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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.
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.
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 |
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
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
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
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