Shakespeare and Copyright

PROBABLY the majority of students of Shakespeare have been curious to know why his plays were entered on the Stationers’ Register when they were printed. Who were the Stationers ? What was their Register ? Did it afford any protection like copyright to the author? If not, did he have protection from any other source for his productions? This article will try to answer some of these questions as simply as possible.¹

Copyright had its origin, not in any desire to protect the rights of authors, but simply in a device of the Tudors to maintain a strict censorship of the press, which they did by establishing a monopoly of printing in the hands of a corporation called the Stationers’ Company.

The first book printed in England was struck off in 1471. Prior to that time copyright was of no value, owing to the great expense of reproducing manuscripts ; but with printing came cheaper books, and with cheaper books more readers and a demand for more books, so that very shortly the right to print certain classes of books which were in great request became valuable.

In 1518, for the first time, a book was published “ cum privilegio ; ” that is, the king forbade any one to reprint it in England for two years, or to import it from any foreign country. After this, the granting of such privileges became quite common, and so monopolies were frequently given to different printers of producing certain classes of books, especially Bibles, prayer - books, and other volumes used in religious services; also translations of the classics.

The next step was the monopoly granted to the Stationers’ Company. In 1556 Philip and Mary issued a charter incorporating this company, by which ninetyseven persons, printers, booksellers, and others of kindred pursuits, were invested with the monopoly of printing in the realm of England, and in return for this privilege were authorized and enjoined to hunt up and destroy all heretical, seditious, or treasonable books, and all books not issued by the Stationers’ Company. “ The Company of Stationers,” says Justice Yates in Millar vs. Taylor,

“ were made a kind of literary constables to seize all books that were printed contrary to the statute,” etc., with a monopoly of printing for their reward. They kept at their hall, for their own use, a register containing the titles of books issued by themselves, the names of the respective proprietors (who must be members of the Company), and the successive transfers of ownership. This volume was the Stationers’ Register. The increasing jealousy with which the government regarded the power and the freedom of the press caused further restrictive measures, which culminated in the Star Chamber decree of 1585, compelling the examination and licensing of all books before printing. This decree confirmed the printing monopoly of the Stationers’ Company, but required that all books, before being printed, should be examined by the Archbishop of Canterbury or the Bishop of London, and by him licensed for publication. After this date, the Stationers’ Register contains the titles of such books as were licensed, the names of the publishers, and the records of all transfers of ownership. Sometimes books were thus entered on the Register which were never printed ; sometimes they were “ stayed ” after being licensed, — that is, held back by the authorities from publication.

This was the situation when Shakespeare entered the field of literature. No book could be printed in England except by the Stationers’ Company, and then only after being licensed by the authorities. This monopoly constituted a sort of copyright, which, however, had to be in the name of some member of the Company, a printer or bookseller, and not of the author.

In 1593 Shakespeare wanted to publish his well-known poem Venus and Adonis, and made some arrangement with a printer named Richard Field, who is said to have come from Stratford-onAvon. Field obtained a license from the Archbishop of Canterbury, entered the poem on the Stationers’ Register “ as his copy,” and published it. The book bore no author’s name on the title-page, but contained a dedication to Lord Southampton over Shakespeare’s signature. From the scrupulous accuracy of the printing, it has been supposed that the author himself supervised the proof-reading. The next year Field assigned his interest in the work to " Master Harrison, Senior,” which transfer also appears on the Register. The original entries are as follows (Halliwell’s Outlines) : —

xvIirj° Aprilis.

Richard Field Entred for his copie under thandes of the Archbisshop of Cant, and Mr. Warden Stirrop a book intuled Venus and Adonis.

Assigned over to Mr. Harrison Sen, 25 Junij 1594.

“ Copie ” here means copyright, or the sole right to print, publish, and sell; “ thandes ” is a contraction for “ the hands ; ” “ intuled ” is a clerical error for " intituled.”

On the 9th of May, 1594, Master Harrison, Senior, “ entered for his copy ” Shakespeare’s second poem, Lucrece, which also contained a dedication signed by the author, and was undoubtedly published with his consent, his friend Field being the printer of this as well as of the Venus. These two poems were perhaps the only portion of his works in whose publication he took any part.

Now, what personal rights or privileges, if any, had grown up in connection with these transactions ? The first thing to observe is that the Star Chamber decree of 1585 was only a police regulation to check the publication of any kind of obnoxious books. It simply declared that all works, before being printed, must be licensed, and that when licensed they could be printed only by members of the Stationers’ Company. It did not give the Stationer to whom the book had been licensed any exclusive right to print it. The law merely confined the right of printing to the Company, leaving that body to regulate the claims of its members, which seem to have been determined by custom, without any by-law or formal rule. From the time when the Company was organized and the Register first established, in 1556, it had been the invariable custom of the Company to recognize the right of copy as vested in those members in whose names a book was registered, and this practice continued after the licensing was made compulsory, in 1585. Such copyright could be transferred on the Register, which transfer was respected as a valid conveyance ; and members violating these copyrights were punished by fines or otherwise.

In the great ease of Millar us. Taylor (1769), the verdict found, among other facts, that “ it was usual to purchase from authors the perpetual copyright of their books, and to assign the same from hand to hand for valuable considerations, and to make the same the subject of family settlements for the provision of wives and children.” Justice Willes said, in his opinion: “Mr. Blackstone argued very materially from the books of the Stationers’ Company, and read many entries. And from the extract of them it appears that there is no ordinance or by-law relative to copies till after the year 1640 ; and yet from the erection of the Company copies were entered as property, and pirating was punished. Their first charter was in 1556; their second in 1558. In 1558, and down from that time, there are entries of copies for particular persons. In 1559, and downward from that time, there are persons fined for printing other men’s copies. In 1573 there are entries which take notice of the sale of the copy and the price. In 1582 there are entries with an express proviso ‘ that if it be found any other has right to any of the copies, then the license touching such of the copies so belonging to another shall be void.’ ”

In Donaldson vs. Beckett (1774) it is stated that “in 1681 a by-law [of the Stationers’ Company] declares that where a book was entered to any member, such person, by ancient usage of the Company, has been reputed and taken to be the proprietor.”

Now we are prepared to answer the questions raised above. When Field was licensed to print Shakespeare’s Venus, the Star Chamber decree gave him no exclusive personal copyright. But here the ancient custom of the Stationers’ Company stepped in to aid him ; that custom recognized his ownership, and would have punished any violation of it. So much for Field’s rights ; now let us ask what rights or privileges Shakespeare had in the matter. None whatever. He could not appear in the transaction, for, not being a member of the Stationers’ Company, he could not take out a license to print, and any benefit he might receive from the publication of his works could come to him only through a contract with Field or some other member of the Company.

To understand the indifference shown in those times to the ownership of literary work, we must consider the historical surroundings. In the middle of the sixteenth century printing was new and books were expensive; literary works of considerable magnitude still circulated freely in manuscript, were copied from hand to hand, and went through a wide circle of readers in that form. Dr. Arber says, in a preface to Francis Meres’s well-known sketch of English literature in 1598 : “ Many of the English works referred to in this sketch existed at the time only in manuscript. A number of them did not come to the press for years, some for many years afterwards, and some not at all, and are now lost.”

This indifference to printing was regretted by Puttenham in his Art of English Poesie (1589). He says such of the nobility or gentry as are skilled in “ poesie ” have no courage to write ; or if they have, yet they are loath to be known for their skill. “ I know very many notable gentlemen in the court that have written commendably and suppressed it again, or else suffered it to be published without their own names to it; as if it were a discredit for a gentleman to seem learned and to show himself amorous of any good art.” Literary gentlemen of that day wrote their songs and sonnets, their canzonets and eclogues, and allowed their friends to copy them from hand to hand, but forbade their publication. Anthologies were compiled from this material floating about in written form, such as Tottel’s Miscellany, England’s Helicon, and Bodenham’s Belvedere, to which we are indebted for many literary gems which would otherwise have perished. Bodenham, giving the sources of his collection, mentions “private poems obtained by favor of copying ; ” and speaking of the well-known poets of the day, he says many of their works were “ kept in private ” and “ held back from publishing.”

The Earl of Surrey and Sir Thomas Wyatt had been dead many years when Tottel, in 1557, brought out their poems in his Miscellany ; and, coming down nearly to Shakespeare’s time, Sir Philip Sidney’s books circulated freely in manuscript, and were not printed for several years after his death, in 1586. His Astrophel and Stella remained unpublished till 1591, when it was surreptitiously printed by Thomas Newman, who testifies in his dedication that it had been “ spread abroad in written copies and carried general commendation.” So with Sidney’s Defence of Poesy, which Professor A. S. Cook says must have been extensively circulated in manuscript before its publication in 1596. as many quotations from it are found in contemporary writers. His Arcadia, too, was copied freely in an imperfect form for years before it was printed, for which we have the testimony of his friend Fulke Greville.

Different motives may have contributed to this unwillingness to print. Men are the votaries of fashion, and the old established style of manuscript circulation among one’s friends was still the time-honored custom, sanctioned by good society. Very likely, too, authors felt an aversion to encounter the attacks of the virulent critics and pamphleteers of that day. As printing became cheaper and more common, another sentiment came in to check a disposition to print: the very cheapness and commonness of a printed book gave it a plebeian air, and ” the nobility and gentry,” as Puttenham has it, shrank from being put on the level of the common herd. Besides this, printing smelt of the shop ; there was a money profit in it, and the publisher was working for that. The dilettante gentleman of Elizabeth’s time might write sonnets or poems for the delight of his friends, and loan them his manuscripts, but it was bad form to print them, and called for some kind of apology. Thus, when Greville writes to Walsingham offering to superintend the publication of Sidney’s Arcadia, he scorns the idea of any profit from what he calls " the mercenary printing.” “ Gain there will be no doubt to be disposed [of] by you; let it be to the poorest of his servants.” This sentiment lingered in the realm of letters when the poet Gray left the profits of his poems to his publisher, and perhaps a trace of it may be seen in the case of Edward Fitzgerald.

The dislike to print had in a great measure worn away by the close of Shakespeare’s life. The publication of the works of such men as Spenser, Sidney, and Shakespeare, and the remarkable group of minor poets and dramatists at the end of the sixteenth century, had removed the stigma connected with printing, while the mass of readers had become so large that it was an object worth catering for to meet their approval. In the mean time, however, there was an eager search in every direction for manuscript poems which were floating about, to put them into print. The publishers of those days were as anxious for literary novelties as are the men of to-day for the journal of the most recent African traveler or Tennyson’s latest poem. Nor were they at all scrupulous about the feelings of the author ; holding, perhaps, that the fact of circulation in manuscript justified printing. Whenever they could lay hands on such material, they snatched it up and printed it, utterly regardless of any claim of ownership on the part of the writer. Thus Newman’s first edition of Astrophel and Stella was undoubtedly quite unauthorized by Sidney’s friends, and moreover included thirty - five sonnets and songs by other persons, of which Daniel afterwards claimed and republished nineteen, complaining in the epistle prefixed to his Delia (1592) that his work had been confounded with that of other men, and his verses corrupted by the carelessness of copyists. The second edition of Constable ’s Sonnets in 1594, itself unquestionably piratical, was made up of seventy-five sonnets, of which Sidney’s friends afterwards laid claim to eight as his. W. Percy, in 1594, printed his Cœlia with a prefatory epistle to the reader, in which he says : “ Whereas I was fully determined to have concealed my sonnets as things privy to myself, yet, of courtesy having lent them to some, they were secretly committed to the press and almost finished before it came to my knowledge. Wherefore making, as they say, a virtue of necessity,” he submits to his fate. There may be some affectation in Percy’s case, but it illustrates the prevailing feeling about this literary flotsam.

The instances above cited show pretty clearly what was the probable condition of Shakespeare’s “ sugred sonnets among his private friends,” from the time when Meres wrote, in 1598, till the time of their publication, in 1609. They were copied and admired “ among his private friends.” Two of them fell into the hands of the piratical Jaggard, and helped to stuff out the meagre form of his Passionate Pilgrim. Finally Thomas Thorpe pounced upon them, and thought he could make a few shillings out of Shakespeare’s popularity by printing them together with The Lover ’s Complaint ; and Shakespeare seems to have had no remedy. However, but for Thorpe’s unscrupulous disregard of the author’s rights we probably should never have seen any of these well - known poems.

The case of the stage play was quite different. It was written for profit, and when finished was sold to the theatre manager. Indeed, most of the playwrights were directly connected with one of the leading theatrical companies in London. The same rigid censorship was maintained in the production of dramas upon the stage as in the printing of other literature. They must first be subjected to the inspection of the master of revels and approved by him ; after they had been shaped to suit his criticism, it was allowable to put them on the hoards.

Perhaps, so long as the play was neither circulated in manuscript nor brought out in public, some right of ownership on the part of the author would be respected ; but so soon as it appeared upon the stage, this was deemed a quasi-publication, which gave the bookseller a right to print whenever he could lay his hands upon it. The theatre manager had every motive to prevent its publication; for when it was once printed, his rivals, the other companies, could bring it out on the boards in opposition. The modem doctrine of " stage-right ” had not been invented, under which a dramatist can produce a play on the stage, and copy out or even print it solely for stage use, without prejudice to his rights of ownership.

So, whenever a play proved to be popular, a contest arose at once for its possession. The managers would guard the manuscript with most jealous care, while the hungry publisher, eager for every novelty that would catch the public fancy, would try by all means, fair or foul, to procure a copy. Perhaps a servant of the theatre could be bribed to give him a sight of the manuscript; perhaps some faithless actor would give him a chance to copy his part; and when all other means had failed, the printer would send men to the theatre to take shorthand notes, and write up from these what purported to be a copy of the play. Publications of this kind were what the editors of the Folio of 1623 complained of as “ diverse stolne and surreptitious copies, maimed and deformed by the frauds and stealthe of injurious imposters.”

All these methods are matters of historic record, derived from the complaints of Elizabethan authors. Thomas Heywood says (1623) : —

“ Some by stenography drew The plot, put it in print (scarce one word true), And in that lameness it hath limped so long, The author now, to vindicate that wrong, Hath took the pains upright upon its feet To teach it walk.”

Later (1630) he repeats the same statement : “ Some of my plays have (unknown to me and without any of my direction) accidentally come into the printer’s hands, and therefore so corrupt and mangled (copied only by the ear) that I have been as unable to know them as ashamed to challenge them,” etc. Heywood further declares that some authors, after selling their plays to the stage, made a second profit by a sale to the printer.

Against these schemes the managers used every device in their power to delay or prevent the printing of the plays they had purchased. They procured the intervention of their powerful patrons ; and the lord chamberlain’s influence was at times invoked to protect his company, of which Shakespeare was a member, from this appropriation of their property. Sometimes the printers were bribed to put off issuing a play from the press till its novelty on the stage had worn off. By these various means plays were sometimes “ stayed ” for two, four, or six months, occasionally for years, and some of those entered for publication were never brought out in separate form. On the other hand, it looks as though in some cases the managers, or perhaps the author himself (like Heywood, in the instance above), goaded to desperation by some mutilated issue of a play, consented to a second edition, printed from a perfect manuscript. Stevens suggests that “it seems to have been the practice of the numerous theatres, in the time of Shakespeare, to cause some bookseller to make immediate entries of their new pieces, as a security against the encroachments of their rivals,” but this is hardly probable.

There are still many puzzling questions about these matters that perhaps will never be answered with certainty. Sometimes the Register fails to show that a license was issued for the printing of some book that we have. For example, Romeo and Juliet was printed in 1597, and Love’s Labour ’s Lost in 1598, though there is no record on the Register that either of them was ever licensed. This must be an error of omission from the Register, for in 1607 a transfer of the ownership of each of them is recorded.

Occasionally, too, the members of the Stationers’ Company seem not to have had much respect for one another’s rights. Midsummer Night’s Dream was licensed to Thomas Fisher in 1600, and published by him ; but the same year an unauthorized edition was brought out by James Roberts. This was probably one of those cases alluded to by Justice Willes, where fines were sometimes imposed on refractory members for piracy on the lights of their fellows.

By these various means no less than twenty of Shakespeare’s plays, including Pericles, were printed separately during his life, and one more, Othello, in 1622, after his death; some of them going through several editions. Four among these appeared under different names from those they bear at present, and in many of the Quartos the text varies materially from our present versions. We have no positive knowledge how these plays were issued, except in the case of Troilus and Cressida, where the remarkable prefatory address of the publisher states distinctly that he printed it in defiance of the owners, — the “grand possessors,” as he calls them, — and he claims the thanks of the reader for so doing. And after all, the world owes a certain debt of gratitude to these pirates, for we have many Elizabethan plays and poems which would have utterly perished but for them. On the other hand, a good stage-right law would have given us as perfect a text of Shakespeare’s plays as we now have of his poems. It is a melancholy thought that, with all the pleasure the reading public has derived from the printing of these dramas, it is not likely that the author himself ever received a penny for their publication.

We will now consider the publication of the Folio of 1623 in the light of the copyright question. This precious volume, containing thirty-six plays, was issued seven years after the death of Shakespeare. Of these plays, sixteen were new to the press, and were licensed to Ed [ward] Blount and Isaac Jaggard; the remaining twenty had presumably been printed before, and for that reason required no license. The book was edited by Heminge and Condell, Shakespeare’s fellow-actors and personal friends, members of the King’s Company, and perhaps at that time shareholders of the Blackfriars and Globe theatres ; and it was printed, says the title-page, at London by Isaac Jaggard and Ed. Blount, 1623, while, according to the note on the last page, the work was done “ at the charges of W. Jaggard, Ed. Blount, J. Smithweeks, and W. Aspley.” It was a great undertaking for the time, and two editors, four publishers, and two printing-houses shared in the work. The sixteen new plays must have been furnished by Heminge and Condell from the collection of manuscript dramas in the library of the King’s Company, and were licensed to Blount and Isaac Jaggard in the following terms : “ Master William Shakespeare’s Comedies, Histories and Tragedies, so many of the said copies as are not formerly entered to other men; ” then follows a list of the sixteen new ones. The publishers of the volume must also have gathered into their possession the copyrights of all the plays which had been previously printed, thus gaining the right to issue the entire volume. Pericles had been already printed in Quarto form, but was left out of the Folio, possibly because its authorship was doubtful, or perhaps the publishers could not obtain the right to reprint it.

Such were the conditions of copyright under which Shakespeare’s various works were first printed. The only protection enjoyed by authors was through the printing monopoly held by the Stationers’ Company. Probably the only profit the poet ever derived from the sale of his printed works was through his contracts for the publication of Venus and Lucrece. The printing of the Quartos during his life may have been actually an injury to him in so far as it destroyed the stage monopoly of the plays held by the King’s Company, of which he was a member.

It only remains to say that the licensing regulations lapsed in 1694, and a few years later, in 1710, the first English copyright statute was passed by Parliament, giving the author control over the publication of his works for a specified number of year’s, which limited form of ownership has prevailed in Europe and America till to-day.

It will be observed that the question of the author’s common law right to his work — that is, the absolute ownership of his literary productions in perpetuity, like any other property — has not come up in the foregoing pages. This point seems never to have arisen in Shakespeare’s time. Nearly two centuries later it came before the courts, when the copyright of Thomson’s Seasons expired, and his representatives tried to prevent its publication by other parties. When the question was brought before the court of King’s Bench in Millar vs. Taylor, the court decided by a vote of three to one, Lord Mansfield being one of the majority, that the copyright of a book belongs to the author at common law, and that this right was not taken away by the statute of 1710. The matter came before the House of Lords on an appeal from a decree of the court of Chancery founded upon this judgment, and in the great case of Donaldson us. Beckett the Lords held , first, by a vote of eight to three, that the author of any literary composition had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published, and sold the same without his consent; second, by seven to four, that the common law did not take away this right upon his printing and publishing such literary composition ; third, by six to five, that such action at common law was taken away by the statute of 8th Anne, and the author was precluded by the said statute from every remedy except on the foundation of the statute and on the terms and conditions prescribed thereby ; or, in other words, the court held that after the passage of the statute the author’s ownership was changed from a perpetuity under the common law to an ownership limited to a term of years under the statute. It had been contended on behalf of the author that his right of property in his composition was a perpetuity ; that the statute merely gave him an additional protection for a term of years, and when that expired his common law rights still remained. But the court held the contrary view, that the statute terminated the common law perpetuity.

Lord Mansfield, being a peer, did not vote. Had he voted, it would have stood six to six on the third proposition, and the legal estimate of authors’ rights under the statute might have been materially changed.

The arguments of the justices favoring the rights of authors were based upon two grounds: —

First, the moral ground, that men should have the same unrestricted l ight of ownership in their literary works as in any other form of human productions.

Second, the historic precedent, asserting that ever since 1558 rights of property in literary compositions had been recognized. Now, it is true that copyright in literary compositions had been recognized as property ever since 1558, but it was through the customs and by-laws of the Stationers’ Company, and not by the statutes and the courts ; and these rights were vested in the Stationers, and not in the authors. The facts cited in the foregoing pages show conclusively that the piratical printers of Elizabeth’s time regarded with contempt any supposed right of ownership outside of their own number, and were in the habit of printing manuscripts that fell into their hands without any concern for the common law rights of the author.

The truth is that respect fur literary ownership is a thing of comparatively modern growth. As the literature of England increased in volume and value, that value demanded recognition and received it, first in the laws of the Stationers’ monopoly, then in the copyright statute of 1710, then in partial recognition of the common law right by the courts in 1774. Since the passage of the statute of 8th Anne, this protection has been extended to music, drawings, painting, and statuary; stage-right has been introduced in the case of plays; and last of all, international copyright has been obtained. The rights of authors rest, not upon historic precedent, but upon the growth of public sentiment ; it is a matter of evolution rather than of history.

It is easily within the range of possibilities that the growing public sentiment in favor of literary ownership may by and by be strong enough to overturn that interpretation of the law in 1774 adopted by the narrow vote of six to five (which even then would not have prevailed but for the unfortunate courtesy of Lord Mansfield in withholding his vote), and may establish the principle that authors should own their productions in perpetuity, the same as other property.

Horace Davis.

1. The following authorities, among others, have been consulted in gathering material for this inquiry: on questions of law and legal history, Morgan’s Law of Literature, Drone on Copyright, and the well-known cases of Millar us. Taylor, and Donaldson vs. Beckett; on matters especially relating to Shakespeare and his works, Halliwell’s Outlines, Elze ’s William Shakespeare, and the various Introductions to the Facsimile Quartos; on other contemporaneous writers, Arber’s republications, to all of which I would fully acknowledge my indebtedness.↩