Performing Copyright: Part Four
Tracing the Emergence of Individualist Authorship in English Theatre: Kyd, Marlowe, Shakespeare and Jonson
This is the fourth of a series of posts marking the publication of my book Performing Copyright: Law, Theatre and Authorship (Oxford: Hart, 2021). In these pieces I explain the book’s core themes and key case studies, addressing how theatre’s authorship and performance practices have helped shape - and have been shaped by - historical and contemporary copyright law. My book is available here. A sample chapter is available for free download here.
Tracing the Emergence of Individualist Authorship in English Theatre - Kyd, Marlowe, Shakespeare and Jonson
In my prior piece I examined the collaborative, polyvocal nature of theatrical authorship during the English Renaissance. I noted that the individual dramatist was often not central to the dissemination of theatrical plays, whether in print or in performance. Typically, the individual playwright neither owned nor controlled either of these commodities. Yet, towards the end of this Renaissance period there was a gradual shift towards greater recognition of the individual dramatist within English theatre. From the early 17th century onward, greater authorial recognition was attributed to prominent dramatists, including Thomas Kyd, Christopher Marlowe, William Shakespeare and, perhaps most crucially, Ben Jonson, who can be viewed as the first ‘possessive author’ in English theatre. In time, the growing market for printed books and plays would lead to battles between publishers and writers over ‘literary property’. Later, this would result in the Statute of Anne in 1710, the first British modern copyright statute, which made explicit the legal importance of the author. But before considering individual authors, it is useful to begin by assessing the play-texts themselves - which were typically in an unsettled, malleable form.
Appreciating Plays as ‘Unstable Texts’ in the Elizabethan (1558-1603) and Jacobean (1603‒1625) Eras
Elizabethan and Jacobean theatrical texts defy easy categorisation because they ‘strikingly de-naturalize the author-text-reader continuum assumed in later methodologies of interpretation’. To understand what we encounter today as 21st century readers of English renaissance play-texts we must acknowledge that we cannot ‘insulate the writing of scripts from the acting of plays’; indeed, we must take into account the norms of Elizabethan theatre, which centred on company ownership and polyvocal authorship (as discussed in my prior post).
Within this Renaissance theatre world, the theatrical development process often began with an Elizabethan dramatist either originating a text or adapting a text from an earlier play - for example, the plot and basic characters of Shakespeare’s The Comedy of Errors are taken wholesale from the Roman play Menaechmi by Plautus. However, once the theatre company purchased the play from the writer, the company took full ownership of it as a performance text, continuing to shape it via the input of actors, musicians, costumers, prompters, and managers. The result was that the play-text was typically in an unsettled state ‒ it would often change from performance to performance. New writers would add materials (novel scenes, additional prologues/epilogues, new songs, etc) to existing plays. Virtually any play ‘first printed more than ten years after composition and… kept in active repertory by the company that owned it is most likely to contain later revisions by the author or, in many cases, by another playwright.’ A prominent example is Dr Faustus ‒ a play attributed to Christopher Marlowe, but which also passed through several other hands, and thus existing as a text ‘patched’ together.
Another great example is the satirical and parodic play The Knight of the Burning Pestle (attributed to Francis Beaumont|). Masten argues that this play is a literal manifestation of Barthes’ phrase in ‘The Death of the Author’ that a text is often ‘a tissue of quotations drawn from the innumerable centres of culture’.
In a similar vein, the play registered with the Stationers and printed in 1594 as The Taming of a Shrew has little in common – other than a basic plot – with the text printed as The Taming of the Shrew in the posthumous 1623 First Folio.
Writers were not the only creative parties making edits and additions to the text during the Elizabethan period. Actors too ‘performed’ authorship. A theatre company would work collaboratively with a manuscript, revising it and facilitating improvisation by actors during performances. The Lord Chamberlain’s Men revised the plays in their repertory continuously in many ways, including updating topical references and adding/removing satirical comments on their rival companies’ plays. Thus, English renaissance play-texts were shaped by ‘actors, annotators, revisers, collaborators, scribes, printers… in addition to the playwright’.
The combination of authorial and textual instability confirms that theatrical production and playwriting was indeed ‘polyvocal’. Everyone ‒ from those involved in the first performance to later archivists ‒ could be said to perform a role in the authorship of the play. Yet, despite this, later considerations of Renaissance drama have sometimes tried to ‘produce’ an authorial ‘univocality’ which naturally privileges the writer. To try to address this privilege, I consider here one of the most famous play-texts of the period ‒ The Spanish Tragedy.
A Case Study on Authorial and Textual Instability ‒ Thomas Kyd and The Spanish Tragedy 1594‒1613
Along with Gorbudoc (the subject of my first post), The Spanish Tragedy was perhaps the most influential play of early modern English theatre. As such it represents a useful case study of textual instability and authorial attribution.
The origins of The Spanish Tragedy can be traced to the mid-late 16th century. It was published in at least 10 different versions during the period 1594‒1613,demonstrating that the text was in an unsettled state during this period. Multiple ‘collaborators’ – including actors and writers – were adding to the text as it was being performed. Most famously, Ben Jonson was commissioned to write additional passages for an extant version of The Spanish Tragedy in the 1590s.
Despite the play’s value as commodity in print and performance, and its undoubted influence, questions of authorial attribution seem to have been an afterthought. As Smith argues:
Given the evidence for the play’s popularity, it might be expected that Kyd ‒ or some other playwright ‒ would want to claim authorship, or that an author would be subsequently added to playtexts published after his death … And yet none of the early editions or references to performances of The Spanish Tragedy associates the play with Kyd’s name. There is no mention of Kyd on the title pages of the numerous editions of the play.
By contrast, around the same period, Christoper Marlowe was attributed as the writer of a similarly popular play, Dr Faustus, with the printed text bearing Marlowe’s name in the (posthumous) quarto of 1604. Furthermore, Shakespeare and Jonson ‘used, or allowed the usage of, their names to authorise their work in early publication’. Yet, Thomas Kyd’s authorship of The Spanish Tragedy was not asserted clearly until around 1612, when Thomas Heywood’s An Apology for Actors was published.
It is generally accepted today that Thomas Kyd was the originator of the script. Yet, whether or not Kyd wrote The Spanish Tragedy is actually ‘of lesser interest (as well as being ultimately unverifiable, in the absence of additional external evidence) than the effects of the absence of a named author-figure in the play’s reception’.
What this reveals is that in the Elizabethan era it was even possible for the text of the most influential tragedy of the period to circulate in print, and be performed widely, in the absence of a definitive named author-figure. For this reason, it is important to caution against reifying the Elizabethan theatrical author in hindsight. Unstable texts like The Spanish Tragedy defy the ‘post-Romantic scripting of the author-figure’ because they are works ‘frequently attributable to more than one hand, or with later revisions by the author or another writer, with cuts and alterations made by the actors’. Such texts are striking in their ‘authorlessness’ (in the modern sense) because the way they were created was ‘plural and collaborative’ (that is, polyvocal).
We can nonetheless observe the significance of a gradual change - even though The Spanish Tragedy was originally printed without attribution, eventually (in the Jacobean era) the name of an author-figure, Thomas Kyd, began to be ascribed to it. This gives weight to the argument that during the early 17th century ‘the playwright as author-figure’ grew in esteem and began to emerge in the public imagination . On this, changing perceptions of the key theatrical author-figures - Shakespeare and Jonson - were crucial.
The Publication of Shakespeare’s First Folio (1623) and the Beginning of his Acclamation as the English Author-Figure Par Excellence
There are two aspects of the career of William Shakespeare that are worth highlighting here, as they are important for understanding authorship and ownership of plays during the period. First, it is notable that Shakespeare was active in theatre in capacities other than playwriting (e.g. acting, management). Second, the surviving Shakespearean texts are testaments not only to his brilliance, but also to his successful collaborations with other writers; and more generally, to the vibrancy of the polyvocal theatrical authorship that I outlined in a prior post.
On the first, Shakespeare did not – and, in all likelihood, could not – rely on playwriting as a way to make a living. To obtain a steady income he needed to undertake multiple roles, becoming, in addition to a writer, an actor, a producer and, effectively, a business manager. Shakespeare was thus involved at multiple levels in the Lord Chamberlain’s Men (and the successor company ‒ the King’s Men).
On the second, it is crucial to acknowledge that Shakespeare was a serial collaborator. In light of this - and given that neither the theatrical copyright ‘work’ nor modern authorship had yet been conceived in the terms we understand them today - we should not allow ‘the singular figure of Shakespeare’ as the English author par excellence in our modern imagination to obscure the fact that collaboration, in various forms, was a major – and perhaps the dominant ‒ contemporary form of textual and theatrical production. Shakespeare crafted several plays with other writers, including Titus Andronicus (with George Peele), Timon of Athens (with Thomas Middleton), Pericles (with George Wilkins) and Henry VIII and The Two Noble Kinsmen (with John Fletcher). This list was expanded as recently as 2016 when The New Oxford Shakespearecredited Christopher Marlowe as a co-author of the Henry VI cycle of plays (Parts One, Two and Three).
To view Shakespeare as a collaborator does not in any way lessen the stature of his works – rather it enriches our understanding of them. Moreover, it would surely be unjust to allow Shakespeare’s poetic brilliance to overshadow the substantial and essential input of other parties. The texts that have survived have done so in varying versions. Such variances should not necessarily be viewed as ‘corruption’ – we should seem them as reflecting the polyvocal nature of Renaissance theatrical authorship .
It is generally acknowledged that our modern understanding of Shakespeare as the exemplar of the English theatrical author, begins with the posthumous publication of the First Folio in 1623 ‒ organised by the actors John Heminges and Henry Condell ‒ which called attention to his unique genius. The First Folio included numerous previously unpublished plays, proving that several major Shakespeare plays were not registered at all at the Stationers’ Company during his lifetime, demonstrating how distant the world of print publication often was from performance.
Nevertheless, although Shakespeare is most iconic of all Elizabethan/Jacobean playwrights, there is evidence that at the time Ben Jonson had a greater self-awareness of himself as a theatrical author.
Was Ben Jonson the First Self-conscious ‘Author’ in English Theatre?
Loewenstein argues that Ben Jonson’s attitude towards publication marks him out from his contemporaries such as Shakespeare (and, to some extent, even from the prevailing norms of polyvocal authorship). For Loewenstein, Jonson’s ‘possessive’ behaviour towards ‘his’ plays anticipates the later emergence of the author as copyright owner:
Not until 1709 did the Statute of Anne formally locate the origins of literary property rights in authors, as opposed to stationers, but the publication of Jonson's Folio Workes nearly a century earlier marks a crucial moment in that history of the cultural marketplace, and in the history of the bibliographic ego, from which later developments in legal history derive.
Jonson’s view towards publication was certainly ahead of his time. He arranged for printing of his preferred manuscript versions of plays, emphasising his authorial status by adding paratextual material (prologues, epilogues, dedications, etc) to manuscripts before printing. Jonson appeared to care deeply about his literary status and ‘made a campaign out of turning plays into respectable literature’. By contrast, Gurr questions whether Shakespeare truly took an interest in the printing of his plays – for instance, in the case of Henry V Shakespeare allowed the theatre company to arrange for printing of the company’s shortened performance text rather than his superior manuscript version, which only received posthumous publication.
Notably, Jonson pursued multiple avenues of revenue to earn an income primarily from his writings: first, he ‘sold plays to acting companies’; second, he made appeals for patronage based on his manuscripts; third, he sold ‘masques’ to the Royal court for performances at, for example, the Banqueting House at Whitehall; and finally, he sold ‘verse’ for registration at the Stationers’ Company and thereafter print dissemination.
During the 1590s Jonson formed a business relationship with Philip Henslowe, the prominent theatrical manager of the Rose Theatre and ‘The Admiral’s Men’ – though Loewenstein cautions ‘it would not be far from the truth to say that he was indentured to Henslowe’. This relationship blossomed at the end of the Elizabethan era as the market for plays in printed form grew in significance. Henslowe arranged for Jonson’s texts, including Jonson’s paratextual additions, to be registered at the Stationers’ Company, which provided the acting company with a potential additional source of income once audiences for formerly popular plays had begun to dwindle.
Jonson’s self-conscious approach led him to asset a form of authorial individualism during the Jacobean era. As noted earlier, acting companies typically purchased plays from writers for a flat fee of between £6‒10, with such transactions effectively bringing to an end the writer’s ‘ownership’ of the work. Moreover, when the playwright was referred to on the Elizabethan stage, it was typically as ‘our poet’ and almost never as the ‘author’ or the ‘playwright’. Jonson began to challenge these presumptions, engaging with acting companies with a higher level of agency than most writers. This is evident in the prologue he wrote for Bartholomew Fayre in 1614 which, unusually, referred to a contract between ‘the Hearers’ (the audience) and ‘the Author’ (Jonson, as playwright).
This was a radical moment in the history of authorship in English theatre because it presented the playwright, rather than the actors, as the originator (not merely ‘our poet’) of the play in the mind of the audience. It is not difficult to see how this individualist turn presaged the move, over the decades that followed, towards appreciating the unique, writerly ‘voice’ of the author-playwright.
Indeed, the efforts of Jonson, coupled with the posthumous appreciation of Shakespeare, meant that as the Jacobean era gave way to the Caroline period (1625‒49), the perception of theatrical authorship was already beginning to stabilise around an individual author-figure. The idea that such an author should own property in the play was not far off. On this too, Ben Jonson was ahead of his time, advocating publicly for increased legal rights for writers.. The legal connection between the right to print a play-text and the individual author as legal person would, in fact, come to fruition in the early 18th century via the Statute of Anne, 1710.
In my next post I will examine how the growing market for printed works and contestations of ‘literary property’ would create tensions between publishers (the Stationers’ Company) and writers, leading to the first copyright statute – the Statute of Anne in 1710. My book is available here. A sample chapter is available for free download here.
 J Masten, ‘Beaumont and/or Fletcher: Collaboration and the Interpretation of Renaissance Drama’ (1992) 52 English Literary History 337, 338. For a full discussion of these issues L McDonagh, Performing Copyright: Law, Theatre and Authorship (Oxford: Hart, 2021), 19-50.
 Ibid., 340.
 S Orgel, ‘What Is a Text?’ in DS Kastan and P Stallybrass (eds), Staging the Renaissance: Reinterpretations of Elizabethan and Jacobean Drama(New York: Routledge, 1991) 84.
 R Lyne, ‘Shakespeare, Plautus, and the discovery of New Comic space’ in C Martindale and AB Taylor (eds), Shakespeare and the Classics(Cambridge: Cambridge University Press, 2011) 122‒38.
 C Hoy, ‘Critical and Aesthetic Problems of Collaboration in Renaissance Drama’ (1976) 19 Research Opportunities in Renaissance Drama 4.
 GE Bentley, The Profession of Dramatist in Shakespeare's Time 1590-1642 (Princeton, NJ: Princeton Univ. Press, 1971) 263.
 T Stern, Documents of Performance in Early Modern England (Cambridge: Cambridge University Press, 2009).
 Masten (n 1) 349.
 JJ Marino, Owning William Shakespeare: The King's Men and Their Intellectual Property (Philadelphia: University of Pennsylvania Press, 2011).48‒74.
 Masten (n 1) 339.
 C Lehmann, Shakespeare Remains: Theater to Film, Early Modern to Postmodern (Ithaca, NY: Cornell University Press, 2002) 80.
 Marino (n 9) 107‒42.
 J Cox and D Kastan, ‘Introduction: Demanding History’ in J Cox and DS Kastan (eds), A New History of Early English Drama (New York: Columbia University Press, 1997) 1-6.
 Masten (n 1) 339.
 LB Petersen, Shakespeare’s Errant Texts: Textual Form and Linguistic Style in Shakespearean ‘Bad’ Quartos and Co-authored Plays(Cambridge, Cambridge University Press, 2010).
 Masten (n 1) 340.
 E Smith, ‘Author v. Character in Early Modern Dramatic Authorship: The Example of Thomas Kyd and The Spanish Tragedy’ (1999) 11 Medieval and Renaissance Drama in England 129, 131‒32.
 Ibid. See also B Vickers, ‘Shakespeare and the 1602 Additions to The Spanish Tragedy: A Method Vindicated’ (2017) 13 Shakespeare 101.
 D Freebury-Jones, ‘The Diminution of Thomas Kyd’ (2019) 8 Journal of Early Modern Studies 251.
 Smith (n 17).
 Masten (n 1) 337.
 P Kewes, Authorship and Appropriation: Writing for the Stage in England, 1660‒1710 (Oxford: Clarendon Press, 1998).
 Vickers (n 19). See also J Clare, ‘Shakespeare and Paradigms of Early Modern Authorship’ (2012) 1 Journal of Early Modern Studies 137‒53.
 D Price, ‘Evidence for A Literary Biography’ (2004) 72 Tenn. L. Rev. 111, 133–34.
 D Bruster, ‘Shakespeare the Stationer’ in M Straznicky (ed), Shakespeare’s Stationers (Philadelphia: University of Pennsylvania Press, 2013) 112‒31, 112‒14.
 Masten (n 1) 339.
 Vickers (n 19).
 W Shakespeare, The New Oxford Shakespeare: Modern Critical Edition ‒ The Complete Works (G Taylor, J Jowett, T Bourus and G Egan eds,Oxford: Oxford University Press, 2016).
 Vickers (n 19).
 Marino (n 9) 5.
 Masten (n 1).
 G Egan, ‘What is Not Collaborative about Early Modern Drama in Performance and Print?’ (2010) 67 Shakespeare Survey 18, 20‒28.
 J Loewenstein, ‘The Script in the Marketplace’ (1985) 12 Representations 101, 110.
 JS Peters, Theatre of the Book, 1480–1880: Print, Text, and Performance in Europe (Oxford: Oxford University Press, 2000) 136.
 S McMillin, ‘Professional Playwriting’ in DS Kastan (ed), A Companion to Shakespeare (Oxford: Blackwell, 1999) 226‒38, 238.
 A Gurr, ‘Shakespeare’s Lack of Care for His Plays’ (2015) 2 Memoria di Shakespeare: A Journal of Shakespearean Studies 161, 161‒62. Gurr’s view can be contrasted with that of Erne who makes the claim that Shakespeare did intend his plays to be read ‒ L Erne, Shakespeare as Literary Dramatist, 2nd edn (Cambridge: Cambridge University Press, 2013).
 Loewenstein (n 37) 102.
 Ibid, 103.
 Ibid, 104. See also AW Pollard, Shakespeare’s Fight with the Pirates and the Problems of the Transmission of His Text, 2nd edn (Cambridge: Cambridge University Press, 1920) 35‒52.
 Ibid, 102, noting that ‘printers conventionally gave limited privileges of revision to authors’.
 B Jonson, Bartholomew Fair (1614), induction, lines 58, 64‒66, 73‒82, available at www.gutenberg.org/files/49461/49461-h/49461-h.htm.
 J McKeough, K Bowrey and P Griffith, Intellectual Property: Commentary and Materials, 4th edn (London: Butterworths, 2007) 21.