‘mere articles of trade’: Literary Property, Copyright, and Democracy

Martin T. Buinicki (University of Iowa)

Presented at the Cooper Panel of the 2001 Conference of the American Literature Association in Cambridge, Massachusetts.

Originally published in James Fenimore Cooper Society Miscellaneous Papers No. 14, August 2001, pp. 1-6.

[May be reproduced for instructional use by individuals or institutions; commercial use prohibited.]

James Fenimore Cooper has long been viewed as one of America’s first “professional” authors, not only because of his artistry, but also because of his astonishing early success and business acumen. William Charvat, for example, has argued, “Though his self-respect as a writer was unmitigated, he exploited literature in a brisk and business-like fashion” (133). His tone, Charvat suggests, as well as his success, sets him apart from Irving and other American writers (128). Cooper’s comment in a letter to British publisher Henry Colburn in 1826 regarding publication of The Prairie and his other novels seems representative of this new sensibility. Cooper writes, “It is necessary to speak of these works, now, as mere articles of trade” (qtd in Charvat 133). His statement to Colburn does seem a perfect expression of the emergence of the new profession of authorship: it illustrates the transition from the novel as individual work of art to “mere article of trade,” a commodity to be bought and sold. His language is, presumably, no longer the language of a “gentleman author,” pursuing authorship as a pleasant pastime. The author becomes a businessman, the pastime a profession.

Yet Cooper’s status as one of our first professional authors is not just a matter of his success or business-like demeanor. Cooper was also one of the first American writers forced to negotiate his rights as a successful author in the midst of an emerging discourse of authorship and literary property rights that tended to pit authors against readers and publishers. He grasped quite early on the nature of the debate that was unfolding: while authors sought to control the production and sale of their texts amidst widespread literary piracy, those opposed to strengthening or expanding copyright law often cited a fear of granting monopoly power to authors and large publishing firms, robbing the reading public of access to affordably priced books. What were at issue were the individual rights of the author within a democratic society. Were copyrights intended for the benefit of the author or America? Was literary property to be treated the same as other types of property? Cooper is one of our first professional authors not only because he understood this debate, but also because he engaged it in both his public and private writings. He was one of the first American authors in the nineteenth century faced with the task of conceiving of authorship as a money-making profession not antithetical to democratic principles, but instead sustaining them and sustained by them.

As critics like John McWilliams have ably demonstrated, property is seldom simply property in Cooper’s works; indeed, Cooper continually emphasizes its necessity. He writes in The American Democrat, “[P]roperty is an instrument of working most of the good that society enjoys. It elevates a national character, by affording the means of cultivating knowledge and the tastes; it introduces all above barbarism in society; and it encourages and sustains laudable and useful efforts in individuals” (175). Property is never considered or discussed as simply a commodity; for Cooper, it was indispensable for motivating individual and social improvement, and he saw the protection of property rights as one of the primary tests of democracy. Democracy could thrive only if laws designed to protect the rights of the individual limited the will of the majority. He saw the simple-minded elevation of “majority rules” as a dangerous misunderstanding of the principles of democracy: “[I]t is a great mistake for the American citizen to take sides with the public, in doubtful cases affecting the rights of individuals, as this is the precise form in which oppression is the most likely to exhibit itself in a popular government” (65). Cooper believed that because property ownership necessarily introduced a degree of inequality, property rights of individuals were particularly vulnerable to the leveling impulses resulting from the rule of majorities. For Cooper, infringement upon these rights would signify a failure of democracy. When we consider his reference to his works as “mere articles of trade,” therefore, we must not read his statement as “merely” marking the commodification of his artwork. Rather, we must see in it Cooper’s recognition that in the emerging profession of authorship, literature and property were inseparable and that the author’s rights were now property rights that needed to be protected, for the good of both the author and the nation.

Of course, whatever Cooper’s view of the subject might be, the law described a distinctly different notion of literary property. Article I, Section 8 of the Constitution mandates the establishment of copyright “To promote the Progress of Science and the useful Arts, by securing for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries” (qtd in Leaffer 6). The “limited Times” reference in the clause, combined with the emphasis on the public welfare, provided a rather unstable foundation for strong and sustained literary property rights. Unlike other forms of property, the right to literary property was secure only in so far as it promoted the public well being and only for a finite period. Perhaps an even more serious facet of the constitutional language and the copyright law that followed it in 1790 was the lack of any provisions pertaining to translations or derivative works or for establishing copyright agreements with other countries. While later revisions of the law would address these first two concerns, no new measures dealing with foreign copyrights were passed until 1891. As a result, for most of the nineteenth century Cooper’s works and those of other American authors were forced to compete with cheap pirated books from abroad.

The long delay in establishing an international copyright provision was due in large part to public and professional opposition. The following statement from a correspondent writing for the New York Evening Post in 1836 is fairly typical of the arguments made against international copyright: “the effects of such a law would be to exclude foreign books almost entirely from our market, by limiting their circulation to the wealthy — for none but such could afford to purchase them — to close the thousands of establishments engaged in their manufacture, thereby producing distress and ruin; and to sap the very foundations of our government, by shutting up the avenues of popular intelligence on which the glorious superstructure has been reared” (qtd in Bader 28). Critics also argued that copyright, particularly international copyright, was such a danger to the United States’ foundation because the law elevated the rights of the individual over the public good. Another writer demanded in 1843:

when one individual has created a good which is susceptible of multiplied reproduction, to the benefit of others or of the whole human race, without diminution of his special enjoyment of his own, or any manner of interference with him, according to all the rights and purposes under which and for which he originally created it, is the principle of Property so exclusive in its monopoly, as to forbid this unlimited diffusion of a blessing which God has chosen one man to be the minister of to the race? Perish the base contracted selfishness of such a principle! (“The International Copyright Question” 120)

Statements such as these, combined with numerous petitions from tradesmen (printers, binders, etc.) decrying potential monopolies that might result, killed international copyright provisions each time Congress considered them, even when congressional committees issued favorable reports on the bills.

While Cooper’s correspondence indicates that his initial knowledge of copyright was limited, as his career progressed, he learned more and more about the law and its shortcomings. Shortly before leaving for Europe, he wrote to the London publisher John Miller: “Perhaps I may be able to secure a Right in England for the next book,” he explained when discussing the various motivations for his trip. He added,

I see by our paper, that ‘Pilot’ has been printed by some adventurer or another — Is there no way of stopping this? We are about to alter our law, and I hope to make it more liberal to Foreigners [ ... ] As I shall go to Washington in a few days, I hope to be in time to throw in, a hint to that effect-There are some strong Literary Men in both Houses at present, and as the President is a good deal of a Scholar, I am in hopes a more liberal policy; than heretofore will prevail (Letters I, 128).

Cooper may have been initially uncertain regarding copyright law, but statements such as these demonstrate just how far he had come by 1826. The losses he suffered as a result of pirates overseas, as well as his negotiations with publishers, seem to have shown him the advantages of tending to his interests in person. And while it is clear that he is concerned with his own business affairs, he is also equally aware of the gaps in American law, suggesting a fairly rapidly acquired knowledge of the publishing trade. His letter also indicates a sense of activism, illustrating the combination of conscious self-interest and altruistic concern for foreign writers that would become a standard feature of the rhetoric American authors applied when advocating for changes in the copyright law.

This combination of concerns is evident in what is perhaps Cooper’s earliest and most developed statement on copyright. After meeting Sir Walter Scott in Paris, the two men discussed how much Scott had lost as a result of literary piracy in America. Cooper, apparently eager to help, wrote a letter to his publishers Carey and Lea, asking them, “Cannot the force of Public Opinion be made to act in this case?” (171). He seems a bit na’ve in his letter, asking the pair who had themselves been doing brisk business in pirated British works to call on their fellow publishers to “respect a Right, which ought to be far more sacred than it {can} could be made by any legislative enactments” (171). Still, it is significant that Cooper is already recognizing that the argument over literary property was, in fact, one that would be determined by public opinion, years before the debate began appearing in numerous newspapers and magazines. In advocating for the author’s “sacred” right, Cooper also advances an argument for literary property rights that suggests the conflict between the individual and society that would become a standard part of the debate over international copyright law and a central feature of several of his novels. In urging his publishers to act in support of international copyright, he writes, “I very well know that it would be said such a provision would raise the price of books, and that it would create a monopoly in favor of the large dealers — Monopoly is always a safe cry in a popular Government — But is {are} not all Laws of Rights Monopolies?” (171). Cooper’s prescience regarding the course the argument would take was confirmed over ten years later when he published his letter in The Knickerbocker as part of his response to Lockhart’s Memoirs of the Life of Sir Walter Scott. The magazine’s publisher, Lewis Gaylord Clark, introduced these letters by stating, “We submit them to our readers without comment, farther than to ask attention to the collateral theme of international copy-right, embraced in the letter of Mr. Cooper ... It gives us pleasure to see the arguments so often advanced in this Magazine, thus ably brought forward and sustained” (Letters III 323). Cooper’s early grasp of the issues is all the more evident when we consider that arguments being offered in support of international copyright law in 1838 could be “ably sustained” by a letter written twelve years before, long before there really was much public discussion of the subject at all.

Cooper seldom confined his views on issues of importance to his letters and journals, and this was true in the case of copyright law, as well. If we examine his novels in the context of his position on literary property rights, we can see that in setting forth arguments in support of the individual’s right to his or her property in his texts, Cooper simultaneously buttressed his support of authorial rights. One example of this resonance is in his novel Home as Found. When the book first appeared, much attention was paid to the parallels between the fictional Effingham family’s struggle to control the family picnic grounds and Cooper’s own arguments with his neighbors over Three Mile Point. This piece of land belonged to Cooper’s family and had been used as a kind of public park by the people of Cooperstown more and more frequently during Cooper’s time abroad. Cooper brought a halt to this practice when he learned that someone had damaged the property and that there was a growing misconception that the land was public property.

While there is no denying the biographical parallel, what is notable is how Cooper frames this dispute in the novel. This argument over property is described in a way that seems quite similar to Cooper’s understanding of the arguments over literary property. It is first introduced in an exchange between the young woman Eve Effingham, returned to America after a lengthy education in Europe, and her more cynical cousin John. When John informs Eve that a power is threatening to wrest the Point away from her family, she responds, “What power — human power, at least can dispute the lawful claim of an owner to his property? That Point has been ours since civilized man has dwelt among these hills; who will presume to rob us of it?” to which her cousin replies, “You will be much surprised to discover that there is such a power, and that there is actually a disposition to exercise it. The public — the all-powerful, omnipotent, over-ruling, law-making, law-breaking public — has a passing caprice to possess itself of your beloved Point; and Ned Effingham must show unusual energy, or it will get it!” (105). Some of Cooper’s fundamental views on property rights and the threats that they face are here, views that held true for literary property, as well: the idea that property ownership was both a legal and sacred right that should be unassailable by human power, and the suggestion that its major threat was to be found in a public that acted in its own interest, putting the whims of the many over the rights of the few.

Edward Effingham, the head of the family, has no wish to deny the public access to the land: “I have no wish to deprive my neighbors of visiting the Point, though I am fully determined they shall not deprive me of my property” (110). Rather than wishing to wield total control — a kind of monopoly, denying the public the pleasures to be taken on his property — he simply wants to maintain his possession and to prevent “injury” to the land. His moderate desires are contrasted to those members of the “public” who seek to take full possession of the Point and view the Effinghams’ control as impinging upon the rights of the majority. Aristabulus Bragg, the de facto mouthpiece for those townspeople in an uproar over the dispute, informs the Effinghams, “the public thinks itself persecuted in this affair” (112), a point echoed by the newspaper editor Steadfast Dodge, who exclaims, “What! Shall one insignificant individual, who has not a single right above that of the meanest citizen in the country, oppress this great and powerful community!” (121). Throughout his description of the dispute, Cooper compares the Effinghams’ legal right of ownership, carefully documented with wills and deeds, to the unsubstantiated “public right” of the townspeople. The first is depicted as essential to upholding the “country of laws,” while the second is shown to be a clear threat to those laws. The fact that the public sees itself as “persecuted” by the Effinghams’ ownership of the property illustrates Cooper’s claim in 1826 that “Monopoly is always a safe cry in a popular government,” as well as the dangers that such accusations might pose to the rights of an individual, since, as Cooper pointed out, “all laws of Rights” are, in some sense, “monopolies.” While the circumstances depicted in the picnic ground dispute are clearly far removed from the debate over international copyright, for Cooper, the principles and arguments employed are nonetheless the same.

The similar nature of arguments concerning literary property and the land at Three Mile Point was made painfully clear to Cooper when members of the Cooperstown community, much as he depicted later in Home as Found, gathered to pass a series of resolutions in reaction to his published warning against trespassing. Unlike in his novel, however, one of the resolutions passed against him urged that any of his works that might be found in a local library should be taken out and burned. In a letter to The Freeman’s Journal, Cooper addressed this outrage: “Thus is one question of a right to property to be decided by doing violence to other rights of the same nature; and this indecent and illegal procedure, one equally removed from the duties of good citizens and from all principles of order, reflection, and respect for the will of the people, as that will has been manifested in the laws, is paraded in certain journals, as showing the spirit of the public of Cooperstown!” (Letters III, 276). The threat to his books violated rights of property that were of “the same nature” as those threatened by the public’s attempt to usurp his land. Even more vexing for Cooper, these transgressions against his land and literature were proclaimed to be “the will of the people,” a will that appeared to trump those laws meant to protect the individual from such public caprice. All of this is not to suggest that the Point dispute in Home as Found should be read as some sort of allegory for disputes over literary property; rather, it indicates what Cooper saw as the importance of sustaining the rights of property, in all forms, in the face of accusations of monopolistic control and attempts to elevate the will of the majority over the individual.

When one considers Cooper’s belief in the legal and moral foundations of property law, one can imagine his disappointment that the nation’s literary property laws never became more “liberal” throughout his lifetime. This disappointment, coupled with his awareness that critics of international copyright law often depicted authors supporting it as greedy and self-serving, a criticism Cooper had heard all too often, may account for his surprising refusal to join the American Copyright Club in 1843. James Grossman has described Cooper’s decision as appearing to perpetuate the growing perception of his contemporaries that he was becoming a “misanthrope,” the letter representing a “moment of churlishness” (262). Regardless of the appearance of his refusal, his letter stands as yet another clear statement of his support of copyright. He writes, “I am of the opinion that this country, in common with all other countries, is bound to protect literary property, on principles connected with common honesty” (qtd in Kouwenhoven 265). Even his refusal indicates his feeling that copyrights were something to be defended for the good of the country: “I ask nothing from the American Public, and I owe them nothing. I wish to keep the account square” (265). Beyond the harshness of his tone, one can see that Cooper felt advocating for international copyright was a kind of public service, something given to the American people. While he may have been reluctant to serve publicly in that capacity after several bruising years of battle with the press, his writings provide a record of the service he put in throughout his literary career. He continually sought to demonstrate that property rights did not constitute the tyranny of the one over the many; rather, for Cooper, those very rights were what allowed the majority to prosper, by inspiring individuals to excel and by preventing majority rule from becoming oppression. In working tirelessly to make this case, Cooper was one of the first American authors to argue that literary property rights were not simply a matter of economic justice for the individual, not simply connected to “mere articles of trade,” but fundamental to a sound democracy, as well.

Works Cited

Bader, Arno L., “Frederick Saunders and the Early History of the International Copyright Movement in America.” The Library Quarterly 8 (1938): 25-39.
Charvat, William, “Cooper as Professional Author.” James Fenimore Cooper: A Re-Appraisal. Ed. Mary E. Cunningham. Cooperstown, NY: New York State Historical Association, 1954. 128-43.
Cooper, James Fenimore, The American Democrat [1838]. New York: Liberty Fund, Inc., 1981.
------. Home as Found [1838], New York: Greenwood Press, 1969. Vol. 6 of Works of James Fenimore Cooper. 10 vols.
------. The Letters and Journals of James Fenimore Cooper. Ed. James Franklin Beard. 4 Vols. Cambridge, MA: Belknap Press of Harvard University Press, 1960.
Grossman, James, James Fenimore Cooper. The American Men of Letters Series. Ed. Joseph Wood Krutch, Margaret Marshall, Lionel Trilling, Mark Van Doren. London: Methuen & Co., 1950.
“The International Copyright Question.” The United States Magazine and Democratic Review 12 (1843): 115-122.
Kouwenhoven, John A., “Cooper and the American Copyright Club: An Unpublished Letter.” American Literature 13 (1941): 265.
Leaffer, Marshall L., Understanding Copyright Law. Legal Text Series. 3ʳᵈ ed. New York: Bender, 1999.
McWilliams, Jr., John P., Political Justice in a Republic: James Fenimore Cooper’s America. Berkeley: University of California Press, 1972.