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
New York on 23 June 1789, which led to the passage, on 31 May 1790, of
the first federal copyright law in the United States (1 Stat. 124).
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
of some district courts regularly pasted the title pages and labels into the
record books rather than filing them in a separate place.
[14] These materials have not been
exploited
by bibliographers and historians of printing as they should have been,
though Frederick Goff has called attention to the importance of the
title-page collection, and Roger Trienens has demonstrated the usefulness
of the title pages in supplementing published bibliographies.
[15] Lyle Wright, in compiling his
three-volume bibliography of
American Fiction (1939, 1957,
1966), used the title pages both as a source for additional entries and as a
means of ascertaining the authorship of many anonymously published works
(since the district-court clerks often wrote the names of the proprietors
—
who could also be the authors — on the title pages).
[16] One should always keep in mind
that
items may not have been entered in
the district which at first seems most likely, for the title could be entered
by either the author or the proprietor,
[17] who would not necessarily have
lived in
the same district. The most obvious bibliographical use of the record books
(or the title pages) is to establish the date of title-page deposit; and since the
title-page deposit was to be made before publication, this date provides a
terminus a quo for the publication date.
[18] The chief difficulty in using these
records
is that they are not adequately indexed. There is no general index to them
all (since they were produced in various district court offices); while many
of the individual volumes (but by no means all of them) do have
indexes, they vary greatly in their comprehensiveness (some including titles
and authors as well as proprietors, but most of them listing only
proprietors), although they are usually accurate as far as they go.
(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
deposit copies, duly posted by the proprietors, never reached their
destination.
(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
the Smithsonian Institution) provided that one copy of every copy-righted
work be deposited — for use rather than record — in the
Smithsonian
and one in the Library of Congress (in addition, of course, to the essential
copy of record deposited with the district court for transmittal to the
Secretary of State). The copyright amendment of 5 February 1859 (11 Stat.
380), which repealed these deposit regulations in regard to the two libraries,
transferred the copyright duties from the Secretary of State to the
Department of the Interior: previous records and deposits were moved, and
all future ones were to be sent there. Finally, on 3 March 1865, another
amendment (13 Stat. 540) again required that a second deposit copy be sent
to the Library of Congress — and within
one month
of
publication. The various changes in deposit requirements
[21] should perhaps be summarized:
- 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.
One must keep these changes in mind when using the surviving deposit
ledgers in order to interpret the dates properly. The district court deposit
dates are usually preferable, when available, because in most cases the
deposit copies had to travel a shorter distance to reach the clerk's office
than to reach Washington and thus arrived sooner; on the other hand, for
the five years after 1865, the law did not insist that copies be sent to the
district courts as quickly as to the Library of Congress. A further
complication is that many publishers did not comply with the deposit
requirement, forcing Congress to make special provisions (in the acts of 3
March 1865 and 18 February 1867 [14 Stat. 395]) to penalize proprietors
who failed to comply; so the recorded deposit dates for some works
(particularly those of the smaller publishers) may not provide a reliable
basis for estimating publication dates, since they may be late deposit dates
resulting from a demand for compliance issued by the
Librarian of Congress.
The records of the receipt of deposit copies by the various depository
agencies in Washington are now available for reference in the
Rare Book Division of the Library of Congress and are complete except for
a few gaps, as noted:
- 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]
None of these is indexed, and the titles in each are arranged according to
the order in which they were received; usually only the year of publication
of each book is given, along with the precise day of receipt (but the
Smithsonian sheets from 1852 to 1856 list only the year of publication, and
its ledger from 1856 to 1858 adds only the date the entry was made).
Finding a particular title can be a time-consuming process, but if one
already knows the district court deposit date, the search is facilitated.
Melville's
Mardi, which was deposited at the district court on
17 April 1849, was received by the Library of Congress on 19 April; his
Battle Pieces, deposited at the court on 17 August 1866, was
received by the Library on 20 August. These facts suggest that
bibliographers should always check the district court record books for
deposit dates (at least after 1846) even when deposit copies are still on the
shelves of the Library of Congress, for those deposit copies may
not contain the earliest deposit dates. The district court deposit copies,
forwarded to the State Department and then to the Department of the
Interior,
[22] should have been turned
over to the Library of Congress in 1870; but copies in the Library may also
be those originally sent to the Library in the periods 1846-59 and 1865-70.
Two copies presently in the Library may contain different dates, one of
them the date of receipt by the clerk of the district court, the other the date
of receipt by the Library. So the deposit ledgers of the various agencies are
helpful in understanding these discrepancies and in locating the earliest
deposit dates.
In addition, these registers of deposits received may be supplemented
by certain published lists, for three attempts[23] were made
during this period to provide a published account of copyright deposits:
- 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.]
These published listings fill some of the gaps in the manuscript ledgers
presently located: the Jewett list, covering 1846-50, reduces the gap in the
Smithsonian ledgers to a year and a half, since those now available begin
with 18 June 1852; and the Library of Congress
Catalogues
and
Supplements completely fill the gaps in the located Library
ledgers. The Library lists and the Jewett list for 1846-49 are the least useful
of the published lists, however, because they do not give the dates of
receipt, as both the Elliot and the 1850 Jewett lists do. The places to look
for deposit dates, therefore, other than in copies of the works themselves,
may be summarized in this way:
- 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
book of the Commissioner of Patents, 1859-70, and some miscellaneous
letters in Box 308; (2)
Ledgers — a volume marked
"Maps
Labels &c." (1849-58), with some music entries (1849-51) at the
beginning; a volume listing the returns made by the clerks of the district
courts for the Department of State, 1853-68; three unidentified indexes; and
a volume containing (pp. 3-6) a list of the district court records received by
the Library of Congress in 1870 (the list which formed the basis for the one
Roberts published in 1939). This last ledger is of further interest because
it contains (pp. 540 ff.) lists of books by twenty-six selected authors,
[27] with the date of title entry for each
work
and often a reference to the volume and page of the original entry in the
district court record books; it was evidently an attempt by someone in the
Library of Congress, after the records were received in 1870, to furnish a
convenient index for the most popular
authors. Even though it omits a number of books, it can still serve today as
a short-cut to locating the original title entries for these authors.
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.
