at 12:30 pm EDT, offering guidance for in-house counsel regarding the basics of trademark and design protection in the European Union. Attendees will learn about the opportunities and pitfalls to be on the lookout for when looking to secure, protect, and enforce an IP portfolio overseas.

1 Nov 2017, Webinar, Boston, United States

Please join Foley Hoag on Wednesday, November 1, 2017 for a webinar that covers the details of drafting an appropriate arbitration clause for your company’s commercial contracts.

9 Nov 2017, Conference, Waltham, United States

Please join us on Thursday, November 9 at the Westin Waltham Hotel for our quarterly New England M&A Forum, which brings the latest in market trends and recent legal developments to the New England M&A professionals' community.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.