This is the third 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.
‘The Play’s the thing’ – But, in Law, what is the Play?
One of the many things we learn from Hamlet is ‘the play’s the thing’ – an object.[1] As with many other ‘things’ the law protects plays today as objects of property.[2] But what exactly is the play as protected by copyright law? And who owns it in its commodified form?[3] Here I these questions in historical perspective, focusing on the history of authorship and ownership of plays during the English renaissance - the Elizabethan and Jacobean periods (1558‒1625).
During this English renaissance era we can observe the practices of theatre working in tandem with early capitalist market forces. As today, the production of culture was one in which questions of ownership and value were not merely relevant – they were vital.[4] Yet, what exactly was the work of theatre in the time of Elizabeth I? How was it valued? And how was it owned? The answer is not straightforward. An Elizabethan play was not a copyright work in the modern sense of a property-object encompassing a substantial bundle of rights (to copy, publish, perform, adapt, etc).
Rather, as I explore here, during the English renaissance while the Stationers’ Company exercised their legal monopolies to control the play-texts as print commodities, theatre companies took ownership of scripts as valuable performance texts, attempting to prevent them from being performed elsewhere using informal norms. As we shall see, to a great extent the Elizabethan dramatist neither owned nor controlled either commodity.[5]
Polyvocal Authorship of Plays
The de-centred role of the theatrical writer during the English renaissance reflected the form of authorship of theatre at play in the sixteenth and early seventeenth centuries. As Jeffrey Masten demonstrates, theatrical authorship was profoundly polyvocal, with individual playwrights being only one creative contributor among several others (theatre managers, actors, other writers, Stationers, and even censors) to the malleable text, which would also alter during performance improvisation.[6]
We can observe this malleability in the different versions of plays, such as Hamlet, that have survived. In one version of Hamlet the famous soliloquy begins: “To be or not to be – that is the question.” Yet, in another text the same soliloquy begins with a slightly different line, which changes the emphasis considerably: “To be or not to be, ay that is the point.”[7]
The fact that such texts were often a starting point for performance and improvisation - rather than a rigid script to be followed to the letter - relates to the fact that individual playwrights were not viewed as authors in the modern sense. Typically, writers did not receive print or performance royalties. Yet, money was being made – by the Stationers who controlled print publication and by theatre companies who staged the performances.
Plays in Print
In my first post I noted the law’s impact on theatre, with the literary and performance activities of lawyers at the Inns of Court influencing the development of English tragedies.[8] Here I focus on the fact that it was printing technology that enabled the diffusion of these plays and translations. Printing was regulated severely under the law. From its formal incorporation via Royal Charter in May 1557 the Stationers’ Company possessed a near-exclusive jurisdiction to register and copy books for printing.[9]
The Official Emblem of the Worshipful Company of Stationers and Newspaper Makers (all images shared via wikipedia/Creative Commons)
Only members of the company could print books (unless the Crown had granted a direct privilege).[10] Within the system controlled by the Stationers Company, the market for printed books and play-texts expanded steadily.[11] Nevertheless, in the Elizabethan period the majority of plays that were published were only printed in abridged ‘Quarto’ form.[12]
Front of the quarto publication of A Midsummer Nights Dream (all images shared via wikipedia/Creative Commons)
Moreover, although some play-texts could be said to exist as print-commodities, as they were registered at the Stationers’ Company and printed for sale, a great many significant plays went unpublished. And even where a play was published, authorship was not always ascribed to the text (and as noted earlier, the dramatist did not receive royalties for print sales).[13]
Front of a publication of The Spanish Tragedy, printed without attribution to Thomas Kyd ((all images shared via wikipedia/Creative Commons)
In fact, the idea that the playwright could own property in the dramatic text ‘would have been difficult to comprehend for the majority of writers in the Elizabethan period’.[14] Playwrights could not enter their texts onto the Stationers’ register, nor could they own copyright privileges.[15] Thus, once a dramatist had developed a text whatever ‘ownership’ a writer could claim was inevitably short-lived:
“Strictly speaking, a playwright owned a copy of a play, a manuscript distinguishable from a scribal copy only by the fact that it was a unique copy…”[16]
Thus, in relation to print, playwrights lacked the essence of ownership: control. It was the publisher who would register the play-text at the Stationers’ Company in order to obtain the right to print the ‘book’ in perpetuity. To the extent the play operated as a print-commodity, it was the publisher who benefited from its exploitation. And it was the publisher who controlled the legal privilege, which could be asserted in a case of alleged ‘piracy’ at a number of legal venues, such as the Court of Assistants.[17]
Plays in Performance
Apart from printed playbooks controlled by the Stationers, during the English renaissance the most profound way that plays could be said to be ‘owned’ was not by individual authors but by acting companies.[18] Such companies emerged as a result of the growth of an early capitalist marketplace for theatrical works and performances, which benefited the shareholders of various medium- and large-scale theatre companies – entities which in effect can be described as early versions of the ‘joint venture of limited liability’.[19] Theatres operated under severe economic pressures, knowing they could be forced to close by outbreaks of plague.[20] Nonetheless, when times were good the shareholders of companies like the Lord Chamberlain’s Men, later the King’s Men (at the Globe Theatre), or the Admiral’s Men (at the Rose Theatre) would receive a stable income.[21]
A rendition of the Rose Theatre during the Jacobean Era (all images shared via wikipedia/Creative Commons)
Writers would sell their plays, as manuscripts, to such acting companies for a flat fee of between £6‒10; and in a practical sense, that transaction brought to an end any claim the writer might have had to ‘own’ the play.[22] Litman remarks:
“Theatre managers valued playwrights as they valued actors, and paid them in the same fashion. Scripts once acquired entered a theatre company’s repertory, where they could be revived, adapted, rewritten, performed, and printed without any further license from the writer.”[23]
It is noteworthy that, in general, early modern prologues and epilogues spoken on stage did not name authors, whether individuals or collaborators.[24] During the Elizabethan period actors on stage would instead refer to a playwright merely as ‘our poet’, increasing the sense that the theatre company not only owned the play, but that the role of the poet/writer was subsumed within collective management:
“On the margins of dramatic representation ‒ in inductions and epilogues ‒ the Elizabethan play is regularly represented by the speaking actor as ‘ours,’ the possession and, indeed, the product of the actors. Where the playwright is mentioned, he is almost never ‘the Author’ or ‘the Playwright’; he is ‘our poet,’ an adjunct to the proprietary group of performers. Of course, playwrights almost always wrote the prologues to their scripts. Still, the marketplace was such that authorial assertions of preeminent domain were all but unthinkable.”[25]
Therefore, the acting company took ownership – and thus, control – of the play in the performance context, and would thereafter rework the text, adding edits and improvisations as it was performed.[26] In line with Miller’s definition, this can be seen as the performance commodity.[27] Unlike play-texts as print-commodities, this performance-commodity did not have the force of legal protection. Instead, mindful of competition and market saturation, theatre companies operated a system of informal, reciprocal social norms to regulate their activities, ensuring they did not perform each other’s plays without permission.[28] There were, of course, links between the transmission of the print and performance commodities. After a play’s performances had run their course, actors sometimes sold their copies of the play-text for print, demonstrating that play-texts could be sold as print-commodities without the permission of the playwright and then published without attribution.[29]
Overall, we can observe that even as early as the Elizabethan period plays provided two potential sources of value: print and performance. However, in practice dramatists neither owned nor controlled either one of these sources of value. Concepts of authorship and ownership in the individualist sense were not absent entirely, but they were only dimly perceived.[30]
In my next post I focus on how starting in the Jacobean period, and continuing post-Restoration (1660), there was a gradual shift towards greater recognition of the individual writer. This was presaged by the actions of Ben Jonson in the 1600s and 1610s and the posthumous publication of Shakespeare’s First Folio in 1623. At the same time, the growing market and tensions between publishers and the Stationers’ Company led eventually 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.
[1] W Shakespeare, The Oxford Shakespeare: Hamlet (S Wells ed, Oxford: Oxford University Press, 2008) Act II Scene ii, 236.
[2] B Sherman, ‘What is a work?’ (2011) 12 Theoretical Inquiries in Law 99, 120. See also HY Kang, ‘Is There (Should There Be) a Law & Humanities Canon?’ (2019) 16 Law, Culture and the Humanities 1.
[3] D Miller, Copyright and the Value of Performance, 1770‒1911 (Cambridge: Cambridge University Press, 2018). See also E Cooper, Art and Modern Copyright: The Contested Image (Cambridge: Cambridge University Press, 2018) and M Rose, Authors and Owner ‒ The Invention of Copyright (Cambridge, MA: Harvard University Press, 1993).
[4] R Knutson, Playing Companies and Commerce in Shakespeare’s Time (Cambridge: Cambridge University Press, 2001).
[5] DA Brooks, ‘Dramatic Authorship and Publication in Early Modern England’ (2003) 15 Medieval & Renaissance Drama in England 77. See also P Blayney, ‘The Publication of Playbooks’ in J Cox and DS Kastan, A New History of Early English Drama (New York, NY: Columbia University Press, 1997) 383; HT Gómez-Arostegui, ‘What History Teaches Us About Copyright Injunctions and the Inadequate-Remedy-at-Law Requirement’ (2008) 81 S. Cal. L. Rev. 1197; JJ Marino, Owning William Shakespeare: The King’s Men and Their Intellectual Property (Philadelphia, PA: University of Pennsylvania Press, 2011); B Lauriat, ‘Literary and Dramatic Disputes in Shakespeare’s Time’ (2018) 9 Journal of International Dispute Settlement 45; and J Loewenstein, Ben Jonson and Possessive Authorship (Cambridge: Cambridge University Press, 2002) 10‒18.
[6] J Masten, ‘Beaumont and/or Fletcher: Collaboration and the Interpretation of Renaissance Drama’ (1992) 52 English Literary History 337.
[7] ‘To Be or Not to Be; Ay, There's the Point: The Fourth Soliloquy in the Q1 Hamlet’ (2015) - https://www.shakespeareflix.net/2015/03/to-be-or-not-to-be-ay-theres-point.html
[8] P Raffield, Shakespeare's Imaginary Constitution (Oxford: Hart Publishing, 2010); A Moore, Shakespeare Between Machiavelli and Hobbes: Dead Body Politics (Lanham: Lexington Books, 2016); E Heinze, ‘“Were it not against our laws”: Oppression and Resistance in Shakespeare’s Comedy of Errors’ (2009) 29 Legal Studies; BJ Sokol and M Sokol, Shakespeare’s Legal Language (London: Continuum, 2004) 316–18.
[9] I Gadd, ‘The Stationers’ Company in England before 1710’ in I Alexander and HT Gómez-Arostegui (eds), Research Handbook on the History of Copyright Law (Cheltenham: Edward Elgar, 2016) 81‒95. For the early history of the Stationers’ Company see PWM Blayney, The Stationers' Company and the Printers of London, 1501–1557 (Cambridge: Cambridge University Press, 2013).
[10] For example, the universities at Oxford and Cambridge had their own right to print.
[11] DA Brooks, ‘Dramatic Authorship and Publication in Early Modern England’ (2003) 15 Medieval & Renaissance Drama in England 77. See also PWM Blayney, ‘The Publication of Playbooks’ in J Cox and DS Kastan, A New History of Early English Drama (New York: Columbia University Press, 1997) 383‒422 and L Febvre and H-J Martin, The Coming of the Book – The Impact of Printing, 1450‒1800 (London: Verso, 1997).
[12] Several Shakespeare plays were published during his lifetime in Quarto form, but Shakespeare’s posthumous First Folio (1623) featured a large number of previously unpublished plays – see E Smith, Shakespeare's First Folio: Four Centuries of an Iconic Book (Oxford: Oxford University Press, 2016) and G Egan, ‘The Provenance of the Folio Texts’ in E Smith (ed), The Cambridge Companion to Shakespeare's First Folio (Cambridge: Cambridge University Press, 2016) 68‒85.
[13] Ibid.
[14] B Salter, ‘Taming the trojan horse: an Australian perspective of dramatic authorship’ (2009) 56 Journal of The Copyright Society of The USA789, 815. See also R Knutson, The Repertory of Shakespeare’s Company, 1594‒1613 (Fayetteville: University of Arkansas Press, 1991).
[15] P Blayney, ‘The Publication of Playbooks’ in J Cox and DS Kastan, A New History of Early English Drama (New York, NY: Columbia University Press, 1997) 383, 394‒99.
[16] J Loewenstein, ‘The Script in the Marketplace’ (1985) 12 Representations 101, 102.
[17] HT Gómez-Arostegui, ‘What History Teaches Us About Copyright Injunctions and the Inadequate-Remedy-at-Law Requirement’ (2008) 81 S. Cal. L. Rev. 1197, See also E Arber (ed), A Transcript of the Registers of the Company of Stationers of London 1554‒1640 (London: Privately Printed, 1875), available athttps://catalog.hathitrust.org/Record/001168984
[18] R Dutton, Licensing, Censorship and Authorship in Early Modern England (London: Palgrave MacMillan, 2000) 91.
[19] J Masten, ‘Beaumont and/or Fletcher: Collaboration and the Interpretation of Renaissance Drama’ (1992) 52 English Literary History 337, 339.
[20] B Freedman, ‘Elizabethan Protest, Plague, and Plays: Rereading the “Documents of Control”’ (1996) 26 English Literary Renaissance 17, 19‒25.
[21] JJ Marino, Owning William Shakespeare: The King's Men and Their Intellectual Property (Philadelphia: University of Pennsylvania Press, 2011).
[22] Ibid. J Loewenstein notes in Ben Jonson and Possessive Authorship (Cambridge: Cambridge University Press, 2002) that printers sometimes gave ‘limited privileges’ of revision to authors. See also Z Lesser, Renaissance Drama and the Politics of Publication: Readings in the English Book Trade (Cambridge: Cambridge University Press, 2004).
[23] JD Litman, ‘The Invention of Common Law Play Right’ (2010) 25 Berkeley Tech. L. J. 1381, 1390. See also T Stern, Rehearsal from Shakespeare to Sheridan (Oxford: Oxford University Press, 2000) 129–31 and 241–45, and J Milhous, ‘The First Production of Rowe’s “Jane Shore”’ (1986) 38 Theatre J. 309, 312.
[24] T Stern, ‘Review of Authorship and Appropriation: Writing for the Stage in England, 1660‒1710’ (2002) The Scriblerian 73. See also P Kewes, Authorship and Appropriation: Writing for the Stage in England, 1660‒1710 (Oxford: Clarendon Press, 1998).
[25] J Loewenstein, ‘The Script in the Marketplace’ (1985) 12 Representations 101, 102. See also M Straznicky (ed), The Book of the Play: Playwrights, Stationers, and Readers in Early Modern England (Amherst, Boston: University of Massachusetts Press, 2006).
[26] JS Peters, Theatre of the Book, 1480–1880: Print, Text, and Performance in Europe (Oxford: Oxford University Press, 2000), 1, 4–5. See also JJ Marino, Owning William Shakespeare: The King’s Men and Their Intellectual Property (Philadelphia, PA: University of Pennsylvania Press, 2011).
[27] D Miller, Copyright and the Value of Performance, 1770‒1911 (Cambridge: Cambridge University Press, 2018).
[28] B Lauriat, ‘Literary and Dramatic Disputes in Shakespeare’s Time’ (2018) 9 Journal of International Dispute Settlement 45.
[29] J Loewenstein, ‘The Script in the Marketplace’ (1985) 12 Representations 101,105‒06.
[30] L Bently, ‘Copyright and the Death of the Author in Law and Literature’ (1994) 57 The Modern Law Review 973, 978. See also M Woodmansee and P Jaszi (eds), The Construction of Authorship: Textual Appropriation in Law and Literature (Durham, NC: Duke University Press, 1994).