Copyright, competition, and the first English-language translations of 'Les Miserables' (1862).

• Author: Hoffheimer, Michael H.

1. INTRODUCTION II. GENESIS AND FORM OF HUGO'S NOVEL III. COPYRIGHT PROTECTION OF LITERARY TRANSLATION IN ENGLAND AND THE UNITED STATES A. Domestic Protection B. International Protection IV. ENGLISH-LANGUAGE TRANSLATIONS A. Charles E. Wilbour B. Lascelles Wraxall and the "Authorized English Translation" C. Pooley's American copy of Wraxall D. Defects of the "Authorized Translation" E. Supplementing Wraxall F. The Confederate Piracy V. BATTLE OF THE BOOKS EPILOGUE APPENDIX I. INTRODUCTION

   After 150 years, Victor Hugo's Les Miserables (1862) still ranks as one of the great hits in publishing history. (1) It has reached generations of English language readers through five separate translations (2) and found vast new audiences through abridgements, sequels, stage adaptations, comic books, films, and musicals. Hugo's critique of the injustice wrought by legal institutions has appealed with particular force to judges, lawyers, and members of the legal academy. Hundreds of law review articles and scores of judicial opinions quote passages from the novel or refer to familiar characters or events in it. (3)

   This Article explores the early history of Les Miserables in England and the United States, focusing on English-language translations that were published from 1862 to 1882. Drawing on the emerging field of the history of the book, (4) it pays close attention to the physical embodiments of the translated texts, considering distinguishing details of individual imprints, such as typography, printing, and binding. (5) This printing history provides important evidence of how Les Miserables was actually purchased and read by readers and reveals how publishers responded to the legal restrictions imposed by the different copyright regimes in Britain and the United States.

   This Article has two aims. First, it seeks to reconstruct a seminal event in nineteenth-century culture by focusing attention on the legal conditions that confronted commercial publishers. This historical research yields some modest new discoveries in print history and results in the first sustained legal historical discussion of the impact of copyright law on a specific literary translation. Second, this Article deviates from the descriptive work of academic history in considering possible lessons to be drawn from publishing history that are relevant to contemporary debates about the scope of copyright law.

   Part II provides essential background for understanding the challenges facing translators and publishers of Les Miserables. It summarizes the history of Hugo's composition of the novel and his intentions regarding the format of its publication. This Part's description of the physical form and internal organization of the work provides the foundation for subsequent discussions of the manner in which particular translations departed from the original novel.

   Part III examines the scope of copyright protection for literary translations during the nineteenth century. It examines how British and U.S. law in the 1860s accorded foreign authors significantly different rights to control the translation of their writings.

   Part IV describes the translation, publishing, and marketing of the first two English-language translations of Les Miserables. This Part shows how the different copyright regimes in Britain and the United States decisively affected the translations that were available, the physical form of the books, and their cost.

   Part V surveys the print history of translations of Les Miserables from 1862 to 1882 and shows how the American translation in various forms came to dominate the market both in the U.S. and in Britain. The Epilogue considers the fate of translations as a test case for evaluating the impact of copyright laws on the publication and marketing of books. (6)

   This Article argues that the exclusive right to translate literary works in Britain encouraged the production of expensive multi-volume books that contained a demonstrably inferior "authorized" translation. When the London publisher exhausted demand for high-priced multi-volume sets of its translation, even before the copyright term expired, it simply ceased publishing the complete translation and turned to publishing abridgments. In contrast, the lack of exclusive copyright for translations in the United States created an open market where each translator's work was protected, but not at the cost of prohibiting other translations. This legal environment encouraged two New York publishers to offer English translations. One publisher commissioned an original American translation by Charles E. Wilbour that proved to be superior to the British translation. A second publisher rushed into print with an inexpensive one-volume format of the British translation.

   In fierce competition for volume sales, U.S. publishers' advertisements alerted readers to defects in the British translation. This forced the New York publisher of the British translation to make substantial corrections to the British translation published in the U.S. Consequently, two good translations became widely available in the U.S. by 1863, and the American reprint of the British translation disappeared from the market within a few years.

   American readers could readily buy affordable, complete translations. In contrast, readers in British territory initially had access only to the defective, uncorrected British translation that was printed in an expensive multi-volume format, unaffordable to most readers, (7) and soon out of print. With the expiration of the copyright term, British readers were still limited to choosing between abridgments of the British translation and reprints of incomplete forms of the American translation.

   This Article's analysis of the influence of legal regimes on the dissemination of one classic work of law and literature supports broader conclusions about the effects of copyright on the production and marketing of translations during a formative period in American intellectual history. It confirms Meredith McGill's observation that "copyright law's uneven disposition of property rights in texts did much to shape the distinctive character of American publishing." (8) And it presents a compelling case that a legally informed history of publishing provides important context for understanding the history of literature.

2. GENESIS AND FORM OF HUGO'S NOVEL

   Hugo was already a celebrated poet and playwright when he began composing the novel in 1845. He ceased working on it in 1848, carried the manuscript into exile in 1851, resumed work in 1860, and completed the novel on June 30, 1861. Between 1845 and 1861, Hugo evolved from a conservative loyal to the Restoration monarchy into a republican committed to progressive and egalitarian social reform. For over a century, scholars have explored the impact of the author's ideological transformation on the changing form of his novel.

   The work's origins lie in the heyday of the French serial novel and reveal the influence of Eugene Sue's Les Mysteres de Paris (1842-43), an immensely popular work that spawned a host of imitators. Sue's noble protagonist dons a series of disguises and pseudonyms to live in the midst of the lowest classes in Paris, and Sue graphically presents misere--the misery associated with abject poverty, crime, and abuse. While Hugo had previously treated crime and poverty in short works like CLAUDE GUEUX (1834), Sue inspired him to undertake a sustained treatment of social dystopia. Vargas Llosa observes that Hugo "cannibalize[d]" (9) Sue's novel. Traces of Sue's work in Les Miserables include Hugo's title, use of underworld slang, and even street names. From Fantine's tooth-extraction to Jean Valjean's dream of a lost brother, Hugo borrowed details of character and plot from Sue that would have been familiar to contemporaries. (10)

   Nevertheless, when Hugo resumed work on Les Miserables in 1860, he was committed for both artistic and marketing reasons to publishing the novel as an integral text. As published, the work comprised five separate parts composed of numbered, titled "books." Books were subdivided into numbered and titled chapters. (11) Large single-volume editions with double columns, evocative of family bibles, appeared within a couple of years.

   Hugo later made only minor changes to the text. The most visible were his substitution after 188112 of full names for place names designated by initial letters in earlier editions. Thus, "D" became "Digne" after 1881.13

3. COPYRIGHT PROTECTION OF LITERARY TRANSLATION IN ENGLAND AND THE UNITED STATES

   1. Domestic Protection

      Through An Act for the Encouragement of Learning, also called the Statute of Anne or Copyright Act of 1710, (14) Parliament extended to authors the exclusive privilege to print their works for fourteen years. (15) The drafters of the Constitution had this model in mind when they authorized Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (16)

      The Act of 1710 was modeled on patent laws and expressed the eighteenth-century theory that authors' rights arose from the process of original creation. (17) The U.S. Constitution similarly amalgamated copyright and patent rights. Translation posed a particular challenge to the original-creation theory. First, to the extent translation was considered an original literary process, it raised the question of whether an author should be able to control the translation of his or her own work. Second, to the extent translation was derivative and not original, it raised the question of whether a translation itself could be copyrighted.

      The British statute did not address translation, but Lord Chancellor Eldon found in Wyatt v. Barnard (18) that a translated work was protected on the ground that every new translation is an original work. (19) Leading treatises disseminated the more general doctrine...