Mark Rose. Authors in Court: Scenes from the Theater of Copyright

Mark Rose. Authors in Court: Scenes from the Theater of Copyright. Cambridge, MA; London, England: Harvard University Press, 2016. xiv, 219 p. ill. ISBN 9780674048041. US $29.95 (hardback).

With the recent litigation of Authors Guild v. Google in late 2015 and the much publicised discussions surrounding Fair Use and Permissions and the International James Joyce Foundation, it would be hard to argue against the opportune timing of Mark Rose’s new book, Authors in Court: Scenes from the Theater of Copyright, a deeply considered, reflective expansion and development of ideas tested some thirty years ago by the critic in a single chapter of his ground-breaking Authors and Owners: The Invention of Copyright (1993). Indeed, this new book, also published by Harvard University Press, might be easily regarded as the mature progeny of that earlier issue.

Rose’s Authors in Court is a volume of incredible scope and erudition, the mature considerations of a great specialist and a well-read generalist, with plenty of learning to share. Starting with the much-storied incident of British author Daniel Defoe’s public humiliation at being pilloried for seditious libel in 1703, Rose takes his readers along an international, diachronic journey told by a series of six historical studies or sketches, each one wisely selected to explore a different principle in our conception of “intellectual property” out of that of the author’s physical “copy” (ix-xii). From the Defoe episode we are shown how before the famous Statute of Anne, an act of Great Britain of 1710, intended for the “Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned,” authors’ only legal right to their text was the punishment they would receive if their ideas offended (7-9). From here, Rose goes on to describe in exquisite detail six incidents of authors in court, where the author was the plaintiff. Rose retells the famous fiasco of Pope v. Curll (1741), in which Alexander Pope sued mercenary publisher Edmund Curll for the unauthorized publication of his literary correspondence, a landmark case giving authors some minor protections over their literary properties (11-35). Next, Rose moves on to Stowe v. Thomas (1853), in which abolitionist author Harriet Beecher Stowe famously lost the right to prevent her slave narrative Uncle Tom’s Cabin (1852) from being translated into German (36-63). Rose follows these with explorations of great multimedia variety: case studies of celebrity photographer Napoleon Sarony’s successful suit against the Burrow-Giles Lithographic Company (1884) for their exploitative, commercialistic copying of his Oscar Wilde No. 18 (1882; 64-90); of playwright Anne Nichols’s unsuccessful battle with Universal Pictures Corporation (1930) to gain legal protection for the stock characters of her play Abie’s Irish Rose (1922; 91-115); of J. D. Salinger’s suit against Random House (1987), as an attempt to invoke copyright legislation to prohibit the paraphrase of his unpublished, private letters for an unauthorized biography (116-47); and that of folk photographer Art Roger’s suit for infringement against Jeff Koons (1955–), a post-modern artist who adapted one of Art’s “art” photographs satirically, into a grotesque statue (1992; 148-79). These cases take us from England to America as they jump around chronologically from 1741 to present day.

Although there is a little something for everyone in this book, what attracted me most, and proved most memorable, was Rose’s keen eye for fun, fascinating anecdotes. Rose shows that as courts are public institutions and as authors are public figures the intertwining of the two is often a key feature of authorship construction: today’s authors self-fashion through their dealings with members of the legal profession, just as Defoe did when he wrote his famous Hymn to the Pillory (1703) to reproach a legal system which, in his case, would appear to have been at variance with societal expectations (2). Some of the anecdotes to come out in relation to authors and their dealings with the law include: Pope’s successful prank to trick renegade publisher Curll into swallowing an emetic (12); Stowe’s poignant description of her academic husband’s poor business sense, causing her to be industrious and business-minded in the protection of her writings (46); Wilde’s contracting with businessman-financier Richard D’Oyly Carte on the elaborate suits and costuming to be worn by Wilde at all times while overseas (71); Wilde’s back-handed swipe at photographer Sarony’s mass-reproduced photographs in The Canterville Ghost (1887), where the family replaces the oils with prints from this new means of mechanical-chemical reproduction (88); Nichols’s alliance with self-educated lawyer and eccentric Moses L. Malevinsky (98-102); and Salinger’s little-examined personal friendship with Judge Learned Hand, a major figure in the Nichols case (119). Rose’s new book is, as the title implies, as much about authors as it is about the courts.

There’s a lot of “new material” in the book, which shouldn’t be overlooked. Chapter Three, “Emancipation and Translation: Stowe v. Thomas (1853),” is, one assumes, Rose’s Astor Lecture, “Stowe v. Thomas: Uncle Tom’s Cabin in Court” (Oxford, 30 April 2013), published here for the first time. I have not been successful in locating much that Rose has published about Sarony or Nichols, or Salinger or Koons, so it would appear as if Rose is exploring new scholarly territory, which is very commendable.

Authors in Court is admirable in its scope, exceptionally well written, and entertaining. It offers a rich vocabulary in legal terms and distinctions (e.g., “infringement” vs. “plagiarism,” 98), making it of use to undergraduate and graduate literary scholars. It is a worthy successor and conclusion to Rose’s earlier monograph Authors and Owners: The Invention of Copyright.

Joshua McEvilla
Independent Scholar