AuthorBiggs, H. Parkman

INTRODUCTION I. UNDERSTANDING THE AUTHOR'S RELATIONSHIP TO HIS WORK II. CERVANTES AND THE 16TH CENTURY COPYRIGHT LANDSCAPE A. Cervantes' Early 'Years B. Don Quixote, Part I: Cervantes and Copyright III. THE BATTLE FOR AUTHORIAL CONTROL A. Cervantes' Don Quixote, Part II B. Avellaneda's Don Quixote de La Mancha Part II CONCLUSION "... for among the untutored poets of our day, the custom is for each to write however he wishes and steal from whomever he wishes regardless of whether or not it suits his intention, and there is no foolishness, either sung or written, that is not attributed to poetic license." (1)

Miguel de Cervantes, Don Quixote (Part II)


Achieving the appropriate balance between the right of first authors to control the later use of their work and freedom for follow-on authors to further develop from that text has long been challenging. Currently, under United States law in particular, fair use stands as a nebulous buffer between the two creative camps, granting a significantly limited right to the second author to work from the first author's text. (2) While that tension excites its own debate, a less considered aspect of this tension involves the degree to which the first author might be creatively and productively affected by the follow-on author, particularly in a context where absolutely no such mediating protection exists. If that lack of protection substantially improves and increases the original author's output, by extension it puts the foundational reasoning for U.S Copyright's limited monopoly in question.

Don Miguel de Cervantes wrote Don Quixote in such a copyright-less landscape. Cervantes' bitter interplay with a follow-on author, Alonso Fernandez de Avellaneda--which substantially affected both the plot and general content of Cervantes' original Dow Quixote--provides a striking insight to what such an uncontrolled universe might produce creatively.

Our focus here will first be to consider the interplay of these two authors through a close reading of their rival texts. Having provided the introduction to our topic in Part I, in Part II we will take a broader look more generally at the historical relationship of the author to his text. In Part III we will focus on Cervantes specifically, addressing his misattributions and non-attributions, which highlight the lack of authorial control for artists in his time. In Part IV we will consider Cervantes' follow-on author, Avellaneda, and his work, often termed the "false Don QuixoteWe will conclude by considering what this bitter rivalry may suggest in terms of creative production, the core goal of the U.S. Copyright Clause.

  1. Understanding the Author's Relationship to his Work

    The attribution and close association of authors to their texts has not always been convention for western literature, let alone the idea of exclusive authorial control. While we understand the modem author generally as fulfilling, as Foucault has stated, "a certain functional principle by which, in our culture, one limits, excludes and chooses," (3) Foucault also observed that historically the author did not always enjoy this control:

    There was a time when texts that we today call "literary" (narratives, stories, epics, tragedies, comedies) were accepted, put into circulation and valorized without any question about the identity of the author ... [t]heir ancientness, whether real or imagined, was regarded as a sufficient guarantee of their status. (4) This idea of authorship harkens for some back to Greek and Roman precedents, (5) but Foucault's claim of author-text disassociation has particular support in the medieval period of western literature, between the 8th and 14th centuries. The Song of Roland for example, an epic poem recounting the heroic death of Charlemagne's nephew in battle in 778, was largely codified in the 12th century. (6) Many scholars have argued compellingly, however, that new characters were added over a period of several prior centuries--characters such as Ganelon--introduced in the 9th century--or Oliver, introduced in the 10th. (7) While the poem has been attributed to Turold, this seems primarily based on the mention of his name in the very last lines of the work--his name was not originally listed under the work's title.

    The Romance of the Rose offers another example of group authorship over time. While most agree that the first four thousand lines of the work were written between 1225 and 1230 by Guillaume de Lorris, (8) the work was expanded in scope and given a decidedly more sexual tone under Jean de Meun's period of writing (1269-1278). (9) Under de Meun's hand, the lover gets the rose to open her bud so he can then spill "a little seed just in the center," (10) providing an explicitness which would have been a surprise to its original author. Furthermore, a third contributor, Guy de Mori is credited with weaving the two texts to a better whole, reportedly adding, editing, and deleting portions of text. (11) If true, these three authors, if not more, all co-authored the version we recognize today--a final version quite different from its original author's vision.

    Examples of a lack of authorial control persisted through the tail end of the Middle Ages as well, albeit with a closer association of author to text. Matteo Boiardo revisited the medieval Roland, giving him a considerably more romantic turn in his Orlando Innamorato (1483, 1495). (12) Boiardo's Orlando was taken and further developed under Ludovico Ariosto in his well-received Orlando Furioso (1532). (13) In the Renaissance period, Lope de Vega, a highly renowned poet of Cervantes' period, (14) wrote what many consider a further sequel to this work with his La Hermosura de Angelica. (15) Although the authors here are clearly more attributed to their text, their sequels--freely taking from prior authors--illustrate the lack of exclusive rights for prior authors.

    All of these examples provide essential context for understanding the later intense interplay between Cervantes and Avellaneda that is our focus, particularly in terms of clarifying the then understood authorial rules of the game. Avellaneda, author of "the false Don Quixote", actually makes this point himself in his Don Quixote prologue:

    I only say that nobody need be startled that this second part comes from a different author, for there is nothing new about a different person pursuing the same story. How many have spoken to the love affairs of Angelica and what happened to her? Various Arcadias have been written and Diana is not all by one hand. (16) While Avellaneda's point is worth taking, it is also noteworthy that he felt the need to make the point. If these were truly the authorial rules of the game, it would hardly seem to require comment. Avellaneda, however, clearly knew his work would excite a virulent response, and he would not be disappointed. In the next section, we turn to Miguel de Cervantes and take a closer look at his life and Don Quixote, his masterpiece.

  2. Cervantes and the 16th Century Copyright Landscape

    1. Cervantes' Early 'Years

      Miguel de Cervantes Saavedra was bom in 1547 and initially chose a life of adventure--a choice that proved decidedly unrewarding. At twenty-four, he lost his hand fighting at the Battle of Lepanto in 1571 and a few years later suffered the further indignity of both being captured by Barbary pirates and forced into slavery in Algiers, serving a significant amount of time in prison. (17) Ransomed and returned to Spain in 1580, he turned to writing and enjoyed little success, writing at least twenty plays, all rather coolly received. His early works of fiction and poetry also found only tepid approval, and so the extraordinary success of Don Quixote in 1605 was rather unexpected. (18)

      Fully titled El Ingenioso Hidalgo Don Quixote de la Mancha ("The Ingenious Nobleman Don Quixote of la Mancha") the work followed the wanderings of its eponymous subject's knight-errant quests, coupled with the credulous and corpulent Sancho Panza, all to win the heart of his idolized Dulcinea, who we come to learn falls decidedly short of Don Quixote's panegyrics. Don Quixote's often deluded actions, for all of their entertainment value, doubled as scathing criticisms of earlier knight-errantry works of absurdly exaggerated exploits, most notably Amadis of Gaul (19) and the Song of Roland. (20)

      For all of the book's bite, it was nonetheless enthusiastically hailed by the public, immediately bringing urgent calls for a second part. Cervantes, however, had sold the rights to a printer, Franciso de Robles, who secured a ten-year license from the king banning any other works using Don Quixote. (21) It would seem that Cervantes himself took this to heart, or perhaps found himself actively forbidden by his printer, and so turned his attention to other projects over that decade.

      Cervantes furthermore seemed to suggest in Don Quixote that he was done with the character, when at the end he wrote the following: "[P]erhaps a better pen will take up the cause." (22) Might a follow-on author then reasonably assume such a call was an invitation to continue? (23) Cervantes' tongue-in-cheek criticisms of the era's general lack of authorial control might also suggest a follow-on author might have at least his grudging license to further develop the character. In the next section, we take a more specific look at those tongue-in-cheek references, particularly as they relate to aspects of copyright law, and most notably, attribution.

    2. Don Quixote, Part I: Cervantes and Copyright

      It is perhaps helpful first to situate not only the copyright landscape of Cervantes' past, but also the timing of the laws that followed. Don Quixote fell just under a century before the Statute of Anne in England (171024) and slightly over two centuries before Spain's Copyright Act of 1847. (25) As for the writing itself, it is perhaps Cervantes' criticisms with regard to authorial attribution that are...

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