Table of Contents Introduction I. American Piracy, Public Goods, and Trade Courtesy A. Trade Courtesy: Entitlements B. Trade Courtesy: Punishments C. The Dickens Controversy II. Courtesy Paratexts: Binding Norms in Authorized American Editions III. Gilbert and Sullivan's Paratext: Courtesy Rationalized IV. Monopolistic Practices and the Decline of Trade Courtesy V. Paratextual Ghosts of Courtesy: James Joyce and J.R.R. Tolkien Conclusion Introduction
The French literary theorist Gerard Genette famously described paratexts--book titles, prefaces, epilogues, and the like--as verbal productions that "surround ... and extend [the text proper], precisely in order to present it,... to make [it] present, to ensure the text's presence in the world, its 'reception' and consumption 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 the possibility of either stepping inside or turning back." (2) It operates as a zone of both "transition" and "transaction," a "privileged place ... at the service of a better reception for the text and a more pertinent reading of it." (3) So conceived, the paratext is a space that promotes informed consumption, that beckons without force or fraud, preparing the reader's experience of the text or, sometimes, reshaping the reading experience once completed. Paratexts of this sort propose a transaction supported by consideration on both sides: a promise of textual pleasure in exchange for full readerly performance. They are a kind of prospectus or invitation. They hang a shingle or put out a welcome mat.
But there is another kind of paratext that seeks to discourage certain transactions with the text. It sets strict conditions for the reader's textual tenancy. Many contemporary works of fiction carry in their front matter something like the following: "This is a work of fiction. Any resemblance to actual persons living or dead, events, or locales is entirely coincidental." (4) This disabusing paratext appeals to the reasonableness of readers in the vestibule, asking them to respect the difference between imagination and reality and to avoid crude attempts to convert fictional characters into real persons. (5) It urges the deluded, the literal-minded, and the thin-skinned to put aside their instinct to sue for libel or privacy invasion and instead play the author'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 States and other Anglophone countries, at least) and often followed by a formulaic parade of prohibited acts of reproduction, adaptation, distribution, and the like. (7) Whereas the "all characters are fictitious" paratext discourages a faulty reading practice, the barking dog of "all rights reserved" warns against trespasses on authorial property. The copyright notice does not concern itself with the reader's experience of the text so much as with discouraging the reader from consuming the text in unauthorized and potentially unlawful ways. Although traditional copyright law has emphasized the role of the copyright notice in establishing the year of publication (formerly a critical legal fact in the United States (8)) and protecting members of the public from becoming unwitting infringers, (9) it seems safe to say that from the author and the publisher's point of view, the copyright notice and the accompanying prolix recitation of prohibited acts simply serve as a "no trespass" sign. Both the copyright notice and the "all characters are fictitious" paratext are negative injunctions in this respect. They place boundaries around the text's presence in the world and seek to educate readers in the proper use of the work and its contents, so that readerly misprision does not convert a desired transaction into unwanted legal conflict. These paratexts play no role in enhancing the reader's textual pleasure or guiding her interpretive activity; they merely urge or command the reader to avoid certain disapproved uses of the work.
A close cousin of the ubiquitous copyright notice is the familiar declaration, 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 avowals do not attest to the national pride of bookmakers but rather derive from a period in American publishing when U.S. copyright protection turned on strict compliance with the statutory requirement that books be physically manufactured on U.S. soil. Beginning with the International Copyright Act of 1891 (Chace Act), authors, foreign and domestic, could obtain a U.S. copyright only by having their books manufactured from type 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 foreign origin from the manufacturing requirements, the Act retained those requirements for most other works, including foreign books and periodicals written in English. (13) For those works, the relevant clause was even more stringent than its 1891 predecessor. Whereas the Chace Act had specifically mandated domestic typesetting, the 1909 Act increased the burden by requiring that printing and binding also be performed within the United States. (14) The clear legislative purpose in both cases was to protect American book manufacturers from the competitive effects of foreign bookmaking and imported books. (15)
Today, U.S. copyright protection arises automatically with the creation of a work, or, to use the jargon of the 1976 Copyright Act, when the work is fixed with sufficient permanence in a "tangible medium of expression ... under the authority of the author." (16) Enjoyment of U.S. copyright protection by domestic and foreign authors no longer depends on American manufacture or other formalities but rather extends in the case of published works to every national and domiciliary of the United States and its treaty nations, as well as to certain other authors. (17) Until the 1950s, (18) however, the recitations "Manufactured in the United States" and "Printed in the United States" were true legal paratexts, (19) informing governmental authorities and potential unauthorized reprinters that the manufacturing requirements had been satisfied by tribute paid to American book artisans. Unlike copyright notices, these paratextual avowals did not warn readers to avoid certain ways of consuming the text; they were not addressed to ordinary readers at all. Instead, they announced the lawfulness of the text itself. Today, these phrases are vestigial, a kind of small talk or phatic communion that conveys no legally relevant message. (20) They are fossil paratexts. (21)
In their day, these manufacturing declarations, like the copyright notice (22) and the "all characters are fictitious" recitation, could properly be called legal paratexts. Legal paratexts have enjoyed a rich and varied history in publishing. As early as 1851, in his preface to The House of the Seven Gables, Nathaniel Hawthorne wittily 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 the author's own making, or, at all events, of his own mixing" and that it would be "an inflexible and exceedingly dangerous species of criticism [to bring the author's] fancy-pictures almost into positive contact with the realities of the moment." (23) Hawthorne's dual purpose was to discourage claims of libel and to assert the primacy of the nonrealistic and the imaginary in his aesthetic craft--to make literary autonomy double as a shield against legal harassment. (24) His threshold paratext served both to prepare the aesthetic experience of readers and to steer them away from the courthouse doors. (25)
Though we are often unaware or only barely aware of it, legal or law-related paratexts crowd the vestibules of the books we read; in many cases, they are invisible paratexts, easily skipped, thought of--if at all--as part of the text's standard throat-clearing. The "all characters are fictitious" paratext and the other paratextual forms mentioned above deserve a full and lengthy treatment, but this Article focuses on one particular form of legal or legitimizing paratext that gained currency in American publishing during the nineteenth century. This paratext, the courtesy paratext, was a direct response to the failure 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 protection for the works of foreign authors. (26) Even after passage of the Chace Act in 1891, the Act's strict manufacturing clause, which effectively required foreign works to be typeset, printed, and published on 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 poetry among American readers during the nineteenth century, American publishers faced a public goods problem: the availability of free literary resources from abroad appealed to publishers, but the lack of U.S. copyright protection for those resources invited lawful free riding. (28) To prevent market failure for foreign titles, the major publishing houses in New York, Philadelphia, and Boston entered into "a kind of tacit understanding" (29) to divide this literary commons among themselves. Each publisher claimed informal exclusive rights to certain works or authors, while the other participating publishers recognized these rights by "courtesy" and forbore to reprint courtesy-protected titles. (30) This practice, which by...