by Dr Yin Harn Lee, University of Bristol Law School
This post is based on a presentation given at Marble Hill House, Twickenham, home of Henrietta Howard, Countess of Suffolk, a friend of Alexander Pope’s. Pope’s own residence, known for its gardens and underground grotto (which is still extant), was located just over a mile away.
Alexander Pope, poet, translator and satirist of the Enlightenment Era, was a key figure in the early history of British copyright law. The 1710 Statute of Anne, often regarded as the first British copyright statute, was enacted during the period in which he was most active as a writer. The legislation conferred on authors the ‘sole liberty of printing and reprinting their books’ for a limited term. And Pope, who has been described as ‘the first business man among English poets’, made full and strategic use of its protections.
Without a worthy adversary, however, Pope might not have had the opportunity to make the mark on British copyright law that he eventually did. This nemesis was the publisher and bookseller Edmund Curll, who has been depicted by an expert on the period as a ‘muckracking publisher, widely reviled in his own time and since described as “a disgrace and a nuisance to mankind … as dangerous a villain as ever breathed.”’ Curll was a notorious figure in the book trade at the time, known for his boldness, his lack of scruple, his taste for erotic and scandalous publications, and his flagrant and unrepentant piracy of living authors’ works.
The acquaintance between Pope and Curll did not get off to an auspicious start. In 1716, Curll published three poems hinting at lewd behaviour at court, and insinuated that Pope might have been involved in writing them. This was a sensitive matter, as the monarch at the time, George I, had only recently succeeded the late Queen Anne as her closest Protestant relative under the 1701 Act of Settlement, which sought to ensure a Protestant succession to the English throne; a significant number of Anne’s Catholic relatives with superior hereditary claims had therefore been bypassed. Pope took umbrage at what Curll had done. He met Curll at a tavern and, while pretending to adopt a conciliatory attitude, slipped an emetic into Curll’s drink. To add insult to injury, he then published an account of the incident, entitled A Full and True Account of a Horrid and Barbarous Revenge by Poison, On the Body of Mr. Edmund Curll, Bookseller.
After this incident, Pope and Curll sniped at each other for over a decade. Curll embarrassed Pope by publishing several letters written by Pope (as a brash, smug and pretentious youth) to his friend Henry Cromwell; Pope retaliated by ridiculing Curll in his mock-heroic poem, The Dunciad. Pope then embarked on a plan to trick Curll into publishing a spurious edition of his (Pope’s) correspondence. This elaborate, cloak-and dagger scheme involved Pope masquerading as ‘PT’, an individual who had a grievance against Pope and, in retribution, was willing to sell letters of Pope’s that he had in his possession; the handing over of clandestine printed sheets to Curll by Pope’s accomplice, the literary fraud James Worsdale (disguised as a clergyman); and the seizure of Curll’s printed sheets by officers of the House of Lords. In 1735, Curll even resorted to paparazzi tactics. He commissioned the leading topographic artist of the time, Pieter Andreas Rijsbrack (sometimes Anglicised as Rysbrack), to make a detailed sketch of Pope’s house and garden at Twickenham. He then added commentary suggesting that an uninvited guest (i.e. himself) had sneaked into the grounds and conducted a full survey of the property, including ‘our Bard’s Grotto, Subterranean Way, Gardens, Statutes, Inscriptions and his dog Bounce’. This was of course a serious invasion of Pope’s privacy, which Curll cheerfully exacerbated by selling copies of the artist’s sketch as prints.
Things came to a head in 1741, when Curll published a collection of letters entitled Dean Swift’s Literary Correspondence for Twenty-Four Years from 1714 to 1738. It contained letters to and from Pope and the renowned Irish satirist Jonathan Swift. Pope brought suit against Curll under the Statute of Anne. His claim was made on the basis that he was the sole author of his letters to Swift. Pope argued that, since he had never disposed of his copyright in those letters, he possessed the sole right to print and sell them, which had been infringed by Curll.
Curll argued that Pope’s property right in those letters had been extinguished when they were sent, as they were gifts to the recipients — in short, that Pope’s property right in his letters began and ended with his physical ownership of the ink and paper on which they were written. In contrast, Pope’s position was that, while he was no longer the owner of the physical letters, he was still the author of them, and retained the sole right to decide whether they should be printed or published.
This was a complicated issue that the law had not really encountered before. In the present day, most of us are familiar with the notion that things which do not have a physical or tangible existence are capable of being property, and that these intangible things can be separated from their physical manifestations. When buying a book, for instance, most of us are capable of distinguishing between our ownership of the physical book and the author or publisher’s intangible copyright in the text. In 1741, however, this was a novel idea.
Pope’s case was heard by the Earl of Hardwicke, who was then Lord Chancellor. In deciding this issue, the reasoning articulated by Lord Hardwicke would go on to shape the foundations of modern copyright law. He held that, while the paper might belong to the recipient of the letter, the words themselves did not thereby become the recipient’s property, and the author of the letter retained the sole right to print and publish them. The upshot of this was that Curll could not print the letters that Pope had written.
While this reasoning might appear trite and obvious today, it was very novel and significant at the time the decision was handed down. In separating the intangible object of copyright protection (the words) from its material basis in ink and paper, Lord Hardwicke’s judgment involved a paradigm shift. As copyright historian Mark Rose notes: ‘…the author’s words have now, in effect, flown free from the page on which they are written. Not ink and paper, but pure signs, separated from any material support, have become the protected property’.