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2 The Genius Which Conceived & the Toil Which Compiled the Book Just as both patents and unpatented workplace knowledge were regarded as an asset of skilled labor, so too did antebellum law treat copyrights as the property of the individual author regardless of whether the work was created for hire. Although employee-authors, like authors everywhere for centuries, routinely assigned their copyrights to those who would pay for them (including their employers), the law required there to be an express assignment of the copyright before it would divest an author of the right to his work over his objection. Judges found very good philosophical and economic reasons for this rule, at least in the context of the few cases that litigated authorship. In this chapter, I examine the law and practice of copyright ownership in the three sectors of the antebellum American economy where copyright disputes arose: law publishing, theater, and map publishing. These were also the three sectors that continued to produce the majority of the employeremployee copyright disputes for much of the nineteenth century. Judges developed rules to protect employee-authors because they were persuaded by the morality of saving creative geniuses from improvident bargains. Judges also considered it economically expedient for a new country that wished to cultivate its own homegrown culture industry to protect the rights of the author who worked for hire. Later in the century, the arguments of economic expedience seemed to favor the employer, but in the antebellum period the moral claims of the author coincided perfectly with the economic incentives for protecting the author’s rights to the fruits of creative work. personal attribute  [60] Copyright Law and the Hiring of Authors The first federal copyright act had the avowed purpose of “the encouragement of learning, by securing the copies of maps, charts, and books to the authors and proprietors of such copies,” for a term of fourteen years from the date of registration of the copyright plus a renewal term of an additional fourteen years.1 At that time, a copyright had to be registered by depositing a specified number of copies of the work in the appropriate government office; today, registration is no longer required. That both authors and proprietors could own a copyright recognizes the fact that authorship for hire was nothing new. For centuries, people had been employed to create texts and maps, the works that qualified for copyright protection. Literary histories of copyright and authorship note that prior to the Renaissance the collective nature of the creation of texts was widespread. If texts were divinely inspired, or if texts were written versions of stories that had a long oral tradition, original creation was not understood to be the essential characteristic of authorship. And the reproduction of texts involved copying rather than conjuring. Artists had been working in the employ of others for centuries as patronage had been an important source of new music, opera, and theater. Patronage had worked well as a stimulus or support for the exercise of artistic creation. Moreover, artists had worked in what today would be considered freelance relationships. Artistic and literary production had thus been collective and involved short- and long-term employment relations for centuries.2 Notwithstanding substantial evidence of collective authorship, the early nineteenth-century intellectual justifications for copyright protection imagined authorship as highly individual. Evolving notions of authorship, together with Lockean labor theories of value, gradually created the Anglo-American ideas that the author is the one who does the original and creative work of imagining and writing, and that property rights are justified by the labor expended in the creation.3 An early nineteenth-century court looking for analysis of the relationship between copyright and author’s rights would likely have begun with Blackstone’s individualist and Lockean defense of copyright in the Commentaries: “When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it, appears to be an invasion of that right [of property ].”4 Blackstone was both an author and a lawyer for a copyright claimant in a famous English case on copyrights. In Blackstone’s treatise, Locke’s labor theory of property “united easily with an emerging aesthetic of books as products of a creative mind and as manifestations of an individual’s personality.”5 [3.144.97.189] Project MUSE (2024-04-24...

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