University of Virginia Library

I. FOURTEEN YEAR SALE OF COPYRIGHT

We must start by addressing a difficulty: Murphy and Vaillant disagree quite drastically about both the dates and contract prices of virtually all their agreements. What are we to conclude when Murphy says he sold a play to Vaillant for £157 10s in March 1759 and Vaillant replies that he bought the play for £105 on 7 February 1760? To complicate this tangle further, the play in question premiered in April 1759 and was published almost immediately (which seems to favor Murphy's story)—but Vaillant offers to produce the signed and witnessed contract, dated as he has specified. We will disclose the result of the case immediately: the Court of Exchequer found for Vaillant.[4] Our reading of the evidence suggests that the court came to the right conclusion. But such contradictions in what ought to have been simple matters of fact are unsettling.

Why would Murphy make the claims he did, knowing (as he told the court himself) that Vaillant kept excellent records? Two quite separate matters are at issue: price and date. So far as we can determine, Vaillant is right about the prices. Both men are correct about the dates. Let us explain. Murphy and Vaillant struck a bargain for each play at roughly the time of premiere (whether before or after cannot be determined), but they sometimes did not "reduce the agreement to writing" and put cash on the barrelhead until a later date.[5] Murphy gives the date at which a bargain was struck; Vaillant gives the date of the formal written agreement and cash payment.

When the agreement remained oral, they give the same date. Murphy's inflated prices are more troublesome, but we will offer a conjecture. At least five of his figures must be false: Vaillant held the signed agreements and offered to produce them to the court. Our best guess is that Murphy was simply stalling. He knew that Common Pleas had found against him, and that Vaillant held £479 13s 10d of receipts and "notes" from him as against only £293 9s 9d that Murphy had been able to document was owed to him by Vaillant. Inflating the alleged prices of seven plays and one revision by £233 (which is what Murphy apparently did) was a means of seeming to show that Vaillant owed Murphy money, not vice-versa. Murphy cannot have expected to bamboozle the Court of Exchequer, but the suit did buy him more than six months of breathing room. He probably hoped for longer: most Exchequer cases dragged on at least two or three years. He owed Vaillant nearly £200, which was a very large sum of money, and time to scrape it up might have been of the essence. At any rate, the discrepancies in testimony need not concern us unduly: Vaillant's prices appear to be correct.[6]

Murphy sold publication rights in seven plays to Vaillant between January 1756 and November 1761. The titles, performance dates, publication agreement dates, contract dates (if different), and prices are specified in Table 1.

Table 1: Plays sold by Murphy to Vaillant

               

Title	Acts	Premiere date	Agreement date	Contract date	Publication date	Price
Apprentice	2	2 Jan 1756	Jan 1756	17 Jan 1756	8 Jan 1756	£40
Upholsterer	2	30 Mar 1758	Mar 1758	13 Mar 1759	12 Apr 1758	£42
Orphan of China	5	21 Apr 1759	Mar 1759	7 Feb 1960	2 May 1759	£105
Way to Keep Him	3	24 Jan 1760	Jan 1760	7 Feb 1760	5 Feb 1760	£52 10s
Desert Island	3	24 Jan 1760	Jan 1760	7 Feb 1760	29 Jan 1760	£52 10s
All in the Wrong	5	15 Jun 1761	Nov 1761	(oral)	21 Nov 1761	£105
Old Maid	2	2 July 1761	Nov 1761	(oral)	25 Nov 1761	£42

The most obvious fact to be discerned from this list is that a five-act mainpiece brought the author a hundred guineas (£105), whereas a three-act play was worth just half that and a two-act afterpiece fetched £40 or £42. The 1760 version of The Way to Keep Him and The Desert Island are a pair of three-act entertainments written to be performed together. The former was popular and the latter was not, yet what they brought Murphy from his publisher was fifty guineas each. He got more from Vaillant for the successful show only when he rewrote it as a five-act mainpiece (a subject to be addressed in due course).

From the start of their business relationship, Vaillant and Murphy operated quite casually about written agreements. When The Apprentice premiered on 2 January 1756, Murphy was unknown. The work proved immediately popular, and by 8 January Vaillant had it in print at 1s. Terms may have been agreed on before the premiere, but the formal contract was not signed until more than a week after publication. Vaillant recites it: "London 17th January 1756 I do hereby Assign and make over to Mr Paul Vaillant his Heirs Executors or Assigns for and in Consideration of the Sum of forty pounds to me by him paid this day the full and entire property of a ffarce in two Acts written by me and entitled the Apprentice. Witness my Hand and seal Arthur Murphy." Vaillant adds: "And which said Paper was signed and sealed in the presence of Margaret Chastel and John Edwards and was drawn up in Writing by this Defendant and is now in the possession or power of this Defendant." What exactly was Murphy selling? In the words of the Copyright Act of 1710, he was transferring "the sole Right of Printing or Disposing of Copies" for fourteen years. Murphy is careful to state the period in his testimony; Vaillant consistently leaves it out, and it was not specified in their written contracts. According to the Act, ownership "shall Return to the Authors thereof, if they are then Living, for another Term of Fourteen Years."[7] Accustomed to the longstanding Stationers Company presumption of perpetual right, booksellers tended either to bargain for all assignable rights or to operate as though they had.[8]

Subsequent deals between Murphy and Vaillant were even more casual. The Upholsterer—another immediate and longstanding success—was published two weeks after its 30 March 1758 premiere, but not formally contracted for between author and publisher until a year later.[9] Terms for The Orphan of China—a succès d'estime—were apparently agreed upon in March 1759; again the play was published two weeks after its premiere on 21 April, but the paperwork did not get done until 7 February 1760.[10] Indeed, on the same day Murphy and Vaillant concluded a bargain for the three-act version of The Way to Keep Him and The Desert Island, which had received their premieres two weeks earlier and were coming up to the last of their eleven joint performances. Vaillant recites the written agreements for all of these plays, and according to his testimony (accepted by the court), he and Murphy

used their meeting of 7 February 1760 to tidy up their joint affairs: "about the seventh day of ffebruary 1760 . . . All accounts between the Complainant and this Defendant were closed and balanced. And . . . on the twenty sixth day of ffebruary 1760 a new Account was opened." For reasons not clear to us, author and publisher did not bother with written publication agreements under their new "Account."

As of February 1760 Murphy was an exceptionally promising young dramatist. Four of his five plays had been successful, and all of them had been mounted by the Garrick management at Drury Lane—London's best. Murphy was probably satisfied with his publisher, or he would have struck bargains elsewhere. He does not appear, however, to have been content with what he was earning from the theatre itself, for in the summer of 1761 he joined forces with Samuel Foote and rented the Drury Lane theatre to offer a summer season. All in the Wrong and The Old Maid premiered there in June and July. Both enjoyed numerous performances. No account books survive for this venture, but "Mr. Murphy's Statement of his Case with Messrs. Garrick and Lacy" supplies some important financial details and explanations of the venturers' agreement.[11]

Under this special summer arrangement, Murphy stood to benefit from four separate sources of income. (1) Benefits for his new plays. He was allowed three benefits for All in the Wrong, which netted him £77 17s 101/2d, £2 8s 21/2d, and £6 respectively. Two benefits in which The Old Maid served as afterpiece yielded £56 19s 111/2d and £13 10s 2d, so Murphy derived a total of £156 16s 21/2d from "author's benefits." (2) Murphy and Foote were splitting managerial profits. Their agreement with Garrick and Lacy was that the rent on Drury Lane would be one-fifth of the net profits of the summer season. Murphy mentions in passing in his Life of Garrick that "Foote received somewhat above three hundred pounds for his half-share," which implies that Murphy likewise got £300 as comanager and that Garrick and Lacy collected about £150 between them (one-fifth of a presumptive £750 total profit).[12] (3) Another part of the agreement with Garrick and Lacy was that if the benefits for Murphy's new plays did not make him £300 for All in the Wrong and £100 for The Old Maid (i.e., a total of £400), then they had the right to pay him the difference and take the two plays into the regular Drury Lane repertory. By Murphy's calculations the two plays had earned him only £121 11s 11/2d. (Because The Old Maid was an afterpiece, he allowed only half of the profits earned on those nights to count as "its" earnings, which explains the discrepancy between this figure and the £156 16s 21/2d total benefit earnings.) If we accept this basis of calculation, then Garrick and Lacy ought to have paid Murphy another £278 8s 91/2d [recte 101/2d] to bring the total up to £400. In fact, they paid him only £200, thereby inflaming his temper.[13] (4) Sale of copyright. Vaillant claims to have paid Murphy exactly

the same amounts that had been established as his going rates: one hundred guineas for the mainpiece and fifty guineas for the afterpiece. Granting that the managerial profits are a round figure, Murphy's total earnings from the summer company venture must have been something like £814. The copyright fees of one hundred and fifty guineas were by no means a trivial sum, but they represent far less than could be earned in the theatre and lead us to a broader question.

How much of Murphy's income from playwriting was he deriving from performance and how much from print? Drury Lane accounts are only spottily preserved, but we can get some idea. Murphy received a benefit on the eighth night of The Apprentice. Richard Cross, the prompter at Drury Lane, estimated a gross of £200; assuming that Murphy paid the standard £63 house charges, he should have netted roughly £137 or more than three times what Vaillant paid him for publication rights.[14] For The Upholsterer he was given an unadvertised benefit on the tenth night. Cross estimated the take at £180, so the net should have been circa £117, or close to triple the publisher's fee. As a mainpiece, The Orphan of China entitled its author to benefits on the third, sixth, and ninth nights. Assuming Cross's estimates to be reasonably accurate, Murphy ought to have netted something like £231,[15] which is more than double the payment from Vaillant. No figures survive for The Way to Keep Him and The Desert Island, but since they ran more than nine nights Murphy ought to have made something on the order of £200 and conceivably a bit more. In sum, publisher's fees added handsomely to the profits of playwriting, but they constituted (so far as this very limited sample permits us to judge) something like 20- 35 percent of the total that an author might hope to make from a play with a decent run.

One warning: Murphy would probably not have received any remuneration for the afterpieces from the theatre if they had died after four or five nights. Little evidence exists about theatrical compensation for afterpieces. Authors' benefits were not always advertised, and especially not for afterpieces, as we sometimes learn from Cross's annotations.[16] Management was resigned to giving up the profits of the third, sixth, and ninth nights for a mainpiece (if it lasted that long), but if a benefit was given for an afterpiece, it commonly occurred on the sixth night or later. No benefit was allowed if the piece failed to survive that long. We offer the hypothesis that management had the option of compensating the author of a flop with a flat cash payment, if any remuneration was given at all. Let us underline the obvious: big money

could be made only from success in the first run of a mainpiece, but for a failure, the publication fee might be a very large part of such profits as the author ever got. Indeed, benefits carried no guarantees and sometimes lost money: the copyright money could conceivably be the only remuneration the writer would ever receive from his or her play.