“Totally Original”: Daly, Boucicault, and Commercial Art in Late Nineteenth Century Drama

A helpless young woman lies bound and gagged on the train tracks. A train barrels toward her, smoke spewing, horn blaring, brakes screeching in futility. The mustachioed villain cackles to one side. But then our hero rides in on his white horse, saves the girl, and defeats the bad guy. The day has been won in the name of masculinity, chivalry, morality, and hackney. Iterations of this scenario appear throughout popular culture in the West. It has become the archetypal image of good guys versus bad guys with the damsel in distress at stake. The origin of this story, however, rests in ethically murkier waters, with a complex tangle of vertices pulling toward intellectual property protection, artistic merit, and commercial success standing in place of a dichotomy of Good and Evil. Augustin Daly’s melodrama Under the Gaslight is widely considered to be the first instance of the tied-to-the-tracks trope, although the familiar roles are switched, with the damsel in distress being played by a Civil War veteran and the hero being the strong female protagonist. The instant popularity of the plot device quickly spawned an imitation. That imitation in turn led to a key case in the development of intellectual property law pertaining to theatre and performance. The case of Daly v. Palmer, in which Daly successfully sued to get royalties from the New York production of Dion Boucicault’s After Dark, reflects the complex relationship between commercialism and artistic integrity at the end of the nineteenth century. The arguments supporting Daly’s ownership of the railroad scene suggest that commercialism and artistry in this moment of theatre history are synonymous and that both primarily consist of an author’s ability to create a specific series of emotional excitements for an audience. Daly’s conflict with Boucicault ultimately suggests that the cultural and legal conventions under which such sequences of emotional excitement count as both art and property reflect an understanding of ownership rooted in social, moral, and aesthetic—rather than monetary—value.

Some of the cases and arguments discussed in this essay—de facto patents on plot devices and copyright protection denied on the grounds of immorality—may seem bizarre to anyone even loosely acquainted with contemporary intellectual property law. The intellectual property regime under which Daly’s work was protected differs from our current intellectual property regime in a number of ways, and understanding those differences is key to understanding the assumptions motivating Daly’s arguments and the relationship between artistry, ownership, and commerce that those arguments reflect. Oren Bracha explains that, for most of nineteenth century, the intellectual property regime in the United States understood copyright as a limited right to the specific economic activity of printing particular texts.¹ In other words, copyright literally functioned as just what its name suggests, a right to copy. This meant that the owner of a copyright did not have the right to control or receive compensation from any uses of the text other than copying. Unprotected uses of the text included everything from translations to performances. Oliver Gerland points out that “until [1856], a copyright owner who had printed and sold copies of a play could not prevent others from staging it. . . . By contrast, plays that had been performed but not printed and sold . . . were fully protected under common law.”² Copying a performance of an unprinted play from memory, then, would be impermissible under common law.³ Performing a play from a printed manuscript, though, was considered a perfectly acceptable use of that manuscript. Any owner of a copy of a playscript could claim the right to such use without consulting or compensating the author. The publication of a play effectively transformed it from a performance object to a text object, and it could not legally be both at the same time. Copyright law for most of the nineteenth century, then, maintained a deep ontological distinction between the written text and the performed play, a distinction that would become fuzzier as the popular conception of copyright law moved away from a right to print and toward...