O HAVE A PROPERTY that could be "worked" required not only fertile ground but rights of property both statutory and contractual. When Thackeray began his career, the Copyright Act of 1709, as altered in 1814, was in force in Great Britain, providing the statutory framework within which contracts for the buying, selling, and leasing of copyrights could be worked out. English copyright had evolved out of grants or monopolies engineered by and carefully protected not by authors but by printers and booksellers (cf. Mackinnon, Nowell-Smith for detailed histories of copyright legislation). All the early challenges to these monopolies in court actions and in lobbying for new legislation had been conducted by printers and booksellers in order to protect their own interests and investments or to break open opportunities to share in properties they deemed part of the public domain. Even though the 1709 Copyright Act explicitly defined copyright in relation to the author by providing protection for an initial fourteen years and a second fourteen years if the author was still alive, booksellers continued to act as though copyright was designed for their benefit — as indeed, historically it had been. They even thought that they had exclusive rights to publish works they had purchased from an author after the expiration of copyright — until in 1774 the last in a series of court cases including appeals to the House of Lords ended the concept of booksellers' monopolies except as specified explicitly in the copyright act.
The 1814 alteration in the law extended copyright protection to an initial period of twenty-eight years and then, if the author was still alive, continuation until his death. By the terms of this statute, The Paris Sketch Book, published in 1840, was protected until 1868, five years after Thackeray's death, A new copyright act was passed in 1842 granting copyright for forty-two years from publication or for seven years after the death of the author, whichever was longer. By these terms The Irish Sketch-Book, published in 1843, was protected until 1885. Further, the 1842 act codified [110/111 for the first time the author's "right" in perpetuity to the publication of unpublished material by making the "copyright" in such material an explicit part of the author's estate.
Today it may seem an unremarkable thing that copyrights "belong" to authors for a copyright relinquished through deliberate sale or inexperience in publishers' contracts now automatically reverts to the author or his estate after a certain period or after another owner's inactivity regarding it. But the concept of authors' copyright as opposed to printers' or booksellers' or publishers' copyright was relatively new in the nineteenth century, and not all authors had learned to prize or use the possession. An author's ability to hang on to and improve the value of his copyrights depended — as possession of all valuable commodities do — on the author's economic strengths and weaknesses. A hungry or naive or careless author might sell his rights in perpetuity, not anticipating their potential increased value. Among authors who seem to have preferred the outright sale of their copyrights were Charles Lever and, for a time, Anthony Trollope. Trollope may have been right in his instinct to sell outright, for the "wisdom" of such a move depended on the long-term value of the property. The Small House at Allington, for example, could have brought him £3,500 in 1861 had he sold it outright, but by then Trollope was aware of possible long-term values and chose instead to sell a limited license for eighteen months for £2,500. Under the terms of his contract he did not earn any additional money from editions produced in that time: a serialization in Cornhill Magazine and a two-volume book edition. When the eighteen-month period expired, Trollope entered an unknown arrangement with the publisher to continue selling the work in two volumes and a cheap edition, issued in 1864. Then sometime before 1878, Trollope purchased back for £500 whatever part of the copyright he had given up, perhaps to allow inclusion of the work in Chapman and Hall's Chronicles of Barsetshire, a series that became an economic failure (Sadleir, pp. 279, 245). The answer to the question would be in the Smith, Elder records, but it is difficult to believe chat Trollope made £1,500 from the cheap editions of the novel; he probably would have been better off accepting Smith, Elder's [111/112 original offer for the entire copyright. Trollope's experience dramatizes the difference between copyright protection set up by statutory law and the practical function of copyright as an economic commodity in an open market. Rights, like real property, can be sold or leased; it is in this sense that copyrights are "a property" that can "be worked."
Author/publisher contracts could be arranged in a variety of ways. Initially the author came to a publisher owning the manuscript and the right to publish it. But because most authors lacked the capital, machinery, expertise, or connections required to produce and market a book, they had to part with something in order to entice a publisher, printer, or bookseller to undertake the business for them. For wealthy or otherwise financially capable authors, there has always been the option of paying for the whole operation. There are very few success stories of authors adopting this method, but among them are Lewis Carroll and Alice's Adventures in Wonderland. Such arrangements usually were undertaken by the publisher on commission, with production and promotion costs borne by the author while the publisher raked off a standard commission on gross income (10% in the case of Alice). This appears to have been the arrangement under which John Mitchell published Thackeray's Flore et Zéphyr, though production costs were home by Thackeray's friend John Bowes Bowes rather than the author himself (Cohen / Gandolfo, pp. 14-15; Ray, Adversity, pp. 184, 467). How Mitchell justified paying no return in a situation like this remains as mysterious today as it was to Thackeray and Bowes in 1836; the experience, in any case, seems to have cured Thackeray of ever undertaking that sort of agreement again.
Another arrangement common in the nineteenth century was called half profits, in which profits were split equally by author and publisher. But here again a variety of options existed. Initial costs of production and promotion might be underwritten by either author or publisher, all income going to defray those expenses before profits for sharing were declared. If a book did not earn back the cost of production, the loss might or might not be shared, depending on the contract agreement about who stood the risk of the publishing venture. Obviously, publishers were more willing to bear this risk on some books and some authors than on others. Again Trollope provides a good example of this and, incidentally, reveals the snobbery that could obscure the real issues in author/ publisher relations. He wrote in his Autobiography:
When I went to Mr. Longman with my next novel, The Three Clerks, in my hand, I could not induce him to understand that a lump sum down [112/113 was more pleasant than a deferred annuity, I wished him to buy it from me at a price which he might think to be a fair value, and I argued with him that as soon as an author has put himself into a position which insures a sufficient sale of his works to give a profit, the publisher is not entitled to expect the half of such proceeds. While there is a pecuniary risk, the whole of which must be borne by the publisher, such division is fair enough; but such a demand on the part of the publisher is monstrous as soon as the article produced is known to be a marketable commodity. I thought that I had now reached that point, but Mr. Longman did not agree with me. And he endeavoured to convince me that I might lose more than I gained, even though I should get more money by going elsewhere. "It is for you," said he, "to think whether our names on your title-page are not worth more to you than the increased payment." This seemed to me to savour of that high-flown doctrine of the contempt of money which I have never admired. [Trollope, p. 99]
Trollope declined Longman's £100, half profits, and distinguished imprint in favor of Bentley's £250 for the full copyright. It was a marvellous piece of bargaining for Bentley who made £74 from the first edition and all the profits from three subsequent editions (a total of 8,000 copies of the book) and who then sold the copyright in 1890 for £125 (Sutherland, Novelists, p. 139).
Thackeray, beginning as a journalist and becoming known in that way to the publishers, did not enter any agreements after Flore et Zéphyr in which he was liable for production costs. He was clearly writing and publishing for a living, not because he had a mission to promote or a hobby to indulge. Thackeray undertook half-profits agreements with Chapman and Hall for the Irish and Mediterranean travel books and three Christmas books, and that was the agreement he made with Bradbury and Evans for Vanity Fair, but in all these cases the publisher bore the initial expense of publication and promotion as well as providing the author with an advance on his share in the profits. Had any venture been a failure, Thackeray was not liable for either production costs or return of the advance;7 the risks were all on the publisher's side. By comparison with later agreements, the Vanity Fair contract may sound parsimonious, but in 1847 it was a measure of Bradbury and Evans's growing confidence in one of the star contributors to Punch. [113/114
A variation on the half-profits agreement was called a joint account, which could arrange responsibility for initial costs in anyway agreeable to the two principal parties but often called for those costs to be shared. In such cases the author would be liable for a share of the costs if the sales failed to recoup the investment. Thackeray never entered such an agreement.
Yet another variation on the half-profits agreement called for proportionate profit sharing other than fifty-fifty. Pendennis represents a variation of this sort, for Thackeray's advance of £100 per number was "matched" by the publisher's £75, though when profits began accruing they were shared on a fifty-fifty basis. When Thackeray received his first account on Pendennis profits, he expressed surprise at his share, having understood the three-to-four ratio on initial payments to represent the agreed proportion for sharing all profits (Bradbury, Agnew). His protest was mild, ignored, and dropped - all which suggest there may not have been a written contract to appeal to. Similar arrangements with increasingly high initial payments at share ratios more advantageous to Thackeray mark the agreements for The Newcomes and The Virginians. In most half-profit and joint account agreements I have seen, the publishers charged a 5 to 10 percent commission on gross receipts to cover returned books and unforeseen expenditures.
Another common contractual agreement between author and publisher involved the lease or limited sale of copyright. The publisher would agree to pay a specified amount upon receipt of the manuscript, underwrite all production and promotion charges, and claim for the firm all profits from a specified number of editions, or printings, or copies. This is the type of agreement Thackeray signed with George Smith for Henry Esmond. Sometimes the size of the edition or printing leased in this way was not specified, giving by ambiguity or omission a flexibility in the publishers' favor. If the number of copies was not specified, the publisher could stop production of a poor seller before manufacturing a specified number of copies, or better yet, it could enlarge an edition if sales went well. Such flexibility was increased in cases where, instead of specifying a number of copies or editions to be leased, the copyright was leased or purchased for a specified period of time.
It was abuses with regard to this particular type of contract that led to so much distrust of publishers by authors. All of these contractual arrangements required a certain amount of trust in the publisher to keep and report accurate accounts. Thackeray seems to have been lucky in this regard, for he seldom had reason to question his publishers' records and [114/115 always declared himself to be in their hands with regard to accounts. Generally speaking he was satisfied with the accounts rendered and never left a book publisher over a money dispute. Other authors not so lucky tended to prefer an outright sale of copyright8 because it was a clean, once and for all, transaction over which there would be no further squabbles.
It is difficult to tell for Thackeray's early books (The Paris Sketch Book and Comic Tales) what precise agreement existed between author and the publishers, Macrone and Cunningham. Thackeray received £50 for The Paris Sketch Book, and that appears to have covered either the whole copyright or the whole first edition. If it was a lease or limited sale, it does not matter how many copies or how long Macrone's agreement specified because the book was remaindered in 1842 (at a coffeehouse sale attended and reported on by George Smith) and was never republished in England in Thackeray's lifetime. However, if he sold the copyright outright, that may account for its failure to reappear after the author became a "hot" literary property in the 1850s when much of his other early work was collected and reprinted. Thackeray's recollection concerning Stubbs's Calendar in November 1849 - that "it is my copyright, as all my works have been by verbal agreements with the publishers for whom I wrote, with the exception of certain contributions to the 'Heads of the People' about wh. I forgot to make a stipulation" (Letters 2: 610) - cannot be taken as conclusive proof with regard to The Paris Sketch Book. Evidence suggesting that the copyright had reverted to the author lies in the fact that after Thackeray's death when George Smith was buying up all the outstanding shares in Thackeray's copyrights, for which there are extensive records, there is no mention of purchase from any publisher of rights to either The Paris Sketch Book or Comic Tales, both of which entered the public domain in 1868.
Another mystery book from the 1840s is Rebecca and Rowena published by Chapman and Hall in 1849. That Thackeray had published five books with Chapman and Hall on half profits is indicated by the records of Smith's purchase in 1865 of Chapman and Hall's shares in Thackeray's works (Murray). But Rebecca and Rowena is missing from Chapman and Hall's list, and in fact the book was reprinted by Bradbury and Evans in volume 3 of the Miscellanies (1856). What must have happened is that [115/116 Thackeray saw greater advantage to himself in selling to Chapman and Hall the right to print one edition of a specified number of copies for a fixed sum and reserving the entire copyright of any subsequent editions to himself rather than continuing the half-profits agreements of the past. He was right to do so, for the sales of the book under Chapman and Hall were so disappointing that the firm declined Thackeray's next work, which was offered to it explicitly as a limited sale or lease (one edition of no more than 3,000 copies for £150 [Letters 2: 687]). Furthermore, when Bradbury and Evans republished Rebecca and Rowena in the Miscellanies, Thackeray's share of profits was two-thirds, while for the other books which Chapman and Hall continued to sell, his share was only a half. Rebecca and Rowena was the last book Thackeray published with Chapman and Hall, and it is likely that ownership of the copyright reverted to him for any subsequent editions, such as the inclusion in Miscellanies, without requiring permission from the original publishers.
The publishing history of Rebecca and Rowena highlights an aspect of Thackeray's other contracts that seems surprisingly restrictive: in most of them he signed away the right ever to move a title from one publisher to another. Rebecca and Rowena and the unwritten "Tour on the Continent" contracted in 1852 appear to be the only exceptions. Rebecca and Rowena is the only one of his books originally published by one house and later published by another during his lifetime. The clause at the end of the one surviving Bradbury and Evans contract specifies rather straightforwardly that the copyright "shall be the joint Property" of author and publisher. The Smith contracts usually have some variation of the following clause from the Esmond contract: "that all future impressions of the said work shall be published by Mr George Smith at such times and in such manner as he may think advantageous and that one half of the net profits derived from them shall be paid by Mr. George Smith to Mr. W. M. Thackeray." In the contract for the never-written "Tour on the Continent," it appears that Thackeray tried to stipulate freedom to move the work to another publisher after a period of time - perhaps he had in mind John Murray, the acknowledged leader in travel guide publications. Smith, however, hedged the agreement closely, reserving "the sole right of printing and publishing the work until Four Years after the publication of the First Edition," after which his firm was to "have no interest in the Copyright." He then added what amounts to a retraction of all the advantages of that part of the agreement: "Mr. Thackeray agrees not to publish or authorize the publication of any new Edition of the work until any copies that may [116/117 then be in the hands of Smith Elder & Co shall have been sold" (NLS; see Appendix A).
The omission of The Paris Sketch Book from Miscellanies suggests that Thackeray's agreement with Macrone (and his successor, Cunningham) may have been an outright sale of copyright or, less likely, a half-profit partnership that fell fallow. Its absence from the Smith, Elder purchase agreements for posthumous copyrights could mean that it was a lease agreement which had already reverted to Thackeray or that the record of Smith's transactions with Hugh Cunningham or his successors is just missing from the archive. Whatever the case, Smith reprinted the work in 1866, two years before it was due to enter the public domain, so he must have acquired the rights somehow. If the copyright had reverted entirely to Thackeray, Smith got the rights in the general purchase of copyrights from Thackeray's daughters. It remains something of a puzzle, though, why it was the only one of Thackeray's 1840s books not reissued in England in the 1850s.
Last modified: 4 April 2001