Literary and Dramatic Disputes in Shakespeare’s Time

Literary and Dramatic Disputes in Shakespeare’s Time ABSTRACT Modern copyright law as we know it did not exist in Shakespeareã s time. Nevertheless, the Elizabethan age saw a high degree of professionalism of theatrical performance, book publishing, and dramatic authorship. When audiences are clamoring for novel entertainments, authorship is becoming a professional activity, and profits are to be made, customs and traditions inevitably arise—as do violations of those customs and traditions. This article discusses the framework of authorship and publishing in Shakespeare’s time and examines some of the disputes that arose and how they were resolved in a context where the legal remedies were limited. Methods from patronage to private guild “courts” to theft to public denunciation to outright violence were employed in attempts to maintain profitable businesses in publishing and theatre. POLONIUS. What do you read, my lord? HAMLET. Words, words, words. POLONIUS. What is the matter, my lord? HAMLET. Between who? POLONIUS. I mean the matter you read, my lord.1 Disputes over literary works and plays—between one authors and another, one publisher and another, and between authors and publishers—have arisen since the ancient world. This is to be expected, since publishing poems and plays and producing theatrical performances can have significant economic, political and emotional implications all at the same time. The nature and legal frameworks governing these disputes have changed dramatically over the centuries, however, particularly with regard to the proprietary rights involved. While disagreements over the rights to publish literary works or to produce plays are now governed by the law of copyright, statutory copyright vesting rights in the authors of works did not exist until 1710 with the Statute of Anne. Despite this slow development of intellectual property laws as they are understood today, the Elizabethan age nonetheless saw a high degree of professionalism of theatrical performance, book publishing and dramatic authorship. When audiences are clamoring for novel entertainments, authorship is becoming a professional activity, and profits are to be made, customs and traditions inevitably arise—as do violations of those customs and traditions. This article discusses the framework of authorship and publishing in Shakespeare’s time and examines some of the disputes that arose and how they were resolved in a context where the legal remedies were limited. Methods from patronage to private guild ‘courts’ to theft to public denunciation to outright violence were employed in attempts to maintain profitable businesses in publishing and theatre. When thinking about the ownership of a play during this period, there were several levels of ‘rights’ concerned. As Julie Stone Peters has described, ‘The play as “copy” belongs to the bookseller (the “Proprietor”); the play as theatrical performance belongs to the troupe and its manager; but the play as aesthetic object belongs to “the excellent Author himself””, in terms of its attribution to the author and integrity of the text.2 It is important to remember that, even in the absence of state-mandated intellectual property a manuscript of a play could also have value as tangible, as well as intangible, property. A playbook had significance as a commodity and might be held as security to make sure a loan was repaid, carefully hidden from plundering competitors, stolen by a rival company, sold to a bookseller for publication or disposed of cheaply along with the rest of the assets of a bankrupt theatre company, such as props and costumes. 1. EARLY MODERN PUBLISHING AND PRE-COPYRIGHT As a poet and playwright, William Shakespeare (1564–1616) had no recourse to English law to protect his literary creations from being reproduced or performed without his authorization during his lifetime. Copyright law is often presented as an inevitable development following the invention of the printing press, but it took centuries for a legal regime resembling modern copyright to arise. The first copyright act in Britain, and probably the world, was the Statute of Anne, which came into force in 1710. For the first time, the Act reserved to authors for a limited time the right to prevent unauthorized copying of their published books. In the previous several hundred years, exclusive rights were usually held by those we would now consider akin to the publishers, the members of the Stationers’ Company. The guild of Stationers predated printing itself, the precursor to the Company having been established in 1403 amongst the bookbinders, illuminators and sellers of manuscript books who had fixed stalls (stationarius)3 near St Paul’s Cathedral.4 Despite discoveries in printing technology in East Asia centuries before, the printing press only emerged in Western society in the late 1440s with Gutenberg’s developments in moveable type. By the 1460s, printed texts had reached England, and in 1476, Caxton introduced the first printing press to Britain, with powerful supporters behind his enterprise.5 Competitors followed, a market for publishing the common law was identified, and the foreign importation of books and paper flourished.6 Royal privileges granted to particular printers were replaced by royal patent monopolies granted to publish particular works and then, as printing became even more widespread and controversial, an idiosyncratic system of institutional self-regulation developed in an attempt to keep closer control of the dissemination of texts, particularly religious.7 In 1538, four years after the Act of Supremacy designating the monarch the head of the English Church, Henry VIII issued a proclamation forbidding unlicensed importation of books and requiring royal license for domestic printing in an effort to combat ‘naughty printed books’.8 The particular persuasion of those in power might fluctuate during this extended period of religious conflict, but the primary concern of the rulers was to prevent the printing and distribution of any material considered to be heretical or politically damaging. Further acts of the Privy Council followed,9 and in 1557 the Charter granting incorporation to the Stationers’ Company was granted by Queen Mary. By limiting printing to the members of the Company or those receiving royal Letters Patent,10 the Charter effectively concentrated the printing industry in London and gave the Stationers’ varied powers to ensure that no heretical or seditious books were printed.11 The 1637 Star Chamber Decree, which required all works to be licensed by the Stationers before printing, placed the Guild in an even more powerful position, which continued even after the dissolution of the Star Chamber, when the licensing requirement continued to be carried over in various Licensing Acts.12 Essentially, in return for exercising pre-publication censorship on behalf of the Crown, the Stationers’ Company received near-complete economic control of the early publishing industry; thus, it is fair to say that the origins of copyright in Britain were closely bound up with censorship.13 It was not unknown to distinguish the two parallel roles of the Company, however, and Milton’s 1644 Areopagitica did not begrudge ‘the just retaining of each man his severall copy, which God forbid should be gainsaid’ when denouncing pre-publication censorship.14 In contrast to copyright laws that came later, the relevant legislation governing and granting powers to the Stationers’ protected the owner of a book rather than the author of a text; for example, the 1662 Licensing Act prohibited ‘the printing of any book unless first licensed and entered in the register of the Stationers’ Company, and prohibiting also the printing without consent of the owner’.15 Individual stationers maintained the rights to publish their particular books—theoretically in perpetuity—rights which they could assign to other stationers or pass down to their sons if they joined the Company. The Company’s ordinances prohibited printing another man’s copy and the Court of Assistants made efforts to ensure the rule was enforced.16 The books placed on the Stationers’ Register in a particular member’s name might be newly-composed works, but often were not; some of the most valuable were, in fact, ancient texts such as Homer and Aristotle. As George Unwin observed when writing a history of the guilds and companies of London ‘No other company … ever attained the same degree of monopoly as that which the State thought expedient to confer on the Stationers.’17 The Stationers’ Company was governed by a Warden and the Court of Assistants composed of elected Liverymen with a certain level of seniority and experience, which had significant and varied powers, including that of resolving disputes between its members. Disputes between masters and servants, printers and booksellers, between masters, and even between husband and wife all could be brought before this Court; as an institution, it was desirable to keep Stationers out of the royal courts or even the Lord Mayor’s Court of the City of London.18 Once elected, members of the Court served for life.19 While the Court had a wide range of powers, and arguably had some kind of legal authority by virtue of the powers granted through the Stationers’ Charter and, during some periods, the Licensing Acts, its jurisdiction and power were somewhat opaque and certainly not unlimited. There is evidence of intervention by the Lord Chamberlain regarding the unauthorized publication of plays of the King’s Men, Shakespeare’s own company, several times during the 17th century.20 The Stationers’ Company records indicate that a substantial part of Court’s work involved resolving disputes over infringement of one stationer’s copy by another. In his 1955 Lyell Lectures, WW Greg argued that the system of proto-copyright as practiced by the Stationers did not cause any ‘great injustice’ to authors in practice, though he acknowledged that it ‘did put difficulties in the way of replacing a corrupt text of a book by a more authentic version’ when requested by the author.21 In one instance, a corrected version of Kyd’s Spanish Tragedy was published by one stationer late in 1592, amending ‘grosse faults’ in an earlier impression that had previously entered on the Register. The stationer responsible for the earlier, faulty edition complained to the Court, which upheld his complaint, fining the other stationer, confiscating the corrected edition, and threatening to have him imprisoned.22 In the case of Roger Ward, a repeatedly offending pirate stationer in the late 16th century, proceedings before the Court were held in 1586, 1590, 1591 and 1596 for reproducing another man’s copy and having a secret press. Remedies included fines and destruction of the secret presses; he was also imprisoned twice, which was probably, though not certainly, related to these activities and achieved through the Company’s power and influence.23 While the theatre was Shakespeare’s primary source of income, it was publication of his plays and poems that led to his enduring legacy.24 Playbooks were among the many kinds of books, including almanacs, books of hymns, religious texts and poetry that brought profits to the booksellers. Yet, in Shakespeare’s time, these published playbooks were considered very lowbrow entertainment. Sir Thomas Bodley, in forming his great library, entered into an agreement with the Stationers’ Company in 1609 to send him a copy of every book that its members printed in perpetuity.25 However, he decided that there should be some exceptions from the collection, namely playbooks and almanacs. Writing to Thomas James, the first Keeper of the Bodleian Library, who challenged this position, he maintained his strong opinion on the subject. ‘Haply some plays may be worthy the keeping, but hardly one in forty’, he wrote.26 Publication of Shakespeare’s writing began in 1593 with his poem Venus and Adonis.27 As was common at the time, his first works appeared without his name on the title page, although with dedications signed William Shakespeare. Indeed, it may surprise modern readers 28 to learn that his earliest plays were published without attribution.29 Shakespeare himself appeared to have had limited involvement with the publication of his works, being directly involved only with the publication of his poems Venus and Adonis and The Rape of Lucrece.30 His name did not appear on a title page until 1598 with Love’s Labour Lost. The owners of playbooks, who might be authors themselves, but were far more likely to be the commissioning acting companies, could sell them to the booksellers or members of the Stationers’ Company for publication. From a strictly legal standpoint, it is not entirely clear what exactly it was they were selling, but neither the theatre company nor the author would maintain further legal rights over the text. Yet, it does appear to have been understood that what was being sold was somehow more than a physical object; Peters argues that by the early 17th century, ‘it was becoming clear … that a manuscript could also be the property of the company in the related sense that, as the exclusive copy of a play, it could be sold to a publisher who could then secure the sole right to have it printed’. The evidence suggests that Shakespeare, like most playwrights, did not sell his own plays to the booksellers directly. But far from objecting to this, the general view is that Shakespeare was a ‘company man’—as he understood it, the manuscripts were owned by his theatre company, in which he was heavily invested and shared in the profits.31 Other playwrights were not so complacent and complained of a situation that gave them little power when it came to publishing their work, both in terms of their lack of economic benefit from the publication of their plays and their inability to maintain quality control over the texts they had written.32 While the Stationers’ Company controlled most of the best copyrights—‘copy’—some printers maintained their independence.33 Printing patents, where the sovereign granted an exclusive right to print a work, also continued to exist concurrently with Stationers’ copyright: for example, Elizabethan patents granted to Richard Welch to print The History of Cornelius Tacitus and to William Watkins and others to print almanacs and David’s Psalms.34 The holders of these royal patents were represented in the Stationers’ Court of Assistants, which was probably necessary, as this dual system inevitably led to conflicts.35 In one instance, the author George Wither had a royal patent to publish his book of hymns alongside psalms that were the object of a prior grant to the Stationers’ Company.36 Aggrieved by his treatment by the Company, which had denied his rights and had him imprisoned, Wither published The Schollers Purgatory, laying out his account of their dealings with him and criticizing the injustice of a system that elevated the rights of the stationers above those of the authors and even, he claimed, of the Crown.37 For by an unjust custom (as most of your Reverences well know) the Stationers have so usurped upon the Labours of all writers, that when they have consumed their youth and fortunes in persisting some laborious work, those cruell Bee-masters burne the poore Athenian bees for their hony, or else drive them from the best part thereof by their long practiced cunnings.38 For Wither, having failed in his dispute with the Company, his only form of ‘appeal’ was to put his rhetorical abilities to use in the court of public opinion. After centuries of dominance, the Stationers’ Company’s power waned when the Licensing Act lapsed in 1695 after several extensions; subsequently the Company lobbied Parliament repeatedly to legislate in order to maintain their property and position.39 The result was not a continuation of the status quo, however, but the first copyright legislation, limiting the duration of rights and concentrating them, at least initially, in the hands of the authors. Historians differ on exactly who the Statute of Anne was truly intended to serve: the authors, the public, the publishers or some combination of the three.40 Regardless of the intent, the Stationers’ nearly exclusive control over printing and publishing diminished after 1710. The Company continued to have official responsibility, however, for maintaining the register of copyrights and for sending deposited copies of books to the copyright libraries until 1911,41 but the period of self-regulation with its internal system of resolving disputes between those involved in the book trade had ended. Copyright was now a matter to be thrashed out in the courts. 2. PLAGIARISM AND PROPERTY If there be nothing new, but that which is Hath been before, how are our brains beguil'd, Which, labouring for invention, bear amiss The second burthen of a former child!42 Shakespeare’s sonnet 59 expresses the frustration of an author who struggles to produce original work, only to produce an unsatisfactory copy of an earlier work. In keeping with the customs of his time and trade, Shakespeare himself did not hesitate to use existing material to craft his plays, though he has since been praised as one of English literature’s most original creators. One of the first works to emphasize originality as a paramount virtue and ascribe it to Shakespeare was Edward Young’s classic Conjectures on Original Composition, which lauded Shakespeare as the great original genius of English literature.43 Praise in this vein was repeated by many others, such as the 19th-century scholar who wrote: ‘Since Homer, no poet has come near Shakespeare in originality, freshness, opulence, and boldness of imagery.’44 Later critics have perhaps been more accepting of the idea of Shakespeare as an original adaptor, recognizing that drawing from history and classical tradition does not render the resulting literary accomplishments less valuable or remarkable.45 Nevertheless, some scholars have homed in on the fact that copyright in its modern form was entirely absent during the height of Elizabethan drama and asked questions like ‘How in a textual system which lacks a concept of authorial/intellectual property, and which operates largely through techniques of imitation, can there be such a thing as “plagiarism”?’46 This question fails to appreciate the crucial distinction between the moral and ethical wrong of plagiarism and the legal wrong of copyright infringement. The idea of plagiarism as both a violation of a creator and a fraud on the public has long existed separately from the concept of a legal property in the right to make reproductions of works. Fifteen hundred years previously, the Roman poet Martial (AD 40–104) was the first to use the Latin word plagiarus, a term generally reserved for the kidnapping of people, as one of his metaphors for literary theft.47 In having such concerns about illicit copying, Martial was far from an aberration in the ancient world.48 Horace exclaimed ‘Oh copiers, servile herd!’ in addressing his friend Maecenas on his annoyance with literary imitators.49 In 1548, elaborating upon the eighth commandment ‘Thou shalt not steal’, John Hooper included literary theft: so the diminution of any man’s fame as when for vainglory any man attribute unto himself the wit or learning that another brain hath brought forth: whereof many hath complained as this of Virgil Hos ego versiculos feci, tulit alter honores50 They make a fair show with another bird’s feathers, as Aesop’s crow did. This offence Martial calleth plagia … speaking of him that stole his books.51 By Shakespeare’s time, the English word ‘plagiary’ was used to describe a person who deceitfully passed off others’ work as his own. In fact, a 17th-century English translation of another epigram of Martial i.66, which does not contain the word plagiarus in the original Latin, nonetheless includes this English version of term: ‘Th’art out, vile Plagiary, that dost think/A poet may be made at th’rate of Ink/And cheap-priz’d Paper.’52 As Christopher Ricks emphasized in his Inaugural British Academy Lecture, dishonesty and deception are essential parts of the moral wrong of plagiarism, and one can certainly have a concept of plagiarism without a sense of literary property.53 Even in the absence of a governing legal framework, in the highly competitive, risky and potentially very lucrative, worlds of the playhouse and bookseller, disputes over plagiarism were sure to arise. The question of a remedy, however, was a tricky one. The evidence suggests that resorting to Martial’s approach to the problem—addressing one’s complaint in writing and publishing it—was one that was also used in Elizabethan times. Ben Jonson was certainly familiar with Martial, and he occasionally shared and echoed similar sentiments about his imitative rivals.54 In his satirical Poetaster, portraying himself in the role of Horace (another poet who had complained of being copied, of course), he wrote: ‘Why the ditty’s all borrowed/’tis Horace’s/Hang him plagiary!’55 There was no legal or customary restriction on adapting poetry and prose other than plays into dramatic works. In one instance, Thomas Heywood borrowed from Shakespeare’s poem ‘The Rape of Lucrece’ to write his own play on the same episode from Roman mythical history.56 Just as would be the case under our current copyright regime, stories from history and mythology were fair game for playwrights, and duplication of subjects and source material could sometimes make distinguishing one company’s property from another’s a challenging exercise.57 Misattribution of authorship in order to pass off a text as having been written by someone other than the actual author also occurred, but must be considered a literary offense distinct from plagiarism. While plagiarists, then and now, wrongfully appropriate the work of others as their own, misattributing works by oneself or another is usually done with the aim of increasing popular demand and improving sales.58 Unsurprisingly given the laissez-faire attitude to attribution in the first place, misattribution of play texts was relatively common in the Elizabethan era.59 Some of this may have resulted from particular playwrights becoming so strongly associated with particular companies that they were inextricably part of their ‘brand’. In Shakespeare’s case, he became so closely identified with the Chamberlain’s Men that all the plays they bought from the repertories of other companies eventually ended up being ascribed to Shakespeare.60 This technique of misattributing works to Shakespeare may have been to sell copies or it may have been ‘honest’ in the sense of indicating the plays came from his company; either way, the attribution to Shakespeare would not necessarily result in a significant improvement in sales of the playbooks.61 In one instance of misattribution, the name W Shakespeare was used on a collection of poems The Passionate Pilgrime published by William Jaggard in 1599. When it was republished in 1612, it included a few poems written by Thomas Heywood, still under the name Shakespeare. Heywood was distressed by this deceptive representation of his work, but in the absence of any legal protection, since Jaggard was the owner of the book in which his poems had originally been published, there was little he could do. In an attempt to set the record straight publicly, he included a prefatory note in his An Apology to Actors: Here likewise, I must necessarily insert a manifest injury done me in that worke by taking the two Epistles … and printing them in a lesse volume, under the name of another, which may put the world in opinion I might steale them from him; and hee to doe himself right, that since published them in his own name: but as I must acknowledge my lines not worthy his patronage, under whom he hath publisht them, so the Author I know much offended with M. Jaggard (that altogether unknowne to him) presumed to make so bold with his name. These, and the like dishonesties I know you to bee cleere of; and I could wish but to bee the happy Author of so worthy a worke as I could willingly commit to your care and workmanship.62 While it is not clear from the record exactly what happened, the implication is that Shakespeare likely expressed irritation to Jaggard who eventually removed Shakespeare’s name from the title page for the 1612 edition.63 The typical reading of this text is that Heywood was concerned that people would believe the poems previously published under his name to have in reality been written by Shakespeare—now being republished under the true author’s name. Max Thomas, however, in arguing that Elizabethan literary culture lacked anything akin to our contemporary disapproval of plagiarism, makes an elaborate but largely unpersuasive argument against this reading.64 He claims Heywood was not at all concerned with being branded a plagiarist, but was instead worried that people would think he was trying ‘to cash in on Shakespeare’s claim to patronage’.65 This labored interpretation is unnecessary; there is no reason to suppose, even in the absence of an intellectual property regime, that authors would not find it an irritation to see their words published under the name of another and the public would not view it as a deception when the name is one that they recognize but the words are from a different source. 3. THE THEATRES In contrast to the book publishers who had their own powerful and highly structured guild, the theatre companies did not have a formal organization to regulate their business.66 It is partly for this reason that the historical record is less clear on how disputes between rival theatre companies were resolved than it is on piratical stationers. Brute force may have sometimes been involved; in the case of the Boar’s Head theatre, an extended conflict between rival landlords began with dueling litigation but culminated in a brawl in the theatre during the middle of a performance.67 Despite there being no clear legal framework providing for any kind of stage-right or performance right, it appears that, at least according to the conventions of business practice, such rights did exist. The evidence suggests that Elizabethan plays were generally commissioned by particular companies who then treated them and guarded them as their property.68 Sometimes companies were able to acquire playbooks through other means and would perform them without the knowledge of, permission from or payment to the author.69 More often, dramatists worked for the companies, and some dramatists entered into exclusive contracts prohibiting them from writing for rivals, which could result in contractual disputes.70 Shakespeare, for one, appears to have been entirely loyal to his company—Bentley reports that ‘there is no evidence that he ever wrote any play for any other company’ from 1594 until his death.71 Some theatrical disputes were apparently fought with the pen. Jonson’s Poetaster, mentioned above, was traditionally associated with a dispute between theatre companies, known as the War of the Theatres or Poetomachia.72 The playwright John Marston had fallen out with Jonson for reasons unknown; the two exchanged satirical barbs—the point and comedy of which time has rendered opaque—in their dramatic works and Thomas Dekker was also drawn into the fray. It is still not clear whether this dispute was in earnest or was simply a publicity stunt to attract audiences, though references to at least one instance of violence suggests the former.73 In his in-depth study of the professional life of dramatists in Shakespeare’s time, Gerald Bentley makes good use of the diaries of Philip Henslowe (1550–1616), which provide valuable insights into the business practices of the theatres and companies at the time.74 In addition to renting property and engaging in a number of business activities of varying degrees of propriety, Henslowe served as a go-between or agent for the theatre companies in their dealings with playwrights, taking commissions from companies and advancing cash to the playwrights.75 In one letter, a playwright Richard Daborne wrote to Henslowe regarding money he owed him in advance of writing a play. Daborne, whom Bentley describes as ‘none too reliable a character’, late with his delivery, was essentially playing one company off against another by threatening to sell the playbook to the King’s Men instead of the original commissioning company. Mr Henslowe, I builded upon your promise to my wife, neither did I acquaint the company with any money I had of you because they should seek to you as I know they will and give you any terms you can desire. If they do not, I will bring your money for the papers, and many thanks. Neither will I fail to bring in the whole play next week. Wherefore I pray sir of all friendship disburse one forty shillings, and this note shall suffice to acknowledge myself indebted to you with my quarter’s rent £8 for which you shall either have the whole company’s bonds to pay you the first day of my play being played, or the King’s Men shall pay it to you and take my papers.76 Another dispute arose because Henslowe had been paid money for playbooks by a theatre company but had not delivered the manuscripts. Bentley suggests that Henslowe was probably keeping the manuscripts as security for larger debts, but the theatre company felt that having paid for the specific manuscripts, they were entitled to keep them in their own archives: ‘Also we have paid him for play books £200 or thereabouts, and yet he denies to give us the copies of one of them.’77 While sometimes there were intermediaries like Henslowe negotiating between playwright and actors, it was the companies who commissioned the plays, paid for them and, in some sense, owned them.78 But what did ownership mean in this context? It appears that no individual, probably including the author, was entitled to sell the playbook for publication. No other company was entitled to perform the same exact play unless they acquired it through assignment from the company that originally owned it, which sometimes occurred.79 Of course, some companies might break the rules, and there is an example in the case of John Marston’s play The Malcontent, which had originally been played by a boys’ company at the Blackfriars Theatre, but ended up being performed later by the King’s Men.80 The later version included additions and an induction by John Webster, which alludes to the fact that The Malcontent was more-or-less stolen in retaliation for a play Jeronimo that had previously been taken by the boys’ company. SLY. … I would know how you came by this play? CUNDALE. Faith sir the booke was lost, and because twas pittie so good a play should be lost, we found it and play it. SLY. I wonder you would play it, another company having interest in it. CUNDALE. Why not Malevole in folio with us, as Jeronimo in Decimo sexto with them. They taught us a name for our play, wee call it One for another.81 Though companies appear to have ‘owned’ their plays according to the custom of their trade, they did not have any rights in the subject matter.82 Other companies could commission plays about the same historical figures or famous literary tropes, which could sometimes lead to confusingly identical titles.83 Once obtained, playbooks could then be sold to and performed by other companies; detached from authorship, they were physical commodities of the theatre, like the costumes, sets and props. 4. CONCLUSION Despite overlapping, quasi-legal systems of ownership of dramatic works in Shakespeare’s time, and the rigid censorship, licensing and monopoly powers of the Stationers’ Company, playwriting and performance flourished in the Elizabethan era, which has long been considered the golden age of British theatre. The Stationers’ Company’s internal system of governance and dispute resolution may have had Draconian effects, but it allowed them to exploit effectively their collective monopoly. The theatre companies, which lacked the more rigid regulation of the publishing industry and occasionally found themselves on the wrong side of its power, also managed to operate at a highly professional level—albeit with the odd brawl—based on the vested common interests of those involved and what was evidently largely an honor system avoiding direct competition as far as performing identical dramatic works. Even in the absence of explicit proprietary rights in the law, a kind of property was acknowledged and its boundaries largely observed. It may be worth noting that in the 19th century, as copyright law matured, English theatre suffered. As Arthur DuBois proclaimed, ‘No great acting drama was written during the nineteenth century. Shakespeare was overpopular then. His popularity prevented the writing of great acting drama.’84 While no doubt fairer to authors en masse, the one-size-fits-all approach of modern copyright is not necessarily the sole or best way to produce a concentration of works of enduring genius. Footnotes 1 Hamlet, Act II, Scene 2 (191–95). 2 Julie Stone Peters, Theatre of the Book 1480-1880: Print, Text, and Performance in Europe (OUP 2000) 220. 3 From which the word ‘stationery’ is derived. 4 Cyprian Blagden, The Stationers’ Company: A History 1403-1959 (George Allen & Unwin Ltd 1960) 21–22; WW Greg, London Publishing Between 1550 and 1650 (OUP 1956) 1, 4. 5 John Feather, A History of British Publishing (Routledge 1988) 9–10. 6 ibid 11–13. 7 Frederick Seaton Siebert, Freedom of the Press in England 1476-1776: The Rise and Decline of Government Control (University of Illinois Press 1965) 34–37. 8 See David Scott Kastan, ‘Naughty Printed Books’ in Brian Cummins and James Simpson (eds), Cultural Reformations: Medieval and Renaissance Literary History (Oxford University Press 2010) 287–304. 9 John Roche Dasent (ed), Acts of the Privy Council of England Volume 2, 1547–1550 (Her Majesty’s Stationery Office 1890) 301–25. British History Online, 312 <http://www.british-history.ac.uk/acts-privy-council/vol2/pp301-325> accessed 1 April 2017. 10 Excepting university presses at Oxford and Cambridge. 11 Blagden (n 4) 19–23; Greg (n 4) 3; Christopher May and Susan Sell, Intellectual Property Rights: A Critical History (Lynne Reiner 2006) 88. 12 Blagden (n 4) 118; Lyman Ray Patterson, Copyright in Historical Perspective (Vanderbilt University Press 1968) 61. 13 Mark Rose, Authors and Owners: The Invention of Copyright (Harvard University Press 1993) 199; May and Sell (n 11) 90–91; Patterson (n 12) 36. 14 John Milton, Areopagitica (1644). 15 Licensing Act of 13 and 14 Car II 1662. 16 Blagden (n 4) 67. 17 George Unwin, The Guilds and Companies of London (Methuen 1908) 261. 18 Blagden (n 4) 54–55. 19 ibid 295. 20 Greg (n 4) 77. 21 ibid 73. 22 ibid 74. 23 Alexander Rodger, ‘Roger Ward’s Shrewsbury Stock: An Inventory of 1585’ (1958) s5-XIII Library 247. 24 Lukas Erne, Shakespeare and the Book Trade (CUP 2013) 1. 25 Gerald Eades Bentley, The Professions of Dramatist and Player in Shakespeare’s Time, 1590-1642 (Princeton University Press 1986) 51. 26 Letter from Sir Thomas Bodley to Thomas James (15 January 1612) in G Blakemore Evans, Elizabethan-Jacobean Drama: The Theatre in Its Time (New Amsterdam Books 1988) 17. 27 Erne (n 24) 14. 28 Peters (n 2) 223. 29 Douglas Brooks, From Playhouse to Printing House: Drama and Authorship in Early Modern England (CUP 2000) 11. 30 ibid 55; Bentley (n 25) 280; James J Marino, Owning William Shakespeare (University of Pennsylvania Press 2011) 30. For another interpretation see Douglas Bruster, ‘Shakespeare the Stationer’ in Marta Straznicky (ed) Shakespeare’s Stationers (University of Pennsylvania Press 2013). 31 Brooks (n 29) 10. 32 Greg (n 4) 73. 33 Unwin (n 17) 259–60. 34 Sir William Monson and Hayward Townshend, Megalopsychy: Being a Particular and Exact Account of the Last XVII Years (W Crooke 1682) 244. 35 Blagden (n 4) 63; Greg (n 4) 8. 36 Greg (n 4) 75. 37 George Wither, The Schollers Purgatory, discovered in the stationers common wealth (1624). 38 ibid 5. 39 Patterson (n 12) 141. 40 See Barbara Lauriat, ‘Copyright History in the Advocate’s Arsenal’ in Isabella Alexander and H. Tomás Gómez-Arostegui (eds), Research Handbook on the History of Copyright Law (Edward Elgar 2016) 21–24. 41 Blagden (n 4) 176. 42 Shakespeare, Sonnet 59. 43 Edward Young, Conjectures on Original Composition (Edith Morley ed, Longmans, Green & Co 1918[1759]) 14–15, 17. 44 Henry Norman Hudson, Shakespeare: His Life, Art, and Characters, Volume I (Ginn and Co, 1872). Shakespeare Online, 20 August 2009 <http://www.shakespeare-online.com/biography/imagery.html> accessed 1 April 2017. 45 TS Eliot, for example, admired Shakespeare’s ability to take pieces of prose from Thomas North’s translation of Plutarch’s Lives and turn it into ‘great poetry’. Valerie Eliot and John Haffenden (eds), The Letters of T. S. Eliot Volume 4: 1928-1929 (Faber & Faber 2013) 260–61. Eliot had previously observed in his essay ‘Tradition and the Individual Talent’ that ‘Shakespeare acquired more essential history from Plutarch than most men could from the whole British Museum’, The Sacred Wood (Alfred Knopf 1921). See also John Bate, The Genius of Shakespeare (Picador 1997). 46 Max W Thomas, ‘Eschewing Credit: Heywood, Shakespeare, and Plagiarism before Copyright’ (2000) 31 New Literary History 277. 47 ‘If thrice or four times you shout this, you will shame the plagiarist’. Hoc si terque quaterque clamitaris/inpones plagiario pudorem. Martial Epigrams i, 52 (English translation Walter Kerr (1919)). For further discussion, see eg, Marilyn Randall, Pragmatic Plagiarism: Authorship, Profit, and Power (University of Toronto Press 2001) 62; C Damon, The Mask of the Parasite: A Pathology of Roman Patronage (Ann Arbor 1997) 152. 48 See numerous examples cited in Brian Vickers, ‘Appendix II: Abolishing the Author? Theory versus History’ in Shakespeare, Co-author, A Historical Study of Five Collaborative Plays (OUP 2004) 506–41, 509–16. 49 O imitatorers servum pecus. Quintus Horatius Flaccus, Ep 1.19. 50 I composed these verselets, another bore the honors. 51 John Hooper, A Declaration of the Ten Holy Commandments (1548) 177 <http://name.umdl.umich.edu/A03622.0001.001> accessed 25 May 2017. 52 Erras, meorum fur auare librorum/ fieri poetam posse qui putas tanti/ scriptura quanti constet et tomus uilis. R Cullis Goffin (ed), The Life and Poems of William Cartwright (CUP 1918) (originally published in 1651) 74. 53 Christopher Ricks, ‘Plagiarism’ (1998) 97 Proceedings of the British Academy 149. 54 Joseph Loewenstein, ‘Martial, Jonson and the Assertion of Plagiarism’ in Kevin Sharpe and Steven Zwicker (eds), Reading, Society, and Politics in Early Modern England (CUP 2003) 275. 55 ‘The Poetaster’ in Barry Cornwall (ed), The Works of Ben Jonson (Edward Moxon 1838) 121. 56 Marino (n 30) 33. 57 ibid. 58 Today, this kind of activity could be dealt with through laws of passing off/unfair competition and/or moral rights. 59 Erne (n 24) 83–84. 60 Marino (n 30) 30. 61 ‘Shakespearean authorship, or perceived Shakespearean authorship, was clearly a selling point, but it was not enough to guarantee the success of individual playbooks’, Erne (n 24) 82. 62 Thomas Heywood, An Apology for Actors: In Three Books (The Shakespeare Society 1841) (first published 1612) 62. 63 Erne (n 24) 85. 64 Thomas (n 46) 282–85. 65 ibid 282. 66 Evans (n 26) 36. 67 CJ Sisson, The Boar’s Head Theatre: An Inn-Yard Theatre of the Elizabethan Age (Routledge 1972) 65. 68 Evans (n 26) 59. 69 Bentley (n 25) 82. 70 ibid 114–16. 71 ibid 279. 72 Ernest William Talbert, ‘The Purpose and Technique of Jonson’s Poetaster’ (1945) 42 Studies in Philology 225. 73 Tom Cain, ‘The War of the Theatres’ in Ben Jonson, Poetaster (Tom Cain ed, Manchester University Press 1995) 30. 74 Bentley (n 25). 75 ibid 63–64. 76 ibid 71–72, citing WW Greg (ed), Henslowe Papers (London 1907) 76. 77 Bentley (n 25) 89. 78 ibid 62, 64. 79 Roslyn Knutson, ‘Evidence for the Assignment of Plays’ (1989) 4 Medieval and Renaissance Drama in England 63. 80 ibid 79; Lucy Munro, Children of the Queen’s Revels: A Jacobean Theatre Repertory (CUP 2005) 134–35. 81 David Gunbie, David Carnegie and MacDonald P Jackson (eds), The Works of John Webster: An Old-Spelling Critical Edition, vol 3 (CUP 2007) 319. 82 Marino (n 30) 32. 83 ibid 32. 84 Arthur E Dubois, ‘Shakespeare and 19th-Century Drama’ (1934) 1 ELH 163, 163. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of International Dispute Settlement Oxford University Press

Literary and Dramatic Disputes in Shakespeare’s Time

Loading next page...
 
/lp/ou_press/literary-and-dramatic-disputes-in-shakespeare-s-time-m4VnUPFbP1
Publisher
Oxford University Press
Copyright
© The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
ISSN
2040-3585
eISSN
2040-3593
D.O.I.
10.1093/jnlids/idx006
Publisher site
See Article on Publisher Site

Abstract

ABSTRACT Modern copyright law as we know it did not exist in Shakespeareã s time. Nevertheless, the Elizabethan age saw a high degree of professionalism of theatrical performance, book publishing, and dramatic authorship. When audiences are clamoring for novel entertainments, authorship is becoming a professional activity, and profits are to be made, customs and traditions inevitably arise—as do violations of those customs and traditions. This article discusses the framework of authorship and publishing in Shakespeare’s time and examines some of the disputes that arose and how they were resolved in a context where the legal remedies were limited. Methods from patronage to private guild “courts” to theft to public denunciation to outright violence were employed in attempts to maintain profitable businesses in publishing and theatre. POLONIUS. What do you read, my lord? HAMLET. Words, words, words. POLONIUS. What is the matter, my lord? HAMLET. Between who? POLONIUS. I mean the matter you read, my lord.1 Disputes over literary works and plays—between one authors and another, one publisher and another, and between authors and publishers—have arisen since the ancient world. This is to be expected, since publishing poems and plays and producing theatrical performances can have significant economic, political and emotional implications all at the same time. The nature and legal frameworks governing these disputes have changed dramatically over the centuries, however, particularly with regard to the proprietary rights involved. While disagreements over the rights to publish literary works or to produce plays are now governed by the law of copyright, statutory copyright vesting rights in the authors of works did not exist until 1710 with the Statute of Anne. Despite this slow development of intellectual property laws as they are understood today, the Elizabethan age nonetheless saw a high degree of professionalism of theatrical performance, book publishing and dramatic authorship. When audiences are clamoring for novel entertainments, authorship is becoming a professional activity, and profits are to be made, customs and traditions inevitably arise—as do violations of those customs and traditions. This article discusses the framework of authorship and publishing in Shakespeare’s time and examines some of the disputes that arose and how they were resolved in a context where the legal remedies were limited. Methods from patronage to private guild ‘courts’ to theft to public denunciation to outright violence were employed in attempts to maintain profitable businesses in publishing and theatre. When thinking about the ownership of a play during this period, there were several levels of ‘rights’ concerned. As Julie Stone Peters has described, ‘The play as “copy” belongs to the bookseller (the “Proprietor”); the play as theatrical performance belongs to the troupe and its manager; but the play as aesthetic object belongs to “the excellent Author himself””, in terms of its attribution to the author and integrity of the text.2 It is important to remember that, even in the absence of state-mandated intellectual property a manuscript of a play could also have value as tangible, as well as intangible, property. A playbook had significance as a commodity and might be held as security to make sure a loan was repaid, carefully hidden from plundering competitors, stolen by a rival company, sold to a bookseller for publication or disposed of cheaply along with the rest of the assets of a bankrupt theatre company, such as props and costumes. 1. EARLY MODERN PUBLISHING AND PRE-COPYRIGHT As a poet and playwright, William Shakespeare (1564–1616) had no recourse to English law to protect his literary creations from being reproduced or performed without his authorization during his lifetime. Copyright law is often presented as an inevitable development following the invention of the printing press, but it took centuries for a legal regime resembling modern copyright to arise. The first copyright act in Britain, and probably the world, was the Statute of Anne, which came into force in 1710. For the first time, the Act reserved to authors for a limited time the right to prevent unauthorized copying of their published books. In the previous several hundred years, exclusive rights were usually held by those we would now consider akin to the publishers, the members of the Stationers’ Company. The guild of Stationers predated printing itself, the precursor to the Company having been established in 1403 amongst the bookbinders, illuminators and sellers of manuscript books who had fixed stalls (stationarius)3 near St Paul’s Cathedral.4 Despite discoveries in printing technology in East Asia centuries before, the printing press only emerged in Western society in the late 1440s with Gutenberg’s developments in moveable type. By the 1460s, printed texts had reached England, and in 1476, Caxton introduced the first printing press to Britain, with powerful supporters behind his enterprise.5 Competitors followed, a market for publishing the common law was identified, and the foreign importation of books and paper flourished.6 Royal privileges granted to particular printers were replaced by royal patent monopolies granted to publish particular works and then, as printing became even more widespread and controversial, an idiosyncratic system of institutional self-regulation developed in an attempt to keep closer control of the dissemination of texts, particularly religious.7 In 1538, four years after the Act of Supremacy designating the monarch the head of the English Church, Henry VIII issued a proclamation forbidding unlicensed importation of books and requiring royal license for domestic printing in an effort to combat ‘naughty printed books’.8 The particular persuasion of those in power might fluctuate during this extended period of religious conflict, but the primary concern of the rulers was to prevent the printing and distribution of any material considered to be heretical or politically damaging. Further acts of the Privy Council followed,9 and in 1557 the Charter granting incorporation to the Stationers’ Company was granted by Queen Mary. By limiting printing to the members of the Company or those receiving royal Letters Patent,10 the Charter effectively concentrated the printing industry in London and gave the Stationers’ varied powers to ensure that no heretical or seditious books were printed.11 The 1637 Star Chamber Decree, which required all works to be licensed by the Stationers before printing, placed the Guild in an even more powerful position, which continued even after the dissolution of the Star Chamber, when the licensing requirement continued to be carried over in various Licensing Acts.12 Essentially, in return for exercising pre-publication censorship on behalf of the Crown, the Stationers’ Company received near-complete economic control of the early publishing industry; thus, it is fair to say that the origins of copyright in Britain were closely bound up with censorship.13 It was not unknown to distinguish the two parallel roles of the Company, however, and Milton’s 1644 Areopagitica did not begrudge ‘the just retaining of each man his severall copy, which God forbid should be gainsaid’ when denouncing pre-publication censorship.14 In contrast to copyright laws that came later, the relevant legislation governing and granting powers to the Stationers’ protected the owner of a book rather than the author of a text; for example, the 1662 Licensing Act prohibited ‘the printing of any book unless first licensed and entered in the register of the Stationers’ Company, and prohibiting also the printing without consent of the owner’.15 Individual stationers maintained the rights to publish their particular books—theoretically in perpetuity—rights which they could assign to other stationers or pass down to their sons if they joined the Company. The Company’s ordinances prohibited printing another man’s copy and the Court of Assistants made efforts to ensure the rule was enforced.16 The books placed on the Stationers’ Register in a particular member’s name might be newly-composed works, but often were not; some of the most valuable were, in fact, ancient texts such as Homer and Aristotle. As George Unwin observed when writing a history of the guilds and companies of London ‘No other company … ever attained the same degree of monopoly as that which the State thought expedient to confer on the Stationers.’17 The Stationers’ Company was governed by a Warden and the Court of Assistants composed of elected Liverymen with a certain level of seniority and experience, which had significant and varied powers, including that of resolving disputes between its members. Disputes between masters and servants, printers and booksellers, between masters, and even between husband and wife all could be brought before this Court; as an institution, it was desirable to keep Stationers out of the royal courts or even the Lord Mayor’s Court of the City of London.18 Once elected, members of the Court served for life.19 While the Court had a wide range of powers, and arguably had some kind of legal authority by virtue of the powers granted through the Stationers’ Charter and, during some periods, the Licensing Acts, its jurisdiction and power were somewhat opaque and certainly not unlimited. There is evidence of intervention by the Lord Chamberlain regarding the unauthorized publication of plays of the King’s Men, Shakespeare’s own company, several times during the 17th century.20 The Stationers’ Company records indicate that a substantial part of Court’s work involved resolving disputes over infringement of one stationer’s copy by another. In his 1955 Lyell Lectures, WW Greg argued that the system of proto-copyright as practiced by the Stationers did not cause any ‘great injustice’ to authors in practice, though he acknowledged that it ‘did put difficulties in the way of replacing a corrupt text of a book by a more authentic version’ when requested by the author.21 In one instance, a corrected version of Kyd’s Spanish Tragedy was published by one stationer late in 1592, amending ‘grosse faults’ in an earlier impression that had previously entered on the Register. The stationer responsible for the earlier, faulty edition complained to the Court, which upheld his complaint, fining the other stationer, confiscating the corrected edition, and threatening to have him imprisoned.22 In the case of Roger Ward, a repeatedly offending pirate stationer in the late 16th century, proceedings before the Court were held in 1586, 1590, 1591 and 1596 for reproducing another man’s copy and having a secret press. Remedies included fines and destruction of the secret presses; he was also imprisoned twice, which was probably, though not certainly, related to these activities and achieved through the Company’s power and influence.23 While the theatre was Shakespeare’s primary source of income, it was publication of his plays and poems that led to his enduring legacy.24 Playbooks were among the many kinds of books, including almanacs, books of hymns, religious texts and poetry that brought profits to the booksellers. Yet, in Shakespeare’s time, these published playbooks were considered very lowbrow entertainment. Sir Thomas Bodley, in forming his great library, entered into an agreement with the Stationers’ Company in 1609 to send him a copy of every book that its members printed in perpetuity.25 However, he decided that there should be some exceptions from the collection, namely playbooks and almanacs. Writing to Thomas James, the first Keeper of the Bodleian Library, who challenged this position, he maintained his strong opinion on the subject. ‘Haply some plays may be worthy the keeping, but hardly one in forty’, he wrote.26 Publication of Shakespeare’s writing began in 1593 with his poem Venus and Adonis.27 As was common at the time, his first works appeared without his name on the title page, although with dedications signed William Shakespeare. Indeed, it may surprise modern readers 28 to learn that his earliest plays were published without attribution.29 Shakespeare himself appeared to have had limited involvement with the publication of his works, being directly involved only with the publication of his poems Venus and Adonis and The Rape of Lucrece.30 His name did not appear on a title page until 1598 with Love’s Labour Lost. The owners of playbooks, who might be authors themselves, but were far more likely to be the commissioning acting companies, could sell them to the booksellers or members of the Stationers’ Company for publication. From a strictly legal standpoint, it is not entirely clear what exactly it was they were selling, but neither the theatre company nor the author would maintain further legal rights over the text. Yet, it does appear to have been understood that what was being sold was somehow more than a physical object; Peters argues that by the early 17th century, ‘it was becoming clear … that a manuscript could also be the property of the company in the related sense that, as the exclusive copy of a play, it could be sold to a publisher who could then secure the sole right to have it printed’. The evidence suggests that Shakespeare, like most playwrights, did not sell his own plays to the booksellers directly. But far from objecting to this, the general view is that Shakespeare was a ‘company man’—as he understood it, the manuscripts were owned by his theatre company, in which he was heavily invested and shared in the profits.31 Other playwrights were not so complacent and complained of a situation that gave them little power when it came to publishing their work, both in terms of their lack of economic benefit from the publication of their plays and their inability to maintain quality control over the texts they had written.32 While the Stationers’ Company controlled most of the best copyrights—‘copy’—some printers maintained their independence.33 Printing patents, where the sovereign granted an exclusive right to print a work, also continued to exist concurrently with Stationers’ copyright: for example, Elizabethan patents granted to Richard Welch to print The History of Cornelius Tacitus and to William Watkins and others to print almanacs and David’s Psalms.34 The holders of these royal patents were represented in the Stationers’ Court of Assistants, which was probably necessary, as this dual system inevitably led to conflicts.35 In one instance, the author George Wither had a royal patent to publish his book of hymns alongside psalms that were the object of a prior grant to the Stationers’ Company.36 Aggrieved by his treatment by the Company, which had denied his rights and had him imprisoned, Wither published The Schollers Purgatory, laying out his account of their dealings with him and criticizing the injustice of a system that elevated the rights of the stationers above those of the authors and even, he claimed, of the Crown.37 For by an unjust custom (as most of your Reverences well know) the Stationers have so usurped upon the Labours of all writers, that when they have consumed their youth and fortunes in persisting some laborious work, those cruell Bee-masters burne the poore Athenian bees for their hony, or else drive them from the best part thereof by their long practiced cunnings.38 For Wither, having failed in his dispute with the Company, his only form of ‘appeal’ was to put his rhetorical abilities to use in the court of public opinion. After centuries of dominance, the Stationers’ Company’s power waned when the Licensing Act lapsed in 1695 after several extensions; subsequently the Company lobbied Parliament repeatedly to legislate in order to maintain their property and position.39 The result was not a continuation of the status quo, however, but the first copyright legislation, limiting the duration of rights and concentrating them, at least initially, in the hands of the authors. Historians differ on exactly who the Statute of Anne was truly intended to serve: the authors, the public, the publishers or some combination of the three.40 Regardless of the intent, the Stationers’ nearly exclusive control over printing and publishing diminished after 1710. The Company continued to have official responsibility, however, for maintaining the register of copyrights and for sending deposited copies of books to the copyright libraries until 1911,41 but the period of self-regulation with its internal system of resolving disputes between those involved in the book trade had ended. Copyright was now a matter to be thrashed out in the courts. 2. PLAGIARISM AND PROPERTY If there be nothing new, but that which is Hath been before, how are our brains beguil'd, Which, labouring for invention, bear amiss The second burthen of a former child!42 Shakespeare’s sonnet 59 expresses the frustration of an author who struggles to produce original work, only to produce an unsatisfactory copy of an earlier work. In keeping with the customs of his time and trade, Shakespeare himself did not hesitate to use existing material to craft his plays, though he has since been praised as one of English literature’s most original creators. One of the first works to emphasize originality as a paramount virtue and ascribe it to Shakespeare was Edward Young’s classic Conjectures on Original Composition, which lauded Shakespeare as the great original genius of English literature.43 Praise in this vein was repeated by many others, such as the 19th-century scholar who wrote: ‘Since Homer, no poet has come near Shakespeare in originality, freshness, opulence, and boldness of imagery.’44 Later critics have perhaps been more accepting of the idea of Shakespeare as an original adaptor, recognizing that drawing from history and classical tradition does not render the resulting literary accomplishments less valuable or remarkable.45 Nevertheless, some scholars have homed in on the fact that copyright in its modern form was entirely absent during the height of Elizabethan drama and asked questions like ‘How in a textual system which lacks a concept of authorial/intellectual property, and which operates largely through techniques of imitation, can there be such a thing as “plagiarism”?’46 This question fails to appreciate the crucial distinction between the moral and ethical wrong of plagiarism and the legal wrong of copyright infringement. The idea of plagiarism as both a violation of a creator and a fraud on the public has long existed separately from the concept of a legal property in the right to make reproductions of works. Fifteen hundred years previously, the Roman poet Martial (AD 40–104) was the first to use the Latin word plagiarus, a term generally reserved for the kidnapping of people, as one of his metaphors for literary theft.47 In having such concerns about illicit copying, Martial was far from an aberration in the ancient world.48 Horace exclaimed ‘Oh copiers, servile herd!’ in addressing his friend Maecenas on his annoyance with literary imitators.49 In 1548, elaborating upon the eighth commandment ‘Thou shalt not steal’, John Hooper included literary theft: so the diminution of any man’s fame as when for vainglory any man attribute unto himself the wit or learning that another brain hath brought forth: whereof many hath complained as this of Virgil Hos ego versiculos feci, tulit alter honores50 They make a fair show with another bird’s feathers, as Aesop’s crow did. This offence Martial calleth plagia … speaking of him that stole his books.51 By Shakespeare’s time, the English word ‘plagiary’ was used to describe a person who deceitfully passed off others’ work as his own. In fact, a 17th-century English translation of another epigram of Martial i.66, which does not contain the word plagiarus in the original Latin, nonetheless includes this English version of term: ‘Th’art out, vile Plagiary, that dost think/A poet may be made at th’rate of Ink/And cheap-priz’d Paper.’52 As Christopher Ricks emphasized in his Inaugural British Academy Lecture, dishonesty and deception are essential parts of the moral wrong of plagiarism, and one can certainly have a concept of plagiarism without a sense of literary property.53 Even in the absence of a governing legal framework, in the highly competitive, risky and potentially very lucrative, worlds of the playhouse and bookseller, disputes over plagiarism were sure to arise. The question of a remedy, however, was a tricky one. The evidence suggests that resorting to Martial’s approach to the problem—addressing one’s complaint in writing and publishing it—was one that was also used in Elizabethan times. Ben Jonson was certainly familiar with Martial, and he occasionally shared and echoed similar sentiments about his imitative rivals.54 In his satirical Poetaster, portraying himself in the role of Horace (another poet who had complained of being copied, of course), he wrote: ‘Why the ditty’s all borrowed/’tis Horace’s/Hang him plagiary!’55 There was no legal or customary restriction on adapting poetry and prose other than plays into dramatic works. In one instance, Thomas Heywood borrowed from Shakespeare’s poem ‘The Rape of Lucrece’ to write his own play on the same episode from Roman mythical history.56 Just as would be the case under our current copyright regime, stories from history and mythology were fair game for playwrights, and duplication of subjects and source material could sometimes make distinguishing one company’s property from another’s a challenging exercise.57 Misattribution of authorship in order to pass off a text as having been written by someone other than the actual author also occurred, but must be considered a literary offense distinct from plagiarism. While plagiarists, then and now, wrongfully appropriate the work of others as their own, misattributing works by oneself or another is usually done with the aim of increasing popular demand and improving sales.58 Unsurprisingly given the laissez-faire attitude to attribution in the first place, misattribution of play texts was relatively common in the Elizabethan era.59 Some of this may have resulted from particular playwrights becoming so strongly associated with particular companies that they were inextricably part of their ‘brand’. In Shakespeare’s case, he became so closely identified with the Chamberlain’s Men that all the plays they bought from the repertories of other companies eventually ended up being ascribed to Shakespeare.60 This technique of misattributing works to Shakespeare may have been to sell copies or it may have been ‘honest’ in the sense of indicating the plays came from his company; either way, the attribution to Shakespeare would not necessarily result in a significant improvement in sales of the playbooks.61 In one instance of misattribution, the name W Shakespeare was used on a collection of poems The Passionate Pilgrime published by William Jaggard in 1599. When it was republished in 1612, it included a few poems written by Thomas Heywood, still under the name Shakespeare. Heywood was distressed by this deceptive representation of his work, but in the absence of any legal protection, since Jaggard was the owner of the book in which his poems had originally been published, there was little he could do. In an attempt to set the record straight publicly, he included a prefatory note in his An Apology to Actors: Here likewise, I must necessarily insert a manifest injury done me in that worke by taking the two Epistles … and printing them in a lesse volume, under the name of another, which may put the world in opinion I might steale them from him; and hee to doe himself right, that since published them in his own name: but as I must acknowledge my lines not worthy his patronage, under whom he hath publisht them, so the Author I know much offended with M. Jaggard (that altogether unknowne to him) presumed to make so bold with his name. These, and the like dishonesties I know you to bee cleere of; and I could wish but to bee the happy Author of so worthy a worke as I could willingly commit to your care and workmanship.62 While it is not clear from the record exactly what happened, the implication is that Shakespeare likely expressed irritation to Jaggard who eventually removed Shakespeare’s name from the title page for the 1612 edition.63 The typical reading of this text is that Heywood was concerned that people would believe the poems previously published under his name to have in reality been written by Shakespeare—now being republished under the true author’s name. Max Thomas, however, in arguing that Elizabethan literary culture lacked anything akin to our contemporary disapproval of plagiarism, makes an elaborate but largely unpersuasive argument against this reading.64 He claims Heywood was not at all concerned with being branded a plagiarist, but was instead worried that people would think he was trying ‘to cash in on Shakespeare’s claim to patronage’.65 This labored interpretation is unnecessary; there is no reason to suppose, even in the absence of an intellectual property regime, that authors would not find it an irritation to see their words published under the name of another and the public would not view it as a deception when the name is one that they recognize but the words are from a different source. 3. THE THEATRES In contrast to the book publishers who had their own powerful and highly structured guild, the theatre companies did not have a formal organization to regulate their business.66 It is partly for this reason that the historical record is less clear on how disputes between rival theatre companies were resolved than it is on piratical stationers. Brute force may have sometimes been involved; in the case of the Boar’s Head theatre, an extended conflict between rival landlords began with dueling litigation but culminated in a brawl in the theatre during the middle of a performance.67 Despite there being no clear legal framework providing for any kind of stage-right or performance right, it appears that, at least according to the conventions of business practice, such rights did exist. The evidence suggests that Elizabethan plays were generally commissioned by particular companies who then treated them and guarded them as their property.68 Sometimes companies were able to acquire playbooks through other means and would perform them without the knowledge of, permission from or payment to the author.69 More often, dramatists worked for the companies, and some dramatists entered into exclusive contracts prohibiting them from writing for rivals, which could result in contractual disputes.70 Shakespeare, for one, appears to have been entirely loyal to his company—Bentley reports that ‘there is no evidence that he ever wrote any play for any other company’ from 1594 until his death.71 Some theatrical disputes were apparently fought with the pen. Jonson’s Poetaster, mentioned above, was traditionally associated with a dispute between theatre companies, known as the War of the Theatres or Poetomachia.72 The playwright John Marston had fallen out with Jonson for reasons unknown; the two exchanged satirical barbs—the point and comedy of which time has rendered opaque—in their dramatic works and Thomas Dekker was also drawn into the fray. It is still not clear whether this dispute was in earnest or was simply a publicity stunt to attract audiences, though references to at least one instance of violence suggests the former.73 In his in-depth study of the professional life of dramatists in Shakespeare’s time, Gerald Bentley makes good use of the diaries of Philip Henslowe (1550–1616), which provide valuable insights into the business practices of the theatres and companies at the time.74 In addition to renting property and engaging in a number of business activities of varying degrees of propriety, Henslowe served as a go-between or agent for the theatre companies in their dealings with playwrights, taking commissions from companies and advancing cash to the playwrights.75 In one letter, a playwright Richard Daborne wrote to Henslowe regarding money he owed him in advance of writing a play. Daborne, whom Bentley describes as ‘none too reliable a character’, late with his delivery, was essentially playing one company off against another by threatening to sell the playbook to the King’s Men instead of the original commissioning company. Mr Henslowe, I builded upon your promise to my wife, neither did I acquaint the company with any money I had of you because they should seek to you as I know they will and give you any terms you can desire. If they do not, I will bring your money for the papers, and many thanks. Neither will I fail to bring in the whole play next week. Wherefore I pray sir of all friendship disburse one forty shillings, and this note shall suffice to acknowledge myself indebted to you with my quarter’s rent £8 for which you shall either have the whole company’s bonds to pay you the first day of my play being played, or the King’s Men shall pay it to you and take my papers.76 Another dispute arose because Henslowe had been paid money for playbooks by a theatre company but had not delivered the manuscripts. Bentley suggests that Henslowe was probably keeping the manuscripts as security for larger debts, but the theatre company felt that having paid for the specific manuscripts, they were entitled to keep them in their own archives: ‘Also we have paid him for play books £200 or thereabouts, and yet he denies to give us the copies of one of them.’77 While sometimes there were intermediaries like Henslowe negotiating between playwright and actors, it was the companies who commissioned the plays, paid for them and, in some sense, owned them.78 But what did ownership mean in this context? It appears that no individual, probably including the author, was entitled to sell the playbook for publication. No other company was entitled to perform the same exact play unless they acquired it through assignment from the company that originally owned it, which sometimes occurred.79 Of course, some companies might break the rules, and there is an example in the case of John Marston’s play The Malcontent, which had originally been played by a boys’ company at the Blackfriars Theatre, but ended up being performed later by the King’s Men.80 The later version included additions and an induction by John Webster, which alludes to the fact that The Malcontent was more-or-less stolen in retaliation for a play Jeronimo that had previously been taken by the boys’ company. SLY. … I would know how you came by this play? CUNDALE. Faith sir the booke was lost, and because twas pittie so good a play should be lost, we found it and play it. SLY. I wonder you would play it, another company having interest in it. CUNDALE. Why not Malevole in folio with us, as Jeronimo in Decimo sexto with them. They taught us a name for our play, wee call it One for another.81 Though companies appear to have ‘owned’ their plays according to the custom of their trade, they did not have any rights in the subject matter.82 Other companies could commission plays about the same historical figures or famous literary tropes, which could sometimes lead to confusingly identical titles.83 Once obtained, playbooks could then be sold to and performed by other companies; detached from authorship, they were physical commodities of the theatre, like the costumes, sets and props. 4. CONCLUSION Despite overlapping, quasi-legal systems of ownership of dramatic works in Shakespeare’s time, and the rigid censorship, licensing and monopoly powers of the Stationers’ Company, playwriting and performance flourished in the Elizabethan era, which has long been considered the golden age of British theatre. The Stationers’ Company’s internal system of governance and dispute resolution may have had Draconian effects, but it allowed them to exploit effectively their collective monopoly. The theatre companies, which lacked the more rigid regulation of the publishing industry and occasionally found themselves on the wrong side of its power, also managed to operate at a highly professional level—albeit with the odd brawl—based on the vested common interests of those involved and what was evidently largely an honor system avoiding direct competition as far as performing identical dramatic works. Even in the absence of explicit proprietary rights in the law, a kind of property was acknowledged and its boundaries largely observed. It may be worth noting that in the 19th century, as copyright law matured, English theatre suffered. As Arthur DuBois proclaimed, ‘No great acting drama was written during the nineteenth century. Shakespeare was overpopular then. His popularity prevented the writing of great acting drama.’84 While no doubt fairer to authors en masse, the one-size-fits-all approach of modern copyright is not necessarily the sole or best way to produce a concentration of works of enduring genius. Footnotes 1 Hamlet, Act II, Scene 2 (191–95). 2 Julie Stone Peters, Theatre of the Book 1480-1880: Print, Text, and Performance in Europe (OUP 2000) 220. 3 From which the word ‘stationery’ is derived. 4 Cyprian Blagden, The Stationers’ Company: A History 1403-1959 (George Allen & Unwin Ltd 1960) 21–22; WW Greg, London Publishing Between 1550 and 1650 (OUP 1956) 1, 4. 5 John Feather, A History of British Publishing (Routledge 1988) 9–10. 6 ibid 11–13. 7 Frederick Seaton Siebert, Freedom of the Press in England 1476-1776: The Rise and Decline of Government Control (University of Illinois Press 1965) 34–37. 8 See David Scott Kastan, ‘Naughty Printed Books’ in Brian Cummins and James Simpson (eds), Cultural Reformations: Medieval and Renaissance Literary History (Oxford University Press 2010) 287–304. 9 John Roche Dasent (ed), Acts of the Privy Council of England Volume 2, 1547–1550 (Her Majesty’s Stationery Office 1890) 301–25. British History Online, 312 <http://www.british-history.ac.uk/acts-privy-council/vol2/pp301-325> accessed 1 April 2017. 10 Excepting university presses at Oxford and Cambridge. 11 Blagden (n 4) 19–23; Greg (n 4) 3; Christopher May and Susan Sell, Intellectual Property Rights: A Critical History (Lynne Reiner 2006) 88. 12 Blagden (n 4) 118; Lyman Ray Patterson, Copyright in Historical Perspective (Vanderbilt University Press 1968) 61. 13 Mark Rose, Authors and Owners: The Invention of Copyright (Harvard University Press 1993) 199; May and Sell (n 11) 90–91; Patterson (n 12) 36. 14 John Milton, Areopagitica (1644). 15 Licensing Act of 13 and 14 Car II 1662. 16 Blagden (n 4) 67. 17 George Unwin, The Guilds and Companies of London (Methuen 1908) 261. 18 Blagden (n 4) 54–55. 19 ibid 295. 20 Greg (n 4) 77. 21 ibid 73. 22 ibid 74. 23 Alexander Rodger, ‘Roger Ward’s Shrewsbury Stock: An Inventory of 1585’ (1958) s5-XIII Library 247. 24 Lukas Erne, Shakespeare and the Book Trade (CUP 2013) 1. 25 Gerald Eades Bentley, The Professions of Dramatist and Player in Shakespeare’s Time, 1590-1642 (Princeton University Press 1986) 51. 26 Letter from Sir Thomas Bodley to Thomas James (15 January 1612) in G Blakemore Evans, Elizabethan-Jacobean Drama: The Theatre in Its Time (New Amsterdam Books 1988) 17. 27 Erne (n 24) 14. 28 Peters (n 2) 223. 29 Douglas Brooks, From Playhouse to Printing House: Drama and Authorship in Early Modern England (CUP 2000) 11. 30 ibid 55; Bentley (n 25) 280; James J Marino, Owning William Shakespeare (University of Pennsylvania Press 2011) 30. For another interpretation see Douglas Bruster, ‘Shakespeare the Stationer’ in Marta Straznicky (ed) Shakespeare’s Stationers (University of Pennsylvania Press 2013). 31 Brooks (n 29) 10. 32 Greg (n 4) 73. 33 Unwin (n 17) 259–60. 34 Sir William Monson and Hayward Townshend, Megalopsychy: Being a Particular and Exact Account of the Last XVII Years (W Crooke 1682) 244. 35 Blagden (n 4) 63; Greg (n 4) 8. 36 Greg (n 4) 75. 37 George Wither, The Schollers Purgatory, discovered in the stationers common wealth (1624). 38 ibid 5. 39 Patterson (n 12) 141. 40 See Barbara Lauriat, ‘Copyright History in the Advocate’s Arsenal’ in Isabella Alexander and H. Tomás Gómez-Arostegui (eds), Research Handbook on the History of Copyright Law (Edward Elgar 2016) 21–24. 41 Blagden (n 4) 176. 42 Shakespeare, Sonnet 59. 43 Edward Young, Conjectures on Original Composition (Edith Morley ed, Longmans, Green & Co 1918[1759]) 14–15, 17. 44 Henry Norman Hudson, Shakespeare: His Life, Art, and Characters, Volume I (Ginn and Co, 1872). Shakespeare Online, 20 August 2009 <http://www.shakespeare-online.com/biography/imagery.html> accessed 1 April 2017. 45 TS Eliot, for example, admired Shakespeare’s ability to take pieces of prose from Thomas North’s translation of Plutarch’s Lives and turn it into ‘great poetry’. Valerie Eliot and John Haffenden (eds), The Letters of T. S. Eliot Volume 4: 1928-1929 (Faber & Faber 2013) 260–61. Eliot had previously observed in his essay ‘Tradition and the Individual Talent’ that ‘Shakespeare acquired more essential history from Plutarch than most men could from the whole British Museum’, The Sacred Wood (Alfred Knopf 1921). See also John Bate, The Genius of Shakespeare (Picador 1997). 46 Max W Thomas, ‘Eschewing Credit: Heywood, Shakespeare, and Plagiarism before Copyright’ (2000) 31 New Literary History 277. 47 ‘If thrice or four times you shout this, you will shame the plagiarist’. Hoc si terque quaterque clamitaris/inpones plagiario pudorem. Martial Epigrams i, 52 (English translation Walter Kerr (1919)). For further discussion, see eg, Marilyn Randall, Pragmatic Plagiarism: Authorship, Profit, and Power (University of Toronto Press 2001) 62; C Damon, The Mask of the Parasite: A Pathology of Roman Patronage (Ann Arbor 1997) 152. 48 See numerous examples cited in Brian Vickers, ‘Appendix II: Abolishing the Author? Theory versus History’ in Shakespeare, Co-author, A Historical Study of Five Collaborative Plays (OUP 2004) 506–41, 509–16. 49 O imitatorers servum pecus. Quintus Horatius Flaccus, Ep 1.19. 50 I composed these verselets, another bore the honors. 51 John Hooper, A Declaration of the Ten Holy Commandments (1548) 177 <http://name.umdl.umich.edu/A03622.0001.001> accessed 25 May 2017. 52 Erras, meorum fur auare librorum/ fieri poetam posse qui putas tanti/ scriptura quanti constet et tomus uilis. R Cullis Goffin (ed), The Life and Poems of William Cartwright (CUP 1918) (originally published in 1651) 74. 53 Christopher Ricks, ‘Plagiarism’ (1998) 97 Proceedings of the British Academy 149. 54 Joseph Loewenstein, ‘Martial, Jonson and the Assertion of Plagiarism’ in Kevin Sharpe and Steven Zwicker (eds), Reading, Society, and Politics in Early Modern England (CUP 2003) 275. 55 ‘The Poetaster’ in Barry Cornwall (ed), The Works of Ben Jonson (Edward Moxon 1838) 121. 56 Marino (n 30) 33. 57 ibid. 58 Today, this kind of activity could be dealt with through laws of passing off/unfair competition and/or moral rights. 59 Erne (n 24) 83–84. 60 Marino (n 30) 30. 61 ‘Shakespearean authorship, or perceived Shakespearean authorship, was clearly a selling point, but it was not enough to guarantee the success of individual playbooks’, Erne (n 24) 82. 62 Thomas Heywood, An Apology for Actors: In Three Books (The Shakespeare Society 1841) (first published 1612) 62. 63 Erne (n 24) 85. 64 Thomas (n 46) 282–85. 65 ibid 282. 66 Evans (n 26) 36. 67 CJ Sisson, The Boar’s Head Theatre: An Inn-Yard Theatre of the Elizabethan Age (Routledge 1972) 65. 68 Evans (n 26) 59. 69 Bentley (n 25) 82. 70 ibid 114–16. 71 ibid 279. 72 Ernest William Talbert, ‘The Purpose and Technique of Jonson’s Poetaster’ (1945) 42 Studies in Philology 225. 73 Tom Cain, ‘The War of the Theatres’ in Ben Jonson, Poetaster (Tom Cain ed, Manchester University Press 1995) 30. 74 Bentley (n 25). 75 ibid 63–64. 76 ibid 71–72, citing WW Greg (ed), Henslowe Papers (London 1907) 76. 77 Bentley (n 25) 89. 78 ibid 62, 64. 79 Roslyn Knutson, ‘Evidence for the Assignment of Plays’ (1989) 4 Medieval and Renaissance Drama in England 63. 80 ibid 79; Lucy Munro, Children of the Queen’s Revels: A Jacobean Theatre Repertory (CUP 2005) 134–35. 81 David Gunbie, David Carnegie and MacDonald P Jackson (eds), The Works of John Webster: An Old-Spelling Critical Edition, vol 3 (CUP 2007) 319. 82 Marino (n 30) 32. 83 ibid 32. 84 Arthur E Dubois, ‘Shakespeare and 19th-Century Drama’ (1934) 1 ELH 163, 163. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

Journal

Journal of International Dispute SettlementOxford University Press

Published: Mar 1, 2018

There are no references for this article.

You’re reading a free preview. Subscribe to read the entire article.


DeepDyve is your
personal research library

It’s your single place to instantly
discover and read the research
that matters to you.

Enjoy affordable access to
over 12 million articles from more than
10,000 peer-reviewed journals.

All for just $49/month

Explore the DeepDyve Library

Unlimited reading

Read as many articles as you need. Full articles with original layout, charts and figures. Read online, from anywhere.

Stay up to date

Keep up with your field with Personalized Recommendations and Follow Journals to get automatic updates.

Organize your research

It’s easy to organize your research with our built-in tools.

Your journals are on DeepDyve

Read from thousands of the leading scholarly journals from SpringerNature, Elsevier, Wiley-Blackwell, Oxford University Press and more.

All the latest content is available, no embargo periods.

See the journals in your area

Monthly Plan

  • Read unlimited articles
  • Personalized recommendations
  • No expiration
  • Print 20 pages per month
  • 20% off on PDF purchases
  • Organize your research
  • Get updates on your journals and topic searches

$49/month

Start Free Trial

14-day Free Trial

Best Deal — 39% off

Annual Plan

  • All the features of the Professional Plan, but for 39% off!
  • Billed annually
  • No expiration
  • For the normal price of 10 articles elsewhere, you get one full year of unlimited access to articles.

$588

$360/year

billed annually
Start Free Trial

14-day Free Trial