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II. 1790-1870
Since the United States Constitution (17 September 1787) gave Congress the power to grant copyrights, several authors in 1789 petitioned the federal government (rather than the states) for copyrights to their works — David Ramsay on 15 April, Jedidiah Morse on 12 May, Nicholas Pike on 8 June, and Hannah Adams on 22 July; and in granting copyrights to David Ramsay on 20 April 1789 for two of his books, Congress was making its first use of the copyright provision of the Constitution.[13] Noah Webster, at the same time, was drafting A Bill to Promote the Progress of Science and Useful Arts, printed in
This law required three steps for the securing of a copyright. First, a printed copy of the title page of any work proposed for copyright was to be deposited before publication with the clerk of the district court for the district in which the author (or copyright proprietor) lived, and the clerk was to record this deposit in a ledger which he kept for that purpose. Second, the text of the clerk's registration was to be inserted, within two months, in at least one United States newspaper, where it was to run for a period of four weeks. Third, within six months of the publication of the work, a copy was to be deposited in the office of the Secretary of State. The term of copyright was fourteen years, renewable for another fourteen years if this same procedure were repeated within six months of the expiration of the first term.
Although later revisions of the law before 1870 modified the details somewhat, the basic procedures remained the same throughout this period, and each of them has important implications for the bibliographer who wishes to use the copyright records:
(1) Title Pages and Record Books. Since title pages were to be deposited in advance of publication, many title pages were deposited (or entries recorded) for works which never actually got printed and published, and the amassed collection of title pages and record books thus serves in part as an account of unfulfilled projects — occasionally of great historic or literary importance. At the same time, certain works known to have been printed no longer survive, so it cannot be assumed that all title pages or entries for works no longer in existence necessarily represent books which were never printed, and the title pages or record books may therefore supply titles, not otherwise known, for inclusion in bibliographies or imprint lists. Because loose title pages are more easily lost than large record books, the record books are more complete and are the basic tool for research; but since the title-deposit dates were written on the title pages, it is conceivable (though not likely) that certain title pages might turn up for periods in which there is a gap in the record books for a particular district and thus supplement the record books. In any case, the title pages have an interest of their own for students of printing; especially after 1 January 1803, when prints and commercial labels were also included in the copyright law, these deposits form an enormously important collection of printed ephemera, sometimes containing examples of the earliest printing in various territories and states. Anyone interested in the records from this point of view should remember that the clerks
(2) Newspaper Notices. The requirement that each copyright proprietor insert a copy of the clerk's certificate of title-page deposit in a newspaper for a period of four weeks amounts in fact to a publication of the entire copyright record (until 1831) — but in a form which by its nature is difficult to consult. The scarcity of early newspapers is not the principal handicap, since each notice was to run for four weeks (making scattered missing issues not of crucial importance); the real difficulty is in guessing just which newspaper a particular proprietor would choose. These newspaper notices, therefore, are of little practical usefulness to the bibliographer, unless someone should undertake the unenviable task of indexing them. But whenever a gap exists in the surviving district court record books, the bibliographer will find it worthwhile to search the newspapers of that area for the appropriate period. Filling in such gaps (even if only in part) constitutes the chief bibliographical value of the newspaper notices.
(3) Deposit Copies. Since published works were to be deposited within six months of publication, knowledge of the deposit date provides a terminus ante quem for the publication date: if the law were properly followed, the publication date could not have been more than six months before the deposit date. Taking the deposit date in conjunction with the date of title entry, one can usually narrow the time span during which publication took place: since the title was to be entered before publication, if the date of title entry is less than six months earlier than the date of deposit, the period in which publication occurred is correspondingly shortened. Deposit dates were written into the copies, and the Secretary of State also kept a record book for these deposits; even when certain deposit copies can no longer be found, therefore, it is often possible to ascertain the deposit dates from the Secretary of State's record books, which survive from 1796. The dates given are those on which the works were received in the Secretary of State's office, and they may be considerably later than the dates on which the works were dispatched by the proprietor or author (if such dates could be known). Bibliographers should not conclude that titles entered in the district court record books which do not reappear in the record books of deposits received by the Secretary of State were never printed or published. Inevitably some proprietors failed to comply with the deposit requirement, even though they had begun properly by entering the title; and, just as inevitably, certain
(4) Renewal Records. Because a copyright proprietor was required to go through the same steps for renewal as for the original copyright, title pages had to be deposited again and a new entry made by the clerk of the district court. For this reason, copyright renewals furnish another way of filling some gaps in the records; if one is looking for the entry of a book published in a year for which the records of the appropriate district court are not extant, one may try the records fourteen years later, if they exist, or search the newspapers and find the renewal entry. Since the renewal was to be made within the last six months of the original term, one then has some idea of the time when the original copyright was entered (the copyright term ran from the date of title entry, not copy deposit). In the same way, if no deposit for a given book was recorded by the Secretary of State in the year of its known publication, a check of the deposit record fourteen years later may at least reveal the date of the renewal deposit.
The amendments and revisions which followed are of interest to bibliographers in terms of the changes they brought about in the form of the records. The act of 29 April 1802 (2 Stat. 171, effective 1 January 1803) is significant from a bibliographical point of view only because it required all copyrighted works to carry a printed notice of the date of title entry, either on the title page itself or on one of the two pages immediately following (usually the verso of the title page),[19] a provision which has continued in effect to the present. On 3 February 1831 was passed the first general revision of the copyright law (4 Stat. 436), which as of that date superseded the 1790 act. It contained four important revisions: (1) the copyright term was henceforth to be twenty-eight years (instead of fourteen), renewable for fourteen; (2) the newspaper notice was required only for renewals; (3) copies of published works were to be deposited with the clerk of the district court (not the Secretary of State) within three (not six) months of publication; (4) the clerks of the district courts were to send these deposit copies and certified lists of all titles recorded, at least once each year, to the Secretary of State. In most other respects, the law remained as before.
One result of these changes was that clerks of some district courts began entering the deposit date for each work on the same page of the ledger which recorded that work's title entry. Another result was that the records were kept in duplicate, so that one set could be furnished to the Secretary of State. This system normally provides the bibliographer with more than one source for the dates of registration and deposit. Since the original record books and the duplicate set were kept in different places before 1870, it is unlikely that the same portions of each set would be lost or destroyed; thus the so-called "duplicates" can be used to fill in many gaps which now exist in the original records. Similarly, in cases where the deposit copies themselves are no longer available, the deposit dates can often be located in the record books (usually the original set only) — a fact not generally recognized by bibliographers, even those who utilize deposit dates. Although neither copy of Melville's White-Jacket in the Library of Congress, for example, has a deposit date written in it, the deposit date (26 March 1850) may be ascertained from the record books of the Southern District of New York; the Library of Congress copy of his Piazza Tales contains a note specifically pointing out that the present copy is a replacement of the deposit copy, but again the deposit date (20 May 1856) may be found in the district court ledger. Whenever both sources of information exist for a deposit date (both the copy itself and the record book) — or for a registration date (the two sets of record books) — some discrepancy is possible, particularly since these are handwritten records (another reason why the "duplicates" are not really duplicates). In such cases, for the registration date precedence should be given to the original record over the "duplicate," and for deposit dates to the actual copy of the work[20] over the record book. One should also remember that, after 1831, a publication date can be gauged with somewhat more accuracy than in the 1790-1831 period, since it can be no more than three months prior to the deposit date. But the most important point, worth repeating, is that there are few published and copyrighted American works, especially after 1831, for which the deposit dates cannot be ascertained, even if the deposit copies are no longer in existence.
The amendments to the 1831 revision have principally to do with the places where copies were to be deposited and the number of deposit copies required. The act of 10 August 1846 (9 Stat. 106, establishing
- 1790-1831: One copy to Secretary of State within six months of publication.
- 1831-1846: One copy to district court (for transmittal to Secretary of State) within three months of publication.
- 1846-1859: Three copies: one to district court (for transmittal to Secretary of State) within three months of publication; one to Smithsonian Institution; one to Library of Congress.
- 1859-1865: One copy to district court (for transmittal to Department of Interior) within three months of publication.
- 1865-1870: Two copies: one to district court (for transmittal to Department of Interior) within three months of publication; one to Library of Congress within one month of publication.
The records of the receipt of deposit copies by the various depository agencies in Washington are now available for reference in the
- State Department: 2 January 1796-29 May 1841 (11 vols.) [1841-59 not located]
- Department of Interior (Patent Office): 28 April 1859-5 July 1870 (3 vols.)
- Smithsonian Institution: 18 June 1852-1856 (unbound, in envelope 326); 29 February 1856-6 October 1858 (1 vol.) [1846-52 not located]
- Library of Congress: 1 December 1848-29 November 1852 (1 vol.); 31 March 1865-3 December 1886 (1 vol.) [1846-48 and 1853-58 not located]
In addition, these registers of deposits received may be supplemented by certain published lists, for three attempts[23] were made
- William Elliot, A List of Patents Granted by the United States (1822, 1823, 1824, 1825, 1826). [Supplements in these volumes list all deposits received by the State Department between 1796 and May 1825. The supplements in the 1822 volume cover 1796-1821, and the succeeding volumes contain annual supplements through May 1825.]
- Charles Coffin Jewett, "Copy-right Publications," in the Fifth Annual Report of the Board of Regents of the Smithsonian Institution for the Year 1850 (1851), pp. 146-325. [Two supplements list all deposits received by the Smithsonian between 10 August 1846 and the end of 1850 (the first, pp. 146-236, covers 1846-49; the second, pp. 236-325, covers 1850).]
- Catalogue of the Library of Congress (1849, 1861); Supplement (1846-60). [The Supplements from 1846 through 1856 contain separate sections listing copyright deposits; the four Supplements for 1857 through 1860, as well as the two complete catalogues of 1849 and 1861, do not list deposits separately but mark them with a double dagger wherever they occur in the main alphabet. Together these Catalogues and Supplements entirely cover the Library's first period as a depository, from 10 August 1846 to 5 February 1859.]
- 1796-1831: in the registers of copyrights received by the State Department (or, through May 1825, in Elliot's published version of these registers).
- 1831-1841: in the district court record books for certain states; and in the registers of copyrights received by the State Department.
- 1841-1846: in the district court record books for certain states.
- 1846-1859: in the district court record books for certain states; in Jewett's list of Smithsonian deposits and the handwritten registers of copyrights received by the Smithsonian; in the registers of copyrights received by the Library of Congress, supplemented (without dates) by the Library's published Catalogues and Supplements.
- 1859-1865: in the district court record books for certain states; and in the registers of copyrights received by the Department of Interior (Patent Office).
- 1865-1870: in the district court record books for certain states; in the registers of copyrights received by the Department of Interior (Patent Office); and in the registers of copyrights received by the Library of Congress.
It is clear from this summary that the most important tool for research into deposit dates after 1831 is the long series of record books kept by the clerks of the district courts. Because they record the dates of original title entries (the "copyright" dates) and because they cover the entire period 1790-1870, they are obviously basic to any kind of copyright research for these years and constitute what is usually thought of as the "copyright records" before 1870. The copyright law of 1870 required that all the previous district court records be sent to the Library of Congress in Washington, and when those ledgers (dating from 1790) were added to the "duplicates" already there (dating from 1831), the result was a collection of over 600 large volumes and many additional bundles of loose papers (containing approximately 150,000 entries from 35 states). All this material (including 92 boxes of title pages) is now shelved in the Rare Book Division of the Library of Congress and constitutes a largely untapped bibliographical storehouse. Any bibliographer of nineteenth-century American literature should be intimately acquainted with the characteristics and contents of these records.
The difficulties in using these volumes are a result of the lack of centralization in the administration of the copyright law before 1870, since complete uniformity would be impossible in records kept at scattered offices throughout the country. Most of the books contain only one entry per page, consisting of the formal phraseology required by law, the date of entry, and the exact wording of the title page; they may be entirely handwritten (as the majority were in the earlier years), or they may be made up of printed forms, filled in as required. But they vary in several respects: some include the actual printed title pages, and others give only a handwritten title; some have single-volume or multi-volume indexes (by title or proprietor or both), and others are not indexed at all; some report the dates of deposit of published copies (after 1831), and others do not. In addition, not all the district courts sent their records to Washington, or some were lost en route, for the "duplicates" sometimes cover periods missing from the original volumes, and gaps still remain. (An inventory of these records is provided below in Appendix A.)[24]
One of the problems in using these records in their present form is that a bibliographer can never be sure that he has checked all the relevant material. This uncertainty is compounded by the inevitable feeling that the missing records may still exist in the states, not having been sent to Washington in 1870. A check of other repositories reveals that certain pre-1870 copyright records (for nine states and the District of Columbia) do indeed exist outside the Library of Congress — in the National Archives, the Seattle Federal Records Center, the South Carolina Library, the Texas State Library, the Virginia Historical Society, and the federal archives in Kentucky, Maryland, Ohio, and Rhode Island. (A list of these materials is given in Appendix B.)[25] Out of this entire group of pre-1870 records, only a few have been published or transcribed. Most of these publications consist of small groups of entries taken from the record books in the Rare Book Division of the Library of Congress; but four of them — for Kentucky, Rhode Island, Texas, and Virginia (Richmond, 1864-65) — draw on the material housed in other locations, and one (for Richmond, 1790-1844) preserves the content of a record apparently now lost.[26] (See Appendix C.)
The collection of copyright materials in the Rare Book Division of the Library of Congress also contains, in addition to the district court record books, the boxes of title pages, and the registers of deposits received by the four Washington deposit libraries, a small number of miscellaneous papers: (1) Letters — Library of Congress correspondence, both incoming and outgoing, on copyright matters (particularly acknowledgments of deposit copies) between 1852 and 1855, a letter
The fact that such a list, incomplete as it is, can be useful suggests the complex nature of the records for this period. Until all the pre-1870 entries are published, with a complete index, no bibliographer can feel certain that he has found everything relevant to his subject. If the desired information happens to be in one of the indexed bound volumes, it can be found easily; but if it involves a district for which there is no index or for which the only surviving records are scattered loose sheets, the search can be time-consuming. The lack of centralization in the administration of the copyright law before 1870 made complicated records inevitable, and a consolidated index is essential if they are to be an effective tool for research. But the bibliographer who understands the changing provisions of the law which produced those records can find in them, even as they stand, a large amount of information not elsewhere available about the publications of many of the major writers of nineteenth-century America.
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