This blog is part of our new blog series, the Secret History of Copyright. The series will unlock some of the mysteries of the copyright world – including little-known laws, influencers, cases and much more!
“Publishers move without concert, harmony, or agreement. There is no law to regulate their rights, and they have none (which are respected) by courtesy. They print the same book, and the spirit of competition is such as to destroy all correctness, all taste, and all chance of profit. The result is, that the author gets nothing, the publisher is subjected to losses, and the public are never satisfied. An international copyright law would remove these evils.”
— Nahum Capen, 1844 —
This excerpt from a Memorial written by a notable Boston author, editor, and publisher fairly well sums up the state of book publishing—and most creative work—in the embryonic America of the mid-19th century. It is not mere coincidence that the evolution of an American artistic voice parallels the development of U.S. copyright law; and the passage of an international copyright statute in 1891 was a key milestone—culturally, economically, creatively, and politically—in the nation’s progress toward global maturity. One important advocate of that law also happened to be one of the nation’s first truly domestic creative voices—the poet Walt Whitman, who viewed the adoption of international copyright as a matter of democratic principle even more than a matter of economic purpose.
Creativity today is entirely democratic. We understand that works of great genius and value might come from anywhere. But many of America’s most influential authors and thinkers, during the years between the Revolution and the Civil War, believed that literature should remain tethered to classical, elitist traditions. Thus, while American copyright law evolved throughout the 19th century, charting a course distinct from the antecedents of English common law, a new American creative voice was emerging at the same time. Indeed, there was a conscious, creative/political movement that may be roughly bracketed between an 1837 speech by Ralph Waldo Emerson and the literary apotheosis expressed in Whitman’s Leaves of Grass in 1855.
It was August 31, 1837, when Emerson spoke to the Phi Beta Kappa Society at Harvard University in which he called upon young, domestic authors to write the narrative of the new nation rather than to continue to “feed on the sere remains of foreign harvests.” Emerson’s address helped galvanize a broad, cultural shift that was just percolating among the first post-Revolution, literary figures in the nation, and among these was Whitman, who published his first short stories in a new periodical founded on the principles of this movement—the United States Magazine and Democratic Review.
Whitman was a colleague of the Young Americans—they were contemporaries of other literary- nationalist movements in Europe—who had intentionally set out to democratize literary work as an essential ingredient to democratizing America itself. Although the policy views of these young Democrats are too myriad, factional, and contradictory to synthesize in this short essay, the one consistent belief of the Young Americans was that culture and literature should not be authored solely by the nation’s aristocratic, Anglo conservatives. Whitman was, therefore, a key figure in America’s first clash of generations, with younger authors insisting that the American voice must become far more diverse than works steeped in European traditions and flowing from Puritan epicenters like Harvard and Yale.
Capen’s observations about the state of publishing was contemporaneous with early debates on international copyright, which the independent American book publishers successfully opposed for decades, primarily by asserting that the law would give the larger printing firms monopoly control over all publishing. In truth, most American publishers of all sizes were accustomed to the trade in copies of European—mostly English—books without license, and Capen’s Memorial also notes that that these volumes tended to be cheaply made products with flawed pages and weak bindings (i.e. disposable). Hence, American rejection of international copyright throughout most of its first century had the twin effect of disenfranchising foreign authors from the American market while simultaneously retarding investment in domestic authors and a domestic publishing industry.
When Charles Dickens toured America in 1842 and advocated that the U.S. adopt international copyright, he was scorned by many, including in several editorials that forecast today’s digital-age critics of copyright. In fact, it was the founding editor of the Democratic Review, John O’Sullivan, who broke rank with his literary colleagues by opposing international copyright in an 1843 editorial, in which he said of Dickens, “He has certainly been richly enough paid at home, in pecuniary rewards as well as in public honor, for what he has done, to leave him but slender ground on which to ask a return of mere volunteer generosity on our part for the pleasure his admirable writings have afforded us.”
O’Sullivan acknowledged the same article that his opposition to an international copyright law was contrary to the beliefs of his fellow authors, and this included Whitman, who had earlier written a defense of Dickens (nicknamed Boz) in the Evening Tattler. Although critical of Dickens’s alleged (and it turns out inaccurately reported) haughty tone toward the Americans, Whitman wrote, “Let Boz—ungrateful as he has proved himself—let him be treated fairly. He no doubt came over here with the main purpose of effecting an international copyright: we are among those who believe that a law to that effect would be wise and righteous.”
Whitman self-published Leaves of Grass in 1855, carving a new, egalitarian, domestic verse out of a long walk through New York City, filled with industry, sweat, agony, pathos, and sex. Literally and metaphorically a response to Emerson’s call to “sing” the song of the young nation, it begins with the democratic vow …
I celebrate myself,
And what I assume you shall assume,
For every atom belonging to me as good belongs to you.
One might think the symbiotic relationship between author and reader inherent to those words—and indeed evident throughout Whitman’s poetry—would be anathema to a passionate defense of copyright. But in fact, Whitman promoted the cause of international copyright throughout his career—his first article supporting the law was published more than a decade before he published Leaves of Grass—viewing the principle primarily as an expression of moral and democratic values and, therefore, consistent with the literary aspirations of Young America. He just barely lived to witness the law’s passage in 1891, about which he wrote…
“We have our international copyright at last—the bill is signed today. The United States, which should have been the first to pass the thing, is the last. Now all civilized nations have it. It is a question of honesty—of morals—of a literature, in fact. I know it will be said by some—Here, now, how is it that you, Walt Whitman, author of ‘Leaves of Grass,’ are in favor of such a thing? Ought the world not to own the world in common? Well, when others do, we will, too. This copyright bill is the doing as we would be done by.”
American Literature Professor Martin Buinicki of Valparaiso University, in an article published in 2003, seeks to harmonize Whitman’s democratic ideals, his writing, his relationship to the independent publishers of the period, and his advocacy of copyright. “Taken at face value,” Buinicki writes, “Whitman’s careful tending of his copyrights appears not only to contradict his democratic declarations but also to trouble his bold assertions of artistic independence: by scrupulously protecting his copyrights …”
In Part II of this post, I’ll expand on why that “face value” assumption is incorrect and why Whitman, therefore, serves as a foil to many assumptions made by copyright critics about the motives of authors.
David Newhoff writes the blog The Illusion of More and is currently writing a book on American copyright history.
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