Courtesy paratexts: informal publishing norms and the copyright vacuum in nineteenth-century America. (2024)

Table of ContentsIntroductionI. American Piracy, Public Goods, and Trade Courtesy A. Trade Courtesy: Entitlements B. Trade Courtesy: Punishments C. The Dickens ControversyII. Courtesy Paratexts: Binding Norms in Authorized AmericanEditionsIII. Gilbert and Sullivan's Paratext: Courtesy RationalizedIV. Monopolistic Practices and the Decline of Trade CourtesyV. Paratextual Ghosts of Courtesy: James Joyce and J.R.R. TolkienConclusion

Introduction

The French literary theorist Gerard Genette famously describedparatexts--book titles, prefaces, epilogues, and the like--as verbalproductions that "surround ... and extend [the text proper],precisely in order to present it,... to make [it] present, to ensure thetext's presence in the world, its 'reception' andconsumption in the form (nowadays, at least) of a book." (1)Genette likened the paratext to a "threshold" or"vestibule" that "offers the world at large thepossibility of either stepping inside or turning back." (2) Itoperates as a zone of both "transition" and"transaction," a "privileged place ... at the service ofa better reception for the text and a more pertinent reading ofit." (3) So conceived, the paratext is a space that promotesinformed consumption, that beckons without force or fraud, preparing thereader's experience of the text or, sometimes, reshaping thereading experience once completed. Paratexts of this sort propose atransaction supported by consideration on both sides: a promise oftextual pleasure in exchange for full readerly performance. They are akind of prospectus or invitation. They hang a shingle or put out awelcome mat.

But there is another kind of paratext that seeks to discouragecertain transactions with the text. It sets strict conditions for thereader's textual tenancy. Many contemporary works of fiction carryin their front matter something like the following: "This is a workof fiction. Any resemblance to actual persons living or dead, events, orlocales is entirely coincidental." (4) This disabusing paratextappeals to the reasonableness of readers in the vestibule, asking themto respect the difference between imagination and reality and to avoidcrude attempts to convert fictional characters into real persons. (5) Iturges the deluded, the literal-minded, and the thin-skinned to put asidetheir instinct to sue for libel or privacy invasion and instead play theauthor's game of fictiveness in a sporting spirit.

Another common threshold paratext is the copyright notice ([C]),(6) usually found on the back of the title page (in the United Statesand other Anglophone countries, at least) and often followed by aformulaic parade of prohibited acts of reproduction, adaptation,distribution, and the like. (7) Whereas the "all characters arefictitious" paratext discourages a faulty reading practice, thebarking dog of "all rights reserved" warns against trespasseson authorial property. The copyright notice does not concern itself withthe reader's experience of the text so much as with discouragingthe reader from consuming the text in unauthorized and potentiallyunlawful ways. Although traditional copyright law has emphasized therole of the copyright notice in establishing the year of publication(formerly a critical legal fact in the United States (8)) and protectingmembers of the public from becoming unwitting infringers, (9) it seemssafe to say that from the author and the publisher's point of view,the copyright notice and the accompanying prolix recitation ofprohibited acts simply serve as a "no trespass" sign. Both thecopyright notice and the "all characters are fictitious"paratext are negative injunctions in this respect. They place boundariesaround the text's presence in the world and seek to educate readersin the proper use of the work and its contents, so that readerlymisprision does not convert a desired transaction into unwanted legalconflict. These paratexts play no role in enhancing the reader'stextual pleasure or guiding her interpretive activity; they merely urgeor command the reader to avoid certain disapproved uses of the work.

A close cousin of the ubiquitous copyright notice is the familiardeclaration, also a fixture of the title page's verso,"Manufactured in the United States of America" (10) or"Printed in the United States of America." (11) These avowalsdo not attest to the national pride of bookmakers but rather derive froma period in American publishing when U.S. copyright protection turned onstrict compliance with the statutory requirement that books bephysically manufactured on U.S. soil. Beginning with the InternationalCopyright Act of 1891 (Chace Act), authors, foreign and domestic, couldobtain a U.S. copyright only by having their books manufactured fromtype set within the United States or from plates made from such type.(12) While the 1909 Act--the first significant revision of U.S.copyright law since 1891--exempted foreign language books of foreignorigin from the manufacturing requirements, the Act retained thoserequirements for most other works, including foreign books andperiodicals written in English. (13) For those works, the relevantclause was even more stringent than its 1891 predecessor. Whereas theChace Act had specifically mandated domestic typesetting, the 1909 Actincreased the burden by requiring that printing and binding also beperformed within the United States. (14) The clear legislative purposein both cases was to protect American book manufacturers from thecompetitive effects of foreign bookmaking and imported books. (15)

Today, U.S. copyright protection arises automatically with thecreation of a work, or, to use the jargon of the 1976 Copyright Act,when the work is fixed with sufficient permanence in a "tangiblemedium of expression ... under the authority of the author." (16)Enjoyment of U.S. copyright protection by domestic and foreign authorsno longer depends on American manufacture or other formalities butrather extends in the case of published works to every national anddomiciliary of the United States and its treaty nations, as well as tocertain other authors. (17) Until the 1950s, (18) however, therecitations "Manufactured in the United States" and"Printed in the United States" were true legal paratexts, (19)informing governmental authorities and potential unauthorized reprintersthat the manufacturing requirements had been satisfied by tribute paidto American book artisans. Unlike copyright notices, these paratextualavowals did not warn readers to avoid certain ways of consuming thetext; they were not addressed to ordinary readers at all. Instead, theyannounced the lawfulness of the text itself. Today, these phrases arevestigial, a kind of small talk or phatic communion that conveys nolegally relevant message. (20) They are fossil paratexts. (21)

In their day, these manufacturing declarations, like the copyrightnotice (22) and the "all characters are fictitious"recitation, could properly be called legal paratexts. Legal paratextshave enjoyed a rich and varied history in publishing. As early as 1851,in his preface to The House of the Seven Gables, Nathaniel Hawthornewittily combined a form of the "all characters are fictitious"paratext with an important rumination on the genre of narrative romance,announcing that the "personages of the tale ... are really of theauthor's own making, or, at all events, of his own mixing" andthat it would be "an inflexible and exceedingly dangerous speciesof criticism [to bring the author's] fancy-pictures almost intopositive contact with the realities of the moment." (23)Hawthorne's dual purpose was to discourage claims of libel and toassert the primacy of the nonrealistic and the imaginary in hisaesthetic craft--to make literary autonomy double as a shield againstlegal harassment. (24) His threshold paratext served both to prepare theaesthetic experience of readers and to steer them away from thecourthouse doors. (25)

Though we are often unaware or only barely aware of it, legal orlaw-related paratexts crowd the vestibules of the books we read; in manycases, they are invisible paratexts, easily skipped, thought of--if atall--as part of the text's standard throat-clearing. The "allcharacters are fictitious" paratext and the other paratextual formsmentioned above deserve a full and lengthy treatment, but this Articlefocuses on one particular form of legal or legitimizing paratext thatgained currency in American publishing during the nineteenth century.This paratext, the courtesy paratext, was a direct response to thefailure of American copyright law to protect the writings of non-U.S.authors. From its inception in 1790 and for a century afterward, U.S.copyright law, by legislative design, offered virtually no protectionfor the works of foreign authors. (26) Even after passage of the ChaceAct in 1891, the Act's strict manufacturing clause, whicheffectively required foreign works to be typeset, printed, and publishedon American soil before or at the same time as publication abroad,prevented many foreign authors from obtaining U.S. copyrights. (27)

Because of the enormous popularity of British fiction and poetryamong American readers during the nineteenth century, Americanpublishers faced a public goods problem: the availability of freeliterary resources from abroad appealed to publishers, but the lack ofU.S. copyright protection for those resources invited lawful freeriding. (28) To prevent market failure for foreign titles, the majorpublishing houses in New York, Philadelphia, and Boston entered into"a kind of tacit understanding" (29) to divide this literarycommons among themselves. Each publisher claimed informal exclusiverights to certain works or authors, while the other participatingpublishers recognized these rights by "courtesy" and forboreto reprint courtesy-protected titles. (30) This practice, which bymidcentury had generated elaborate rules as well as sanctions forviolating them, (31) came to be called the "courtesy of thetrade," "trade courtesy," or "trade usage."(32) In addition to horizontally colluding with each other, norm-abidingpublishers often paid legally uncompelled honoraria or royalties toforeign authors or their publishers, in effect adding a verticaldimension to courtesy. (33)

By the 1850s, once trade courtesy had taken firm root,participating publishers often made a point of including courtesyparatexts in their editions of foreign works. (34) In these paratexts,which typically appeared in the opening pages of books, publishers tookthe opportunity to acknowledge or extol the norm of courtesy. Often,more pointedly and vividly, they reproduced a testimonial letter orstatement by the work's foreign author exclusively"authorizing" the edition and urging other publishing housesto respect the publisher's approved courtesy claim. (35) By bindinginto their books prefatory matter of a legitimizing and normativenature, courtesy publishers signaled the probity of their businessdealings to readers and to fellow publishers. Courtesy paratexts playeda role somewhat analogous to the "no trespass" exhortation ofthe copyright notice, but they went beyond this purely hortatoryfunction to remind the world that the cohesive community of respectablepublishers could, by voluntary collective action, be fairer than theircountry's ungenerous law.

Courtesy paratexts tell us a great deal about the informal normsthat prevailed in the close-knit community of major American publishersprior to 1891. They are likewise a valuable source for legal andliterary historians who seek to explore the impact of America'sisolationist and protectionist copyright laws on nineteenth-centuryauthors and publishers. These authorizing paratexts offer a window intoa cohesive set of publishing norms that, with remarkable thoughinevitably imperfect success, sought to fill the copyright vacuum forforeign works in the United States for much of the nineteenth centuryand, in more attenuated forms, as late as the 1970s. (36) Trade courtesywas a norms-based system similar in complexity to those used by recentcommunities that have informally regulated the use of public goods suchas stand-up comedy routines, (37) chefs' recipes, (38) roller derbypseudonyms, (39) and tattoos. (40) Although it has received littleattention from scholars of copyright law or informal norms, (41) tradecourtesy was a historically significant example of informal privateordering, or what the American publisher and courtesy practitioner HenryHolt called a "brief realization of the ideals of philosophicalanarchism--self-regulation without law." (42)

Part I of this Article provides historical context for analyzingcourtesy paratexts. That Part sketches the broad outlines of lawfulpiracy in nineteenth-century America; the public goods problem that U.S.copyright law posed for American publishers of foreign authors; and thecohesive, informal practice of trade courtesy that arose to meet thatproblem by preventing or reducing destructive competition forunprotected foreign works. That Part goes on to offer a succincttaxonomy of trade courtesy's rules for acquiring and retaininginformal title to foreign works and the sanctions for violatingestablished courtesy rights. Finally, that Part shows courtesy and itssanctions operating in controversies that broke out over Americanpublishers' claims to works by Thomas Carlyle and Charles Dickens.

Part II examines numerous courtesy paratexts found innineteenth-century American editions of foreign authors' works,including works by Charles Dickens, Robert Browning, Elizabeth BarrettBrowning, Alfred Lord Tennyson, Thomas De Quincey, and Rudyard Kipling.These authorial paratexts served both as negative injunctions againstunauthorized reprinting of courtesy texts (the courtesy equivalent ofcopyright notices) and as testimonials to the business virtue andmorality of the informal norms-based publishing practice. They revealthe contours of the courtesy system and enrich our understanding of theways in which this complex system of private ordering operated from the1850s to the 1890s.

Part III offers a close reading of a remarkably elaborate courtesyparatext that appeared in the vocal scores of Gilbert andSullivan's comic operas published in the United States in the1880s. In addition to the usual testimonial and prohibitory functions,this paratext offered reasons and justifications for courtesy practicesand sought to assure purchasers that trade courtesy did not operate inthe manner of other public goods monopolies to elevate prices, lowerquality, and restrict supply.

Part IV goes on to show that the defensive note in Gilbert andSullivan's paratext was a response to forces that would soon causetrade courtesy to decline as an overt practice: rampant unauthorizedreprinting by discourteous houses, the rise of antitrust laws, and theenactment of the 1891 Chace Act, which offered conditional copyrightprotection to foreign authors. These developments accompanied and helpedfuel suspicion that trade courtesy was more an unjustified monopolisticpractice than a defensible solution to market failure or an honor codeobserved by better businessmen.

Part V shows that although trade courtesy declined as a highlyvisible, frequently extolled system of publishing norms, the principlesof courtesy-mutual forbearance to reprint claimed works and legallyuncompelled payment to foreign authors--continued to govern the behaviorof some American publishers. The "ghost of courtesy," as ithas been called, (43) inhabited paratexts in American editions of twoiconic works of the twentieth century: James Joyce's Ulysses (44)and J.R.R. Tolkien's The Lord of the Rings (45) These paratextstestify to the survival of courtesy principles as a resource forAmerican publishers who sought to protect their investments in workslacking incontestable copyright protection in the United States.

I. American Piracy, Public Goods, and Trade Courtesy

During the nineteenth century, protests against "Yankeepirates" issued regularly from Britain. (46) Yet American literarypiracy was a complex activity closely bound up with legitimatepublishing and copyright law. As one commentator put it in 1882, piracywas "the product of law." (47) A decentralized reprintindustry in the antebellum years reflected the republican ideals ofcultural diffusion and widespread learning, fostering a depersonalizedprint culture at the expense of individual authors' rights. (48)Legislators built piracy into the copyright law as a way ofaccommodating the democratic values of "ready access to literature,information, education, and other conduits for achieving equality ofopportunity." (49) For much of the century, the United States was anet importer of fiction, (50) and British books were voraciouslyconsumed by an increasingly literate populace. (51)

To the extent nineteenth-century authors can be said to havecreated public goods, unauthorized reprinting of their works in theUnited States represented a vast free rider phenomenon. (52)Intellectual property laws seek to prevent market failure for publicgoods by artificially restricting their distribution and making themsubject to simulated scarcity. (53) U.S. copyright laws in thenineteenth century offered no mechanism for contriving scarcity inforeign works. Yet despite the aggressive free riding of Americanreprinters, foreign authors continued to create. In part, this wasbecause copyright protection in their own countries solved free riderproblems for their publishing markets, allowing them to capture at leastthe domestic benefits of their labors. American piracies did notseriously undermine foreign authors' incentives to create so longas they could look to their own markets for remuneration. (54) Thedivergence of international laws--protection in the country of creationand lack of protection in the countries of production anddistribution--brought about a variant of the disaggregation thatcommercialization theory examines today. (55) The American public domainwas parasitic; it annexed a vast free resource of foreign innovationwithout running the risk of losing that resource through failure toincentivize it. With respect to the creation of foreign works, theAmerican public domain was not haunted by a public goods problem.

But publishers, too, produce--not typically by creating works butrather by reproducing and disseminating works created by others. Likecreators, they require economic incentives to go on producing. Why woulda New York publishing firm in, say, 1855 invest in advance sheets of anew English novel when a firm in Philadelphia could free ride by quicklybringing out a competing edition that would benefit from advertisingpaid for by the New York house? (56) First-mover strategies offered someadvantages, but being first to market with a new foreign title sometimessecured a head start of only days or hours before competitors beganissuing their own reprints. (57) Why, then, did the threat ofuncontrolled reprinting not result in widespread market failure andearly abandonment of foreign literature as a profitable good? Oneimportant solution, carefully evolved over the nineteenth century, wasthe courtesy of the trade. (58)

Contemporaries variously defined the courtesy of the trade as aduty "[n]ot to jump another publisher's claim" (59) andan agreement among publishers "not ... to cut each other'sthroats." (60) "[T]here ... grew up," wrote Henry Holt,"between, say, 1850 and 1876, the unwritten law ... of 'tradecourtesy.' It not only prevented ruinous competition betweenAmerican publishers, but also secured to foreign authors most of theirrights." (61) Trade courtesy, in its fully developed form, thus hada horizontal axis and a vertical axis. By requiring participatingpublishers to respect the claim of the first publisher to announce itsintention to reprint a foreign title, (62) courtesy horizontallyregulated what might otherwise have disintegrated into destructivecompetition for the work. (63) Vertically, the system ordered relationsbetween American publishers and foreign authors by encouraging voluntarypayments to the authors or their publishers. (64) Again, self-interestwas at work. Payments helped cement relationships with foreign authorsand signaled to other publishers that the paying firm was a responsiblemember of the trade. (65)

What is most striking about trade courtesy is that it was an"unwritten law," (66) an entirely voluntary system of informalnorms that imitated the basic features and purposes of copyright law.(67) Courtesy evolved a complex set of exclusive rights, rules forsecuring those rights, and sanctions for violating them. (68) Theseextralegal entitlements helped stabilize the book market during much ofthe nineteenth century. (69)

The community of participating courtesy publishers was a smallcohesive one. Although estimates vary, the extant correspondence ofCharles Scribner's Sons reveals that at least nine major publishingfirms, in addition to Scribner's, observed the principles ofcourtesy during the 1870s: J.B. Lippincott and Co., J.R. Osgood and Co.,D. Appleton and Co., Roberts Brothers, G.P. Putnam's Sons, Harperand Brothers, Macmillan and Co., E.P. Dutton and Co., and Henry Holt andCo. (70) Not all publishing houses recognized courtesy. Novicepublishers and small firms, for example, had strong incentives to resistthe informal code and to reprint freely as a way of establishing booklists and amassing capital that could help build a foundation forsuccess, (71) and courtesy failed to gain a foothold in the aggressivepaper-book trade of the 1870s and 1880s when publishing norms were oftencast aside in favor of quick profits on cheaply printed books. (72)Moreover, new entrants into the publishing field increasingly accusedveteran firms of monopolistic practices and supracompetitive pricing.(73)

The publishing world in the nineteenth century, though cohesiveenough to evolve an extralegal code of conduct, was more heterogeneousand volatile than the close-knit rural community of RobertEllickson's classic study of informal norms. (74) UnlikeEllickson's resourceful cattlemen who employ flexible social moresas an alternative to unwieldy or unfamiliar legal remedies, Americanpublishers did not have the luxury of choosing between informal normsand legal entitlements because the foreign authors whom they reprintedenjoyed no legal entitlements at all in the United States. (75) Thesepublishers were confronted instead with a starker choice betweeninformal self-regulation and virtually no legal regulation at all. Thechoice was not one between order with law and order without law but,more fundamentally, between fragile order and commercial chaos.Operating beyond the shadow of the law--indeed, in a kind of legalvacuum--publishers sought to avert destructive competition bycooperating to manage a free, unprotected resource. With striking thoughintermittent success over the decades, (76) the elaborate rules ofcourtesy staved off or at least mitigated "the old scramble ofpirated editions." (77)

A. Trade Courtesy: Entitlements

In its simplest outlines, the courtesy of the trade granted aninformal exclusive right of publication to the first American publisherto announce plans to issue an uncopyrighted foreign book. (78)Participating houses recognized this right and refrained from"printing on" the announcing firm. (79) Later, in part toavoid confusion over the priority of announcements, the rule emergedthat the announcing firm, to secure its rights, must actually havepurchased advance sheets of the foreign edition for use as setting copyor entered into an agreement with the author for permission to reprint."If a publisher had the advance sheets in his possession, suchright or claim overrode a simple announcement." (80) Bysupplementing its announcement with the purchase of advance sheets orwith an author's contract, the publisher perfected its otherwisebare title to the foreign work. (81)

Trade courtesy also developed a kind of option system based on whatthe trade referred to as the "rule of association." (82) Oncean American publisher reprinted a foreign title and paid its author, itwas generally understood that the author was associated with that house,which could then expect to have the first refusal of the author'snext effort. (83) For example, after William D.

Ticknor established courtesy title to Tennyson's Poems in1842, (84) other publishers acknowledged the Boston firm'sassociational rights to Tennyson's later works. (85) There wereadditional refinements, as well. For example, if a publisher reprintedthe work of a new or untried author as an experiment, the publisherwould have the first refusal of the author's later books only if itmade satisfactory payment to the author for the first publication. (86)With variations, the foregoing rules crystallized over time into acoherent and consensual system of imbricated rules and subrules. (87)

Publishers sometimes paid very substantial sums for advance sheets.(88) As early as the 1820s and 1830s, the Carey & Lea firm ofPhiladelphia was making payments to Sir "Walter Scott or hispublisher. (89) Scott received 75 [pounds sterling] for advance sheetsof each of the Waverley novels (90) and 300 [pounds sterling] for hisLife of Napoleon Buonaparte (91) In 1849, Harper and Brothers broughtout Thomas Babington Macaulay's celebrated History of England fromthe Accession of James IP (92) after announcing the book and paying hisEnglish publisher 200 [pounds sterling] for first proofs. (93) TheHarpers paid Charles Dickens 360 [pounds sterling] for magazine rightsto Bleak House, (94) 250 [pounds sterling] for Little Dornt, (95) 1000[pounds sterling] each for A Tale of Two Cities (96) and Our MutualFriend, (97) 1250 [pounds sterling] for Great Expectations (98) and 2000[pounds sterling] for the never-finished Mystery of Edwin Drood (99)Until fierce competition from cheap reprints made it difficult to offerremuneration in the 1880s, the Appleton firm paid the Welsh author RhodaBroughton S1000 for each of her novels. (100) One publisher in 1876estimated that payments for advance sheets averaged between 25 [poundssterling] and 100 [pounds sterling], 101 and payments were sometimesmade to a deceased author's estate. (102)

Methods of payment varied. Instead of offering upfront sums foradvance sheets, publishing houses sometimes paid post hoc honoraria as a"voluntary recognition" of authors whose books had reapedprofits. (103) In 1836, for example, the Carey firm reprinted 1500copies of the initial parts of Dickens's Pickwick Papers, (104)sold at 45 cents per volume. (105) Two years later, the firm sentDickens 50 [pounds sterling] in acknowledgment of the book'ssuccess. (106) As courtesy practices took hold, publishers began tooffer foreign authors royalties on copies sold, either instead of or asa supplement to simple honoraria for successful sales or initialpayments for advance sheets. (107) Henry Holt paid a 1096 royalty onnumerous editions of Thomas Hardy's works in the 1870s and 1880suntil widespread piracies made reprinting Hardy unprofitable. (108)Courtesy thus imitated a practice inspired by formal copyright law:royalties were becoming the usual form of payment to authors whocontrolled the exclusive rights conferred by copyright. (109)

The artificial property system fashioned by trade courtesy even hadits own public domain, a commons of foreign works to which no Americanpublisher was exclusively entitled. Courtesy could not be used, forexample, to claim an association with a long-dead or classic author orfor collected editions of standard foreign writers. (110) Thesematerials remained available to all publishers. Moreover, if a courtesytitle became subject to reprinting by multiple publishers, it might loseits informal protection and return to trade courtesy's commons.(111) Thus, American publishing came to recognize a two-tiered publicdomain: First, there was the familiar legal public domain, the result ofnonexistent or expired copyright protection. Second, there was theethical public domain, where a work already lacking copyright also lostthe protection of trade courtesy because it had been so frequentlyreprinted that no publisher would attempt to claim the text as exclusivemoral property.

It might strike modern legal sensibilities as bizarre for anuncopyrighted work to be described as having become "publicproperty," (112) but it is a redundancy explained by theinstitution of trade courtesy. Courtesy raised a work out of the publicdomain, gave it the status of private property, and caused the market totreat it as a public good clothed with the privileges of legal monopoly.The magic of this informal system would sometimes continue undisturbedfor years, until one day a discourteous reprinter decided to seize uponsome courtesy-protected work and to issue it in a cheap, flimsy edition.The spell broken, other reprint houses would leap in and try their luckwith the same title. (113) Suddenly, the artificial order of courtesywas temporarily wrecked by the anarchy of an unregulated commons. Thetrade now regarded the foreign work as having returned to its originalcondition among the heterogeneous mass of materials in the commons. Forcourtesy adherents, this loss of recognized exclusivity was a lapse intoa renewed public domain, a second death of protection.

B. Trade Courtesy: Punishments

 Henry Holt described nineteenth-century American publishing as perhaps the greatest paradox in human experience.... At one end, its principal material was not protected by law, and the business lived to a large extent on what was morally, if not legally, thievery; while at the other end, there was honor among thieves, in the respect they paid each other's property. (114)

Holt may have believed that trade courtesy was an embodiment ofbusiness virtue, but the courtesy system itself did not share theassumption that publishers, left to their own devices, would be good.Instead, along with rules for acquiring and maintaining exclusiverights, trade courtesy evolved a series of carefully calibratedpenalties for transgressors. If informal exclusive rights to foreigntitles were the carrots of the system, escalating sanctions were thesticks. These sanctions included, in order of increasing severity, mildremonstrance, angry protest, public shaming, refusal to deal, predatorypricing, and outright retaliation.

A gentlemanly rebuke, often expressed as a simple, urbane inquiry,was usually the first step in enforcing exclusive courtesy rights. (115)When the Harpers announced plans to reprint the French critic HippolyteTaine's On Intelligence in 1870, (116) Henry Holt wrote the firm,"Doesn't the fact that we have published several of his booksentitle us to that if we want it?" (117) The Harpers agreed towithdraw, acknowledging the rule of association whereby a publisher thathad issued an author's earlier work was entitled to his or herlater books. (118) Several years later, Holt calmly objected when theHarpers planned to publish The Return of the Native, (119) remindingJoseph Harper that Holt had been Thomas Hardy's authorizedpublisher in America. (120) The Harpers again relented, and Holt laterremarked that the Harpers had done "what the notions of honor thenprevalent among publishers of standing required." (121)

Mild remonstrance sometimes became angry protest when a threat tocourtesy persisted. A heated dispute arose between the Harper andScribner firms in 1881 over James Anthony Froude's edition ofThomas Carlyle's Reminiscences, (122) The Harpers claimed anarrangement with the late Carlyle himself; (123) Scribner's, whichclaimed an association with Froude, insisted that Froude was thework's chief author and that in any case, as Carlyle'sexecutor, he had authorized Scribner's to publish the work. (124)After bitter exchanges, the two houses issued their respective editions(125) and then took to the trade journals. (126) The Harpers placed afull-page notice in the Publishers' Weekly, listing the works byCarlyle that they published and detailing the history of their dealingswith Carlyle for Reminiscences. (127) The Harpers reminded readers ofthe courtesy of the trade:

 The trade usage is familiar, and accepted by all the leading publishers of the country. It concedes to the house which has issued the works of an English author, either by agreement with him or with his English publishers, the option of republishing, upon mutually satisfactory terms, the subsequent works of the same author as they appear. (128)

Essentially, the Harpers claimed, by virtue of the principle ofassociation, first courtesy rights to works by Carlyle that the firm hadacquired "by purchase and transfer from former publishers, and bypurchase and direct authorization from Mr. Carlyle." (129) Theimplication was that an association with a foreign author could beestablished both by direct dealings with the author and by transfer fromother publishers who had presumably held associational rights in thepast. The "usage" thus permitted transfer of courtesy rightsbetween publishers. (130) Moreover, the Harpers claimed that theirassociation with Carlyle survived his death and should have beenrecognized by his executor as posthumously binding on Carlyle'sestate, as if this courtesy "arrangement," as the Harperscalled it, was like any other claim that a creditor might assert againsta decedent's estate. (131) The Harper firm was arguing, in essence,that its claim to Carlyle's work had a dual character as acontractual right that bound the author and his estate (the verticalaxis) and an informal, norms-based right that should be respected byother publishers (the horizontal axis).

Scribner's responded the following week with its own full-pagenotice in the Publishers' Weekly, pointing to arrangements bothwith Froude and with Carlyle's niece and noting that the firm hadreceived advance sheets from Froude and had duly announced that thevolume was "in press." (132) The Scribner firm's claimwas based primarily on its earlier negotiations with Froude as executorof Carlyle's estate and editor of Reminiscences, as well as on itsprior announcement of the book, reinforced by acquisition of advancesheets from Froude. (133) Scribner's denied that the Harper firmwas the exclusive associated publisher of Carlyle in the United Statesand asserted that Carlyle had authorized Froude to make any dispositionof Reminiscences he pleased. (134) In effect, Scribner's wasclaiming that its understanding and relationship with Froude (thevertical axis) trumped any courtesy claims that the Harpers might assert(the horizontal axis). Invoking "the courtesy of the trade" byname, Scribner's concluded that "[t]he public will choosebetween this edition, put forth by the clearly expressed authority ofMr. Carlyle's executor, and a reprint from our sheets under a claimto which he has distinctly refused his acknowledgment." (135)Although they disputed the facts and relevant rules concerningReminiscences, the Harper and Scribner firms plainly acknowledgedseveral important features of trade courtesy: the use of announcementfortified by advance sheets to acquire courtesy title; the claim ofprior associational (option) rights when properly obtained; the need toseek a contract-like "arrangement" with the author, hispublisher, or his executor; and the propriety of paying a royalty (or"copyright") to the author or his posthumous representatives.(136)

The noisy skirmishing of the Harper and Scribner firms overCarlyle's Reminiscences is an example of a further courtesysanction. Because private remonstrance had failed, the two housesresorted to the more severe punishment of public shaming, tradingcharges that their courtesy claims had been violated. The Boston firm ofRoberts Brothers had used the same tactic a year earlier when John W.Lovell of New York brought out an edition of the poems of Jean Ingelow,(137) an English writer who had been associated with Roberts Brothersfor years. (138) The Boston firm promptly took out advertisem*nts"[t]o Booksellers throughout the United States," remindingthem that Roberts Brothers had been publishing Ingelow's poems eversince announcing the volume as "[i]n [p]ress" in 1863 and thatshe had "received from us her copyright [that is, her royaltypayment] semi-annually, precisely the same as though she were legallyentitled to it." (139) Not until now had anyone in "the entirefraternity of American Book Publishers" tried "tointerfere." (140) Roberts Brothers implored booksellers not to"sanction a moral wrong by vending this unauthorized edition"but rather "to show their admiration for this beloved authoress byfavoring only the Author's Editions, issued by her ownpublishers." (141) By broadcasting its disgust, Roberts Brotherswas subjecting the transgressor Lovell to public shaming. (142) If suchshaming did not cause offenders to mend their ways, then it might atleast have the effect of persuading others--publishers, booksellers, andpurchasers--to engage in a further type of sanction: refusal to deal.(143) Multilateral refusal to carry on business with the transgressingfirm would force it to conform or to take its chances as a pariahoutside the publishing comity.

Disputes between courtesy publishers sometimes became moreaggressive. Harsher than private protest or public shaming was thesanction of predatory pricing. If a firm "printed on" apublisher with a claim to priority, the latter would sometimes reissuethe disputed title at a reduced price in an effort to undersell thepirate. (144) For example, when the New York publisher T.L. McElrathissued an unauthorized edition of Hard Times in 1854, (145) the Harpersprotected their courtesy investment in Dickens by putting out an editionof the novel at half McElrath's price, purportedly causingMcElrath's firm to fail. (146) In 1855, the Boston firm of Ticknorand Fields explained that attempts to interfere with anotherpublisher's courtesy claim would cause that publisher to"print at any rate, and at a cheaper rate, and perhaps set on ourother books full chase, & try to injure us in every way." (147)If a publishing house was powerful, it "could afford to undersell arival." (148) When the English novelist Anthony Trollope angeredHarper and Brothers, his established publisher, by giving advance sheetsof his book North America to a rival house, (149) the Harpers rushed outa cheap edition (150) that destroyed the book's American market.(151) The Harpers and other houses would sometimes price their books solow that they could not recover their own costs, believing that"any pecuniary sacrifice" (152) was worth teaching piratesthat their behavior had created a climate in which no one could profit.(153)

The severest punishment of all was reserved for the worst outragesagainst courtesy. This was the sanction of retaliation, occasionallyemployed even by publishers of the first rank when their rights werethreatened by another house. (154) Retaliation meant "printingon" a transgressor by issuing one or more of its foreign titles ata competitive price. "If a publisher declined to comply with therequirements of trade courtesy," wrote Joseph Harper, "somemethod would be adopted to discipline the offender--generally by theprinting of lower-priced editions of his foreign reprints by hisaggrieved competitor." (155) Reprisal was sometimes devastating. In1870, Harper and Brothers responded to what it considered a breach ofcourtesy on the part of Fields, Osgood & Co. by issuing anillustrated edition of Tennyson's works. (156) Other publisherspiled on with rival editions, further eroding a thirty-year relationshipbetween Tennyson and the Fields firm. (157) The Harpers' reprisaltriggered the very behavior that trade courtesy had been created toavoid.

When a publisher proved to be a hopeless deviant from courtesy,utterly indifferent to the gentlemanly code, sanctions like negativegossip, predatory pricing, and even retaliation had no effect. Duringthe feverish cheap book competition of the 1870s and 1880s, suchrenegades became increasingly common; they were less interested inacquiring respectability and maintaining author associations than freeriding on the successful experiments of other firms. (158) They rarelyoffered royalties or honoraria to authors, frequently printed in cheapformats, and exploited the publicity for which the first publisher hadpaid. (159) These "upstart publishers" were often new entrantsthat had nothing immediately to gain by adhering to courtesy and littleto lose by flouting it. (160) The close-knit publishing communityunraveled at the edges when new or opportunistic firms saw a chance tobuild a list quickly at little cost to themselves. Trade courtesy"was broken up by the cheap piracies" of independent houses.(161)

C. The Dickens Controversy

The salient features of trade courtesy can be seen in action in acontroversy that broke out in 1867 over Charles Dickens's allegeddisloyalty to his associated American publishers. The controversy showsthat in some cases, American publishers had come to expect courtesy fromtheir remunerated foreign authors (on the vertical axis) no less thanfrom their fellow publishers (on the horizontal axis). The dispute alsoreveals that a foreign author's massive popularity could disruptthe courtesy system and tempt publishers to cast aside their vows offorbearance.

Dickens had long been a fiercely contested prize among Americanreprinters. Hundreds of thousands of pirated copies of his works hadcirculated in the United States beginning in the 1830s. (162) In thefrenzied competition for new English fiction among the weekly and dailyperiodicals of the 1830s and 1840s, firms like the Harpers'163 thatregarded themselves as Dickens's authorized publishers retaliatedagainst rival reprinters by issuing his novels in unbound parts at 12.5cents and 6 cents. (164) The Philadelphia publisher Lea and Blanchardsought to stabilize the market for Dickens's books by claimingcourtesy in his early works and paying him sums for advance sheets.(165) Unappeased, Dickens raged against the"scoundrel-booksellers" who "grow rich [in the UnitedStates] from publishing books, the authors of which do not reap onefarthing from their issue." (166)

In 1867, two prominent American publishing houses boasted courtesyassociations with Dickens. Harper and Brothers of New York claimedexclusive magazine rights in his novels. (167) T.B. Peterson andBrothers of Philadelphia asserted the exclusive right to issue hisnovels in book form. (168) These concurrent claims were based onpayments that the two firms had made to Dickens or his Englishpublisher. The Harpers had given substantial sums, sometimes more than1000 [pounds sterling], for advance proof sheets of each ofDickens's novels; (169) the Petersons had contributed to theHarpers' purchase money and bought the printing plates andillustrations that the Harpers had previously used in serializing thenovels. (170) The Petersons had also purchased plates and illustrationsfrom other American houses that had issued Dickens's earliernovels. (171) In treating their respective courtesy entitlements asapplying to different publishing media--serial rights and bookrights--the Harper and Peterson firms in effect constituted themselvesbeneficiaries of a sublicensing arrangement. But in many bargainingscenarios in this period, the copyright owner played a role indetermining his or her publisher-licensees. (172) By contrast, under thecourtesy system, when rival publishers agreed to split a lucrative pieceof the public domain, the publishers often arrived at sublicensingsolutions on their own, without the active participation of the foreignauthor. The dividing up of Dickens in America was accomplished largelythrough his publishers' mutual understandings and adjustments.

The controversy of 1867 resulted when Dickens appeared to turn hisback on the Harper and Peterson firms by actively negotiating a dealthat made the Boston house of Ticknor and Fields the exclusivelyauthorized American publisher of his collected works. (173)Ticknor's offer had been an attractive one: a 200 [pounds sterling]advance and a 10% royalty on sales of Dickens's books, coupled withan arranged speaking tour of America for the celebrated author. (174) Ina letter that was widely reproduced in the trade press, Dickens rubbedsalt in the wounds of his established courtesy publishers by statingthat "[i]n America the occupation of my life for thirty years is,unless it bears [the Ticknor and Fields] imprint, utterly worthless andprofitless to me." (175) Though Dickens acknowledged that theHarpers had paid him for advance sheets of serialized novels, he deniedderiving or expecting to derive "pecuniary advantage" from any"republications of [his] collected works in the United States notissued by [Ticknor and Fields]." (176)

The Harper and Peterson firms felt the double snub keenly. CertainAmerican trade journals rushed to their defense. The American LiteraryGazette and Publishers' Circular called Dickens "ungenerous,illiberal, and ungentleman-like" in his failure to acknowledge the"voluntary liberality" of the courtesy arrangements from whichhe had benefited in the past. (177) The same journal accused him ofignoring the rules of "courtesy" or the "usage of thetrade," as his goal was to "injure or drive out of the marketlong-established editions ... which have been for years before thepublic, and which represent a heavy amount of capital." (178)Dickens, the American Literary Gazette claimed, was "a flagrantviolator of usage, for he or his publisher having sold advance-sheets ofhis latest novels to one firm, and received good pay therefor, he nowseeks to transfer to another house an exclusive interest in those veryworks!" (179)

Here, the publishing trade seemed to be turning the tables onDickens, who years earlier had vociferously assailed lawful piracy inthe United States. (180) Now Dickens himself had become a pirate, theAmerican Literary Gazette seemed to charge; he had deviated fromestablished courtesy norms and deserved the sanction of public shaming.In an unusual public quarrel over courtesy's vertical axis, afamous foreign author was being accused of violating norms ordinarilyconfined to the horizontal relations of genteel publishers. As aprominent English author of the period put it, "a publisher who haspublished one or two of your books in the United States would thinkhimself very hardly used if you allowed any other publisher to publishfor you." (181)

Dickens had plainly attained a level of celebrity that allowed himto dictate the terms of courtesy rather than remain a passive, gratefulrecipient of publishers' largesse. He now treated the Harperfirm's payments as a thing of the past, mere remuneration forserial rights that imposed no further obligation after he hadtransmitted the advance sheets. He scarcely acknowledged thePetersons' claim that they enjoyed a courtesy relationship byvirtue of having assisted the Harpers with their courtesy payments.These dealings among publishers, Dickens seemed to say, were their ownaffair; he would not allow an exclusive association to be permanentlyimposed on him just because it benefited publishers in theirself-serving efforts to repair the defects of an unjust copyright law.In Dickens we see the restlessness of a bold free agent, a literarygiant who had outgrown courtesy's inherent paternalism toward itsauthors and rejected a collusive practice that excluded him from thebargaining table.

We also see the use of royalties--payments on copies sold--as anincreasingly favored mechanism for remunerating successful authors,preferable to the older system of paying lump sums either ex gratia oras consideration for advance sheets. (182) For a novelist as popular asDickens, the idea of receiving a percentage from sales of his collectedworks in a market the size of the United States was irresistible, andTicknor and Fields was eager to make such a deal for the courtesy rightto claim Dickens as its exclusive author. (183) In essence, Dickensregarded his relationship with the Harpers as having terminated with thecompleted serialization of his novels; he simply ignored thePetersons' derivative courtesy claim. (184) He was receiving nocontinuing payments from those firms, and they had no reasonableexpectation of a continued exclusive association with him. He hadtransferred his fealty to Ticknor, a firm that would earn an ongoingassociation by making ongoing payments. What seemed dishonest anddiscourteous to some traditional courtesy adherents was just goodfinancial sense to Dickens. Moreover, he apparently viewedTicknor's collected edition of his works as a third form ofpublication-different from serializations and single editions--whichjustified a new courtesy relationship. (185) He now enjoyed thecelebrity clout to choose his own forms of sublicensing, rather thanhave sublicensing imposed on him.

An editorial in the Nation seemed to see the matter throughDickens's eyes. The Harpers had paid for advance sheets ofserialized novels, the Nation observed. (186) It was reasonable forDickens to contend that "buying advance-sheets is a very differentthing from buying manuscripts [of books], and while [the former] givesthe purchaser the possibility of early publication, [it] cannot be heldto give him any property in the novel as a book." (187) ThePetersons' claim, the Nation pointed out, simply derived from theiralleged participation in the purchase of advance sheets. (188) LikeDickens, the Nation made sharp, unsentimental distinctions betweenserializations and collected editions and between one-time payments andongoing royalties. (189) The courtesy mystique of association, if it wasbased solely on payments for advance sheets made a decade or more ago,could not command Dickens's permanent loyalty. The Nation was notdenying the existence of trade courtesy or its associational principles,but there was plainly a difference of opinion in the publishing world asto how much courtesy could be claimed on the basis of old associationsand former one-time payments, at least with respect to an author ofDickens's stature.

The Harper and Peterson firms resorted to the courtesy punishmentof public shaming and negative gossip, as their rebukes in the AmericanLiterary Gazette and Publishers' Circular show. (190) Thesechastisem*nts seemed to be aimed more at Dickens than at Ticknor andFields: Dickens was the grossly faithless and ungrateful one, even ifthe Boston firm had worked to alienate his affections. Meanwhile, thePetersons, who planned to continue to issue "uniformeditions," took out full-page advertisem*nts with banner headingsin the trade journals: "GREAT REDUCTION ON DICKENS'WORKS." (191) The Petersons' handsomely printed IllustratedDuodecimo Edition now sold for S3 per cloth volume, the IllustratedOctavo Edition for $2, the People's Duodecimo Edition for $1.50,and most of the Cheap Editions on buff paper for $0.75.192 The Petersonswere employing price-slashing to attempt to match the various editionsof Dickens's collected works offered by Ticknor and Fields atprices ranging from $1.25 to $2 per volume. (193)

The Dickens controversy shows that the carefully evolved practicesof trade courtesy could not consistently stabilize the American publicdomain for an author as popular as Dickens. Temptations to cast courtesyaside for easy profits infected all parties: respectable houses,noncourtesy firms, and even Dickens himself. In 1864, prior to thetriangular courtesy quarrel, at least twelve American firms had beenprinting Dickens without regard for courtesy principles. (194) Otherhouses in this period were directly importing British editions ofDickens and marketing them in the United States. (195) The Harpers'courtesy expectations, based on direct dealings with Dickens, werevulnerable to the Dickens craze, as were the Petersons'expectations, based on their dealings with the Harpers. Although Ticknorand the Harpers later adjusted their dispute by splitting future Dickenstitles along the familiar divide of serial and book printings, (196) thePetersons were left out of this compromise. (197) Even so, the Petersonscontinued to sell Dickens for years to come in their "Cheap Editionfor the Million." (198) The Dickens controversy, with its indignantpublic shaming, reveals many aspects of the courtesy system and showsthat courtesy could be a fragile contrivance when it came to massivesales and authorial celebrity.

II. Courtesy Paratexts: Binding Norms in Authorized AmericanEditions

The detailed rules, subrules, and sanctions of trade courtesy,examined in Part I above, constituted what might be called the grammar,or basic structure, of that system of private ordering. (199) Developedover decades, courtesy's intricate grammar spelled out everythingfrom the acquisition of exclusive publishing rights to the punishmentfor violators. (200) But grammatical rules were not enough to guaranteethe full operation of trade courtesy's norms. Courtesy also had arhetorical dimension in which participating publishers praised thevirtues of the informal code and exhorted rival reprinters and thepurchasing public to respect their claims to exclusivity. (201) ThisPart examines a particular rhetorical device by which publisherssignaled to each other and the public their adherence to these fragilenorms: the courtesy paratext.

Evidence of the existence of informal norms within close-knitcommunities, Robert Ellickson has noted, sometimes includes"aspirational statements" testifying to the virtues of theordering system. (202) Practitioners and admirers of trade courtesyoften praised the practice as a sign of business morality and a spur tofair dealing. (203) For example, the English editor Hepworth Dixonstated that from "a sense of natural fairness," Americanpublishers "act as though they were restrained by law. Thisgenerosity is seen on every side. No law compels [them] .... It is theirvoluntary act." (204) The Irish author and physicist John Tyndall,who had received substantial courtesy payments, regarded himself as"in the hands of a most high-minded [American] publisher."(205) Even in the midst of their squabble over Carlyle'sReminiscences, (206) the Harper and Scribner firms took the opportunityto pay homage to courtesy's virtues. (207) Whether such encomiawere the self-serving utterances of hom*o economicus or evidence ofpunctilious honor, or both, is a question with which scholars havestruggled. (208) But many such aspirational statements in this periodreveal the contours of the norms-based courtesy code. (209)

Aspirational statements often took an unusual paratextual form.Courtesy publishers frequently printed testimonial statements by theirforeign authors as prefatory matter in their volumes. (210) Thesestatements, sometimes in the form of a letter addressed to theauthor's American publisher, (211) described the special courtesyassociation between author and publisher and appealed, openly or byimplication, to other American publishers to respect that association bynot reprinting the volume. The literary text thus came to embody anormative, legitimizing paratext--the courtesy counterpart, in a sense,of the copyright notice (212)--as well as an acknowledgment ofremuneration received from the publisher and a testimonial extolling thevirtues of the courtesy system in general. By binding such authorizingstatements into their books, publishers hoped to fortify their informalclaims to exclusivity and enhance the legitimacy of their editions,signaling the morality of their own business dealings and distinguishingthemselves from lawful though unethical "pirates" operatingoutside the courtesy pale.

One of the prized benefits of association was that a firm couldboast of being the "authorized" publisher of a foreign author.Such a relationship conferred respectability on the firm, lifting it upout of the mass of mere reprinters and indicating to other publishersand to the purchasing public at large that the firm enjoyed the prestigeof honorable dealings. (213) Often a courtesy association was signaledin a book's opening pages or on its cover by the simple phrase"Author's Edition." (214) Editions of the English poetRobert Browning published by Ticknor and Fields carried that paratextualboast on the verso of the title page, where the copyright notice wouldordinarily have appeared. (215) In its editions of the poems ofElizabeth Barrett Browning (Robert Browning's spouse), the New Yorkpublisher C.S. Francis and Company placed the "Author'sEdition" paratext on the title page's verso or on thefollowing page, sometimes at the head of an authorizing statement byBarrett Browning herself. (216) In some cases, this succinct paratextwas expanded slightly to indicate a contractual or other basis for thecourtesy relationship: "Author's Edition, From AdvanceSheets." (217) The purchase of advance proof sheets from foreignauthors or their publishers was a recognized method of perfecting acourtesy claim. (218)

Another typical abbreviated courtesy paratext was "AuthorizedEdition," which one early commentator called "a guarantee forthe accuracy of the reproduction, and ... an excellentadvertisem*nt." (219) This legitimizing phrase appeared, forexample, on the title pages of Rudyard Kipling's works reprinted bythe John W. Lovell Company of New York and its successors in the 1890s.(220) To reflect the fact that some American editions of foreignauthors' works contained both copyrighted and public domainmaterial, the seeming oxymoron "Authorized Copyright Edition"came into vogue. This paratext appeared, for example, in the vocalscores of Gilbert and Sullivan's comic operas Iolanthe and ThePirates of Penzance, published by J.M. Stoddart and Company ofPhiladelphia in the 1880s. (221) While the vocal scores themselveslacked copyright protection in the United States, (222) publishers likeStoddart included certain variants not found in the English versions,such as additional lyrics or scenes, as a basis for claiming somecopyright protection. (223) Publishers used the paratextual signals"Authorized Edition," "Authorized CopyrightEdition," and "American Copyright Edition" for thespectrum of protection available in the period, from public domain textsshielded by courtesy, to blends of public domain and copyrighted matter,to texts entitled to full statutory copyright. (224) These distinctionswere common after 1891, when foreign authors' works became eligiblefor full copyright protection in the United States if manufacturingrequirements were met. (225) With pre- and post-1891 foreign titlescirculating freely in the trade, (226) these works might variously claimprotection under courtesy principles, copyright law, or both.

American publishers took special pride in printingcourtesy-attesting letters or statements by their foreign authors. Thesecelebrity paratexts were badges of exclusivity and respectability. Anotable example is the statement of Charles Dickens printed in theopening pages of his novels issued by Ticknor and Fields beginning in1867: "By a special arrangement made with me and my EnglishPublishers, (partners with me in the copyright of my works,) Messrs.Ticknor and Fields, of Boston, have become the only authorizedrepresentatives in America of the whole series of my books." (227)Dickens's language was almost legalistic in its carefulrationalizing of the norms-based courtesy title claimed by Ticknor. Thephrase "the copyright of my works" referred to Dickens'sBritish copyright, which, he suggested, formed the initial propertybasis for a contractual understanding ("a specialarrangement") between his American and English publishers andhimself. This special understanding extended the courtesy associationwith Ticknor beyond any particular volume--in this case, Our MutualFriend--to his collected works ("the whole series of mybooks"). While Dickens's paratext stressed the verticaldimension of courtesy--the arrangement between publisher and author--thephrase "the only authorized representatives in America"pointed to the horizontal exclusivity that courtesy publishers wereeager to establish. Dickens here became a witness to an exclusivepublishing association and a celebrated spokesperson for Ticknor'scourtesy claim against the rest of the publishing world. The confidentbrevity of Dickens's statement gave no sign of the controversy hisrelationship with Ticknor would soon stir up among other Americancourtesy claimants to Dickens's writings. (228)

Figure 2Courtesy Paratext in Charles Dickens, Our Mutual Friend (Boston,Ticknor & Fields 1867)By a special arrangement made with me and my EnglishPublishers, (partners with me in the copyright of my works,)Mesers, Tioknor and Fields, of Boston, have become the onlyauthorized representatives in America of the whole series of mybooks.CHARLES DICKES,LONDON, April, 1867.

Robert Browning was also one of Ticknor and Fields's prizedauthors. In 1849, the firm (then Ticknor, Reed, and Fields) issued anunauthorized reprinting of Browning's Poems, (229) but in 1855 thefirm offered Browning 60 [pounds sterling] for advance sheets of hisvolume of poems, Men and Women. (210) From that point on, Browningtreated Ticknor as his exclusive courtesy publisher in America. (231)The firm's 1856 reprint of his Poems reproduced the text of aletter he wrote to Ticknor, dated November 29, 1855:

 1 take advantage of the opportunity of the publication in the United States of my "Men and Women," for printing which you have liberally remunerated me, to express my earnest desire that the power of publishing in America this and every subsequent work of mine may rest exclusively with your house. (232)

Browning's grateful letter came to serve as an authorizingparatext printed in several of Ticknor's editions of his writings.(233) In a single sentence, this letter assured readers that Browninghad been "liberally" paid by Ticknor and that he favored thathouse as the one with which he wished to be exclusively associated inthe United States. (234) In exchange for remuneration, Browningexpressed his "earnest desire" that courtesy rights--"thepower of publishing in America"--"may rest exclusively"with Ticknor. (235) The paratext was thus a blend of formal and informalnorms, an acknowledgment, on the vertical axis, of a contract-liketransaction with Ticknor and, on the horizontal axis, a mere precatoryhope that other American publishers "may" respectTicknor's informal courtesy entitlements.

Figure 3Courtesy Paratext in Robert Browning, Men and Women(Boston, Ticknor & Fields 1863)From the Author to the Publishers.To Messrs. Ticknor akd Fields:I take advantage of the opportunity of the publicationin the United States of my " Men and Women," for printingwhich you have liberally remunerated me, to expressmy earnest desire that the power of publishing in Americathis and every subsequent work of mine may rest exclusivelywith your house. I am, my dear Sirs, with high esteem, Yours faithfully, Robert Browning,Pabis, Nov. 29, 1855.

By the early 1850s, Ticknor and Fields was actively publishing thewritings of the English essayist Thomas De Quincey, apparently at firstwithout any arrangement with the author, (236) as was initially the casewith Browning. (237) De Quincey's works, especially hisautobiographical Confessions of an English Opium-Eater, (238) werepopular with Americans, and by 1853 Ticknor had sold more than 45,000copies of his various books. (239) In that same year, grateful for thesubstantial sums that Ticknor had paid him from profits on theseeditions, (240) De Quincey wrote Ticknor a letter that the firm printedat the start of many of its editions of his writings for years to come.The letter, written in De Quincey's ornate confessional style,(241) authorized Ticknor "exclusively" as his Americanpublisher and acknowledged that Ticknor had "made [him] aparticipator in the pecuniary profits of the American edition, withoutsolicitation or the shadow of any expectation on [his] part, without anylegal claim that [he] could plead, or equitable warrant in establishedusage, solely and merely upon [Ticknor's] own spontaneousmotion." (242)

De Quincey was confessing here, almost abjectly, that he hadneither the copyright law nor even the usual rules of courtesy("established usage") to thank for Ticknor's payments;(243) with no prior courtesy association or arrangement with Ticknor, hefelt that he was completely dependent on the firm's sheergenerosity for the post hoc honoraria that he had received. In amelancholy paradox typical of his literary style, (244) De Quincey casthimself as a recipient of courtesy who was somehow outside the church ofcourtesy, a chief sinner who could only hope for supervenient grace.

Figure 4Courtesy Paratext in Thomas De Quincey, Memorials, and OtherPapers (Boston, Ticknor & Fields 1856)FROM THE AUTHOR, TO THE AMERICAN EDITOR OF HIS WORKS.These papers I am anxious to put into the handsof your house, and, so far as regards the IT. S., ofyour house exclusively ; not with any view to furtheremolument, but as an acknowledgment of theservices which you have already rendered me ;namely, first, in having brought together so widelyscattered a collection--a difficulty which in myown hands by too painful an experience I had foundfrom nervous depression to be absolutely insurmountable; secondly, in having made me a participatorin the pecuniary profits of the Americanedition, without solicitation or the shadow of anyexpectation on my part, without any legal claimthat I could plead, or equitable warrant in establishedusage, solely and merely upon your ownspontaneous motion. Some of these new papers,I hope, will not be without their value in the eyesof those who have taken an interest in the originalseries. But at all events, good or bad, they arenow tendered to the appropriation of your individualhouse, the Messrs. Ticknor & Fields, according tothe amplest extent of any power to make such atransfer that I may be found to possess by law orcustom in America.I wish this transfer were likely to be of morevalue. But the veriest trifle, interpreted by thespirit in which I offer it, may express my sense ofthe liberality manifested throughout this transactionby your honorable house. Ever believe me, my dear sir, Your faithful and obliged, THOMAS DB QUINCEY.

The almost humble mood with which Robert Browning expressed hisdesire for courteous treatment of Ticknor's editions was not anisolated instance. The same publisher's 1861 edition of ThePoetical Works of Alfred Tennyson carried that author's personal"wish that with Messrs. Ticknor and Fields alone the right ofpublishing [his] books in America should rest." (245)Ticknor's other editions of Tennyson contained the same authorizingparatext. (246) Again, a foreign author benefitting from legallyuncompelled payments articulated a "wish" that Ticknor wouldremain the exclusive publisher of his works in the United States. Andjust as Browning had expressed the hope that the "power ofpublishing [his works] in America ... may rest exclusively with[Ticknor's] house," (247) Tennyson desired that the"right of publishing [his] books in America" might"rest" solely with Ticknor. (248) The rhetorical similaritiesbetween Browning and Tennyson suggest that these courtesy paratexts hadattained a formulaic status in American publishing, or perhaps thatTicknor was encouraging its foreign authors to write to a formula, orboth. In any case, Tennyson and Browning urged forbearance from piracyin the most courteous, even modest terms, as if the shared norm ofcourtesy required only the gentlest reminder by a grateful foreignauthor.

Figure 5Courtesy Paratext in Alfred Tennyson, Idyls of the King (Boston,Ticknor & Fields 1866)It is my wish that with Messrs. Ticknor and Fields alone the rightof publishing my book in America should restALFRED TENNYSON.

Elizabeth Barrett Browning echoed this style in her own authorizingparatexts. The New York firm of C.S. Francis and Company had begunreprinting her poems, apparently without authorization, in 1850. (249) Afew years later, it paid her 100 [pounds sterling] for her long poemAurora Leigh, which it published in 1857. (251) Francis included in theopening pages of its edition a letter by Barrett Browning, dated October21, 1856: "Having received what I consider to be sufficientremuneration for my poem of 'Aurora Leigh,' from Mr. Francis,of New York, it is my earnest desire that his right in this and futureeditions of the same, may not be interfered with." (252) BarrettBrowning here acknowledged receiving "sufficient remuneration"from Francis (her husband had thanked Ticknor for "liberallyremunerating]" him (253)), in exchange for which she provided herauthorizing letter with its precatory wording. Again, as with RobertBrowning, Barrett Browning recorded her "earnest desire" thattrade courtesy be observed, but she avoided the more common indirectionof merely noting her publisher's exclusive "right" or"power" to reprint in America. (254) Pointedly alluding to thepossibility that pirates might "interfere[]" (255) withFrancis's courtesy claim, her letter discouraged any such acts ofnorm-flouting deviancy. (256)

Figure 6Courtesy Paratext in Elizabeth Barrett Browning, Aurora Leigh (NewYork, C.S. Francis & Co. 1857)AUTHOR'S EDITION.Having received what I consider to be sufficient remuneration formy poem of "Aurora Leigh" from Mr. Francis, of New York, itis my earnest desire that his right in this and future editions ofthe same, may sot be interfered with.ELIZABETH BARRETT BROWNINGLONDON, Oct 31, 1856.

The intimate "wish" or "earnest wish" ofTennyson and the Brownings personalized the courtesy claims ofpublishers, reminding rivals and readers alike that piracy had a humanimpact apart from any horizontal damage it might inflict on businessinterests. In contrast to the stern command of the familiar copyrightnotice, these privately endorsed paratexts practically whispered theirexhortations, urging the moral earnestness that scholars have argued wasa feature of Victorian culture. (257) The ideal of moral earnestnessstressed serious work habits and an industrious spirit; it shunnedfrivolity and selfish pleasures and deprecated love of money andmaterialism. (258) Barrett Browning's "earnest wish" thatcourtesy claims not be piratically interfered with was a kind ofquasi-religious plea for the righteous use of the American publicdomain. To conduct oneself morally in the tempting commons was to behaveas an earnest publisher should or, to invoke another concept of theperiod, to justify oneself as an unstained American Adam. (259)

Not all courtesy paratexts invoked earnestness. The"Authorized Edition" of Rudyard Kipling's The Story ofthe Gadsbys and Under the Deodars, published by Lovell, Coryell andCompany of New York in 1891, contained the brief, blunt message:"This edition of my collected writings is issued in America with mycordial sanction." (260) Kipling had been openly indignant aboutAmerican piracies of his books (261) and he made peace with one of theculprits, the Lovell firm, only after Lovell arranged to pay him a smalllump sum along with a royalty on reprints of his books. (262) In its1891 edition of Kipling's Mine Own People, the United States BookCompany (a large "book trust" of cheap reprinters that Lovellhad organized (263) included a facsimile letter in which Kiplingaffirmed that the edition "ha[d] [his] authority" and that heowed "to the courtesy of [his] American publishers that [he] ha[d]had the opportunity of [him]self preparing the present book." (264)

Kipling's courtesy paratexts did not always conceal hisseething contempt for U.S. copyright laws. In an 1890 edition of hisstory collection Soldiers Three, Lovell reproduced another facsimileletter by Kipling:

 Gentlemen[,] [y]our country takes the books of other countries without paying for them. Your firm has taken some books of mine and has paid me a certain price for them though it might have taken them for nothing. 1 object to the system altogether but since I am helpless, authorize you to state that all editions of my property now in your hands have been overlooked by me. (265)

Lovell might not have been pleased by the implication that, in acountry whose laws permitted the uncompensated taking of foreignauthors' works, Lovell had distinguished himself merely by paying"a certain price" after "tak[ing]" Kipling'sbooks, as if the publisher were only a cut above a categoricallythieving nation. Kipling portrayed himself here as the grudgingrecipient of a bit of quasi-piratical booty, paradoxically authorizingthe use of "property" that he was "helpless" toprotect and consoling himself that at least he had"overlooked" Lovell's editions (in the sense of"supervising" them, but also with a faint quibble, perhaps, on"ignoring" them).

Far from the groveling tone of De Quincey's letter orTennyson's earnest wishing, (266) Kipling's discourteousparatext suggests that not all foreign authors viewed normative courtesyas the antithesis of lawful piracy. Some, like Kipling, saw courtesy asa qualified form of piracy, an institution that offered a kind ofinsulting consolation or hush money to outraged authors. (267) Afterall, for passive foreign authors, courtesy resembled more a compulsorylicense than a robust property rule typical of exclusive copyrightownership. (268) Kipling understood his status under American copyrightlaw deontologically, not pragmatically, as if no amount of tradecourtesy could redeem the law's original sin of depriving him ofhis natural rights as an author. (269) A tainted public domain could notbe cleansed by businessmen's self-interested gratuities.

Kipling's discourteous courtesy, so different from the earnestwishing of English authors thirty years earlier, (270) was in part areaction to the chaotic, price-slashing competition that Americanpublishers had practiced during the 1880s, when horizontal and verticalcourtesy was often thrown aside in the interest of quick returns oninexpensive reprints. (271) In this fierce competition for foreigntitles, which led to the overproduction of cheap paper-covered books anda glutting of the market, Robert Louis Stevenson's uncopyrightedworks were widely reproduced, as were Mrs. Humphry Ward's RobertElsmere (272) and H. Rider Haggard's Cleopatra, (273) the latterappearing in ten different editions. (274) When Holt published anauthorized edition of The Mayor of Casterbridge in 1886, (275) heassured Thomas Hardy that although the market was overrun with pirates,"[h]e [would] do the best [h]e [could] with it in th[o]sedistressing times when it seem[ed] next to impossible to do anythingwith anything." (276) Later, in the 1890s, Alexander Grossetbrought out a string of Kipling's unprotected works, including hispopular poems done up as booklets selling for ten cents a copy. (277)The profits from reprinting Kipling helped lay the financial foundationof the noted publishing house Grosset and Dunlap. (278) Kipling, likethe immensely popular Dickens fifty years before, (279) denounced avolatile industry that lurched between open piracy and sporadic courtesyand that rendered foreign authors the helpless victims of lawfullawlessness or the passive recipients of unpredictable largesse.

III. Gilbert and Sullivan's Paratext: Courtesy Rationalized

In the 1880s, W.S. Gilbert and Arthur Sullivan, the celebratedEnglish creators of comic operas, attempted to overcome the defects ofU.S. copyright law by devising a plan for obtaining an Americancopyright in The Mikado (280) so as to prevent piratical performances ofthe work in the United States. To this end, they hired George LowellTracy, an American citizen, to come to London and prepare a pianoarrangement of the full operatic score. (281) Tracy then registered thecopyright in this arrangement with the Library of Congress and assignedthe rights to Richard D'Oyly Carte, the theatrical impresario andpartner of Gilbert and Sullivan. (282) With an American copyrightapparently secured, the team felt it was safe to publish the libretto,the vocal score, and the piano arrangement in England. (283)

But the enormous popularity of Gilbert and Sullivan inspiredaudacity in American entrepreneurs. When an unauthorized production ofthe opera was announced in New York, Carte sued for an injunction,claiming that the rival orchestration, which had been craftily recreatedfrom the piano arrangement, would infringe the American copyright in thelatter work. (284) A federal court rejected Carte's claim, however,holding that U.S. copyright law did not grant an exclusive right ofpublic performance for musical compositions and that Gilbert andSullivan had forfeited American rights in the libretto and the vocalscore by publishing those works initially abroad. (285) The defendantwas free to stage his version of The Mikado, "however unfaircommercially or reprehensible in ethics his conduct may be." (286)The celebrated team's efforts to enjoy protection for the wholeopera by copyrighting a part of it had run aground on the technicaldistinctions and protectionist policies of U.S. copyright law.

Gilbert and Sullivan also looked to trade courtesy for protectionof their operas in America. One of the century's most elaboratecourtesy paratexts appeared in editions of their comic operas publishedby J.M. Stoddart and Company of Philadelphia in the 1880s. Stoddartcalled these reprints "Authorized Copyright Editions,"possibly because the firm had introduced potentially copyrightablevariants into otherwise public domain librettos. (287) The lengthyauthorizing paratext, surrounded by a box on the cover and signed byGilbert and Sullivan, began in the usual way by stating that Stoddart,

 by special and satisfactory arrangements with our English publishers and ourselves, ha[s] secured the exclusive authority to publish our Opera "The Pirates of Penzance; or, The Slave of Duty," in the United States of America. We hereby express the earnest wish that [it] may suffer no invasion of the rights derived from us, as the sole publishers of our work, through any attempt to put upon the market unauthorized editions. (288)

Here were the familiar elements of the courtesy paratext: anacknowledgment, on the vertical axis, of an exclusive authorizationderived from special arrangements and, on the horizontal axis, anearnest wish that courtesy rights would not be invaded by unauthorizedversions. The operatic team was both pointing to contractual rights andacting as celebrity sponsors of American publishing norms.

But the courtesy paratext did not end there. Gilbert and Sullivanwent on to articulate three "reasons" for making their requestfor courtesy treatment. "First," they wrote, "we aresatisfied there exists a general desire on the part of the people ofboth continents to come to an agreement upon the question of aninternational copyright, affording compensation to authors in theirliterary and artistic productions." (289) They were partly right.There had been multiple efforts to establish a reciprocal Anglo-Americancopyright law in previous years, but these efforts had repeatedly metwith obstacles. (290) For example, in response to a petition presentedby British authors, Senator Henry Clay introduced a bill in Congress in1837 that would have recognized British copyrights in the United States.(291) The bill encountered strong opposition from the American booktrade, however, and never became law. (292) In 1854, President FranklinPierce signed an Anglo-American copyright treaty providing forreciprocal recognition of the rights of authors and publishers in thetwo countries. (293) Once again, stubborn resistance from publishers andbooksellers caused the treaty to fall short of ratification by theSenate. (294) Writing in 1880, the year of Gilbert and Sullivan'scourtesy paratext, British poet and essayist Matthew Arnold remarkedthat the United States had repeatedly "refused to entertain thequestion of international copyright." (295) Numerous Anglo-Americancopyright bills failed in Congress prior to 1890. (296) Gilbert andSullivan quietly alluded to these legislative dead ends when theyreferred in their paratext to a "general desire on the part of thepeople of both continents" (297) to establish an internationalcopyright law. The particular desire of Congress, they implied, had yetto assemble the votes needed for legislative action. The paratext seemedto justify courtesy as both an informal property norm and a precursor toreal lawmaking, a contrivance of respectable publishers that not onlyprotected business interests but also served as an expression of thepopular will to ensure compensation for all authors, foreign anddomestic. Stoddart's courtesy claim should be respected, theparatext suggested, because authors' rights were already supportedby the people, however dilatory their elected representatives might be.So conceived, courtesy was a harbinger of and a moral incitement to agenuine law protecting foreign authors.

Gilbert and Sullivan's second reason for requesting courteoustreatment was that "[they were] by this arrangement enabled tosecure the publication of [their] work under [their] own personalsupervision, greatly to the benefit of the public and[themselves]." (298) Here was another justification for courtesy:the ability of creators to control the aesthetic integrity of theircreations. The informal courtesy monopoly, this paratext implied, didmore than safeguard economic interests; it also generated informal moralrights that guaranteed the accuracy of works, enhancing the reputationof authors and minimizing the harm to consumers from the unfaircompetition of cheap, unauthorized knockoffs. (299) In the chaoticpublishing scene of these years, textual accuracy could be ensured onlyif authors had the ability to "supervise" texts that enjoyedexclusive norms-based protection. (300) It was this ability to overseeaesthetic quality that Kipling was referring to when he stated in hisown paratexts that his editions had been "overlooked by[him]." (301) Moral rights, historically a byproduct of copyrightprotections and other laws rather than a distinctly recognized area ofAmerican law, (302) were also the byproduct of copyright-like courtesy.

Gilbert and Sullivan's third reason for claiming courtesy wasthat "by the present contract [their] publications w[ould] bewholly manufactured in the United States." (303) This portion ofthe paratext guaranteed that Stoddart's vocal scores would bemanufactured solely by American typesetters, printers, and bookbinders,an assurance that related to another aspect of the movement forinternational copyright. Many legislators and lobbyists had insistedthat any copyright protection for foreign works must be conditioned onAmerican manufacture of protected editions. The bill that Henry Clayproposed in 1837 would have granted copyright to British and Frenchauthors on the basis of American manufacture of their books within amonth of publication abroad. (304) In 1884, the Harper firm argued formanufacturing provisions that would require protected foreign books tobe printed in the United States, "chiefly in order that they maynot be made inconvenient and unobtainable, which would be the case ifthe base of supplies were as remote as London." (305) Like theHarpers, Gilbert and Sullivan were assuring the public that Americanworkers would be rewarded and that books would remain plentifullyavailable, without risk of shortages that might result if printing tookplace abroad. These arguments, along with others, eventually prevailedwith legislators who approved the Chace Act of 1891 with its strictmanufacturing provisions. (306)

Gilbert and Sullivan's paratext also promised thatStoddart's courtesy editions would sell at "as low a price,with ... as wide a circulation, as if they were issued by a number ofrival and unauthorized persons." (307) In essence, this was apromise that any artificial scarcity created by courtesy collusion wouldnot, in contrast to the effects of classic public goods monopolies likecopyrights, (308) result in an elevation of prices and a reduced supplyof copies. The one thing that unrestricted piracy guaranteed, at leastwhile "rival and unauthorized" reprinters competed to sell thesame title, was that supply would remain abundant and cost would staylow. (309) The public often benefited from aggressive competition forcheap, popular books. (310) The Harpers acknowledged in 1877 that duringoccasional breakdowns of the courtesy system "the people arebenefited ... by a free fight, in the course of which, while rivalpublishers are fighting over some tempting morsel, the reading publicdevours it." (311) Gilbert and Sullivan were addressing the fearThomas Macaulay articulated in his classic 1841 critique ofcopyright--that "the effect of monopoly generally is to makearticles scarce, to make them dear, and to make them bad"(312)--and reassuring purchasers that Stoddart's courtesy editionswould not suffer from the evils of contrived scarcity. They had alreadyguaranteed that the vocal scores would not be of inferior quality bynoting that the scores would be under their "own personalsupervision." (313)

IV. Monopolistic Practices and the Decline of Trade Courtesy

The defensive note in Gilbert and Sullivan's paratext,examined in Part III above, was a response to critiques that thepractice of trade courtesy was a bullying "trust" in whichprivileged publishers colluded to keep the price of books high and toprevent price-reducing competition. (314) Courtesy, when horizontallysuccessful, mirrored copyright law in its creation of publishers'monopolies in public goods. Some of the familiar costs ofmonopoly--increased prices and artificially induced scarcity of goods(315)--were likely experienced under trade courtesy just as in marketscontrolled by formal laws. (316) However, the unusual position ofcourtesy publishers, under pressure from the competing activities oflawful pirates, may have helped mitigate the effects of monopoly pricingto some extent. (317) This Part discusses the perceived monopolistictendencies of courtesy and the forces--notably antitrust law and theenactment of conditional U.S. copyright protection for foreignauthors--that caused courtesy to decline as a highly visible, openlycartelized trade practice.

Trade courtesy's anticompetitive practices did not gounnoticed, and the system had its detractors. Notably, certain cheap,noncourtesy reprinters, denying the accusation that they were pirates,portrayed themselves as reformers seeking to abolish the privilegesenjoyed by the genteel firms that had selfishly adopted the courtesycode. (318) For example, in 1884, George P. Munro, founder of theSeaside Library of inexpensive books, argued that the cheap librarieshad broken down "the Chinese or rather American wall of tradecourtesy and privilege" that had been erected solely for the"monopoly of publishers in this country." (319) These arrogantbook barons, Munro asserted, "dictated terms, and precious low onestoo, to the [foreign] authors, on the basis of non-interference amongthemselves." (320) Munro was claiming, in essence, that courtesyoperated horizontally to benefit participating publishers but did notwork vertically to help foreign authors or to make books more affordablefor the masses.

Courtesy publishers responded by portraying themselves as honorableand decent. Henry Holt denied that the large publishing houses were abullying cartel held together by promises of reciprocity. There was"no close corporation about it," he averred. "[A]nybodyis welcome who will behave himself." (321) But cheap reprint firmsand new startups disagreed. They spurned a welcome mat that requiredthem to recognize the courtesy claims of the veteran houses, even as itwithheld the prestige and leverage necessary to enjoy the benefits sucha system conferred. (322) These so-called pirates justified theirmethods by invoking the strict letter of the law. Foreign works werelawfully in the American public domain and were freely available to all;any attempt to claim such works and call it "courtesy" wassimply a game played by the haves to the detriment of the have-nots.(323) Unrestrained competition would break down courtesy and benefit thebook-reading public by placing "good cheap" editions ofimportant works "within the reach of students, schoolteachers, andothers of moderate means." (324) The American publisher Isaac K.Funk attacked courtesy as a "law" that had not been"framed in the interest of authors or of the public." (325)

Congress enacted the Sherman Antitrust Act in 1890, (326) one yearbefore passage of the Chace Act. The Sherman Act prohibited"[e]very contract, combination in the form of trust or otherwise,or conspiracy, in restraint of trade or commerce," and itcriminalized the acts of "[e]very person who shall monopolize, orattempt to monopolize, or combine or conspire with any other person orpersons, to monopolize any part of the trade or commerce." (327)The law was aimed at monopolies, combinations, and cartels that harmedcompetition in the marketplace. Horizontal restraints on trade have beenthought especially pernicious and have often been deemed violations ofthe Sherman Act. (328) For example, in 1898, six manufacturers ofcast-iron pipe that had conspired to allocate among themselves the rightto serve particular customers in certain regions were held to haveviolated the Sherman Act. (329) The U.S. Court of Appeals for the SixthCircuit arrived at this conclusion even though the conspiracy was only apartial restraint on trade and other cast-iron manufacturers hadremained outside the cartel. (330) The participating manufacturers haddivided up the market and insulated themselves from competition in waysthat tended toward monopoly and potentially deprived the public of theadvantages flowing from free competition. (331)

The courtesy houses were plainly combining in a horizontalrestraint on trade that ensured that they would "not bid againstone other." (332) Instead of splitting the market into exclusiveterritories and customers, as the cast-iron cartel did, publishersdivided the free cultural commons into exclusively assigned books andauthors, each publisher tacitly honoring every other publisher'scourtesy title to a public domain work. This agreement to refrain frompoaching on other houses potentially injured foreign authors because itlimited other offers that might have bettered the proposal of the firstpublisher to claim courtesy. "When two publishers are seeking anauthor," wrote publisher George Haven Putnam, "the proportionof the proceeds offered to the author[] goes up." (333) Theconcerted alignment of publishers against authors' mobility, andthe many attested refusals of publishers to negotiate with any authorbelonging to another house, (334) suggest that some authors may havebeen harmed financially by the courtesy cartel.

There was also a form of oligopoly--control of the market by a fewsellers--here. Publishers adhering to courtesy allowed fellow publishersto fix the price of public domain works at levels artificiallyheightened by courteous treatment of authors and to control the supplyof copies. While abovemarginal-cost pricing and reduced supply occur asa result of ordinary copyright protection, (335) copyrights are legalmonopolies granted by Congress under the authority of the U.S.Constitution. (336) Trade courtesy, in contrast, created extralegalmonopoly effects, fabricated through publishers' mutual forbearanceto compete for free public goods.

In many respects, courtesy resembled the Fashion Originators'Guild, an American fashion design cartel that in the 1930s acted tolimit "design piracy" within the ranks of American garment andtextile manufacturers. (337) Like foreign authors' works in thenineteenth century, fashion designs were not protected by copyright.(338) The Guild, determined to stamp out piracy, refused to sellgarments to retailers who sold pirated fashions and compelled retailersto sign agreements pledging to forswear the sale of such copies. (339)In 1941, the U.S. Supreme Court held that the Guild's programviolated the Sherman Act because it narrowed the outlets for buying andselling textiles and garments, took away the freedom of members, andsuppressed competition in the sale of unregistered textiles and copieddesigns--all tending to deprive the public of the benefits of freecompetition. (340)

There are obvious differences between courtesy and the fashiondesign cartel, not least that there is no evidence that Americanpublishers regularly organized boycotts of booksellers that handledpirated stock or forced booksellers to sign pledges to carry onlycourtesy-protected books. Yet the horizontal agreement to controlcompetition in uncopyrighted garments, which the Supreme Court deemedillegal under the Sherman Act, (341) shares broad features with thetacit agreement of powerful publishers to eliminate competition amongthemselves for a foreign author's book and allow one of theirnumber to dictate the price and supply of copies. Had courtesy remaineda conspicuous practice after 1890, the U.S. government or an injuredprivate party would likely have challenged its apparent tendency todeprive authors and book buyers of the benefits of real competition.

Despite the anticourtesy rhetoric of Munro, Lovell, and othermassmarket publishers, it is possible that trade courtesy did not alwaysresult in supracompetitive pricing of foreign titles. Nineteenth-centurypublishers often pointed to a special vulnerability of the courtesycartel as the main reason for this phenomenon: courtesy-abiding firmslived with the ever-present threat of competition from noncourtesypublishers who were legally free to disregard all norms ofself-regulation and forbearance. (342) As an informal system operatingin the shadow of deviant though lawful reprinting, trade courtesy was amonopoly that could not consistently maintain monopoly pricing. (343)Courtesy was a menaced monopoly that was unable to enforce its claims incourt (344) and inspired no allegiance in unaffiliated pirates whodefied the courtesy "trust" and flew the flag of statutoryprivilege. (345) As a menaced monopoly, trade courtesy often kept thecost of foreign works at reasonable, resilient levels, so thatparticipating firms could respond to the competitive assaults ofreprinters outside the norm-abiding community. (346) Because the threatof free competition helped control book prices, consumers sometimesbenefited financially from the courtesy cartel. (347)

Although trade courtesy did not always burden consumers'pocketbooks and was never challenged as anticompetitive in the courts,the legal climate at the turn of the century disfavored the kind ofhorizontal restraint on trade that the major publishing houses pursuedas a matter of honor and self-interest. (348) The openly anticompetitivenature of their arrangements likely contributed to the decline andseeming disappearance of courtesy in the early years of the twentiethcentury. The cheap reprint houses had mercilessly assailed the genteelpublishers as a trust or monopoly, (349) and the antitrust lawscondemned horizontal restraints as illegal. (350) Trade courtesywithered in this inhospitable climate.

In addition to the pressures of fierce competition and antitrustlaw, dramatic changes in American copyright law had a direct impact oncourtesy. As noted above, the Chace Act at last granted formal legalprotection to foreign authors on the condition that their editions weretypeset on American soil. (351) The Chace Act was a compromise betweenadvocates of international copyright and defenders of the manufacturingtrades who feared loss of work if foreign authors were allowed to secureAmerican copyrights unconditionally. (352) If foreign books suddenlyreceived statutory protection, these industries would be forced tocompete against copyrighted imports and editions printed from type setoverseas and thus lose the benefits they had enjoyed when foreign workslacked copyright protection altogether. The Chace Act, like courtesy,protected foreign authors while resisting the transatlantic control andheightened prices that might have resulted from the much-feared"English publisher's monopoly." (353)

Some historians have suggested that the Chace Act essentially putan end to trade courtesy because actual copyright protection for foreignworks rendered the system of informal norms unnecessary. (354) But theconditional and technical nature of protection under the Chace Actensured that many foreign authors would still fail to obtain U.S.copyrights. (355) Although some foreign authors or their domesticpublishers were able to satisfy the onerous requirements, many otherswere not. (356) Under the 1909 U.S. Copyright Act, which in some waysincreased the burden of the manufacturing requirements, (357) theAmerican public domain remained an aggressive acquirer of new foreignworks. (358) Yet vulnerable authors were not always exploited, because asense of honor and propriety still underlay the practices of Americanpublishers. The former spirit of trade courtesy continued to influencethe practices of conscientious publishers, less overtly and rigorouslythan in the previous century but often with as keen a sensitivity forforeign authors' rights. (359) The "ghost of courtesy"(360) persisted well into the twentieth century.

V. Paratextual Ghosts of Courtesy: James Joyce and J.R.R. Tolkien

The authorizing paratext had a long life (and afterlife). By thedawn of the twentieth century, trade courtesy was no longer practicedopenly and extrovertly. The climate of trust-busting, the advent of theliterary agent, (361) and the passage of the Chace Act combined torender the proud collusiveness of the genteel publishers a suspect andantiquated chivalry. Yet the Chace Act and its successor, the 1909 Act,did not make copyright effortlessly available to foreign authors. Asnoted in Part IV above, the manufacturing requirements in those statutesperpetuated, to some degree, the commons problem that internationalcopyright had been enacted to solve. (362) For foreign authors andpublishers who could not satisfy its rigors, the manufacturing clauseraised barriers similar to those created by the affirmative withholdingof copyrights in earlier statutes. (363) Improvised solutions, includingrecourse to the equitable principles of courtesy, were still necessaryfor preventing widespread unauthorized reprinting of foreignauthors' writings. (364) This Part explores the survival ofcourtesy and its paratexts in American publishers' treatment of twoiconic twentieth-century authors: James Joyce and J.R.R. Tolkien.

The courtesy paratext proved its value again in the 1930s in theaftermath of a federal customs litigation in which James Joyce'sUlysses (365) was judicially declared to be nonobscene under the TariffAct. (366) Bennett Cerf, cofounder of Random House, had instigated thelawsuit in the hope of becoming the first authorized publisher of alawful American edition of Joyce's masterpiece, a work that upuntil then had circulated in unauthorized editions in the Americanbooklegging market. (367) When, in late 1933, Judge John M. Woolseydeclared that Ulysses was not obscene and could be "admitted intothe United States," (368) Random House set to work preparing thebook for nationwide release in early 1934. (369)

The 1934 Random House edition of Ulysses contained threelegitimizing paratexts: a foreword by Morris L. Ernst--RandomHouse's lead attorney in the Ulysses litigation--celebrating theconvergence of the repeal of Prohibition and the lifting of the customsban on Ulysses, (370) the full text of Judge Woolsey's urbanedecree sparing Joyce's book from legal forfeiture, (371) and aletter from Joyce to Bennett Cerf describing the troubled legal historyof Ulysses and naming Random House as the exclusively authorizedpublisher of the book in the United States. (372) The first twodocuments--Ernst's foreword and Woolsey's opinion--representedyet another form of legal paratext from this period, one that certifiedthat a work had undergone a legal test of its decency and had beenexonerated. These "no obscenity" paratexts sought todiscourage further official attempts at censorship and assured readersthat a court had deemed the book safe for consumption. (373) Theyprepared readers in the vestibule for an experience of strong but lawfulauthorial candor and discouraged the view that the work had been writtenfor the salaciously minded. (374) These paratexts often combinedinterpretive aesthetic guidance for serious readers with a negativeinjunction for those who might wish to search the text for a lasciviousexperience. The "no obscenity" paratext, like the "allcharacters are fictitious" paratext, was a sorting mechanism thatdivided genuine readers from lustful opportunists.

Figure 9"No Obscenity" Paratext in Radclyffe Hall, The Well of Loneliness(Covici Friede 1929)I HAVE read The Well of Loneliness with great interest because--apartfrom itsfine qualities as a novel by a writerof accomplished art--it possesses a notable psychological andsociological significance. So fas as I know, it is the first Englishnovel which presents, in a completely faithful and uncompromisingform, one particular aspect of sexual life as it existsamong us to-day. The relation of certain people--who whiledifferent from their fellow human beings, are sometimes of thehighest character and the finest aptitudes--to the often hostilesociety in which they move, presents difficult and still unresolvedproblems. The poignant situations which thus arise are here setforth to vividly, and yet with such complete absence of offence,that we must place Radclyffe Hall's book on a high level ofdistinction.HAVELOCK ELLISFigure 10"All Characters Are Fictitious" Paratext in Radclyffe Hall, The Wellof Loneliness (Covici Friede 1929)ALL the characters in this book are purely imaginary, and ifthe author in any instance has used names that may suggesta reference to living persons, she has done so inadvertently.A motor ambulance unit of British women drivers did veryfine service upon the Allied front in France during the latermonths of the war, but although the unit mentioned in thisbook, of which Stephen Gordon becomes a member, operatesin much the same area, it has never had any existence savein the author's imagination.

After Judge Woolsey's decree opened the harbors to Ulysses,Cerf had reason to worry that pirates would quickly go to work withtheir greatest legal fear much allayed: prosecution for publishingobscenity. (375) In banning controversial modern works, obscenity lawhad come to function as a sort of super-copyright, vesting thegovernment with exclusive power to control publication and making itimpossible for anyone else, even authors, to disseminate such workslegally. (376) American copyright law, in contrast, often failed toprotect transgressive foreign works at all. One work that suffered fromimpaired copyright protection was Ulysses, which had entered theAmerican public domain in 1922, shortly after Joyce published the full,unexpurgated version in France without complying with the manufacturingprovisions of the 1909 Copyright Act. (377) Cerf reasonably feared thatlawful pirates would quickly free ride on his success in liberatingUlysses from state censorship. (378)

Joyce's letter, the third of the Ulysses paratexts, invokedthe tradition of courtesy. The Random House edition, he wrote, was"the authenticated text of my book," in contrast to anypirated version that might be issued by "some unscrupulous person[with the] purpose of making profit for himself alone out of the work ofanother to which he can advance no claim of moral ownership." (379)Joyce's careful phrase "moral ownership" glanced at thecopyright problem that he openly addressed elsewhere in his letter:

 I was unable to acquire the copyright in the United States since I could not comply with the requirements of the American copyright law which demands the republication in the United States of any English book published elsewhere within a period of six months after the date of such publication.... (380)

Joyce coupled this technically accurate account of thecopyright-depriving effects of the manufacturing clause with atraditional courtesy plea:

 It is therefore with the greatest sincerity that I wish you all possible success in your courageous venture both as regards the legalisation of Ulysses [in the customs litigation] as well as its publication and I willingly certify hereby that not only will your edition be the only authentic one in the United States but also the only one there on which I will be receiving royalties. (381)

Joyce's letter to Cerf plainly hearkened back to thenineteenth-century authorizing paratext and its role in reinforcing theinformal claims of courtesy. Joyce's "wish" for RandomHouse's success, offered with "the greatest sincerity,"echoed the earnest wishing of the Brownings and other courtesy-protectedauthors eighty years earlier. (382) And like those authors, Joycecertified the exclusivity of the "only authentic" text, citingthe remuneration he would receive in the form of royalties. (383)Operating in the ghostly aftermath of courtesy's heyday, RandomHouse drew upon residual courtesy principles, and the respect Cerf hadearned in the publishing world for litigating a watershed obscenitycase, for the informal right to be recognized as the exclusive Americanpublisher of Ulysses. (384) Like the courtesy publishers of the 1850sand 1860s, Random House was able to rely on the tacit forbearance ofother publishing firms for decades to come. (385)

Courtesy principles and the courtesy paratext survived in Americanpublishing into the 1970s. (386) In 1965, the publishing house Ace Booksdecided to exploit the rising popularity of J.R.R. Tolkien's TheLord of the Rings, (387) which, published initially in Britain, enjoyedquestionable copyright protection in the United States. (388) Selling atS0.75 per copy, the unauthorized Ace paperbacks quickly eroded themarket for the $6 authorized Houghton Mifflin hardback. (389) Realizingthat he must hurry to repair his American sales, Tolkien permittedBallantine Books to issue "authorized" paperbacks of The Lordof the Rings and The Hobbit, (390) selling at $0.95 per copy and heavilypromoted to college students. (391)

Trade courtesy was the key to Tolkien's recovery of theAmerican market. He spread negative gossip by launching a lettercampaign that branded Ace Books as unauthorized and unscrupulous, andthe press took up his cause with articles on the flaws of Americancopyright law, the plight of foreign authors, and the ethicalimplications of Ace's conduct. (392) The back cover of theBallantine edition carried an aspirational paratext bearingTolkien's stamp of approval and his direct appeal to the morals ofthe common reader: "This paperback edition, and no other, has beenpublished with my consent and cooperation. Those who approve of courtesy(at least) to living authors will purchase it, and no other." (393)Here, Tolkien's paratextual appeal, in contrast to the"earnest desire" of nineteenth-century British authors, (394)reached beyond the American publishing community to readers themselves,as if courtesy principles now occupied the full vertical axis, bindingauthors and purchasers together by their civilizing power. (395) By the1960s, courtesy was no longer an openly celebrated system of businessmorality in the publishing trade, but it continued to exist as aresidual business ethic, a dimming memory of good behavior in the oldcopyright vacuum. The ghost of courtesy could still be invoked at needto stamp out sporadic piracies or to shame a deviant pirate.

Conclusion

Trade courtesy arose as an informal surrogate for internationalcopyright protection in America and as a way for American publishers toinsulate themselves from injurious competition for free resources. Thecopyright law that provided a windfall of foreign materials topublishers failed to create artificial scarcity in those materials.Therefore, publishers developed the system of trade courtesy to fill thelegal vacuum, salve their consciences, and install a signaling system bywhich good players could be distinguished from bad players--courtesypublishers from pirates. Courtesy privatized a plentiful commons that,had it not been artificially enclosed, might have been lost or severelyeroded as a profitable resource for publishers. Whether a monopolisticpractice or an ethical improvisation of conscientious businessmen, orboth, trade courtesy bears out the scholarly thesis that nonlegal formsof protection may sometimes avert, or at least mitigate, a kind ofmarket failure for public goods. (396)

Courtesy was a necessary fiction told and retold by prominentmembers of the publishing community. Copyright is itself a kind offiction, an arbitrary signifier, backed by state sanctions, that treatsunfenced public goods as if they could be contained within a legalmonopoly and a contrived scarcity economy. Trade courtesy, in thisrespect, might be viewed as a metafiction which, in the absence of law,reimagined monopoly as authored not by a legislature but rather by theprivate collusion of businessmen. To be a courtesy publisher was toagree to participate in a communal fiction that the publisher Henry Holtproudly referred to as a form of "philosophicalanarchism--self-regulation without law." (397) Those who defied thefiction, who insisted on taking the public domain literally, were viewedas deviant, scurrilous pirates by the courtesy fraternity.

The authorizing paratext lent its policing power to this informalsystem of ordering by cautioning readers and publishers to remember thatthese public goods should be consumed only in morally approved ways.While other threshold paratexts taught readers to locate the text'smeanings, courtesy paratexts inculcated a proper respect for the text asequitable property. The earnest wishes of British authors that theirAmerican publishers' informal claims not be interfered with were akind of personified copyright notice, a negative injunction. Yet theywere also aspirational encomia to a norm that, whatever its basis inself-interest, sought to repair a defect of the U.S. copyright law thatmany saw as both a moral and a practical failing. These paratexts attestto, and serve as historical records of, an informal practice that madepublishing order out of copyright chaos for significant periods of thenineteenth century and after.

(1.) GERARD GENETTE, PARATEXTS: THRESHOLDS OF INTERPRETATION 1(Jane E. Lewin trans., 1997).

(2.) Id. at 2 (emphasis omitted).

(3.) Id. (emphasis omitted).

(4.) CORMAC MCCARTHY, The Road (ninth unnumbered page) (2006)."All characters are fictitious" disclaimers have also beenused by Hollywood filmmakers since at least 1934. Natalie Zemon Davis,"Any Resemblance to Persons Living or Dead": Film and theChallenge of Authenticity, Fifth Annual Patricia Wise Lecture of theAmerican Film Institute (Apr. 12, 1987), in 76 YALE REV. 457, 457(1987). Even lawyers employ versions of this paratext. See, e.g.,DOUGLAS J. FARMER, CALIFORNIA EMPLOYMENT LAW: THE COMPLETE SURVIVALGUIDE TO DOING BUSINESS IN CALIFORNIA, at iv (2013) ("Allcharacters appearing in this work are fictitious. Any resemblance toreal persons, living or dead, is purely coincidental.").Farmer's paratext, referring to his use of fictitious examples toillustrate legal issues, accompanies another familiar paratextualdisclaimer used by book-writing lawyers: "Legal information is notlegal advice." Id. Like the "all characters arefictitious" warning, this is a litigation-discouraging paratextthat urges the reader to consume the text in the proper spirit.

(5.) Authors and publishers have often been the targets of outragedpeople who believe they have discovered themselves in fictional works.For example, threatened with a libel action, the English publisher ofD.H. Lawrence's Women in Loue settled the claims of two formerfriends of Lawrence and insisted that Lawrence revise the text toobscure the offending likenesses. D.H. LAWRENCE, WOMEN IN LOVE, atxlix-1 (David Farmer et al. eds., Cambridge Univ. Press 1987) (1920).For an account of the roman a clef (a subgenre of the novel thatportrays real persons in fictional guise) and the litigiousness it hasaroused, see SEAN LATHAM, THE ART OF SCANDAL: MODERNISM, LIBEL LAW, ANDTHE ROMAN A CLEF 3-42 (2009).

(6.) Genette mentions copyright notices only in passing, GENETTE,supra note 1, at 32, and does not discuss any of the other paratextswith which this Article is concerned. The term "paratext" hasbeen used in legal scholarship, without apparent derivation fromGenette, to mean "the electronic recording produced by currentlyknown video technology in American law and unknown technologicalinventions that will be the functional analogues of video in thefuture." Ronald K.L. Collins & David M. Skover, Paratexts, 44Stan. L. Rev. 509, 510 (1992). This is not the meaning I assign to theterm. Some legal scholars use "paratext" to refer to textualor situational contexts. See, e.g., Jon M. Garon, Wiki Authorship,Social Media, and the Curatorial Audience, 1 HARV. J. SPORTS & ENT.L. 95, 110-11 (2010) ("The paratext, or grounding contextualmaterials, that contextualize a wiki are provided by the wiki communityrules and the statements of goals and purposes provided by thepublisher."). This is also not the sense in which I use the term.

(7.) Sometimes, paratextual copyright warnings can be verbose anddidactic, even threatening or wheedling:

 The scanning, uploading, and distribution of this book via the Internet or via any other means without the permission of the publisher is illegal and punishable by law. Please purchase only authorized electronic editions and do not participate in or encourage electronic piracy of copyrighted materials. Your support of the author's rights is appreciated.

RON CHERNOW, ALEXANDER HAMILTON (eighth unnumbered page) (2004). Inother cases, a more nuanced, less author-centric vision of copyright lawappears on the back of the title page: "This book may not bereproduced, in whole or in part, including illustrations, in any form(beyond that copying permitted by Sections 107 and 108 of the U.S.Copyright Law and except by reviewers for the public press), withoutwritten permission from the publishers." AKHIL REED AMAR, THE BILLOF RIGHTS: CREATION AND RECONSTRUCTION, at iv (1998).

(8.) Under the 1909 Copyright Act, copyright terms were measuredfrom the year of publication, Act of Mar. 4, 1909, Pub. L. No. 60-349,ch. 320, [section] 23, 35 Stat. 1075, 1080 (repealed 1976), not from theauthor's death, as they currently are, 17 U.S.C. [section] 302(a)(2015). The year of publication is still the measuring stick for worksmade for hire, anonymous works, and pseudonymous works. Id. [section]302(c).

(9.) Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161F.2d 406, 409 (2d Cir. 1946).

(10.) See, e.g., TAMARA R. PIETY, BRANDISHING THE FIRST AMENDMENT:COMMERCIAL EXPRESSION IN AMERICA, at iv (2012).

(11.) See, e.g., WILLIAM PATRY, HOW TO FIX COPYRIGHT, at iv (2011).Patry's volume conspicuously lacks the usual copyright notice. Theabsence of a common legal paratext may sometimes be as suggestive as itspresence.

(12.) Act of Mar. 3, 1891, ch. 565, sec. 3, [section] 4956, 26Stat. 1106, 1107-08. As a practical matter, these requirements mandatednot only U.S. typesetting but also first or simultaneous printing andpublication on U.S. soil. CARROLL D. WRIGHT, COMM'R OF LABOR, AREPORT ON THE EFFECT OF THE INTERNATIONAL COPYRIGHT LAW IN THE UNITEDSTATES, S. doc. No. 56-87, at 5-6 (2d Sess. 1901) [hereinafterINTERNATIONAL COPYRIGHT LAW REPORT].

(13.) HERBERT A. HOWELL, THE COPYRIGHT LAW: AN ANALYSIS OF THE LAWOF THE UNITED STATES GOVERNING REGISTRATION AND PROTECTION OF COPYRIGHTWORKS, INCLUDING PRINTS AND LABELS 85-86 (2d ed. 1948).

(14.) Act of Mar. 4, 1909, Pub. L. No. 60-349, ch. 320, [section]15, 35 Stat. 1075, 1078-79 (repealed 1976).

(15.) See Robert Spoo, WITHOUT COPYRIGHTS: PIRACY, PUBLISHING, ANDTHE PUBLIC DOMAIN 60-64, 67-75 (2013) [hereinafter SPOO, WITHOUTCOPYRIGHTS] (discussing the protectionist purpose of the 1891 and 1909manufacturing clauses); Robert Spoo, Note, Copyright Protectionism andIts Discontents: The Case of James Joyce's Ulysses in America, 108YALE L.J. 633, 644-53 (1998) [hereinafter Spoo, Copyright Protectionism](discussing the same).

(16.) 17 U.S.C. [section] 101 (2015) (defining "created"and "fixed"). The 1976 Act significantly revised the 1909 Act,notably by replacing the rule that copyright protection begins whencopies of a work are published with proper copyright notices, [section]23, 35 Stat, at 1080, with the rule that copyright protection beginsfrom the moment the author creates the work, 17 U.S.C. [section] 302(a)("Copyright in a work created on or after January 1, 1978, subsistsfrom its creation...."); see also H.R. REP. No. 94-1476, at 137-38(2d Sess. 1976) (discussing the concept of creation under the 1976 Act).

(17.) For a complete list of published works that are currentlyprotected in the United States as a matter of national origin, see 17U.S.C. [section] 104(b). Unpublished works are protected "withoutregard to the nationality or domicile of the author." Id. [section]104(a).

(18.) Foreign works qualifying for protection in the United Statesunder the UNESCO Universal Copyright Convention (effective September 16,1955) were exempted from the U.S. manufacturing requirements if theycomplied with copyright notice requirements. 17 U.S.C. [section] 9(c)(1954) (amending 17 U.S.C. [section] 9 (1947)). Repeal of themanufacturing clause was originally set for July 1,1982, as provided bythe 1976 Act. Act of Oct. 19, 1976, Pub. L. No. 94-553, [section]601(a), 90 Stat. 2541, 2588. However, it was postponed until July 1,1986 by congressional amendment. Act of July 13, 1982, Pub. L. No.97-215, 96 Stat. 178,178 (formerly codified at 17 U.S.C. [section]601(a)).

(19.) I use the phrase "legal paratext" to denote aparatext that conveys a legal or law-related meaning or warning or thatseeks to persuade readers that the text or the act of publishing it islawful or legitimate in some way.

(20.) "Phatic communion" is a term coined by theanthropologist Bronislaw Malinowski. See Bronislaw Malinowski, TheProblem of Meaning in Primitive Languages, in C.K. OGDEN & I.A.RICHARDS, THE MEANING OF MEANING: A STUDY OF THE INFLUENCE OF LANGUAGEUPON THOUGHT AND OF THE SCIENCE OF SYMBOLISM 296, 315 (4th ed. 1936).Malinowski described phatic communion as "free, aimless, socialintercourse" that includes "[i]Inquiries about health,comments on weather, ... a flow of language, purposeless expressions ofpreference or aversion, accounts of irrelevant happenings, [and]comments on what is perfectly obvious" that do not "serve anypurpose of communicating ideas." Id. at 313-16. Although themanufacturing paratext communicates a fact, that fact has lost its legalsignificance.

(21.) "A line such as 'Made [or Printed] in the UnitedStates of America [Hong Kong, Italy, etc.]' is no longer legallyrequired but is often included." Copyright Page,MERRIAM-WEBSTER'S MANUAL FOR WRITERS & EDITORS 316-17 (rev. ed.1998) (brackets in original). This same volume includes on its owncopyright page a vestigial nod to the defunct manufacturing clause ofthe 1909 Act: "Printed and bound in the United States ofAmerica." Id. at vi. Inertia rather than conscious purpose islikely responsible for the repetition of this archaic formula, just assome contemporary lawyers continue to draft contracts that recite theempty, outmoded term "witnesseth." Kenneth A. Adams, The NewNew Rules of Drafting (Part Two), MICH. B.J., Aug. 2002, at 40, 40.

(22.) The copyright notice, a formality that at one time could makeor break legal protection in the United States, is now largely a fossilparatext. Formerly mandatory, copyright notices became permissive afterthe United States joined the Berne Convention for the Protection ofLiterary and Artistic Works. See Berne Convention Implementation Act of1988, Pub. L. No. 100-568, [section] 7(a), 102 Stat. 2853, 2857(codified as amended at 17 U.S.C. [section] 401 (2015)). Nevertheless, acopyright notice continues to afford certain advantages. For example, itcan negate a litigation defense of innocent infringement. 17 U.S.C.[section] 401(d).

(23.) NATHANIEL HAWTHORNE, THE HOUSE OF THE SEVEN GABLES, AROMANCE, at v (Boston, Ticknor, Reed & Fields 1851). In his prefaceto The Blithedale Romance, Hawthorne again asserted that his characterswere "entirely fictitious" despite any resemblance between theUtopian community depicted in the novel and the actual Brook Farm inMassachusetts. Nathaniel Hawthorne, The Blithedale Romance, at iii-vi(Boston, Ticknor, Reed & Fields 1852).

(24.) See LAWRENCE BUELL, THE DREAM OF THE GREAT AMERICAN NOVEL74-75 (2014); SEE ALSO J.A. BARNES, A PACK OF LIES: TOWARDS A SOCIOLOGYOF LYING 130-32 (1994) (discussing Hawthorne's"disclaimer" in the context of fictiveness and lying).

(25.) Genette distinguishes between paratexts written by authorsand those created by publishers or other nonauthorial parties. GENETTE,supra note 1, at 8-9.

(26.) The text of the 1790 copyright statute expressly excludedforeign authors from protection. Act of May 31, 1790, ch. 15, [section]5, 1 Stat. 124, 125. Later copyright acts perpetuated this disability.See Act of July 8, 1870, ch. 230, [section] 103, 16 Stat. 198, 215; Actof Feb. 3, 1831, ch. 16, [section] 8, 4 Stat. 436,438. In rare cases,however, foreign authors succeeded in getting around the statute'sexclusionary purpose by certain stratagems. See Peter Jaszi & MarthaWoodmansee, Copyright in Transition, in 4 A HISTORY OF THE BOOK INAMERICA: PRINT IN MOTION; THE EXPANSION OF PUBLISHING AND READING IN THEUNITED STATES, 1880-1940, at 90, 94 (Carl F. Kaestle & Janice A.Radway eds., 2009). B. Zorina Khan offers examples of these stratagems,including Harriet Beecher Stowe's idea of partnering with theEnglish novelist Elizabeth Gaskell. B. ZORINA KHAN, THE DEMOCRATIZATIONOF INVENTION: PATENTS AND COPYRIGHTS IN AMERICAN ECONOMIC DEVELOPMENT,1790-1920, at 276-77 (2005).

(27.) See supra note 12 and accompanying text; see also Spoo,WITHOUT COPYRIGhts, supra note 15, at 60-63 (discussing the difficultiesthe Chace Act posed for foreign authors).

(28.) See infra notes 52-58 and accompanying text. Authors'writings can be thought of as public goods that are nonexcludable andnonrivalrous. Mark A. Lemley, IP in a World Without Scarcity, 90 N.Y.U.L. Rev. 460, 466-67 (2015). That is, by their nature, they cannot befenced off, and their consumption by one person does not prevent othersfrom consuming them equally. For that reason, they are especiallyvulnerable to free riding by unauthorized users. Copyright laws seek toprevent such free riding and the market failure that might result. SeeWendy J. Gordon, Authors, Publishers, and Public Goods: Trading Gold forDross, 36 LOY. L.A. L. Rev. 159,164 & n.13 (2002).

(29.) ROYAL COMMISSION ON COPYRIGHT, MINUTES OF THE EVIDENCE TAKENBEFORE THE ROYAL COMMISSION ON COPYRIGHT, 1878, [C. (2d series)] 2036,at 316 (UK) (testimony of John Tyndall).

(30.) See infra notes 59-77 and accompanying text.

(31.) See infra Part I.A-B (discussing trade courtesy'sdetailed rules and punishments).

(32.) There were several contemporaneous names for courtesy. See J.HENRY HARPER, THE HOUSE OF HARPER: A CENTURY OF PUBLISHING IN FRANKLINSQUARE 358 (1912) (using "law of courtesy"); CharlesScribner's Sons, Charles Scribner's Sons Publish theAuthorized Edition of Reminiscences, by Thomas Carlyle, PUBLISHERS'Wkly., Mar. 26, 1881, at 322, 322 (using "the courtesy of thetrade"); Harper & Bros., Note Respecting Harper &Brothers' Edition of Reminiscences by Thomas Carlyle,PUBLISHERS' Wkly., Mar. 19, 1881, at 316, 316 (using "tradeusage"). Trade courtesy was sometimes called the "HarperRule" because of the role the publisher Harper and Brothers playedin establishing courtesy rules. ADRIAN JOHNS, PIRACY: THE INTELLECTUALPROPERTY WARS FROM GUTENBERG TO GATES 300-01 (2009); see also CHARLES A.MADISON, BOOK PUBLISHING IN AMERICA 63-64 (1966).

(33.) See infra notes 89-109 and accompanying text. For furtherdiscussion of courtesy's horizontal and vertical axes, see notes62-64 and accompanying text below.

(34.) See infra notes 202-79 and accompanying text; see also HenryHolt, The Recoil of Piracy, forum, Mar. 1888, at 27, 28 (stating thattrade courtesy "grew up" roughly between 1850 and 1876).

(35.) See infra notes 227-79 and accompanying text.

(36.) See infra notes 365-95 and accompanying text.

(37.) Dotan Oliar & Christopher Sprigman, There's No FreeLaugh (Anymore): The Emergence of Intellectual Property Norms and theTransformation of Stand-Up Comedy, 94 VA. L. REV. 1787, 1809-31 (2008).

(38.) Emmanuelle Fauchart & Eric von Hippel, Norms-BasedIntellectual Property Systems: The Case of French Chefs, 19 ORG. SCI.187, 191-96 (2008).

(39.) David fa*gundes, Talk Derby to Me: Intellectual Property NormsGoverning Roller Derby Pseudonyms, 90 TEX. L. REV. 1093, 1108-31 (2012).

(40.) Aaron Perzanowski, Tattoos & IP Norms, 98 MINN. L. REV.511, 525-67 (2013).

(41.) For the most sustained treatment of courtesy by a legalscholar, see Spoo, Without copyrights, supra note 15, at 30-64, 107-15.See also Spoo, Copyright Protectionism, supra note 15, at 656-59(discussing courtesy in the context of James Joyce's Ulysses). Forbrief mentions of courtesy, see Thomas Bender & David Sampliner,Poets, Pirates, and the Creation of American Literature, 29 N.Y.U. J.INT'L L. & pol. 255, 266-67 (1996-1997); Stephen Breyer, TheUneasy Case for Copyright A Study of Copyright in Books, Photocopies,and Computer Programs, 84 HARV. L. REV. 281, 282-83, 299-300, 300 n.79,302 (1970); Jessica Bulman, Publishing Privacy: Intellectual Property,Self Expression, and the Victorian Novel, 26 HASTINGS COMM. & ENT.L.J. 73, 85 n.40 (2003); Catherine Seville, Authors as CopyrightCampaigners: Mark Twain's Legacy, 55 J. COPYRIGHT SOC'Y U.S.A.283, 327 (2008); Robert Spoo, Ezra Pound's Copyright Statute:Perpetual Rights and the Problem of Heirs, 56 UCLA L. Rev. 1775,1783-84, 1784 n.42, 1796-98 (2009); and Steven Wilf, Copyright andSocial Movements in Late Nineteenth-Century America, 12 THEORETICALINQUIRIES L. 179, 192-93, 198 (2011). For the most systematic discussionof the subject by a nonlegal scholar, see Jeffrey D. Groves, Courtesy ofthe Trade, in A history of the BOOK IN AMERICA: THE INDUSTRIAL BOOK,1840-1880, AT 139, 139-48 (SCOTT E. CASPER ET AL. EDS., 2007). FOR LESSEXTENSIVE THOUGH STILL USEFUL DISCUSSIONS OF COURTESY AND COURTESYPRINCIPLES, SEE MICHAEL J. EVERTON, THE GRAND CHORUS OF COMPLAINT:AUTHORS AND THE BUSINESS ETHICS OF AMERICAN PUBLISHING 44-47, 125-27(2011); EUGENE EXMAN, THE BROTHERS HARPER: A UNIQUE PUBLISHINGPARTNERSHIP AND ITS IMPACT UPON THE CULTURAL LIFE OF AMERICA FROM 1817to 1853, at 52-55, 58-59,116,118,264-65 (1965); ELLEN D. GILBERT, THEHOUSE OF HOLT, 1866-1946: AN EDITORIAL HISTORY 3,18, 31-33, 36-39,164-67, 210 (1993); HARPER, supra note 32, at 110-14, 340-45, 347-48,355-56, 358, 393, 428, 447, 615-17; MELISSA J. HOMESTEAD, AMERICAN WOMENAUTHORS AND LITERARY PROPERTY, 1822-1869, AT 154-63 (2005); JOHNS, supranote 32, at 295-302; KHAN, supra note 26, at 277-83; HELLMUTLEHMANN-HAUPT, THE BOOK IN AMERICA: A HISTORY OF THE MAKING, THESELLING, AND THE COLLECTING OF BOOKS IN THE UNITED STATES 166-67 (1939);MADISON, supra note 32, at 10, 16-17, 26, 50, 53-55, 63-69, 98-100,148-49, 225-26; DONALD SHEEHAN, THIS WAS PUBLISHING: A CHRONICLE OF THEBOOK TRADE IN THE GILDED AGE 39, 57-69, 71, 73, 217, 225-26 (1952); JOHNTEBBEL, BET WEEN COVERS: THE RISE AND TRANSFORMATION OF BOOK PUBLISHINGIN AMERICA 39-40,87,8990, 130-31 (1987); SIVA VAIDHYANATHAN, COPYRIGHTSAND COPYWRONGS: THE RISE OF INTELLECTUAL PROPERTY AND HOW IT THREATENSCREATIVITY 52-55 (2001); MICHAEL WINSHIP, AMERICAN LITERARY PUBLISHINGIN THE MID-NINETEENTH CENTURY: THE BUSINESS OF TICKNOR AND FIELDS 136-40(1995); John Feather, The Significance of Copyright History forPublishing History and Historians, in PRIVILEGE AND PROPERTY: ESSAYS ONTHE HISTORY OF COPYRIGHT 359, 364-65 (Ronan Deazley et al. eds., 2010);Arnold Plant, The Economic Aspects of Copyright in Books, 1 economica167, 172-73 (1934); and Stan J. Liebowitz, Paradise Lost or FantasyIsland?: The Payment of British Authors in 19th Century America (Aug. 8,2016) (unpublished manuscript),http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2676048. Fordescriptions of courtesy by a contemporaneous practitioner, see HenryHolt, Competition, ATLANTIC MONTHLY, Oct. 1908, at 516, 522-24[hereinafter Holt, Competition]; and Holt, supra note 34, at 27-32.

(42.) Holt, Competition, supra note 41, at 522-23.

(43.) Groves, supra note 41, at 147.

(44.) JAMES JOYCE, ULYSSES (Random House 1st authorized Americaned. 1934) (1922).

(45.) J.R.R. TOLKIEN, THE FELLOWSHIP OF THE RING (BALLANTINE BOOKS1965) (1954); J.R.R. TOLKIEN, THE TWO TOWERS (Ballantine Books 1965)(1954); J.R.R. TOLKIEN, THE RETURN OF THE KING (Ballantine Books 1965)(1955). These volumes are parts one, two, and three, respectively, ofthe trilogy known as The Lord of the Rings.

(46.) S.S. Conant, International Copyright An American View,MACMILLAN'S MAG., June 1879, at 151, 159; see also Culture andProgress Abroad, SCRIBNER'S MONTHLY, Jan. 1872, at 375, 375(quoting unnamed Englishman).

(47.) See The Author's Best Friend, N.Y. Evening Post, Sept.1, 1882, reprinted in Publishers' Wkly., Sept. 23, 1882, at 430,430.

(48.) See Meredith L. McGill, American Literature and the Cultureof Reprinting, 1834-1853, at 49-51, 63-73 (2003).

(49.) Khan, supra note 26, at 286.

(50.) Id. at 16-17, 258.

(51.) See PAUL GOLDSTEIN, COPYRIGHT'S HIGHWAY: FROM GUTENBERGTO THE CELESTIAL JUKEBOX 149 (rev. ed. 2003). The 1850 U.S. Censusreported a literacy rate of 90% among white men and women. CANDY GUNTHERBROWN, THE WORD IN THE WORLD: EVANGELICAL WRITING, PUBLISHING, ANDREADING IN AMERICA, 1789-1880, at 10 (2004).

(52.) See Gordon, supra note 28, at 164 (discussing authors'works and free riding).

(53.) Lemley, supra note 28, at 462.

(54.) See INTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at80-81 (statement of the Historical Publishing Company) ("In nopossible event can an author ... be seriously wronged by therepublication of his works in a foreign country. If he is appreciated athome, his reward should be reasonably satisfactory."); TheInternational Copyright Question, 12 U.S. MAG. & DEMOCRATIC REV.115, 120 (1843) ("The English author ... has written his book forthe large and liberal reading public of his own country, under therights, for his compensation and protection, conferred upon him by itsinstitutions and laws; how is he injured by the reproduction anddiffusion of the same in another country, three thousand miles across anocean, a distinct political body?"); see also Breyer, supra note41, at 313 ("[I]t may have been British [copyright] protection thatguaranteed [the British] author and publisher sufficient income to makethem relatively indifferent to American [reprint] prices.").

(55.) It is commonly observed that the Internet, with its capacityfor rapid dissemination of copies, tends to disaggregate creation anddistribution. See, e.g., Lemley, supra note 28, at 461.Commercialization theory contends that intellectual property isnecessary not so much to incentivize the creation of works as toencourage production, distribution, and marketing of works. Jonathan M.Barnett, Copyright Without Creators, 9 REV. L. & ECON. 389, 404-14(2013); Lemley, supra note 28, at 463,494.

(56.) See INTERNATIONAL COPYRIGHT Law REPORT, supra note 12, at 48(statement of G.P. Putnam's Sons) (describing the tendency ofpublishing rivals to free ride on "the advertising done for theauthorized edition").

(57.) Exman, supra note 41, at 7-8.

(58.) Many American publishers testified to the threat of marketfailure by unrestrained reprinting prior to 1891. See, e.g.,INTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 56 (statement ofCharles Scribner's Sons) ("[R]eprint[ing] recent English booksin America and mak[ing] a profit on them ... had become almostimpossible when there was no protection."); id. at 69 (statement ofJ.B. Lippincott Company) (discussing "the demoralizing and ruinouscompetition" caused by pre-1891 "reckless reprinting");see also infra notes 111-13, 144-61, 271-76 and accompanying text(discussing the financial hardship inflicted on publishers by thereprinting of foreign works).

(59.) "The Evening Post's" Libel Suit,PUBLISHERS' Wkly., Feb. 25, 1893, at 359, 360 (1893) (quotingtestimony of Henry Holt).

(60.) ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 43(testimony of John Blackwood).

(61.) Holt, supra note 34, at 28.

(62.) See infra notes 78-81 and accompanying text.

(63.) See MADISON, supra note 32, at 50.

(64.) Id.

65. Cf. ERIC A. POSNER, LAW AND SOCIAL NORMS 18-19 (2000)(discussing actors who signal willingness or unwillingness to cooperatewithin informal ordering systems).

66. Holt, supra note 34, at 28.

67. Holt praised courtesy as possessing "the essentialfeatures of an International Copyright Law" despite the "gapsand defects" typical of "all usages, and, for that matter!,]... all laws." Id. at 30.

(68.) See infra Part I.A-B.

(69.) American courts refused to treat courtesy claims as actualproperty entitlements. See, e.g., Sheldon v. Houghton, 21 F. Cas. 1239,1241-42 (C.C.S.D.N.Y. 1865) (No. 12,748) ("If [courtesy] has anyfoundation at all, it stands on the mere will, or ... the'courtesy' of the trade.... It can, therefore, hardly becalled property at all--certainly not in any sense known to thelaw.").

(70.) Sheehan, supra note 41, at 65; see also Royal Commission OnCopyright, supra note 29, at 181 (testimony of Charles Edward Appleton)(describing "courtesy copyright" as "an understandingwhich theoretically exists between all firms in America, but practicallyonly amongst the five or six largest firms"). A form of courtesyalso underlay the system of exchange newspapers in the 1850s, whereuncopyrighted (and sometimes copyrighted) material from Americanperiodicals could be reprinted freely by other American periodicals, aslong as they credited the author and the original publishing source.HOMESTEAD, supra note 41, at 154-63.

(71.) See GEORGE T. DUNLAP, THE FLEETING YEARS (1937), quoted inPublishers on Publishing 269, 271-72 (Gerald Gross ed., 1961)(discussing the publishing company Grosset and Dunlap's use ofunauthorized reprinting to achieve financial viability); madison, supranote 32 at 7-8 ("[F]ledgling publishers ... made up most of theirlists with reprinted [and unremunerated] importations.").

(72.) See infra notes 100, 108, 158-61, 271-76 and accompanyingtext. On the "piracy wars" in nineteenth-century Americanpublishing, see Robert L. McLaughlin, OppositionalAesthetics/Oppositional Ideologies: A Brief Cultural History ofAlternative Publishing in the United States, 37 CRITIQUE 171, 173-74(1996).

(73.) See infra notes 314, 318-25 and accompanying text. Courtesypublishers often entered into contracts with each other and theirforeign authors. See Groves, supra note 41, at 141; see also royalcommission on copyright, supra note 29, at 94-95 (testimony of GeorgeHaven Putnam) (referring to American publishers'"contracts" with foreign authors). But there was nocomprehensive system of horizontal contracting, except in the sense thatcourtesy publishers tacitly operated as a cartel. See id. at 287(testimony of Herbert Spencer) (noting that trade courtesy conferred"a [publishing] priority, such as is tacitly regarded as amonopoly").

(74.) See generally Robert C. ELLICKSON, ORDER WITHOUT LAW: HOWNEIGHBORS SETTLE DISPUTES 40-64 (1991) (describing the system ofinformal norms that cattlemen and landowners employ in Shasta County,California to resolve cattle-trespass disputes in preference to formaltort remedies).

(75.) See supra notes 26-27 and accompanying text.

(76.) See Sheehan, supra note 41, at 62-63 (describing courtesyaround 1860 as a "clearly defined, even if occasionally ignored,principle of self-regulation"); see also INTERNATIONAL COPYRIGHTLAW REPORT, supra note 12, at 50 (statement of G.P. Putnam's Sons)(noting that prior to the 1891 Chace Act, "foreign authors securedat haphazard an uncertain remuneration from their Americanreaders"); royal commission on Copyright, supra note 29, at 43(testimony of John Blackwood) ("I have known [courtesy] broken, andI have known it kept.").

(77.) INTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 30(statement of the American Copyright League). Whether market failure forforeign works was a real threat to American publishers or served asrhetorical cover for monopolistic practices or moral preferences--orboth--is beyond the scope of this Article. Certainly, publishersroutinely voiced concern about ruinous competition. E.g., Holt, supranote 34, at 28.

(78.) EXMAN, supra note 41, at 52-55; JOHNS, supra note 32, at300-01; SHEEHAN, supra note 41, at 71.

(79.) The phrase "printing on" meant "printing abook for which another publisher claimed priority." EXMAN, supranote 41, at 7.

(80.) Harper, supra note 32, at 111; see also ROYAL COMMISSION ONCOPYRIGHT, supra note 29, at 66 (testimony of George Washburn Smalley)(stating that arrangements for "early sheets" were"common").

(81.) The Harper firm noted that "[i]n many cases when theEnglish authors send us early sheets of their books, and for some reasonwe fail to use them, we endeavor to sell them on the author'saccount to other American houses." Letter from Harper & Bros,to M.O.W. Oliphant (Feb. 11, 1873), quoted in Harper, supra note 32, at357, 358. This suggests that publishers enjoyed the power to transfercourtesy rights. See infra notes 129-30, 171 and accompanying text.

(82.) Groves, supra note 41, at 140.

(83.) MADISON, supra note 32, at 26; Groves, supra note 41, at140-41.

(84.) 1 ALFRED TENNYSON, POEMS (Boston, William D. Ticknor 1842).

(85.) Groves, supra note 41, at 141.

(86.) For details of this courtesy practice and those mentioned inthe foregoing paragraphs, see Holt, supra note 34, at 29-31.

(87.) Cf. Richard A. Posner & Eric B. Rasmusen, Creating andEnforcing Norms, with Special Reference to Sanctions, 19 INT'L REV.L. & ECON. 369, 369-70 (1999) (discussing group consensus and the"crystalliz[ing]" of norms).

(88.) Scholars have disagreed about the amounts paid to foreignauthors as well as the number of authors who received payments. CompareBrey er, supra note 41, at 282, 300 (stating that nineteenth-century"American publishers sold countless copies of British works andpaid their authors royalties" and that "many English writersearned more from the sale of advance proofs to American publishers ...than from the copyright royalties on their English sales"), withLiebowitz, supra note 41, at 20 ("[E]ven with trade courtesy,British authors were either not paid at all or paid less than what theywould have been expected to receive had they been protected bycopyright.").

(89.) Groves, supra note 41, at 141.

(90.) E.g., 1 SIR WALTER SCOTT, KENIL WORTH (Philadelphia, M. Carey& Son 1821) (1821).

(91.) 1 SIR WALTER SCOTT, THE LIFE OF NAPOLEON BUONAPARTE, EMPEROROF THE FRENCH: WITH A PRELIMINARY VIEW OF THE FRENCH REVOLUTION(Philadelphia, Carey, Lea & Carey 1827) (1827). For the sums paid bythe Carey firm for Scott's works, see Sheehan, supra note 42, at62. According to a calculation employing the consumer price index andthe retail price index, the average value in 2014 of 300 [poundssterling] from 1827 was S32,600. Computing 'Real Value' overTime with a Conversion Between U.K. Pounds and U.S. Dollars, 1774 toPresent, MEASURING WORTH, https://www.measuringworth.com/exchange (tolocate, enter "1827" into the "Initial year" textbox; enter "[pounds sterling]" and "300" into the"Initial value" text boxes; enter "2014" into the"Desired year" text box; and then follow the"Calculate" hyperlink).

(92.) 1 THOMAS BABINGTON MACAULAY, THE HISTORY OF ENGLAND FROM THEACCESSION OF JAMES II (New York, Harper & Bros. 1849) (1849).

(93.) EXMAN, supra note 41, at 264-65.

(94.) CHARLES DICKENS, BLEAK HOUSE (London, Bradbury & Evans1853). In the United States, Bleak House appeared serially in twentyparts in 1852-1853 in Harper's Magazine. THE CHARLES DICKENSENCYCLOPEDIA 19 (comp. Michael Hardwick & Mollie Hardwick 1973).

(95.) CHARLES DICKENS, LITTLE DORRIT (London, Bradbury & Evans1857). The novel appeared serially in Harper's Magazine in1855-1857. THE CHARLES DICKENS ENCYCLOPEDIA, supra note 94, at 21.

(96.) CHARLES DICKENS, A TALE OF TWO CITIES (London, Chapman &Hall 1859). The novel appeared serially in Harper's Weekly in 1859.THE CHARLES DICKENS ENCYCLOPEDIA, supra note 94, at 23.

(97.) 1 CHARLES DICKENS, OUR MUTUAL FRIEND (London, Chapman &Hall 1865). The novel appeared serially in Harper's Magazine in1864-1865. THE CHARLES DICKENS ENCYCLOPEDIA, supra note 94, at 27.

(98.) 1 CHARLES DICKENS, GREAT EXPECTATIONS (London, Chapman &Hall 3d ed. 1861). The novel appeared serially in Harper's Weeklyin 1861. The Charles dickens Encyclopedia, supra note 94, at 26.

(99.) CHARLES DICKENS, THE MYSTERY OF EDWIN DROOD (London, Chapman& Hall 1870). The novel appeared serially in a supplement toHarper's Weekly in 1870. THE CHARLES DICKENS ENCYCLOPEDIA, supranote 94, at 29. For the sums paid by the Harpers to serialize theabove-mentioned Dickens novels, see Madison, supra note 32, at 26. Acontemporary source confirms these sums, with the exception that itfigures the amount paid for Bleak House at 400 [pounds sterling]. TheDickens' Controversy, Am. LITERARY GAZETTE & PUBLISHERS'CIRCULAR, June 1, 1867, at 68, 68-69. This source does not include thethen-unpublished Mystery of Edwin Drood.

(100.) Raymond Howard Shove, Cheap Book Production in the UnitedStates, 1870 to 1891, at 119 (1936) (unpublished M.A. thesis, Universityof Illinois) (on file with the University of Illinois Library).

(101.) ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 91(testimony of George Haven Putnam).

(102.) Id. at 63 (testimony of John Murray) (stating that 1000[pounds sterling] had been obtained from an American publisher for thefamily of the deceased author and explorer David Livingstone).Livingstone died in 1873. Christopher K. Schuele, Healing theCongo's Colonial Scars: Advocating for a Hybrid Approach toConflict Minerals Reporting Regulations in the European Union, 33 Wis.INT'L L.J. 755,755 n.1 (2015).

(103.) ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 136(testimony of the Reverend Canon Farrar).

(104.) THE POSTHUMOUS PAPERS OF THE PICKWICK CLUB: CONTAINING AFAITHFUL RECORD OF THE PERAMBULATIONS, PERILS, ADVENTURES AND SPORTINGTRANSACTIONS OF THE CORRESPONDING MEMBERS ("Boz" ed.,Philadelphia, Carey, Lea & Blanchard 1836). "Boz" wasDickens's pseudonym early in his career. ROBERT MCPARLAND, CHARLESDICKENS'S AMERICAN AUDIENCE 50 (2010).

(105.) EXMAN, supra note 41, at 58-59.

(106.) Id. Previously, the Carey firm had offered a gratuity of 25[pounds sterling], but Dickens politely declined it. Letter from CharlesDickens to Carey, Lea & Blanchard (Oct. 26, 1837), in 1 The LETTERSOF CHARLES DICKENS 322, 322 & n.l (Madeline House & GrahamStorey eds., Pilgrim ed. 1965).

(107.) Groves, supra note 41, at 146; see also Royal COMMISSION ONCOPYRIGHT, supra note 29, at 314 (testimony of John Tyndall) (notingthat the Appleton firm gave annual accounts of an English author'sAmerican sales and "a certain percentage on the retail price of[his] books"); Winship, supra note 41, at 138-39 (discussing thepublisher Ticknor and Fields's use of royalties and payments foradvance sheets in the 1850s).

(108.) GILBERT, supra note 41, at 164, 166.

(109.) SHEEHAN, supra note 41, at 69, 73; see also Tebbel, supranote 41, at 90 (discussing royalty payments made to Thomas Hardy afterthe Chace Act went into effect).

(110.) Groves, supra note 41, at 144.

(111.) Mat 145.

(112.) The common perception has been that the American publicdomain is unitary and unchanging. For much of its history, U.S.intellectual property law recognized that "matter once in thepublic domain must remain in the public domain." Kewanee Oil Co. v.Bicron Corp., 416 U.S. 470, 484 (1974) (discussing patents and tradesecrets). This policy has been in doubt at least since Golan v. Holder,132 S. Ct. 873 (2012), which upheld the constitutionality of a federalstatute restoring U.S. copyright protection to foreign works that hadlost or failed to obtain protection as a result of noncompliance withU.S. copyright formalities, id. at 894.

(113.) See Groves, supra note 41, at 145.

(114.) Gilbert, supra note 41, at 31 (quoting HENRY HOLT,GARRULITIES OF AN OCTOGENARIAN EDITOR 97 (1923)).

(115.) See EVERTON, supra note 41, at 126-27 (describing a disputein 1851 over the works of Swedish novelist Fredrika Bremer in which theHarper and Putnam publishing firms initially exchanged private protestsand then took their complaints to a trade journal).

(116.) H. TAINE, ON INTELLIGENCE (T.D. Haye trans., New York, Holt& Williams 1872) (1870).

(117.) MADISON, supra note 32, at 98.

(118.) Id.

(119.) THOMAS HARDY, THE RETURN OF THE NATIVE (New York, Henry Holt& Co. 1878) (1878), advertised in PUBLISHERS' WKLY., Dec. 14,1878, at 811,811.

(120.) TEBBEL, supra note 41, at 90.

(121.) Id.

(122.) THOMAS CARLYLE, REMINISCENCES (James Anthony Froude ed., NewYork, Charles Scribner's Sons 1881) (1881).

(123.) Harper & Bros., supra note 32, at 316.

(124.) Charles Scribner's Sons, supra note 32, at 322.

(125.) Id.; see also Carlyle, supra note 122; THOMAS CARLYLE,REMINISCENCES (James Anthony Froude ed., New York, Harper & Bros.1881) (1881). The Scribner edition contained the courtesy paratext"Authorized Edition." carlyle, supra note 122, at iv.

(126.) MADISON, supra note 32, at 67-68.

(127.) Harper & Bros., supra note 32, at 316.

(128.) Id.

(129.) Id.

(130.) See supra note 81 (discussing the power to transfer courtesyrights); see also Sheldon v. Houghton, 21 F. Cas. 1239, 1239(C.C.S.D.N.Y. 1865) (No. 12,748) (quoting the plaintiffs' bill asaverring that the "good will" generated by courtesy practices"is often very valuable, and is often made the subject ofcontracts, sales, and transfers, among booksellers andpublishers").

(131.) Harper & Bros., supra note 32, at 316.

(132.) Charles Scribner's Sons, supra note 32, at 322.

(133.) Id.

(134.) Id.

(135.) Id.

(136.) What the Harpers called "a royalty" paid toCarlyle's niece, Harper & Bros., supra note 32, at 316,Scribner's referred to as "a full copyright," which itpaid to Carlyle's representatives, Charles Scribner's Sons,supra note 32, at 322. The terms "royalty" and"copyright" were interchangeable in this period, whetherreferring to copyrighted works or courtesy-protected works. SeeKHAN,supra note 26, at 280.

(137.) JEAN INGELOW, THE POETICAL WORKS OF JEAN INGELOW (New York,John Wurtele Lovell 1880). For the Roberts Brothers' first edition,see jean ingelow, poems (Boston, Roberts Bros. 1863).

(138.) Roberts Bros., Jean Ingelow's Poems, PUBLISHERS'WKLY., Aug. 21, 1880, at 216, 216.

(139.) Id.

(140.) Id.

(141.) Id.) see also Groves, supra note 41, at 147 (noting RobertsBrothers' shaming of Lovell over his reprinting of Ingelow'spoems). Roberts Brothers also employed the courtesy sanction ofprice-slashing, see infra notes 144-53 and accompanying text, announcingthat it was reducing prices on its editions of Ingelow's poems byas much as 50%, Roberts Bros., Reduced Prices for the Author'sEditions of Jean Ingelow's Poems, Am. BOOKSELLER, Aug. 16, 1880, at146, 146. Roberts Brothers aimed this sanction directly at Lovell's"pirated edition." Correspondence, Am. BOOKSELLER, Aug, 16,1880, at 95, 96. Ten years later, Lovell published Ingelow'sfictional work Quite Another Story with the courtesy paratext"Authorized Edition." JEAN INGELOW, QUITE ANOTHER STORY 3 (NewYork, John W. Lovell Co. 1890) (1890). In the supplementary materials toa different novel, Lovell claimed to have issued the work "byspecial arrangement" with Ingelow. RICHARD DOWLING, A BAFFLINGQUEST 377 (New York, U.S. Book Co. 1891) (1891).

(142.) Scholars of social norms refer to communal reprimand as"coordinated punishment," Barak D. Richman, How CommunityInstitutions Create Economic Advantage: Jewish Diamond Merchants in NewYork, 31 Law & Soc. inquiry 383, 402-03 (2006), or"[m]ultilateral costly sanctions," Posner & Rasmusen,supra note 87, at 372. Robert Ellickson calls it "negativegossip." Robert C. Ellickson, Of Coase and Cattle: DisputeResolution Among Neighbors in Shasta County, 38 Stan. L. Rev. 623, 677(1986).

(143.) See supra notes 139-42 and accompanying text (discussingRoberts Brothers' call for booksellers to refuse to deal with adiscourteous publisher); cf. Lisa Bernstein, Private Commercial Law inthe Cotton Industry: Creating Cooperation Through Rules, Norms, andInstitutions, 99 Mich. L. Rev. 1724, 1745 (2001) (describing refusal todeal in the cotton industry); Oliar & Sprigman, supra note 37, at1815-16 (describing refusal to deal among stand-up comics).

(144.) See SHEEHAN, supra note 41, at 217.

(145.) CHARLES DICKENS, HARD TIMES (New York, T.L. McElrath &Co. 1854) (1854).

(146.) MCPARLAND, supra note 104, at 58.

(147.) Letter from James T. Fields to Robert Browning (Sept. 25,1855), quoted in Groves, supra note 41, at 143, 143.

(148.) ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 316(testimony of John Tyndall).

(149.) 1 ANTHONY TROLLOPE, NORTH AMERICA (Philadelphia, J.B.Lippincott & Co. 1862) (1862). Proclaiming itself the"Author's Edition," the Lippincott volume contained aforceful courtesy paratext: "This Edition of Trollope's'North America' is published by special arrangement with theAuthor, Anthony Trollope, Esq., at whose urgent request it wasundertaken, and to whom we pay the regular copyright [courtesypayment]." Id. at ii.

(150.) ANTHONY TROLLOPE, NORTH AMERICA (New York, Harper &Bros. 1862) (1862). The Harper edition contained no courtesy paratextbut instead included a list of other Trollope books published by theHarpers, id. at ii, implying that North America belonged to the firm byvirtue of the courtesy principle of association.

(151.) CATHERINE SEVILLE, THE INTERNATIONALISATION OF COPYRIGHTLAW: BOOKS, BUCCANEERS AND THE BLACK FLAG IN THE NINETEENTH CENTURY 195(2006).

(152.) ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 308(testimony of Thomas Henry Huxley).

(153.) See LEHMANN-HAUPT, supra note 42, at 167; madison, supranote 32, at 53-54; sheehan, supra note 41, at 62, 217.

(154.) See EXMAN, supra note 41, at 53 (discussing the Harper andCarey firms' "reprisal against trespassers");LEHMANN-HAUPT, supra note 41, at 166-67 (discussing publishers'retaliations); MADISON, supra note 32, at 26 (discussing theHarpers' use of reprisal).

(155.) HARPER, supra note 32, at 111-12.

(156.) ALFRED TENNYSON, THE POETICAL WORKS OF ALFRED TENNYSON, POETLAUREATE (New York, Harper & Bros. 1870). Predecessors in interestof the Fields publishing house had been issuing Tennyson'scollected poems since the 1840s. E.g., tennyson, supra note 84.

(157.) Groves, supra note 41, at 145.

(158.) See id. at 147.

(159.) LEHMANN-HAUPT, supra note 41, at 166-67.

(160.) McLaughlin, supra note 72, at 174; see also infra notes318-25 (discussing the new cheap reprinters of the 1870s and 1880s whodefied trade courtesy and considered it detrimental to their interestsand the public).

(161.) Ouida, International Copyright, PUBLISHERS' WKLY., Aug.11, 1883, at 165, 165. "Ouida" was the pseudonym of theEnglish author Maria Louise Rame.

(162.) DIANA C. ARCHIBALD, DOMESTICITY, IMPERIALISM, AND EMIGRATIONIN THE VICTORIAN NOVEL 140 (2002); McParland, supra note 104, at 44, 49.

(163.) The Harper firm, which came to dominate American publishing,was known for its early piratical aggressions. Madison, supra note 32,at 22. The Harpers pirated at least two of Charles Dickens's earlyworks, American Notes (1842) and The Life and Adventures of MartinChuzzlewit (1844). TEBBEL, supra note 41, at 89.

(164.) MADISON, supra note 32, at 25.

(165.) MCPARLAND, supra note 104, at 49-50. The firm paid Dickens60 [pounds sterling] for the last part of Oliver Twist, 112.10 [poundssterling] for The Old Curiosity Shop, and Other Tales, and 107.10[pounds sterling] for Barnaby Rudge. 1 THE LETTERS OF CHARLES DICKENS,supra note 106, at 322 n.2; see also BARNABY RUDGE (Philadelphia, Lea& Blanchard 1842) (1841); THE OLD CURIOSITY SHOP, AND OTHER TALES(Philadelphia, Lea & Blanchard 1841) (1841); OLIVER TWIST(Philadelphia, Lea & Blanchard 1839) (1838).

(166.) Letter from Charles Dickens to Henry Austin (May 1, 1842),in 3 THE LETTERS OF CHARLES DICKENS 228, 230 (Madeline House et al.eds., 1974). On Dickens's efforts to influence American opinion oninternational copyright, see MCGILL, supra note 48, at 109-40; andSEVILLE, supra note 151, at 165-69.

(167.) See The Dickens' Controversy, supra note 99, at 68. TheHarpers also published Dickens in book form. E.g., CHARLES DICKENS,BLEAK HOUSE (New York, Harper & Bros. 1853)

(1853); see also MCPARLAND, supra note 104, at 50, 57 (discussingthe Harpers' reprinting of Dickens in book form).

(168.) Letter from T.B. Peterson & Bros, to George W. Childs,Publisher, Am. Literary Gazette & Publishers' Circular (May 25,1867), in The Dickens' Controversy, supra note 99, at 69, 69; seealso MCPARLAND, supra note 104, at 57-60 (discussing the rights claimedin Dickens's works by the Harper and Peterson publishing firms).

(169.) See supra note 99 and accompanying text.

(170.) Letter from T.B. Peterson & Bros, to George W. Childs,supra note 168, at 69. According to a calculation employing the consumerprice index and the retail price index, the average value in 2014 of1000 [pounds sterling] from 1860 was $113,000. Computing Real Value overTime with a Conversion Between U.K. Pounds and U.S. Dollars, 1774 toPresent, supra note 91 (to locate, enter "1860" into the"Initial year" text box; enter "[pounds sterling]"and "1000" into the "Initial value" text boxes;enter "2014" into the "Desired year" text box; andthen follow the "Calculate" hyperlink).

(171.) Letter from t.B. Peterson & Bros, to George W. Childs,supra note 168, at 69; see also mcparland, supra note 104, at 58("[The Petersons] had assumed the rights to publish Dickens andwere known as Dickens's publishers,... although they had nocontractual agreement with him."). The Petersons acted on a commonbelief that courtesy rights were acquired when a firm purchased theplates or other printing materials used by a former courtesy house topublish a foreign author. This was a courtesy counterpart totransferring exclusive rights under a copyright. Whereas manyassignments of copyright in this period required a signed writing, seeEATON S. DRONE, A TREATISE ON THE LAW OF PROPERTY IN INTELLECTUALPRODUCTIONS IN GREAT BRITAIN AND THE UNITED STATES: EMBRACING COPYRIGHTIN WORKS OF LITERATURE AND ART, AND PLAYRIGHT IN DRAMATIC AND MUSICALCOMPOSITIONS 318-21 (Boston, Little, Brown & Co. 1879), courtesytransfers could be evidenced by the transfer of tangible printingassets. For example, the Boston publisher Houghton, Mifflin and Companyindicated that it had obtained courtesy rights in the English essayistThomas De Quincey's works through its parent company'stransfer of "stereotype plates." THOMAS DE QUINCEY,BIOGRAPHICAL AND HISTORICAL ESSAYS, at iv (Boston, Houghton, Mifflin& Co. 1877). In other cases, the selling of advance sheets toanother firm evidenced a transfer of courtesy rights--again the sale oftangible property standing in for the transfer of intangible rights. Seesupra notes 81, 129-30 and accompanying text.

(172.) See DRONE, supra note 171, at 343-82 (discussing numerouslawsuits involving copyright-owning authors who had bargained withpublisher-licensees).

(173.) The Dickens' Controversy, supra note 99, at 68-69; seealso MCPARLAND, supra note 104, at 57-59.

(174.) TEBBEL, supra note 41, at 89. Ticknor and Fields claimed ina trade advertisem*nt that Dickens was to receive "a copyright[that is, a royalty] on every volume of his works bearing the imprint ofMessrs. Ticknor and Fields." Important Announcement from CharlesDickens, AM. LITERARY GAZETTE & PUBLISHERS' CIRCULAR, June1,1867, at 84,84. The ad quoted Dickens as saying that he would be"retrospectively as well as prospectively ... a sharer in theprofits of [Ticknor and Fields's] Diamond Edition of [his]books." Id. (quoting Letter from Charles Dickens to Ticknor &Fields (Apr. 8,1867)).

(175.) Letter from Charles Dickens to Ticknor & Fields (Apr.16, 1867), in The Dickens' Controversy, supra note 99, at 68, 68.

(176.) Id.

(177.) The Dickens' Controversy, supra note 99, at 69.

(178.) Id.

(179.) Id.

(180.) See supra note 166 and accompanying text.

(181.) Royal Commission on Copyright, supra note 29, at 308(testimony of Thomas Henry Huxley); cf. Elsevir, International CopyrightThe Anthony Trollope Charge, BOST. HERALD, Oct. 8, 1883, reprinted inPUBLISHERS' WKLY., Nov. 24, 1883, at 809, 809 (criticizing Englishnovelist Anthony Trollope for not acknowledging substantial courtesypayments made to his English publishers).

(182.) See Groves, supra note 41, at 146 (noting that by the 1870s,the courtesy practice of purchasing advance sheets with single paymentshad been largely replaced, at least for popular works, by a voluntaryroyalty system).

(183.) See supra note 174 and accompanying text.

(184.) While Dickens felt that his courtesy ties to the Harpers hadended with the serialization of his novels, some American courtesyadherents believed that the Harpers' original payments for magazinerights created an ongoing relationship that Dickens was now flouting.The Dickens' Controversy, supra note 99, at 68-69.

(185.) Letter from Charles Dickens to Ticknor & Fields, supranote 175, at 68.

(186.) Literary Note, NATION, May 23, 1867, at 408,408.

(187.) Id.

(188.) Id.

(189.) See id.

(190.) The Dickens' Controversy, supra note 99, at 68-69.

(191.) E.g., T.B. Peterson & Bros., Great Reduction onDickens' Works: T.B. Peterson & Brothers' UniformEditions, AM. LITERARY GAZETTE & PUBLISHERS' CIRCULAR, June 1,1867, at 86, 86.

(192.) Id. Two years earlier, in 1865, the Petersons were sellingthe Illustrated Duodecimo Edition for S4 per copy, the IllustratedOctavo Edition for S2.50, the People's Duodecimo Edition for S2.50,and most of the Cheap Editions at the same price of S0.75 per copy. C.W.DENISON, ILLUSTRATED LIFE, CAMPAIGNS AND PUBLIC SERVICES OF PHILIP H.SHERIDAN app. at 1-2 (Philadelphia, T.B. Peterson & Bros. 1865).

(193.) Important Announcement from Charles Dickens, supra note 174,at 84-85.

(194.) MCPARLAND, supra note 104, at 59.

(195.) Id. at 59-62.

(196.) See TEBBEL, supra note 41, at 90 (noting that Ticknor agreedto issue Dickens's The Mystery of Edwin Drood in book form whilethe Harpers brought it out serially).

(197.) See MCPARLAND, supra note 104, at 59.

(198.) See GEORGE LIPPARD, WASHINGTON AND HIS MEN 193(Philadelphia, T.B. Peterson & Bros. 1876).

(199.) I use "grammar" here in the sense suggested byKenneth Burke: "a concern with the terms [of a system] alone,without reference to the [rhetorical] ways in which their potentialitieshave been or can be utilized in actual statements about motives."KENNETH BURKE, A GRAMMAR OF MOTIVES, at xvi (Univ. of Cal. Press 1969)(1945).

(200.) See supra Part I.A-B.

(201.) See KENNETH BURKE, A RHETORIC OF MOTIVES 41 (Univ. of Cal.Press 1969) (1950) (defining the "basic function of rhetoric"as "the use of words by human agents to form attitudes or to induceactions in other human agents").

(202.) ELLICKSON, supra note 74, at 129-30. That aspirationalstatements existed alongside courtesy punishments, supra Part I.B, isfurther proof that courtesy operated as a distinct normative system, seeELLICKSON, supra note 74, at 129-30.

(203.) See supra text accompanying note 114.

(204.) HARPER, supra note 32, at 355; see also INTERNATIONALCOPYRIGHT LAW REPORT, supra note 12, at 59 (statement of the D. VanNostrand Company) ("The moral tendencies of the better class ofAmerican publishers before the existence of the [Chace Act] induced themto pay foreign authors for their works....").

(205.) ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 315(testimony of John Tyndall).

(206.) CARLYLE, supra note 122.

(207.) See supra notes 128-36 and accompanying text.

(208.) See, e.g., EVERTON, supra note 41, at 44-47,125-27.

(209.) For praise of courtesy by a practitioner, see Holt,Competition, supra note 41, at 522-24; and Holt, supra note 34, at27-32.

(210.) See infra notes 227-65 and accompanying text.

(211.) See infra notes 232-65 and accompanying text.

(212.) See supra notes 6-9 and accompanying text.

(213.) See WINSHIP, supra note 41, at 138 (discussing courtesypublishers' direct appeal to the public to buy only their"authorized" editions of foreign authors' works); Breyer,supra note 41, at 301 (noting the advantage of proclaiming an"authorized" edition); Henry Holt, The PublishingReminiscences of Mr. Henry Holt, PUBLISHERS' Wkly., Feb. 12, 1910,at 928, 930-31 (contrasting "reputable" courtesy publisherswith the producers of "cheap reprints"); Holt, supra note 34,at 27-31 (distinguishing between honest courtesy publishers and pirate"adventurers").

(214.) The "author's" and "authorized"editions discussed in this Article are all genuine examples of courtesypublications. However, some reprints in this period may have containedspurious authorizing paratexts. See JESSICA DESPAIN, NINETEENTH-CENTURYTRANSATLANTIC REPRINTING AND THE EMBODIED BOOK 1 (2014).

(215.) E.g., ROBERT BROWNING, DRAMATIS PERSONAE 8 (Boston, Ticknor& Fields 1864) (1864) [hereinafter BROWNING, DRAMATIS PERSONAE];ROBERT BROWNING, MEN AND WOMEN, at ii (Boston, Ticknor & Fields1863) (1855); 1 ROBERT BROWNING, POEMS (eighth unnumbered page) (Boston,Ticknor & Fields 1856) (1849) [hereinafter 1 browning, poems]. For acomplete list of "Author's Editions" of Browning'sworks issued by Ticknor and its successors in interest, see LOUISEGREER, BROWNING AND AMERICA app. F at 231-43 (1952).

(216.) E.g., ELIZABETH BARRETT BROWNING, AURORA LEIGH (seventhunnumbered page) (New York, C.S. Francis & Co. 1857) (1856)[hereinafter BARRETT BROWNING, AURORA LEIGH]; ELIZABETH BARRETTBROWNING, NAPOLEON III IN ITALY AND OTHER POEMS 2 (New York, C.S.Francis & Co. 1860) (1860).

(217.) E.g., ROBERT BROWNING, BALAUSTION'S ADVENTURE:INCLUDING A TRANSCRIPT FROM EURIPIDES 4 (Boston, James R. Osgood &Co. 1871) (1871); 1 ROBERT BROWNING, The RING AND THE Book 3 (Boston,Fields, Osgood & Co. 1869) (1869).

(218.) See supra notes 80-81 and accompanying text. Louise Greerstates that in Ticknor's editions of Robert Browning, the paratexts"Author's Edition" and "From Advance Sheets""indicate that some financial arrangement was made with thepoet." GREER, supra note 215, app. F at 231.

(219.) WILLIAM BRIGGS, THE LAW OF INTERNATIONAL COPYRIGHT: WITHSPECIAL SECTIONS ON THE COLONIES AND THE UNITED STATES OF AMERICA113(1906).

(220.) E.g., RUDYARD KIPLING, MINE OWN PEOPLE (title page) (NewYork, U.S. Book Co. 1891) (1891) [hereinafter KIPLING, MINE OWN PEOPLE];RUDYARD KIPLING, SOLDIERS THREE: A COLLECTION OF STORIES SETTING FORTHCERTAIN PASSAGES IN THE LIVES AND ADVENTURES OF PRIVATES TERENCEMULVANEY, STANLEY ORTHERIS, AND JOHN LEAROYD (title page) (New York,John W. Lovell Co. 1890) (1888) [hereinafter KIPLING, SOLDIERS THREE];RUDYARD KIPLING, THE STORY OF THE GADSBYS AND UNDER THE DEODARS (titlepage) (New York, Lovell, Coryell & Co. 1891) [hereinafter KIPLING,THE STORY OF THE GADSBYS],

(221.) W.S. GILBERT & ARTHUR SULLIVAN, IOLANTHE OR THE PEER ANDTHE PERI 1 (Philadelphia, J.M. Stoddart & Co. 1882); W.S. GILBERT& ARTHUR SULLIVAN, THE PIRATES OF PENZANCE OR, THE SLAVE OF DUTY 1(Philadelphia, J.M. Stoddart & Co. 1880) [hereinafter GILBERT &SULLIVAN, THE PIRATES OF PENZANCE].

(222.) Cf. supra notes 26-27 and accompanying text.

(223.) See Hal Kanthor, Collecting American Librettos 1, 6, 8-9(2007), http://www.gilbertandsullivanarchive.org/articles/american_Iibrettos/librettos.pdf; see alsojohns, supra note 32, at 296-97 (discussing publishers' strategy ofmaking changes to a foreign text in an effort to obtain U.S. copyrightprotection).

(224.) For example, in 1889, C.W. Bardeen, a New York publisher,used the phrases "Authorized Edition" and "AuthorizedCopyright Edition" to describe different foreignorigin offerings inan advertisem*nt. C.W. Bardeen, New Books on Education, Now Ready, Am.TEACHER, Feb. 1889, at 240, 240. In 1894, the Boston publisher RobertsBrothers used the phrase "American copyright edition" toindicate foreign authors' works for which the firm had secured U.S.copyrights. Roberts Bros., Roberts' New Books: Out ToDay, CRITIC,Dec. 15, 1894, at viii, viii.

(225.) See supra notes 12-15 and accompanying text.

(226.) For a discussion of the blend of copyrighted anduncopyrighted foreign titles issued by publishers after 1891, seeINTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 36 (statement ofR.F. Fenno & Co.); id. at 42 (statement of Harper Brothers); and id.at 85 (statement of Street & Smith).

(227.) E.g., 1 CHARLES DICKENS, OUR MUTUAL FRIEND, at ii (Boston,Ticknor & Fields 1867) (1865). The statement was signed by Dickensand dated "London, April, 1867." Id. (italics omitted). Thisparatext was printed in all volumes in Ticknor's "LibraryEdition" of Dickens's works. E.g., CHARLES DICKENS, A TALE OFTWO CITIES, at iii (Boston, Ticknor & Fields 1867) (1859).

(228.) See supra Part I.C. Ticknor and Fields occasionally includedvariant authorial paratexts in their Dickens editions. For example,Child-Pictures from Dickens, which contained selections fromDickens's works, included his paratextual assurance that "thiscompilation is made for American children with my free consent."CHARLES DICKENS, CHILD-PICTURES FROM DICKENS (ninth unnumbered page)(Boston, Ticknor & Fields 1868) (1867). The volume bore a copyrightnotice in Ticknor's name, id. (eighth unnumbered page), perhapsreferring to the selection of passages and to illustrations by SolomonEytinge, Jr., an American artist who illustrated many of Ticknor'sDickens editions. The presence of both a copyright notice and a courtesyparatext was common in volumes containing unprotected foreign matter andpotentially protectable content introduced by American authors,illustrators, or publishers themselves. See supra notes 221-26 andaccompanying text. A copyright notice and Dickens's courtesyparatext appeared together on the same page of Ticknor's edition ofThe Uncommercial Traveller, and Additional Christmas Stories, whichcontained a selection of Dickens's works and illustrations byEytinge. CHARLES DICKENS, THE UNCOMMERCIAL TRAVELLER, AND ADDITIONALCHRISTMAS STORIES (thirteenth unnumbered page) (Boston, Ticknor &Fields 1868). A copyright notice and a courtesy paratext also appearedon the same page of The Readings of Mr. Charles Dickens, as Condensed byHimself, where Dickens's paratext read: "The edition bearingthe imprint of Messrs. Ticknor and Fields is the only correct andauthorized edition of my Readings." CHARLES DICKENS, THE READINGSOF MR. CHARLES DICKENS, AS CONDENSED BY HIMSELF 2 (Boston, Ticknor &Fields 1868). The volume also contained illustrations by Eytinge. Id.(seventh unnumbered page). For a discussion of Ticknor'sexperiments in obtaining U.S. copyrights for its Dickens editions inthis period, see SEVILLE, supra note 151, at 194-95.

(229.) GREER, supra note 215, at 34. American publishers oftenextended courtesy only after a foreign author had achieved popularity orsuccess. See ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 203(testimony of Thomas Henry Farrer) ("[H]owever well the author ofreputation may ... be paid, the American publisher would not be likely,without copyright, to give anything to an unknown Englishauthor.").

(230.) KHAN, supra note 26, at 280; Groves, supra note 41, at142-43.

(231.) See Groves, supra note 41, at 142-43; see also supra note215 (citing Ticknor editions of Browning's works beginning in1856).

(232.) 1 BROWNING, POEMS, supra note 215 (ninth unnumbered page).

(233.) E.g., ROBERT BROWNING, SORDELLO, STRAFFORD, CHRISTMAS-EVEAND EASTER-DAY (tenth unnumbered page) (Boston, Ticknor & Fields1864).

(234.) 1 BROWNING, POEMS, supra note 215 (ninth unnumbered page).

(235.) Id.

(236.) See ROBERT MORRISON, THE ENGLISH OPIUM EATER: A BIOGRAPHY OFTHOMAS DE QUINCEY 363-64 (2010).

(237.) See GREER, supra note 215, at 34.

(238.) THOMAS DE QUINCEY, CONFESSIONS OF AN ENGLISH OPIUM-EATER,AND SUSPIRIA DE PROFUNDIS (Boston, Ticknor, Reed & Fields 1850)(1821).

(239.) MORRISON, supra note 236, at 364.

(240.) Id.

(241.) George Saintsbury, De Quincey, MACMILLAN'S MAG., June1890, at 101, 110-12 (noting De Quincey's "ornate"style).

(242.) E.g., 1 THOMAS DE QUINCEY, HISTORICAL AND CRITICAL ESSAYS,at vi-vii (Boston, Ticknor & Fields 1864); 1 THOMAS DE QUINCEY,MEMORIALS, AND OTHER PAPERS, at v (Boston, Ticknor & Fields 1856).

(243.) For a discussion of Ticknor's courtesy payments to DeQuincey, see GREVEL LINDOP, THE OPIUM-EATER: A LIFE OF THOMAS DE QUINCEY371-72,374 (1981).

(244.) See Lawrence D. Needham, De Quincey's Rhetoric ofDisplay and Confessions of an English Opium-Eater, in RHETORICALTRADITIONS AND BRITISH ROMANTIC LITERATURE, at 48, 48-50 (Don H.Bialostosky & Lawrence D. Needham eds., 1995) (discussing DeQuincey's rhetorical taste for paradox).

(245.) ALFRED TENNYSON, THE POETICAL WORKS OF ALFRED TENNYSON, ativ (Boston, Ticknor & Fields 1861).

(246.) E.g., ALFRED TENNYSON, IDYLS OF THE KING, at ii (Boston,Ticknor & Fields 1866) (1859). Ticknor's courtesy claim onTennyson began in 1842 when the firm remunerated him for an edition ofhis work. Jeffrey D. Groves, judging Literary Books by Their Covers:House Styles, Ticknor and Fields, and Literary Promotion, in READINGBOOKS: ESSAYS ON THE MATERIAL TEXT AND LITERATURE IN AMERICA 75, 98 n.33(Michele Moylan & Lane Stiles eds., 1996); see also JUNE STEFFENSENHAGEN, TENNYSON AND HIS PUBLISHERS 180-82 (1979) (discussing paymentsTennyson received from American sales of his works).

(247.) BROWNING, DRAMATIS PERSONAE, supra note 215, at 11.

(248.) TENNYSON, supra note 245, at iv.

(249.) See GARDNER B. TAPON, THE LIFE OF ELIZABETH BARRETT BROWNING236 (1957). The Francis firm's edition of The Poems of ElizabethBarrett Browning appeared in two volumes in 1850. ELIZABETH BARRETTBROWNING, THE POEMS OF ELIZABETH BARRETT BROWNING, IN TWO VOLUMES (NewYork, C.S. Francis & Co. 1850).

(250.) BARRETT BROWNING, AURORA LEIGH, supra note 216.

(251.) TAPLIN, supra note 249, at 304-05; Samantha Matthews,Marketplaces, in THE OXFORD HANDBOOK OF VICTORIAN POETRY 655, 660(Matthew Bevis ed., 2013). C.S. Francis and Company published severalearlier volumes of Barrett Browning's poems without any indicationof a courtesy arrangement. E.g., ELIZABETH BARRETT BROWNING, PROMETHEUSBOUND, AND OTHER POEMS (New York, C.S. Francis & Co. 1851); see alsoTAPLIN, supra note 249, at 240 (noting that Francis "pirated"the poems in Prometheus Bound). Francis's edition of The Poems ofElizabeth Barrett Browning contained a preface in which she declared her"love and admiration" for "the great Americanpeople," 2 ELIZABETH BARRETT BROWNING, THE POEMS OF ELIZABETHBARRETT BROWNING, at ix (New York, C.S. Francis & Co. 1st Americaned. 1850), but gave no indication of a courtesy relationship with thefirm. Ticknor and Fields, the authorized American publisher of RobertBrowning, hoped to add Barrett Browning to its list but recognized thesuperior courtesy claim of Francis. See GREER, supra note 215, at 75.Reluctant to meddle with prior associational rights, Fields remarked toRobert Browning, "We are a funny set of christians over thewaves." Groves, supra note 41, at 143 (quoting Letter from James T.Fields to Robert Browning (Sept. 25, 1855)).

(252.) BARRETT BROWNING, AURORA LEIGH, supra note 216 (sixthunnumbered page).

(253.) BROWNING, DRAMATIS PERSONAE, supra note 215, at 11.

(254.) See, e.g., id.; TENNYSON, supra note 245, at iv.

(255.) BARRETT BROWNING, AURORA LEIGH, supra note 216 (sixthunnumbered page).

(256.) For Barrett Browning's posthumously published volumeLast Poems, Robert Browning provided a paratextual statement that drewon elements from both his and her previous courtesy paratexts: "Theright of publishing this Book in the United States having been liberallypurchased by Mr. James Miller, it is hoped that there will be nointerference with the same." ELIZABETH BARRETT BROWNING, LAST POEMS8 (NEW York, James Miller 1862) (1862). James Miller was successor toC.S. Francis and Company. Id. at 5.

(257.) See, e.g., WALTER E. HOUGHTON, THE VICTORIAN FRAME OF MIND,1830-1870, at 220-22 (1957) (discussing earnestness as a definingcharacteristic of nineteenth-century British thought).

(258.) Houghton describes Victorian earnestness and relatedqualities as pervasive, secularized products of the various strands ofevangelical reform that marked the era. Id. at 222, 242, 251-59.

(259.) See R.W.B. Lewis, THE AMERICAN ADAM: INNOCENCE, TRAGEDY, ANDTRADITION IN THE NINETEENTH CENTURY 1-12 (1955) (describing thenineteenth-century myth of American culture as innocent liberation fromEurope's tainted history and characterizing the idealized Americanself as adventurous and self-reliant).

(260.) KIPLING, THE STORY OF THE GADSBYS, supra note 220, at 1. Theedition also contained a U.S. copyright notice in the publisher'sname, id. (eighth unnumbered page), probably referring to thepublisher's selection of stories rather than to the storiesthemselves, which had been published in England prior to the Chace Actand therefore individually enjoyed no U.S. copyright, see supra notes26-27 and accompanying text.

(261.) Kipling had been outraged by Harper and Brothers'unauthorized use of his stories. Letter from Rudyard Kipling to theEditor of the Athenaeum (Nov. 8, 1890), in 2 THE LETTERS OF RUDYARDKIPLING 25, 25-26 (Thomas Pinney ed., 1990).

(262.) See generally David Alan Richards, Kipling and the Pirates,96 PAPERS BIBLIOGRAPHIC SOC'Y AM. 59, 65-77 (2002) (discussingLovell's authorized and unauthorized editions of Kipling'sworks).

(263.) See MADISON, supra note 32, at 55; Shove, supra note 100, at43-45; see also TEBBEL, supra note 41, at 148.

(264.) E.W. Martindell, A Bibliography of the Works of RudyardKipling (1881-1921), at 33 (1922) (quoting facsimile letter in KIPLING,MINE OWN PEOPLE, supra note 220). For a discussion of Kipling'sdealings with his American publishers, see seville, supra note 151, at297-99.

(265.) KIPLING, SOLDIERS THREE, supra note 220 (second unnumberedpage). This volume also bore a regular copyright notice:"Copyright, 1890, By John W. Lovell Company." Id. (fourthunnumbered page). Such notices usually did not refer to theuncopyrighted foreign work but rather to the publisher's selectionor arrangement of texts, new illustrations, or additional notes or otherfeatures. See supra notes 221-26 and accompanying text; see also supranote 228. For a reprint (with annotations) of Kipling's 1890 letterto the John W. Lovell Company, see 2 THE LETTERS OF RUDYARD KIPLING,supra note 261, at 31.

(266.) See supra notes 242-48 and accompanying text.

(267.) See SPOO, WITHOUT COPYRIGHTS, supra note 15, at 14-16(discussing the Scottish author Andrew Lang's outrage over theAmerican publisher Thomas Bird Mosher's unauthorized reprinting ofone of his uncopyrighted books in 1895 and his rejection ofMosher's post hoc offer of payment).

(268.) See Henry E. Smith, Intellectual Property as Property:Delineating Entitlements in Information, 116 Yale L.J. 1742, 1775-76,1811-12 (2007) (discussing compulsory licenses as liability rules thatpermit unauthorized uses and merely require compensation, as opposed toproperty rules that empower intellectual property owners to forbiduses).

(269.) See Eli M. Salzberger, Economic Analysis of the PublicDomain, in THE FUTURE OF THE PUBLIC DOMAIN: IDENTIFYING THE COMMONS ININFORMATION LAW 27, 31 (Lucie Guibault & P. Bernt Hugenholtz eds.,2006) (contrasting the deontological natural law paradigm ofintellectual property with the positivist incentive paradigm).

(270.) See supra notes 232, 252, 254, 257-59 and accompanying text.

(271.) See supra notes 100, 108, 158-66 and accompanying text.

(272.) MRS. HUMPHRY WARD, ROBERT ELSMERE (London, MacMillan &Co. 1888).

(273.) H. RIDER HAGGARD, CLEOPATRA: BEING AN ACCOUNT OF THE FALLAND VENGEANCE OF HARMACHIS, THE ROYAL EGYPTIAN, AS SET FORTH BY HIS OWNHAND (London, Longmans, Green & Co. 1889).

(274.) MADISON, supra note 32, at 54.

(275.) THOMAS HARDY, THE MAYOR OF CASTERBRIDGE (New York, HenryHolt & Co. 1886) (1886).

(276.) MADISON, supra note 32, at 99-100.

(277.) DUNLAP, supra note 71, at 272.

(278.) Id.

(279.) See supra note 166 and accompanying text.

(280.) W.S. GILBERT & ARTHUR SULLIVAN, THE MIKADO; OR THE TOWNOF TITIPU (New York, Wm. A. Pond & Co. 1885).

(281.) Carte v. Duff, 25 F. 183, 183-84 (C.C.S.D.N.Y. 1885).

(282.) Id:, MICHAEL KENNEDY & JOYCE BOURNE KENNEDY, D'OylyCarte, Richard, in The Oxford Dictionary of Music 242 (TimRutherford-Johnson ed., 6th ed. 2012).

(283.) See Carte, 25 F. at 183-84.

(284.) Id. at 184.

(285.) Id. at 185-87.

(286.) Id. at 186.

(287.) See supra notes 221-25 and accompanying text.

(288.) GILBERT & SULLIVAN, THE PIRATES OF PENZANCE, supra note221, at 1.

(289.) Id.

(290.) See SEVILLE, supra note 151, at 160-64, 173-74, 180-84,199-236.

(291.) Id. at 160-61.

(292.) Id. at 161-62.

(293.) JOHN FEATHER, PUBLISHING, PIRACY AND POLITICS: AN HISTORICALSTUDY OF COPYRIGHT IN BRITAIN 167(1994).

(294.) Id.

(295.) Matthew Arnold, Copyright, FORTNIGHTLY REV., Mar. 1, 1800,at 319, 331. By contrast, for much of the nineteenth century, anon-British author could obtain copyright protection in Britain if shepublished her work in the United Kingdom, there was no previouspublication, and she was within the British dominions at the time ofpublication. DRONE, supra note 171, at 230; SIMON NOWELL-SMITH,INTERNATIONAL COPYRIGHT LAW AND THE PUBLISHER IN THE REIGN OF QUEENVICTORIA 39-40 (1968). Matthew Arnold observed that American authorscould satisfy the third requirement by simply visiting England or Canadaat the time their book was published in Britain. Arnold, supra, at 331.Some English publishers attempted a kind of trade courtesy with respectto unprotected American books, but the system was not as cohesive orsuccessful as its American counterpart. George Haven Putnam, Property,Literary, in 3 CYCLOPEDIA OF POLITICAL SCIENCE, POLITICAL ECONOMY, ANDOF THE POLITICAL HISTORY OF THE UNITED STATES 392, 410 (John J. Lalored., Chicago, Melbert B. Cary & Co. 1884).

(296.) Wilf, supra note 41, at 186, 205.

(297.) GILBERT & SULLIVAN, THE PIRATES OF PENZANCE, supra note221, at 1.

(298.) Id.

(299.) Cf. BRIGGS, supra note 219, at 113 (noting that courtesyparatexts served as "a guarantee for the accuracy of thereproduction"). Nineteenth-century American publishers oftencomplained that noncourtesy books were "cheap and slovenly printedreprints," INTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 20(statement of Small, Maynard & Co.), "imperfect andinaccurate," id. at 26-27 (statement of the Burrows BrothersCompany), or marred by "the cutting out of many pages," id. at28 (statement of the Helman Taylor Company).

(300.) See LEHMANN-HAUPT, supra note 41, at 167-68 (discussingcheap, shoddy reprints in this period).

(301.) See supra note 265 and accompanying text.

(302.) See PETER BALDWIN, THE COPYRIGHT WARS: THREE CENTURIES OFTRANS-ATLANTIC BATTLE 225-26, 235-40 (2014) (discussing the attenuatedprotection for moral rights in the United States and Britain, incontrast to the robust protection in continental Europe).

(303.) GILBERT & SULLIVAN, THE PIRATES OF PENZANCE, supra note221, at 1.

(304.) SEVILLE, supra note 151, at 29.

(305.) Letter from Harper & Bros, to Henry C. Lea (Mar. 13,1884), quoted in HARPER, supra note 32, at 431, 431-32.

(306.) See supra notes 12-15 and accompanying text. Trade courtesyanticipated the Chace Act by effectively confining book manufacturing tothe United States.

(307.) GILBERT & SULLIVAN, THE PIRATES OF PENZANCE, supra note221, at 1.

(308.) See Lemley, supra note 28, at 468 (discussing howintellectual property rights create artificial scarcity in publicgoods).

(309.) See INTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at22, 36, 43, 54, 77, 79-81, 84-87 (presenting statements of variousAmerican publishers concerning the benefits of pre-1891"piracy" to purchasers and book manufacturers).

(310.) Id. at 11-13, 22, 25-26, 36, 43, 45, 47, 50, 54, 66-67,71-73, 76, 78-79, 82-83, 85-87 (presenting statements of variousAmerican publishers concerning increases in the price of foreign worksprinted in the United States after enactment of the 1891 Chace Act).

(311.) Letter from Harper & Bros, to Wilkie Collins (Feb.1877), quoted in Harper, supra note 32, at 392, 393.

(312.) T.B. Macaulay, A Speech Delivered in the House of Commons onthe 5th of February, 1841, in 1 SPEECHES OF THE RIGHT HONORABLE T.B.MACAULAY, M.P. 273, 279 (Leipzig, Bernhard Tauchnitz copy. ed. 1853).

(313.) GILBERT & SULLIVAN, The Pirates of Penzance, supra note221, at 1.

(314.) See Groves, supra note 41, at 140, 146 (discussing thecharge that courtesy was a price-inflating trust); see also MADISON,supra note 32, at 52 (discussing the same).

(315.) SeeLemley, supra note 28, at 466-67.

(316.) It is difficult to say whether and to what extent tradecourtesy resulted in monopolistic pricing of foreign authors' worksabsent an extensive empirical study of book prices in the nineteenthcentury--a task beyond the scope of this Article. There is anecdotalevidence that the 1891 Chace Act had little or no impact on the price ofmost books in the United States--a fact that, if true, might suggestthat courtesy and copyright had similar effects on book pricing. SeeINTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 23 (statement ofA.C. McClurg & Co.); id. at 45 (statement of the S.S. McClureCompany); id. at 58 (statement of the Frederick A. Stokes Company); seealso id. at 20 (statement of Small, Maynard & Co.) ("The pricefor a well-made standard book would probably be about the same [in 1900as before the Chace Act], since scrupulous [courtesy] publishers havebeen quite generally in the habit of making some compensation to aforeign author, even in the absence of copyright."). But the samereport offers anecdotal evidence that the Chace Act caused book pricesto rise--a fact that, if true, might suggest that courtesy pricing wasnot significantly monopolistic. See id. at 22 (statement of the BlakelyPrinting Company); id. at 36 (statement of R.F. Fenno & Co.); id. at63 (statement of Drexel Biddle); see also id. at 47 (statement of thePublishers' Printing Company) ("The book-purchasing public hasnot been at all benefited by the [Chace Act], as they are certainlyobliged to pay a larger price for copyrighted books than they paidformerly when pirate [courtesy?] publishers were able to produce booksat a much lower rate than that at which they are now sold."). Thereport provides rather ambiguous data on book pricing because itformulated its questions in terms of the difference between"copyright law" and "piracy" without clearlycontrolling for courtesy. See id. at 8-9. It is therefore unclearwhether the respondents were measuring the effects of the Chace Actagainst courtesy practices or unqualified piracies, or some blend of thetwo.

(317.) See infra notes 342-47 and accompanying text.

(318.) TEBBEL, supra note 41, at 148-49; Groves, supra note 41, at146-47.

(319.) Groves, supra note 41, at 146 (quoting MADISON, supra note32, at 53).

(320.) MADISON, supra note 32, at 53.

(321.) "The Evening Post's" Libel Suit, supra note59, at 360 (quoting testimony of Henry Holt).

(322.) See John W. Lovell, Letter to the Editor, The CanadianIncursion, Publishers' Wkly., Apr. 19, 1879, at 470, 471(criticizing courtesy as disadvantaging newer, smaller publishers andsometimes the public).

(323.) See id.

(324.) Id. at 470.

(325.) I.K. Funk & Co., Letter to the Editor, Foreign Authorsand "the Standard Series," PUBLISHERS' WKLY., May 15,1880, at 499, 499.

(326.) Sherman Act, ch. 647, 26 Stat. 209 (1890) (codified asamended at 15 U.S.C. [section][section] 1-7 (2015)).

(327.) 15U.S.C.[section][section] 1-2.

(328.) Mark A. Lemley & Christopher R. Leslie, CategoricalAnalysis in Antitrust Jurisprudence, 93 IOWA L. REV. 1207, 1219-20(2008).

(329.) United States v. Addyston Pipe & Steel Co., 85 F.271,272, 291 (6th Cir. 1898).

(330.) Id. at 292-93.

(331.) Id. at 292-94.

(332.) ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 273(testimony of Thomas Henry Farrer) (quoting a letter received from anAmerican publisher).

(333.) SHEEHAN, supra note 41, at 59 (quoting G.H.P. & J.B.P.,AUTHORS AND PUBLISHERS: A MANUAL OF SUGGESTIONS FOR BEGINNERS INLITERATURE 72 (New York, G.P. Putnam's Sons 7th ed. 1897)).

(334.) See, e.g., GREER, supra note 215, at 75 (noting that whenRobert Browning in 1854 suggested that his American publisher, Ticknorand Fields, publish a poem by his wife, Elizabeth Barrett Browning,Ticknor refused because C.S. Francis and Company had already beenpublishing Barrett Browning). The publisher Henry Holt urged his editorsnot to pursue authors associated with other houses; such practices, heremarked, were "utterly opposed to my habits and old-fashionedsense of dignity of the business." Madison, supra note 32, at225-26.

(335.) Lemley, supra note 28, at 467-68.

(336.) U.S. CONST, art I, [section] 8, cl. 8.

(337.) For a discussion of the Fashion Originators' Guild, seeKal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovationand Intellectual Property in Fashion Design, 92 Va. L. Rev. 1687,1697-98(2006).

(338.) See Fashion Originators' Guild of Am., Inc. v. FTC, 312U.S. 457,461 (1941).

(339.) Id. at 461-62.

(340.) Id. at 465.

(341.) Id.

(342.) E.g., Letter from Harper & Bros, to M.O.W. Oliphant,supra note 81, at 358 ("It must be remembered ... that in view ofpossible competition [from lawful pirates], [American publishers']prices for English reprints must be low...."); see also HARPER,supra note 32, at 113 ("[I]t was necessary to keep the prices offoreign books as low as possible so as not to invitecompetition."); LEHMANN-HAUPT, supra note 41, at 165 (describing"bitter price-cutting battles" and "ridiculous prices,sometimes as low as twenty or even ten cents for an entire novel").

(343.) For courtesy publishers' practice of reducing bookprices as a sanction for unauthorized reprinting of their titles, seenotes 144-53, 311 and accompanying text above. For the generalprice-reducing effects of lawful piracy in the book trade, see notes309-10 and accompanying text above.

(344.) See Sheldon v. Houghton, 21 F. Cas. 1239,1241-42(C.C.S.D.N.Y. 1865) (No. 12,748).

(345.) See supra notes 318-25 and accompanying text.

(346.) See INTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 41(statement of Harper Brothers) ("In the absence of internationalcopyright, the works of foreign authors were printed at low prices, witha view to discouraging competition."); Plant, supra note 41, at 173(noting that "the low-price policy which the American publishersadopted" served as a check on rival reprinting of books); cf.Breyer, supra note 41, at 306 n.96 ("Without copyright protection,the threat of competition should force down the price of subsequentprinting of popular texts.").

(347.) Cf. Letter from Harper & Bros, to Wilkie Collins, supranote 311, at 393 (noting that "the people are benefitedoccasionally" when multiple publishers reprint the same book).

(348.) See supra notes 314-40 and accompanying text.

(349.) See supra notes 314-25 and accompanying text.

(350.) See supra notes 326-40 and accompanying text.

(351.) See supra notes 12-15 and accompanying text.

(352.) See MADISON, supra note 32, at 59-60; see also Jaszi &Woodmansee, supra note 26, at 95.

(353.) ROYAL COMMISSION ON COPYRIGHT, supra note 29, at 210(testimony of Thomas Henry Farrer).

(354.) See, e.g., LEHMANN-HAUPT, supra note 41, at 210 ("TheAmerican publisher of an English book [after the Chace Act] was notdependent any more upon the good will of his colleagues, but he couldrely on the government's legal protection."); SHEEHAN, supranote 41, at 73 ("After 1891, payment for advance sheetssubstantially disappeared, and pirates vanished with them.").

(355.) For remarks by various American publishers suggesting thatforeign authors effectively lacked U.S. copyright protection even afterpassage of the Chace Act, see International COPYRIGHT LAW REPORT, supranote 12, at 17, 58, 74. See also id. at 19, 29, 55, 64 (presentingstatements by various American publishers that the Act'smanufacturing requirements made it difficult for foreign authors toobtain U.S. copyrights); BRIGGS, supra note 219, at 114 (noting that theChace Act was "taken advantage of only in particular cases"because of the manufacturing costs it imposed on foreign authors).

(356.) See INTERNATIONAL COPYRIGHT LAW REPORT, supra note 12, at 17(statement of L.c. Page & Co.) (noting, with respect to the ChaceAct's manufacturing requirements, that "American publisherswill not make arrangements for buying the American market [forpublishing a foreign work] unless they are very certain of the successof the book in question"); see also id. at 63 (statement of DrexelBiddle) ("[I]t sometimes happens that under the presentrequirements of the American copyright law American publishers losecopyrights for themselves and for their authors, American as well asforeign.").

(357.) See supra notes 12-15 and accompanying text.

(358.) See spoo, WITHOUT COPYRIGHTS, supra note 15, at 79-80,108.

(359.) Id. at 108; see also id. at 107-15.

(360.) Groves, supra note 41, at 147.

(361.) For a discussion of the role of literary agents in erodingthe associational practices of courtesy, see spoo, WITHOUT COPYRIGHTS,supra note 15, at 58-59.

(362.) See supra notes 355-58 and accompanying text.

(363.) See supra notes 26-27 and accompanying text.

(364.) See SPOO, WITHOUT COPYRIGHTS, supra note 15, at 90-107(describing noncourtesy stratagems employed to obtain U.S. copyright forforeign authors in the early twentieth century).

(365.) JAMES JOYCE, ULYSSES (1922).

(366.) United States v. One Book Called "Ulysses," 5 F.Supp. 182, 185 (S.D.N.Y. 1933), affd, 72 F.2d 705 (2d Cir. 1934).

(367.) JAY A. GERTZMAN, BOOKLEGGERS AND SMUTHOUNDS: THE TRADE INEROTICA, 1920-1940, at 31-32, 228, 235 (1999) (discussing open andunderground piracies of Ulysses); Joseph M. Hassett, THE ULYSSES TRIALS:BEAUTY AND TRUTH MEET THE LAW 125-29 (2016) (noting Cerfs goal of beingthe authorized American publisher of a lawful edition of Ulysses).

(368.) One Book Called "Ulysses," 5 F. Supp. at 185.

(369.) For the foregoing details, drawn from a longer discussion ofthe Ulysses litigation, see SPOO, WITHOUT COPYRIGHTS, supra note 15, at233-62. For other accounts of the litigation, see JOSEPH KELLY, OURJOYCE: FROM OUTCAST TO ICON 85-140 (1998); Paul VANDERHAM, JAMES JOYCEAND CENSORSHIP: THE TRIALS OF ULYSSES 115-49 (1998); and Robert Spoo,Judging Woolsey Judging Obscenity: Elitism, Aestheticism, and theReasonable Libido in the Ulysses Customs Case, 50 James Joyce Q. 1027,1027-33 (2013). See generally THE UNITED STATES OF AMERICA V. ONE BOOKENTITLED ULYSSES BY JAMES JOYCE: DOCUMENTS AND COMMENTARY--A 50-YearRetrospective (Michael Moscato & Leslie LeBlanc eds., 1984)[hereinafter ulysses retrospective] (reproducing the texts of letters,litigation documents, and other materials bearing on the Ulysses case).

(370.) Morris L. Ernst, Foreword to JOYCE, supra note 44, at vii,vii-viii.

(371.) The Monumental Decision of the United States District CourtRendered December 6, 1933, by Hon. John M. Woolsey Lifting the Ban on"Ulysses," in JOYCE, supra note 44, at ix, ix-xiv [hereinafterMonumental Decision],

(372.) A Letter from Mr. Joyce to the Publisher, Reprinted in ThisEdition by Permission of the Author, m JOYCE, supra note 44, at xv,xv-xvii [hereinafter A Letter from Mr. Joyce],

(373.) For other "no obscenity" paratexts, see HavelockEllis, Commentary to RADCLYFFE HALL, THE WELL OF LONELINESS (eleventhunnumbered page) (Covici Friede 1929) (1928); Morris L. Ernst, Forewordto THE DECAMERON OF GIOVANNI BOCCACCIO, at xxi, xxi-xxii (John Paynetrans., Modern Library 1931) (1353); Morris L. Ernst, Preface to MarieCARMICHAEL STOPES, ENDURING PASSION: FURTHER NEW CONTRIBUTIONS TO THESOLUTION OF SEX DIFFICULTIES, at xvii, xvii-xxi (Blue Ribbon Books 1931)(1928); and Publisher's Note to Hall, supra (first to fourthunnumbered page).

(374.) See, e.g., Ernst, supra note 370, at vii ("Writers needno longer seek refuge in euphemisms. They may now describe basic humanfunctions without fear of the law."); Monumental Decision, supranote 371, at xii ("[W]hen such a real artist in words, as Joyceundoubtedly is, seeks to draw a true picture of the lower middle classin a European city, ought it to be impossible for the American publiclegally to see that picture?").

(375.) Prior to Judge Woolsey's decree, two courts had foundUlysses wholly or partially obscene. In 1921, the New York Court ofSpecial Sessions convicted two editors of publishing obscenity inviolation of New York law when they issued an excerpt from Ulysses intheir magazine. David Weir, What Did He Know, and When Did He Know ItThe Little Review, Joyce, and Ulysses, 37 james joyce Q. 389, 394-95,400 (2000). Several years later, the U.S. Customs Court upheld theseizure, for obscenity, of several copies of Ulysses at a port inMinnesota. Heymoolen v. United States, 54 Treas. Dec. 119 (Cust. Ct.1928), in ULYSSES RETROSPECTIVE, supra note 369, at 142,142-44. For adiscussion of the Ulysses cases and the changing obscenity law, seeStephen Gillers, A Tendency to Deprave and Corrupt The Transformation ofAmerican Obscenity Law from Hicklin to Ulysses II, 85 Wash. U. L. Rev.215,250-95 (2007).

(376.) See generally EDWARD DE GRAZIA, GIRLS LEAN BACK EVERYWHERE:THE LAW OF OBSCENITY AND THE ASSAULT ON GENIUS, at xi-xiv, 3-53 (1992)(surveying government censorship of literature in the early twentiethcentury); CHARLES REMBAR, THE END OF OBSCENITY: THE TRIALS OF LADYCHATTERLEY, TROPIC OF CANCER AND FANNY HILL 3-26 (Andre Deutsch 1969)(1968) (surveying the same).

(377.) For detailed discussions of Joyce's inability to obtaina copyright for Ulysses in the United States, see Spoo, WITHOUTCOPYRIGHTS, supra note 15, at 156-65; and Spoo, Copyright Protectionism,supra note 15.

(378.) Cerf expressed these fears in a letter to Robert Kastor, abusinessman at the firm Sartorius and Smith, dated March 22, 1932. Forthe text of this letter, see ULYSSES RETROSPECTIVE, supra note 369, at102-04. See also Spoo, Without Copyrights, supra note 15, at 236-40(discussing Cerf s fears of lawful piracy of Ulysses).

(379.) A Letter from Mr. Joyce, supra note 372, at xvii.

(380.) Id. at xvi.

(381.) Id. at xvii.

(382.) See supra notes 232-35, 252-59 and accompanying text.

(383.) A Letter from Mr. Joyce, supra note 372, at xvii.

(384.) For a discussion of Cerfs exploitation of the courtesytradition to obtain informal protection for Ulysses, see SPOO, WITHOUTCOPYRIGHTS, supra note 15, at 245-57.

(385.) Id. at 255-57. It was not until the late 1960s that ap*rnographic publisher in California issued an unauthorized edition ofUlysses, complete with advertisem*nts for racy paperbacks, nudephotographs, and sexual devices. Id. at 257-59.

(386.) For example, in the early 1970s, editors at Harper and Rowrequested courtesy treatment for Sylvia Plath's The Bell Jar whenthey learned that Random House planned to issue the uncopyrighted novelin America. Random House ceded the volume to Harper and Row. FrancesMcCullough, Foreword to SYLVIA PLATH, THE BELL JAR, at ix, xii-xiii(Harper Perennial Modern Classics deluxe ed. 2006) (1963).

(387.) E.g., J.R.R. TOLKIEN, THE FELLOWSHIP OF THE RING (Ace Books,Inc. 1965) (1954).

(388.) One court held that a U.S. copyright in The Lord of theRings had not been invalidated for failure to include copyright noticesin copies of the trilogy. Eisen, Durwood & Co. v. Tolkien, 794 F.Supp. 85, 88 (S.D.N.Y. 1992), affd 990 F.2d 623 (2d Cir. 1993). But seeJoseph Ripp, Middle America Meets Middle-Earth: American Publication andDiscussion of J.R.R. Tolkien's Lord of the Rings, 1954-1969, at25-33 (Nov. 2003) (unpublished M.S. thesis, University of North Carolinaat Chapel Hill), https://ils.unc.edu/MSpapers/2908.pdf (discussing legaldifficulties for U.S. copyright protection of Tolkien's trilogy).

(389.) J.R.R. TOLKIEN, THE FELLOWSHIP OF THE RING (Houghton Mifflin1954) (1954); see also Ripp, supra note 388, at 35 (discussing theprices of the Ace and Houghton Mifflin volumes).

(390.) J.R.R. TOLKIEN, THE HOBBIT (Ballantine Books 1965) (1937).For the Ballantine edition of The Lord of the Rings, see note 45 above.

(391.) Ripp, supra note 388, at 35-37.

(392.) Id. at 37-40.

(393.) Tolkien, The Two Towers, supra note 45 (back cover).Now-Justice Stephen Breyer noted the lack of U.S. copyright protectionfor Tolkien's trilogy and observed that Tolkien's approvedpublisher "reaped some advantage by proclaiming his the'authorized edition.'" Breyer, supra note 41, at 301n.83.

(394.) See supra notes 232-35, 252-59 and accompanying text.

(395.) In furtherance of his antipiracy campaign, Tolkien wrotedirectly and individually to many of his American fans to alert themthat Ace Books was an unauthorized reprinter and to urge them to telltheir friends. HUMPHREY CARPENTER, J.R.R. TOLKIEN: A BIOGRAPHY 229(1977). American readers began to demand that booksellers refuse tocarry the Ace Books editions; the Tolkien Society of America and theScience Fiction Writers of America also took up the cause. Id. In theend, Ace Books sent Tolkien a "courteous" letter voluntarilyoffering to pay him a 4% royalty on sales of its remaining stock ofTolkien books. See Letter from J.R.R. Tolkien to W.H. Auden (Feb.23,1966), in Letters of J.R.R. Tolkien 367,367 (Humphrey Carpenter ed.,1981).

(396.) See Oliar & Sprigman, supra note 37, at 1860. For othercommunities that employ informal norms to discourage copying ofunprotected public goods, see notes 37-40 and accompanying text above.

(397.) Holt, Competition, supra note 41, at 522-23.

Robert Spoo, Chapman Distinguished Professor, the University ofTulsa College of Law, and 2016 Guggenheim Fellow; B.A., LawrenceUniversity; M.A., Ph.D., Princeton University; J.D., Yale University. Iwould like to thank the following individuals for their valuablecomments on earlier versions of this Article: Chuck Adams, ElizabethAnker, Oren Bracha, Michael Everton, Joseph A. Kestner, Mitch Lasser,Oskar Liivak, Tamara Piety, Graham Reynolds, Paul K. Saint-Amour, ChrisSprigman, Simon Stern, Eva Subotnik, Gerald Torres, Michael Winship, andthose who attended workshops and presentations at Cornell Law School andthe Allard School of Law at the University of British Columbia.

Caption: Figure 1 Author's Edition Paratext in RobertBrowning, The Ring and the Book (Boston, Fields, Osgood & Co. 1869)

Caption: Figure 7 Facsimile Letter Paratext in Rudyard Kipling,Soldiers Three (New York, John W. Lovell Co. 1890)

Caption: Figure 8 Full-Page Courtesy Paratext in Gilbert andSullivan, The Pirates of Penzance (Philadelphia, J.M. Stoddart & Co.1880)

Caption: Figure 11 Courtesy Paratext on Back Cover of J.R.R.Tolkien, The Two Towers (Ballantine Books 1965)