Copyright Law, Authorial Ownership, and Adaptation Between Novels and Plays in Nineteenth-Century Britain

Abstract

This chapter traces continuities and changes in the laws governing authorship and ownership in adaptation. Writers had no legal or economic rights over intermedial adaptations of their work prior to the early twentieth century. Using case studies of popular authors such as Mary Elizabeth Braddon, Frances Hodgson Burnett, Wilkie Collins, Marie Corelli, and Charles Dickens, the chapter documents their writings and actions taken in response to copyright laws and unauthorised adaptations of their work. As writers complained of copyright laws in fiction, letters, and the press, they began to change public and parliamentary opinion; they also banded together in author collectives to protest the laws and collectively strengthened momentum to change them. Most pertinent to this study of adaptation, the inequity of copyright laws spurred many authors to adapt their own work and claim their own adaptations as “authoritative,” even though doing so could not prevent others from adapting it and profiting from it as well.

[T]he stupid copyright law of England allows any scoundrel possessing a pot of paste and a pair of scissors to steal our novels for stage purposes.

—Wilkie Collins in 1888 (2005, 299)

In September 1823, after Mary Shelley viewed the first stage adaptation of her 1818 novel Frankenstein at the English Opera House, an unauthorised adaptation by Richard Brinsley Peake,¹ she wrote to friend and fellow writer Leigh Hunt, “I found myself famous!” Admitting that she had been eager to see the play, she expressed a mixed response towards it. On the one hand, it allowed her to experience directly her fame as an author and to view an audience responding to her story; on the other hand, she criticised its narrative structure,² while praising the performance of one actor: “The story is not well managed—but Cooke played [the Monster]’s part extremely well […] I was much amused, & it appeared to excite a breath[le]ss eagerness in the audience” (in 2008, 378). While most other accounts of authors responding to stage adaptations of their work in the nineteenth century emphasise their objections to them, it was common for authors to have mixed reactions to adaptations, seeing advantages and disadvantages to the process. Shelley recounts that Frankenstein had “prodigious success” as a drama and that she saw it, together with her father, on its 23rd night. Her initial exclamation shows her dissatisfaction with the reworked structure, but also her awareness of how a stage adaptation could bring a written character to life, her excitement at seeing an audience respond to her character, and how a popular adaptation could enhance her authorial reputation.

The play also benefitted her financially. Following the popularity of the stage adaptation, Shelley’s father, William Godwin, immediately commissioned a new edition of the novel, fully crediting her as author,³ in the hope that it would revive sales of the original. It did. Indeed, throughout the nineteenth century, whenever new stage versions were produced, and into the twentieth century, when film adaptations such as The Bride of Frankenstein (1935) were released, interest in the novel revived and sales increased. William St Clair demonstrates that the stage adaptations were largely responsible for keeping Frankenstein “alive in culture” in the nineteenth century (2003, 53–4).⁴

That adaptations extend an author’s reputation and increase sales of the adapted work is well documented. However, accounts of adaptations inspiring changes to the source material are relatively rare. When Shelley reworked the novel for another edition in 1831, including an introduction by herself,⁵ Fred Botting suggests that the changes she made were in direct reaction to her experience of that first dramatisation in 1823 (1991, 190–1). If this was the case, it shows not only the influence, and even authority, that adaptations can hold over the writing practices of the original author,⁶ but also their influence upon the author’s relationship to that original text and, by extension, that adaptations by others can inspire adaptations of that text by original authors as well as other adapters.

This brief example of Shelley encountering an unauthorised stage adaptation of her work at the beginning of the nineteenth century and producing an authorised adaptation of it partly in response to it pre-empts and pre-figures some of the issues that are discussed in this chapter: (un)authorised adaptations, copyright laws that made unauthorised adaptations legal, authors’ reactions to and involvement with adaptations of their work, and the effect of adaptations on authors and sources. This chapter argues that copyright played a much more significant role in adaptation than has been hitherto acknowledged, leading prose fiction writers into debates with theatrical adapters over authorship and ownership, sparking legal disputes, prompting fiction and theatrical authors to adapt their own work to pre-empt adaptations by others, and generating lively debates about relations between media more generally.

We cannot clearly understand the ambivalent position of literary authors regarding adaptations of their work to early film without examining authorial writings regarding adaptations of prose fiction to the theatre before the birth of film, since film grew out of both media, and adaptation practices across the three media were also contiguous. Scholars have shown that many early film practices were heavily indebted to theatre (Nicoll 1936; Manvell 1979; Brewster and Jacobs 1997; Elliott 2003)⁷; this study of prose fiction writers’ involvement in dramatic adaptations of their work locates further continuities between stage and cinema adaptations, as well as new issues of adaptation and authorship that arose with the advent of film. This chapter considers authors’ relationships to the theatrical adaptations of their prose fiction that proliferated in the nineteenth century, focusing on copyright laws and the debates that they spawned regarding author’s ownership of his or her writing in the context of stage adaptations. Beginning with an overview of changing and contested copyright laws in Britain, followed by illustrative case studies, it presents a vital prehistory to the study of authorship in adaptation during the early years of film.

Copyright laws governing stage adaptations of prose fiction were highly ambiguous in the nineteenth century, so that numerous battles were fought in and out of court between authors, adapters, publishers, theatre managers, and critics regarding literary ownership and rights. One major means of protesting unlawful and unauthorised adaptations was for prose writers to adapt their own work to the stage. Authors engaged in other proactive practices to claim ownership over their work, including lawsuits, published debates with adapters, collaborating with adapters, and more. My research finds that copyright laws and authorial responses to them shaped nineteenth-century literary practices, created new adaptation practices, and, at the end of the century, resulted in a greater degree of authorial ownership by both prose and dramatic authors (which had previously been more heavily given to publishers and theatre owners), which led to new adaptation practices and relations between fiction, theatre, and film at the turn of the twentieth century.

H. Philip Bolton points out that the concept of dramatic authorship in the eighteenth and nineteenth centuries differed substantially from our concept today, as it was then so common to “alter” or “adapt” a narrative that “originality and proprietorship seem to be values and practices of a later time” (1987, 14). In spite of this claim, in nineteenth-century Britain, authorship and ownership were nevertheless increasingly canvassed and contested in legal copyright battles, public discussions, and political debates. The reasons for the rise in such discourses included the increasing popularity and profitability of the novel and its dramatic adaptations (see, for example, Maunder 2013), the threatened economic interests of publishers (discussed in Jordan and Patten 1995), and the relative, hierarchical social positions of novelists and playwrights, all of which I address in this and the following chapter.

By analysing the status and legal ownership rights of writers across media in the nineteenth century, this chapter lays the foundation for tracing continuities and developments in these areas for literary authors writing within films in the early twentieth century. The questions raised and the arguments made here not only reveal some roots of early literary film adaptation, but also demonstrate how the issues themselves have adapted over time.

The livelihood and status of prose fiction writers via theatrical adaptations of their work was very much affected by copyright laws, which allowed for relatively unrestricted dramatic adaptation practices, requiring neither permission from, nor remuneration of those who authored the sources of such adaptations. These laws generated fierce debates and legal suits among authors, adapters, and publishers, with larger challenges made to the laws themselves concerning the relative lack of authorial rights and remuneration. These contests had the effect of gradually strengthening the legal protection of original prose fiction and dramatic works against uncredited and unremunerated adaptations, as well as authorial rights against publishers and theatre companies, who held copyrights to writings and profited from them. These changes resulted not only in changes to the cultural, social, and economic status of writers, but also laid the foundations for later adaptation laws and practices that gave even more ownership to authors in the twentieth century. Changing copyright laws furthermore dictated the relationship between literature, theatre, and film in the early twentieth century, where, despite new forms of writing and writers, nineteenth-century laws and attitudes persisted until 1911, when, for the first time, copyright law included film, and the changes made to incorporate film had consequences for fiction, plays, and their adaptations.

A Brief Chronology of British Copyright Law to 1911

British Copyright Law sparked numerous legal, public, and critical debates, because it was complex, ambiguous, and unclear. Many histories and accounts of debates over copyright law in this period have been published; this chronology focuses specifically on debates over the law concerning novel-to-stage adaptations.⁸

At the start of the nineteenth century, the legal position of the prose fiction writer in terms of ownership of his/her works in Britain had been given little attention by Parliament since the Statute of Anne in 1709, when the writer was first given a claim to copyright that had hitherto belonged to publishers alone, allowing a 14-year period of authorial copyright before the work entered the public domain. Publishers were therefore no longer able to control the dissemination of or profit from a work beyond that time. Although publishing practices more widely were still influential on the profession of authorship,⁹ publishers could now be held accountable legally for printing variations of that work or crediting them to an author’s name in publications without authorisation by the author. This meant that authors were in a better position than they had been previously to renegotiate contracts and ensure that they were paid royalties or to negotiate terms when moving to another publisher once their contract had expired.

Although this Act was a seminal triumph for authors, and was influential for modern and international copyright laws as well, it did not resolve all of the problems that it sought to redress and it ushered in new ones. Christopher May and Susan Sell argue that the Act introduced a “new struggle over the meaning of authors’ property rights,” as it separated the question of literary property from censorship by being primarily concerned with the printing trade and only “established a potentially common law copyright for authors” as a secondary concern (2006, 93; emphasis in original). In terms of unlawfully reproducing the work in print form, authorial rights were more safeguarded and authors’ work regarded increasingly as their property, although uncertainties about the provisions of this and other changes to copyright law continued to be manifested and clarified through legal cases over the eighteenth century.¹⁰ These cases resulted in a 1774 decision by the House of Lords to declare perpetual copyright for publishers unlawful, which consolidated authorial rights further, allowing them to renegotiate their terms and conditions regularly. More indirectly, the abolition of perpetual publisher copyright resulted in the falling price of older books, which then directly produced a rise in reading within the public sphere, creating new consumers, even as publishers’ rights and profits declined. The main triumph for writers was that at the end of the eighteenth century, copyright was seen as a right belonging more to authors than publishers, who owned copyrights only temporarily, while authors never ceased to be named as the owner of their works, even after copyrights expired.

The nineteenth century continued to lengthen the period of copyright ownership, strengthening perceptions as well as legal rights of authorial ownership: the reform of 1814 extended the terms of the Statute of Anne to a term of 28 years, or, if the author was still alive at that point, until his/her death.¹¹ This was further revised by the Copyright Act of 1842, also known as the Talfourd’s Act,¹² which gave all writers a 42-year right to their works once published and, if this expired during their lifetime, it would continue until seven years after their death. Financially, however, it was publishers who gained from the 1842 amendment, receiving greater control of access to and pricing of older books, which would now not be entering the public domain for a prolonged time.¹³ These laws remained unchanged until 1911, when copyright laws were amended yet again. What is most important in terms of adaptation is that the 1911 law finally allowed all authors the exclusive right to dramatise their own work “by performance or otherwise,” as well as the right for the authors of dramatic work to adapt it into novel form. The terms and conditions of this law are addressed further in Chap. 4 on film and literary adaptation.

Prior to 1911, adaptations of prose writing to the stage were not fully, or even clearly, regulated by copyright law. With regards to intellectual property, the fact that only the written word, not the spoken or sung word, was copyrightable meant that any kind of adaptation other than published print was legally permissible without authorisation or crediting of the source. The Lord Chancellor in the case of Tinsley v. Lacy (1863) claimed that:

The only way in which an author can prevent other persons from representing as a drama the whole or any part of a work of his composition, is himself to publish his work in the form of a drama, and so to bring himself within the scope of dramatic copyright. (Law Journal 1874 vol. 43, 172)

This was not actually the case. Whilst authors might deter others from adapting their work through an authorised adaptation that would eclipse the competition, in principle, anyone was allowed legally to adapt a novel to a play without acknowledging the original author or text, facing no financial or legal retribution, unless they printed or published the play script. Thus, as soon as a piece of original work was published, the writer retained only the print rights and lost any claim on stage dramatisations unless a dramatisation was also produced in print. One of the few prose writers who turned to adapting his own prose was Wilkie Collins (1824–1889): close to the end of the serialisation of his novel No Name in 1862,¹⁴ he announced that he had written a dramatisation of it and had published and entered it at the Stationer’s Hall according to the law, thus securing sole copyright to both the novel and the play. He continued to fortify his authority over his work in this manner by legally cementing his authorial right, avoiding piracy by orchestrating publications of his prose fiction work together with his dramatic work.¹⁵

Even so, copyright laws effectively blurred the distinction between adaptation and theft, legalising what in other domains was deemed criminal appropriation, creating outrage among prose authors. Charles Dickens writes of novel-to-stage adaptation in Nicholas Nickleby (1838–1839): “show me the distinction between such pilfering as this, and picking a man’s pocket in the street” (2008, 633). This sentiment is echoed in the epigraph to this chapter, in which nearly 50 years later Collins denounces “the stupid copyright laws of England,” which allowed “any scoundrel possessing a pot of paste and a pair of scissors to steal our novels for stage purposes” (2005, 299).¹⁶

Yet not all commentators saw theatrical adaptation as piracy. In The Law of Copyright (1903), Thomas Edward Scrutton detailed one commonly advanced reason that playwrights should not have to credit the authors they adapted: “intellectual labour, alteration, [and] adaptation was necessary” to represent a novel on stage, and that labour should be recognised and rewarded (79). The source text was invariably transformed not only through the adapter’s “intellectual labour,” but also by practical interventions required to adapt it to the theatre, both by the adapter and others within the theatre, such as managers, performers, and technicians, as well as constraints imposed by external influences, such as the legal censorship imposed by the Lord Chancellor and other unofficial, but nevertheless potent censorship levied by social and cultural critics.¹⁷

Although there was no copyright law governing the performance of theatrical adaptations, there were copyright laws governing the ownership of written plays. For dramatists, the most important legislation of the nineteenth century had been the Dramatic Copyright Act of 1833, spearheaded by Edward Bulwer-Lytton, which gave recognition to the profession of the playwright (this will be discussed further in Chap. 3). Despite limitations of the Act, it brought, according to Allardyce Nicoll, the work of dramatists alongside that of prose fiction writers (1949, 70). It further clarified the playwright’s position by differentiating between the ownership of unpublished and published plays and performance rights of plays. Prior to this Act, plays had only received statutory protection when they were published as printed books. Now, the playwright was given the sole copyright to any unpublished play, printed or not, as well as “the sole liberty of permitting its representation” throughout the British Isles. This further secured the idea of dramatic property and performance/stage right for authors, though many terms, such as the definition regarding the “publication” of the play, were left unclear, meaning that dramatic work was still not effectively protected and the law was regularly tested in court cases.

Although this legislation was meant primarily for the benefit of dramatic writers, it had limitations, since the main financial beneficiaries were the copyright holders, who were usually the publishers if the work had been printed, rather than the writers or theatre managers. However, another impact of the Dramatic Copyright Act was the subsequent founding of the Dramatic Author’s Society in 1833, which aimed to protect the newly established rights and secure greater profits for dramatists themselves. A system was thereby established to protect dramatists’ interests as far as possible under the current law: for example, through regulated collection and distribution of payments from managers directly to playwrights, more rigorous identification of copyright violations, and, most importantly in terms of copyright protection, through sponsoring the publication of plays under the Society’s imprint (see Stephens 1992, 91–3). The Society and its measures gradually established the profession of the dramatist with rights championed and secured collectively.

The subsequent 1842 Dramatic Copyright Act worked to make the performance of a play, not merely its publication, a copyrightable event, stating that “the first public Representation or Performance of any Dramatic Piece or Musical Composition shall be deemed equivalent, in the Construction of this Act, to the First Publication of any Book” (5 & 6 Vict. c. 45).¹⁸ Plays could now be “published” through performance, although the performance needed to be registered at the Stationer’s Office and placed under statutory protection.¹⁹ Novelists and dramatists were thus in a similar position regarding copyright protection of their writings in performance; however, the unclear legal situation concerning dramatisations of novels by others continued,²⁰ causing great friction between literary and dramatic artists, as detailed in my case studies.

From 1886, following the Berne Convention for the Protection of Literary and Artistic Works, laws on copyright were regulated internationally,²¹ and that Convention remains the basis of international copyright protection today. The purpose of the Convention, as stated in the preamble, was “to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works” (WIPO 1978, 7). Although the terms did not interfere with British law at the time, but merely extended each country’s existing law to include foreign authors, they did have repercussions by setting how authors’ rights were viewed in Britain in dialogue with how they were viewed in other nations. Vincent Porter points out that, whereas countries such as France, Italy, Spain, and Germany regarded an author’s right as a human right, Britain “had entered into a convention based on a philosophy [of authorial as human rights] not yet properly accepted into British law” (1991, 3). Authors’ rights were economically enhanced, since the Convention enabled them to negotiate contracts and agreements with publishers privately in an international market. Porter suggests that, from an economic viewpoint, the Berne agreement was emblematic of a “corporatist doctrine, protecting the interests of the authors and their employers against the interests of the consumers, and, ultimately, the wider public” (1991, 3–4).

This new law was aimed chiefly at preventing the previously widespread piracy of works on an international level. More pertinent to this study, as with prior laws, its main beneficiaries were the publishers, who were now able to develop, mediate, control, and regulate the international market for the works that they published, so that only the most popular authors had substantial bargaining power with publishers. Although the popularity of the authors commonly played an important part in the demands that they were able to make with regulating bodies such as publishers, theatres, and filmmakers, this was often unheeded once a contract had been agreed.

International copyright laws had a direct bearing on dramatic adaptations of other works. Stephens suggests that the “early Victorian legislation on international copyright actually inhibited the writing and production of original drama in the British theatre by actively encouraging adaptation from foreign models,” mainly from French novels and plays (1992, 102). Despite the new international law, not much had altered for British theatrical adaptation, as an anonymous dramatist, who laments, “the disgraceful condition of our copyright laws” (95), points out in 1888:

[I]t has done away with a good deal of harassing detail formerly necessary to be gone through, especially by foreign authors desiring to secure copyright with us. […] With respect to all other foreign countries except the nine named we can steal from them and they can steal from us with impunity. (101)²²

America was not part of the agreement in Berne, remaining subject to its own copyright laws, which were inconsistent with those of the Convention.²³ In consequence, reprinting and adapting British texts without fear of copyright infringement was common in America, where native writers were also engaged in disputes with publishers and British-American copyright legislation was highly contested. For dramatists, it was therefore advisable not to publish their plays in print for fear of piracy from America. Obviously, novelists did not have that option, and their work was therefore still pilfered by American adapters, although the laws were improving the international situation elsewhere. The international difficulties of copyright essentially placed prose and dramatic writers in a similar situation in terms of unlawful adaptations and publications of their work outside Britain.

Although, overall, the changes in nineteenth-century laws resulted in more rights for authors regarding the ownership of their work, authors demanded still greater legal protection, adopting a variety of measures and responses to try to control adaptations of their work by others in its absence, and continuing to vocalise their discontent about adaptations by others without remuneration. Seventeenth- into eighteenth-century authors such as Daniel Defoe, Henry Fielding, and Samuel Richardson had fought for and championed their literary ownership rights within the establishment through public engagement and writing, as well as within their own fiction. Their advocacy was taken up by prominent eighteenth- into nineteenth-century writers, such as William Wordsworth, Matthew Arnold, and, on an international level, Victor Hugo.²⁴ The case studies in this chapter document re-actions by nineteenth century prose writers located right in the middle of the legal and social changes for which their literary predecessors had fought.

Amidst the range of theatrical entertainment in the nineteenth century, stage adaptations of popular novels were highly in demand for a variety of social and cultural reasons during this time. Nevertheless, not all of these works were deemed appropriate for dramatisation. Andrew Maunder points out that, despite appearances to the contrary, considerations regarding the suitability of a novel for adaptations were made (2013, 57). Suitability included the themes addressed, censorship issues, as well as the genre of writing. Wilkie Collins notes that not all novelists were affected by adaptive piracy allowed by copyright law and suggests to John Hollingshead in 1873 that, “if Disraeli’s books were dramatic enough to be stolen for the stage I should recommend (quite seriously) an immediate adaptation of one of them, without asking his leave” (2005, 363). He reasons that, if Benjamin Disraeli, a prominent politician and prose fiction writer, had suffered from the adaptation of his works, then something might have been done to change copyright laws.²⁵ According to Collins, “the barbarous indifference of the House of Commons where the interests of Literature and Art are concerned” was to blame, and the “remedy” rested with them (2005, 362).

The case studies of Dickens, Collins, Mary Elizabeth Braddon, Frances Hodgson Burnett, and Marie Corelli that follow illustrate the impact of changing copyright laws on authorship in adaptation in various contexts, focusing particularly on the written and discursive strategies used by authors and their agents to challenge them, benefit from them, and change them. The writers discussed were all well-known writers whose work was widely published and circulated in the nineteenth century; their public commentary on their experiences with theatrical adaptations of their fiction unfolded through legal cases, public debates, press reports, and private correspondence. Discussing the advantages and disadvantages of copyright law for writers, the case studies highlight the diversity and complexity of the issues surrounding authorised and unauthorised adaptations, legal suits, public complaints, authors’ reactions to and involvement with adaptations of their work, and the effect of adaptations on the sources themselves.

Author Responses to Copyright Law

The Author in Court

Authors in court contesting copyright law made a marked difference, bringing about changes in the laws and practices governing adaptation. The confusions in copyright law resulted in many legal actions being taken by authors, with varying results; some of these would set precedents having lasting impact on the legal and literary world, whereas others would fail. Novelist and playwright Charles Reade (1814–84) claimed to have invented the term “stage-right” for his 1861 case, Reade v. Conquest, alleging that the term was “necessary” with regard to the “fallacious” phrase “Dramatic Copyright”’ (1882, 148). The terminology of “copyright” was unclear and confusing, as Scrutton points out, the term being better limited to “the right of publishing in print,” and using “Play-Right” or “Stage-Right” for performing or acting right instead (1903, 73). Reade features prominently in court cases; Barbara Lauriat sums up his variable roles “in the drama of Victorian dramatic copyright” as ranging between “hero, villain, wise counsellor” and “comic relief” (2009, 35). Reade’s unparalleled concern with copyright law is evident in his own publication of non-fiction writing concerning copyright laws, morality, and authorial rights: for example, The Eighth Commandment (1860) and “The Rights and the Wrongs of Authors” (1875). While Reade’s significance to copyright discourse is considerable, since his direct and indirect involvements with copyright law, cases, and debates have been widely discussed elsewhere,²⁶ my studies of authors in court focuses on other, less-discussed popular authors for whom significant decisions regarding the legal treatment of adaptations had been made, with Reade’s contribution limited to his participation in other case studies discussed here and in relation to writing across media in Chap. 3.

Many prose writers protesting in court argued that stage adaptations did not sufficiently credit them, either in terms of financial remuneration or by enhancing their public reputations. Mary Elizabeth Braddon (1835–1915) was an immensely popular and successful sensation fiction writer who received some remuneration from and control over authorised adaptations of her work to the stage, but not from the many unauthorised ones that sprang up in the wake of her enormous popularity (Carnell 176). In 1862, there were at least three licensed adaptations of Lady Audley’s Secret on the London stage, and many more unlicensed ones across the country in provincial theatres.²⁷ The following year, stage adaptations of Aurora Floyd totalled five in London alone (see Carnell 2000, 176/197). The serialisations of both novels had only just been completed and published in their entirety earlier in the same year. The only play version of Lady Audley’s Secret authorised by Braddon was written by Charles Smith Cheltenham, the acting editor of Braddon’s literary magazine Belgravia.²⁸ Due to copyright law not covering performances, Braddon was unable to prevent or profit from any of the unauthorised productions. She was only able to take legal action when one of them was published.

The 1863 case of Tinsley v. Lacy, as documented in 1870 by Walter Arthur Copinger in The Law of Copyright in Works of Literature and Art, has been widely cited as an exemplary case that highlights the weaknesses within copyright laws.²⁹ The case revolved around the stage adaptations of the novels Aurora Floyd (1863) and Lady Audley’s Secret (1862) and the subsequent print publication of these dramatic versions. Edward Tinsley was Braddon’s publisher, who owned the rights to both works for two years, having paid Braddon £500 for Lady Audley’s Secret and, after its success, £1000 for the follow-up, Aurora Floyd. Thomas Lacy was the publisher of the play script and the adaptation had been written by William Suter.³⁰

The case of Tinsley v. Lacy arose not because the plays had been printed, but because a large proportion of words from Braddon’s novels had been reprinted verbatim in the so-called play scripts as dialogue and stage descriptions. Moreover, copies of the play had been distributed among the audience, purportedly to enable a better understanding of the performance, but effectively meaning that they did not need to purchase the novel, since much of it was there: “large part of the dramas, including the most striking incidents, and much of the language, had been taken bodily from the novels” (Rogers 1902, 119). The judge ruled that, although the defendant was entitled legally to dramatise the novels, he was not permitted to publish a script containing so much of their sources, and this was where the infringement occurred (see Copinger 1870, 161–2). Although Suter had written the verbatim adaptation, he was not legally liable; publisher Lacy was made responsible, resulting in a permanent injunction that prevented reprinting the edition, as well as any further dramatic performances.

It is this last part of the injunction that was particularly significant for the copyright of performed adaptations. The prohibition on performance was due to Lacy automatically owning the performance rights after purchasing the manuscript from Suter. According to Kate Mattacks, who credits the case as a “landmark in the history of copyright, irrevocably linking Lady Audley’s Secret with a subversive creative product that could only be partially managed through statutory regulations,” Tinsley waived the costs, claiming a moral victory for authors that served as a precedent for similar cases (2009, 11). How effective the ruling was at suppressing the adaptation, however, is dubious. Although Suter’s adaptation was prohibited from being sold, the printed text was nonetheless still available whenever complete runs or single volumes of Lacy’s Lists were purchased.³¹ Indeed, the play text is still in circulation today.³² Despite the verdict symbolising a significant triumph for the author and publisher against the unlawful publication of the novel posing as dramatic adaptation, the fact that the performance text is still readily available to purchase today demonstrates the problems of enforcing the terms of landmark cases in the context of mass print publication.

Twenty-five years later, a similar court case, that of Warne v. Seebohm in 1888, centred on another popular female author, demonstrates how authors used ambiguities in the existing law to their benefit, countering uncredited adaptations by adapting their own work. The dramatist E.V. Seebohm had started to adapt the 1886 novel Little Lord Fauntleroy, informing author Frances Hodgson Burnett (1849–1924) of his adaptation and asking for her sanction of the production and, on receiving her refusal, offered her a share of the profits, which she again refused (see Powell 1997, 115). Burnett’s side of the events is illustrated in a letter written to her friend, Dr. Owen Lankester, in 1887:

A thief has quietly dramatized Fauntleroy and I am engaged in fierce battle with him. […]

The brigand, whose name is Seebohm, knew he was doing a miserable, dishonest thing, and knew I thought myself protected by the “All rights reserved” on the title-page. He kept his plans most discreetly secret until he was ready and it was too late for me to hurry my play and secure myself—and then he calmly informed me that he had “dramatized my charming book.” Then, letters and telegrams and general excitement. Then I think he realized that he was in a rather glaringly ugly position and that public opinion would be against him, and after having told me I couldn’t help myself, etc. etc. he finally telegraphed that he would give me half profits if I would sanction.

But I will not sanction any profits if my dear little boy is spoiled. (qtd. in Thwaite 1974, 108–9; emphasis in original)

Burnett viewed Seebohm’s actions as calculated in their timing and as an attempt to take advantage of her by flattering her with praise for her novel. Labelling Seebohm a “thief” re-echoes other discourses of the time regarding adapters, discussed further below. Furthermore, fearing that adaptation might spoil her novel, “her dear little boy,” indicates that, above any financial consideration, her concern lay with the quality of the dramatisation. She retaliated by beginning to dramatise the novel herself to protest against his adaptation. He continued regardless, informing her of his adaptation’s success at the Prince of Wales Theatre, which premiered on 23 February 1888.³³

Although he was legally allowed to adapt the play for stage performance, he had violated the law in another way, which allowed Burnett to take him to court through her publisher Frederick Warne and Co., and even prevent further performances of the play. Seebohm’s legal breach was that he had made four typewritten copies of the play text: one had been sent to the Lord Chamberlain, as the licenser of the play, and the others had been given to the players. These texts served as written evidence that he had “appropriated practically without change, large proportions of the dialogue, the names of the principal characters, the situations and plot, and that the explanatory and descriptive matter in the novel had been transferred to the play as dialogue and stage directions” (Rogers 1902, 120). In his judgement, Justice Stirling ruled in favour of Warne/Burnett, decreeing that the copies of the play had to be given up.³⁴ As this included the Lord Chamberlain’s copy, whose licence was needed to perform the play, the performance ultimately had to be withdrawn.

However, in his ruling, Justice Sterling stated that, “There is a possible mode by which, without infringing the plaintiff’s copyright, the defendant may be able to make copies of the play.” Although he does not explain what that mode might be, Edward S. Rogers proposes that, if the defendant had merely taken copies of the novel and “simply marked the passages he desired his actors to recite, he could not have been enjoined” (1902, 120). Whether this would have been a viable solution is doubtful, however, as a marked copy of the novel might not have been accepted by the Lord Chamberlain as a play script and it would pose further written proof of copyright breach.

Nevertheless, this case offered a precedent by which future authors could potentially prevent performed adaptations of their fictions. Whereas Tinsley v. Lacy concerned the distribution of the published play to the audience, this case concerned the distribution of play scripts to performers and the licensor, which was standard practice. The Lord Chamberlain would not license a play without having the accompanying text. The far-reaching consequences of this decision meant that the courts could order all copies of unauthorised theatrical adaptations to be destroyed making it impossible to perform them legally.

Burnett’s own dramatisation opened in May 1888, four days after the judgement, with the telling title, The Real Little Lord Fauntleroy (Fig. 2.1). Not only did it receive more favourable reviews than Seebohm’s version, comparisons between the two were also made, as The Times review from 15 May 1888, shows: “The Real Little Lord Fauntleroy […] proved to be in all respects superior to the pirated version which Mr. Seebohm has been restrained from performing. Better written, better balanced, more sympathetic in treatment [… it] reflects in a great measure the fresh, delicate, exquisitely pretty sentiment of the book” (10). Publicly, Burnett was therefore also vindicated with her adaptation deemed as ‘superior’ to the unauthorised one.

Fig. 2.1

The Real Little Lord Fauntleroy at the Opera Comique Theatre London. December 1888 Programme. (Author’s collection)

Burnett even joined the actors on-stage for the curtain call, highlighting her position as author, not only of the original, but also as the adapter of the self-authored, self-authorised stage adaptation. Subsequently, also with Burnett’s involvement, the play was produced in America. The court case was regarded as a victory for writers across Britain, and Burnett’s perseverance in her right of ownership was widely acknowledged: for example, by the Society of Authors in July 1888,³⁵ who honoured her at a banquet, which was held “in honour of American men and women of letters now in England, partially in order to thank them for their efforts on behalf of international copyright.” At the banquet, she was presented with a diamond bracelet and ring; the bracelet’s inscription read, “To Frances Hodgson Burnett, with the gratitude of British Authors,” and the present also included a scroll, signed by 84 writers, stating:

The undermentioned Men and Women of Letters desire to express to Mrs Frances Hodgson Burnett their appreciation of the great service they believe she has rendered to British Authors by so strongly attracting public attention to the unsatisfactory condition of Copyright Law in England. (qtd. in Thwaite 1974, 113–14)

Kerry Powell argues: “[n]ot only did Burnett become the first woman novelist to repel this textual violence with a play of her own […] but she became the first also to erase, quite literally, the male playwright’s adaptation” (1997, 119). There was, however, a tragic underside to the triumph, as Powell reports: leaving London after the injunction, Seebohm appears to have committed suicide in New York a few months later, following news of Burnett’s theatrical success reaching America (120–1).

The consequences of this case had wider repercussions for authors more generally, as the court cases fought by Braddon and Burnett through their publishers prominently highlighted the problems within the existing copyright laws, which, together with changing attitudes about literary ownership, set new legal precedents for dramatic adaptations at the end of the nineteenth century. These, however, were not fully realised until the 1911 Copyright Act, discussed in Chap. 4.³⁶ Prior to this, and to Braddon and Burnett’s victories in court, other means of protesting unauthorised adaptations were being established.

The Adapter Adapted

No one was immune from struggles with copyright and unauthorised adaptations, regardless of gender, financial status, fame, or social standing. Even Charles Dickens (1812–70), the most famous and financially powerful mid-nineteenth century novelist in any country, was unable to control stage adaptations of his fiction and frequently became involved in debates surrounding authorial rights in theatrical adaptations of his works. Like Burnett years later, he was not only outspoken in print about the injustices that he experienced as a writer whose work spawned numerous unauthorised theatrical adaptations and the laws that allowed them, he was also actively engaged in and with adaptations of his writings. Dickens’s highly publicised and eloquent writings on the subject influenced public opinion. By 1910, one year before the 1911 copyright law that would make radical changes to prior laws, S.J. Adair Fitz-Gerald agreed that Dickens was often “robbed right and left of the efforts of his genius” (1910, 74). In his book, Dickens and the Drama, Fitz-Gerald documented the close connection and interest that Dickens had with the theatre, not just as a dramatic writer, but also as an amateur actor. In this and other accounts of Dickens’s relation to theatre, it is clear that he did not always object to all adaptations of his work, authorising some, attempting to write others, and involving himself in adaptations in other ways, such as attending rehearsals and proposing suggestions in the process.³⁷ Examples of his attempts included: arranging to adapt some of his Christmas works with Albert Smith (in Fitz-Gerald’s view, to thwart the “literary purloiners”) and proposing to dramatise Oliver Twist himself in 1838, albeit in vain (104).³⁸ Like many others before and after him, Dickens’s objections to stage adaptations of his writings were not only financial and reputational, but also made to maintain authorial control over his characters and plots, most markedly when playwrights took to adapting his work before his serialisations had even been completed.

While court cases tend to highlight financial loss and remuneration, as audiences often chose to see plays rather than buy periodicals or books, Dickens was concerned about other negative consequences for authors, including adaptations undermining authorial control over a prose narrative prior to its completion and poor quality adaptations casting shade on an author’s literary reputation. He therefore particularly objected to stage adaptations pre-empting his endings before he had written it and when they did not convey what he considered to be a favourable impression of his works and, by extension, of himself as their author. He wrote, for instance, to Frederick Yates, who managed the Adelphi Theatre where a dramatic adaptation of Nicholas Nickleby by Edward Stirling was being staged in November 1838 before he had finished writing the novel in serial form³⁹:

My general objection to the adaptation of any unfinished work of mine simply is, that being badly done and worse acted it tends to vulgarize the characters, to destroy or weaken in the minds of those who see them the impressions I have endeavoured to create, and consequently to lessen the after-interest in their progress. (in 2002, 463)

Although, after viewing it himself, Dickens points out that “no such objection” existed with regard to Stirling’s adaptation,⁴⁰ his general view was that an adaptation of an unfinished work reduced reader interest in the ongoing serialisation, thus potentially cutting Dickens’s profits and devaluing his work.

Of more interest to adaptation studies than this oft-made point, Stirling had pre-empted Dickens’s authorship and ownership of his own narrative by writing an ending for it before the “original” ending appeared. By adapting the serial before the original ending had been written, the adaptation perversely took precedence over the original. In the minds of theatre audiences and serial readers, this pre-emptive, and yet still secondary, ending might undermine the novel’s actual ending, not only diminishing consumer interest in finishing the serial and profits for Dickens and his publishers, but also constituting a potential disruption in the normal sequence of source and adaptation, so that the prose fiction “source” ended up being seen to adapt the adaptation.

The best-known dramatist to adapt many of Dickens’s novels for the stage before he had finished writing them in serial form was William Thomas Moncrieff (1794–1857), who was considered a “pirate” and a “hack” writer, not just in critical studies of Dickens (for example, in Patten 2012, 204; Bolton 1987, 23), but also by Dickens, and even by Moncrieff himself. Standing in front of the Select Committee of the Dramatic Arts in 1832,⁴¹ prior to his affiliation with Dickens, he had stated: “I [Moncrieff] was regularly engaged at the theatre [Drury Lane] as a sort of hack author” (Select Committee 1836, 175). Moncrieff’s report nevertheless showed, amongst others, that an original playwright was as vulnerable to plagiarism as a novelist was under earlier copyright laws.⁴² Favourable accounts defending Moncrieff have been written more recently: for example, Jacky Bratton calls for a more “sympathetic and indeed admiring evaluation” of Moncrieff’s adaptations, arguing that his reputation had been “fatefully tarnished by the abuse of Charles Dickens” (2015, 9). Lissette Lopez Szwydky similarly points out the productive impact of dramatic adapters like Moncrieff as not only “artists in their own right,” but also as “important cultural mediators,” that kept texts in circulation (2020, 87). Moncrieff nevertheless stood in striking contrast to the widely celebrated Dickens, and they had numerous public disagreements on the process of adaptation and the rights of the literary writer and the stage adapter.⁴³

Dickens, however, went further than other prose writers did when he published a proclamation against adapters before the serialisation of Nicholas Nickleby began. Under his celebrated pseudonym, “Boz,” he stated:

Whereas we are the only true and lawful “Boz.” And whereas it hath been reported to us, who are commencing a New Work, to be called—THE LIFE & ADVENTURES OF NICHOLAS NICKLEBY That some dishonest dullards, resident in the by-streets and cellars of this town, impose upon the unwary and credulous, by producing cheap and wretched imitations of our delectable Works. And whereas we derive but small comfort under this injury, from the knowledge that the dishonest dullards aforesaid, cannot, by reason of their mental smallness, follow near our heels, but are constrained to creep along by dirty and little-frequented ways, at a most respectful and humble distance behind. And whereas, in like manner, as some other vermin are not worth the killing for the sake of their carcases, so these kennel rats are not worth the powder and shot of the law, inasmuch as whatever damages they may commit, they are in no condition to pay any. (2008, 832–3)

Dickens charged adapters with dishonesty and dullness; he positioned them outside the mainstream in by-streets and below board in underground rooms; he diminished them economically (“cheap”) and intellectually (“mental smallness”), dehumanising them as rats and vermin. With regard to copyright, which is the main focus of this chapter, he explained the law’s failure to regulate them in terms of their inability to pay damages; like rats, they were not worth the law’s consideration.

Dickens also went further than other authors did by adapting one adapter in his fiction. When Moncrieff adapted the serialisation before its conclusion (the monthly serial ran from March 1838 until September 1839), Dickens seized on the opportunity to fictionalise Moncrieff in a satirical portrait ridiculing him as a writer in chapter 48 of the unfinished Nicholas Nickleby, published on 30 May 1839:

[T]here was a literary gentleman present who had dramatised in his time two hundred and forty-seven novels as fast as they come out—some of them faster than they had come out—and was a literary gentleman in consequence. (2008, 632–7; emphasis in original)

Since Moncrieff had already pre-empted the novel’s ending, he had no chance of rebutting his portrait in this adaptation. Dickens thus managed to have the final word, even though Moncrieff had pre-empted his ending, authoring the adapter when he was not allowed to authorise the adaptation.

Dickens also wrote a diatribe for the eponymous hero of the novel, Nicholas Nickleby, to give to the “literary gentleman.” As a rare instance of an author commenting on his adapter in fiction, it is worth quoting in full:

[Y]ou take the uncomplete books of living authors, fresh from their hands, wet from the press, cut, hack, and carve them to the powers and capacities of your actors, and the capability of your theatres, finish unfinished works, hastily and crudely vamp up ideas not yet worked out by their original projector, but which have doubtless cost him many thoughtful days and sleepless nights; by a comparison of incidents and dialogue, down to the very last word he may have written a fortnight before, do your utmost to anticipate his plot—all this without his permission, and against his will; and then, to crown the whole proceeding, publish in some mean pamphlet, an unmeaning farrago of garbled extracts from his work, to which you put your name as author, with the honourable distinction annexed, of having perpetrated a hundred other outrages of the same description. Now, show me the distinction between such pilfering as this, and picking a man’s pocket in the street, unless, indeed, it be, that the legislature has a regard for pocket handkerchiefs, and leaves men’s brains, except when they are knocked out by violence, to take care of themselves. (2008, 633–4)

The work of the adapter is described here as being thoughtless and slatternly, suggesting how, especially with an unfinished work, the adapter savages the carefully crafted work of the original author. Although the direct address makes this impassioned discourse personal to Moncrieff, who had been identified by the press as the gentleman in question, it gestures to a much more widespread authorial attitude to dramatisation of their novels. Writing adaptation is thus devalued as thoughtless and crude, as well as criminal; both charges are considerably worsened by an accompanying representation of the adapter boasting of his actions. Dickens used his fiction to attack not only the individual adapter, but also the immorality of the legislation,⁴⁴ as well as the theatres and publishers that allowed such thefts to occur, when the law prohibits, to his mind, much lesser thefts of pocket handkerchiefs.⁴⁵

Dickens contrasted the cost of creativity and labour involved in creating original fiction unfavourably to the lesser labour that he considers to be involved in adaptation, which he likened to criminal theft of a man’s hard-earned possessions by those who did not work to earn the money to pay for what they pilfered. The outrage of the analogy is accentuated because, unlike pickpocketing and pilfering, literary crimes are protected by the law, devaluing artistic labour, while failing to protect ownership rights by comparison to laws regarding property.

Moncrieff had only just adapted Nicholas Nickleby to the stage ten days prior, premiering on 20 May. Since Moncrieff could not respond by recuperating the fictional literary gentleman in a stage adaptation, he wrote an open letter to the press and public defending himself and articulating the dramatist’s view of adaptation and the disadvantageous situation of novel dramatisation at the time.⁴⁶ Dated 5 June 1839, the letter reads:

I could wish it were generally agreed that no original Novel, Romance, or Tale should be made use of for dramatic purposes, without the original Author having an interest in such appropriation, but as such is not the case, and the works of novelists, etc., have at all times been considered fair game to the dramatist, without any complaint from their Authors, I do not perceive why I should be expected to become a solitary exception, and be debarred an advantage allowed to others. […]

I willingly admit that the common practice of dramatising works before their original authors have completed them is an unfair and vexatious one; but it did not originate with me. (qtd. in full in Fitz-Gerald 1910, 121–6)

While Moncrieff objected to being singled out by Dickens, he agreed that authors should be remunerated for adaptations of their work, but that this was not the law or common practice. Where both Dickens and Moncrieff agreed was on how urgent the need had become for a fairer copyright law that would reflect cultural values held in common by authors and adapters. The textual exchange between Dickens and Moncrieff, involving various forms of writers writing, highlighted the growing consensus regarding the need for further reforms in copyright laws, even among adapters who, already economically disadvantaged by comparison to successful prose writers such as Dickens, stood to lose from such changes.

But there was more to this debate than issues of crediting and remuneration. It cannot be that Dickens was merely objecting to Moncrieff’s claim to literary status by writing an original ending to his adaptation of another man’s work, since other dramatists had already pre-empted Dickens’s ending several months prior, including Stirling.⁴⁷ Dickens’s swift and virulent response to Moncrieff’s adaptation may have arisen because Moncrieff had correctly guessed Dickens’s intended ending for Nicholas Nickleby, where his predecessors had not, thus forcing Dickens to change his ending and, in the process, to become an adapter of his own work to reassert his identity as original author. The accusation that Moncrieff had stolen his “brains” (ideas) rather than his writings supports this supposition,⁴⁸ as does Moncrieff’s letter to the public:

[T]hat I should unfortunately have hit upon the same ending of the history as that projected by Mr. Dickens, and thereby have caused him annoyance, I really regret; but there is a very easy way of making me “hide my diminished head.” Let Mr Dickens—and he has five months before him—set his wits to work again and finish his “Nicholas Nickleby” better than I have done, and I shall sink into the primitive mire, from which I have for a moment attempted to emerge by catching at the end of his garment. (122–3)

Guessing and pre-empting the original author’s ending, in turn, would have set Moncrieff on a par with the original author; hence, Dickens’s scathing attack on his literary pretensions. Whatever Dickens’s motives for singling out Moncrieff, it may be that writing the ending was a welcome liberty from adaptation, presenting a rare opportunity to write something original for the adapter. The larger point to stress here for adaptation studies more generally is that this adaptation ruptured conventions of original and adaptation by partially inverting the adaptation of another author’s original writing with original writing by the adapter, conversely requiring adaptation by the “original” author.

The Author as Transatlantic Commodity

As the century progressed, authors increasingly challenged copyright laws, with Charles Reade and John Hollingshead founding the Association to Protect the Rights of Authors in 1875, supported by other authors such as Tom Taylor, Anthony Trollope, and George Eliot (Lauriat 2009, 28–9). In America, the Authors Copyright League (later: American Copyright League, 1883) included authors such as Mark Twain, Henry James, Louisa May Alcott, Harriet Beecher Stowe, as well as Burnett. Authors such as Reade, Collins, and Dickens were vociferous about the gap between national and international laws.⁴⁹ Collins wrote to Reade in November 1869, “If you and I could get our brethren to fight without being paid for it—and to agree together—we should have international copyright all over the world. But (except Dickens) who will take the trouble?” (2005, 333).

These and other challenges began to change press and public opinion, putting pressure on lawmakers.⁵⁰ Although not always sympathetic to the plight of the author, whom the press believed benefited from adaptations, as many authors themselves acknowledged, 20 years on, the press concurred with Collins:

While we are not inclined to take a sentimental view of the grievances of adapted novelists, who get an excellent advertisement, by the way, out of the fuss over their sufferings, we are willing to wax as indignant as their most enthusiastic champion could desire at the existing state of the law […] Why do novelists not all “pull together,” agitate fiercely, and get the law altered? (The Era, 3 March 1888: 13)

More specifically, Collins expressed his opinions on the perceived faults of the Anglo-American legal system in two published articles.⁵¹ “A National Wrong,” written collaboratively with James Payn in February 1870 for Chambers’s Journal,⁵² was left unsigned by Collins, but he undoubtedly had a hand in its writing, because it includes a letter exchange between himself and a Dutch publishing house, published previously in the Echo “in [an] act of justice,”⁵³ and republished here with a framing commentary, attacking the “dishonesty of the publishers in Holland,” while also referring to the copyright conflict with the United States (Collins and Payn 1870, 107–10).⁵⁴ A decade on, another article, “Considerations on the Copyright Question,” published in the New York monthly International Review 8 in June 1880 (609–18), continued the arguments of “A National Wrong.” Here, Collins directly attacked the practices of American publishing houses and recounts the financial losses that authors such as himself and Dickens have incurred from the absence of international copyright law and defended the principle that authors should possess control over their intellectual property, their works, whether at home or abroad on the principle of moral right.

Burnett, born in Britain and migrating to America at an early age, “spent her life as neither British nor American […] straddling both countries’ opportunities and attitudes” (Gerzina 2004, x). She thus provides a particularly apt case study to investigate British copyright law in an international context. After her literary success in both America and England, unauthorised reprints of her work were widely published in both nations: these included legitimate and illegitimate re-publications of her work. Initially she left herself vulnerable in both nations by not sufficiently copyrighting her work in either. Gerzina argues that “the struggles over copyright to her own work in England and America awakened in her a desire to protect her work and outwit those who sought to cash in on her labour and hard-earned profits” (2004, 76). But Burnett herself was not solely focused on financial issues; she was equally focused on another kind of credit: her reputation as a writer, hard-earned over a long career.

In a letter to her American friend Mary Bucklin Claflin, dated July 1882, she expressed reluctance to have her early, less accomplished stories republished: “I was a very unripe little girl when I wrote [Dolly] & it makes me feel queer to read it, in these my worldly & sophisticated days” (qtd. in Gerzina 2004, 71). Indeed, reviews such as those in the Literary World in 1878 agreed with Burnett’s reluctance to have these stories resurface, writing:

We can well understand why Mrs. Burnett might wish that her Kathleen, which first saw light, we believe, in Peterson’s Magazine, should have been left there buried and forgotten, for, though in no way discreditable to her as the effort of a young writer, it is wholly lacking in the picturesque power which she has manifested in her later work. (VIII.11: 193)

My concern in this chapter, however, is less with the international republication of fiction than with dramatic adaptations of fiction. In 1878, almost simultaneously, four unauthorised dramatic versions of Burnett’s first novel That Lass o’ Lowrie’s (1877) had appeared in London. One of them, by Joseph Hatton and Arthur Mathison, had claimed falsely in the script, entered at the Stationer’s Hall in 1877, that it was “the only version of Mrs. Burnett’s Novel authorised by the author. It cannot be performed without the express permission in writing of Joseph Hatton and Arthur Mathison,⁵⁵ of the Dramatic Authors’ Society” (qtd. in Bolton 2000, 106). In light of Burnett’s concerns about her reputation, Hatton allegedly wrote to the New York Times, claiming that, but for his play, people in Britain would have never heard of the book (Thwaite 1974, 62), possibly basing his assertion on the premise that Burnett was better known in America.

Another dramatisation of That Lass o’ Lowrie’s, written by Charles Reade, performed under the title of “Joan”⁵⁶ in Liverpool in August 1878, instigated a widely publicised debate based on Burnett’s transatlantic copyright and on international differences between the copyright laws governing theatrical adaptations. In the New York Times, Reade defended his decision to adapt her work without her permission on the basis of the British copyright laws and conventions:

There was no earthly reason why we should not do so. The authoress in her book has shown a natural and proper desire to retain copyright [of the novel] in both countries. But she has not printed one syllable to lead one to suppose she desired to retain stage-right in it. And, as it is not the habit of novelists, unless they are known dramatists, to dramatize their own works, she has left this entirely open, especially as the law of England gives no novelist stage rights in his work, but only copyright, or the right of printing and publishing. (31 October 1878; emphasis in original)

Reade reminded readers that the only stage rights accorded British prose fiction authors lay in the publication of their own dramatic adaptations of their fiction. Although this did not deter other playwrights from adapting their work, as we have seen, it did secure the prose writer some dramatic, adaptive rights. In contrast, American copyright law gave novelists the option to reserve dramatic rights to their work within a specified time period after initial publication.⁵⁷

When Burnett, as Collins had done, subsequently appealed to Reade on the grounds of moral right, demanding that he stop the play even though the law permitted it, he relented, withdrawing his adaptation in England. However, having already sold the dramatisation abroad, an American adaptation of his adaptation was staged. Reade offered payment to Burnett for both versions,⁵⁸ which he was not required to do by law. However, as a novelist and a playwright who had, without authorisation, both adapted and been adapted, and who maintained an avid interest in copyright proceedings and authorial rights, he understood and likely sympathised with Burnett’s position, crediting her both financially and reputationally. In spite of Reade’s efforts, Burnett was still dissatisfied, and therefore determined to dramatise her own novel, discovering, in the process, a love of writing for the stage which she continued to pursue throughout her career.⁵⁹ She also took steps to protect her work more strenuously in future, seen, for example, in her decision to release A Lady of Quality (1896) simultaneously in both the US and Britain, and with the copyright performance in Britain taking place on the same day (Gerzina 2004, 191).

Author-ising Adaptation

Authorising adaptations in order to establish some degree of control over the dramatisation of fiction, however, could lead to further complications, including financial, performative, and narrative disagreements between authors and adapters.

Authorised stage adaptations were liable to turn negative and result in a loss of control and respect for the prose author, as was the case with Marie Corelli (1855–1924), who had been asked to turn her novel, The Sorrows of Satan (1895), into a play, but had declined to adapt it herself. She subsequently gave permission for it to be adapted by the unknown Captain Herbert Woodgate and Paul Berton, albeit with the condition that “nothing was to be done respecting this play without my distinctly declared approval” (qtd. in Ransom 1999, 87). When the final version was read in her presence, it was declared “unactable” by Herbert Beerbohm Tree, a renowned theatre actor and manager,⁶⁰ who was also present. Corelli agreed with him, and even offered to rewrite parts of the play herself, an offer that the adapters rejected, determining to revise it themselves. Her belief in their ability was so marked that Corelli wrote to the Grosvenor Theatrical Syndicate, who planned to produce the play, indicating that:

[She] left the matter to Messrs Woodgate and Berton, trusting to the knowledge and experience they professed to have of the stage that they would alter and revise the play not only to make it worthy of the admitted success of my book, but also of the prestige of my name. (qtd. in Ransom 1999, 87)

After the revised version of the play was given to the Syndicate without Corelli’s approval, she was invited to be present at its first reading in the theatre where, in her own account, two of the leading actors (Evelyn Millard and Lewis Waller) left abruptly, informing Corelli later that they were not willing to risk their reputation by acting in the play, echoing Corelli’s own point about the adaptation being reflective of her reputation. Considering this version to be worse than the first, Corelli wrote, “I was entirely of [the actors’] opinion, and the whole incident gave me the greatest pain” (qtd. in Ransom 1999, 88). Yet there was nothing that Corelli could do to stop the production, despite refusing the proffered £500 cheque for the theatrical rights and even offering to return the money to Grosvenor Syndicate shareholders, as well as to write ‘a guaranteed successful play’ herself, starring Beerbohm Tree. However, she was refused on grounds that, the shares having been issued, they were obligated to go ahead with the production (Coates and Bell 1903, 190). Proclaiming that she could not see “anything ahead of the proposed production but disastrous failure,” she declined to attend any more rehearsals or performances. As predicted, the play was condemned in reviews and it was assumed by the public that Corelli, mortified by the failure, was the author, or that, at the least, the play had been sanctioned by her.⁶¹

Corelli’s involvement in the initial agreement and her direct involvement at various stages of production fuelled this perception, rendering her more accountable in the eyes of the press and the public than if it had been an entirely unauthorised endeavour. Corelli’s position as an independent female writer, without a male figure or a publisher to champion her, made her especially vulnerable. Since her relationship with the press had always been volatile,⁶² despite her protestations to the contrary, they did not hesitate to hold her responsible for the failed adaptation. Unlike Braddon and Burnett, Corelli had never attempted to write for the theatre, and was thus arguably more susceptible to failed dramatic adaptations, since there were no superior adaptations authored by her to override those authorised by her. Her reputation and career were further harmed when this catastrophic failure reportedly made other theatre managers wary of staging authorised adaptations of her fiction (Waller 2006, 787), causing further damage to her reputation and her work. To make matters worse for Corelli, several other unauthorised versions of The Sorrows of Satan kept appearing on stage (Fig. 2.2).⁶³

Fig. 2.2

“The Sorrows of Satan from the famous novel of Marie Corelli.” Theatrical Poster 1889. N.Y.: H.C. Miner Litho. Co. Library of Congress

Legally Safeguarding Adaptation

The press was also alienated by authorial efforts to secure dramatic copyright. In the latter half of the century, staging theatrical performances in order to copyright them prior to their print publication became a popular and established means to circumvent the limitations of dramatic copyright law. Plays were promptly staged, often before the print publication of the plays, in order to secure legal performing rights. Often such pre-emptive performances were staged minimalistically and covertly in provincial theatres, producing hostility from the press, who were excluded from them in an effort to keep them secret, and who made accusations of “underhand dealings, particularly when plays by prominent authors were being copyrighted” (Stephens 1992, 109). Both novelists and playwrights could stage dramatic readings for the public in order to assert authorial ownership over their writing in performance: this was also done on an international level.⁶⁴ Many authors followed Dickens’s trajectory by giving dramatic readings as copyright performances before publishing their prose fiction work. Although in Dickens’s case his national and internationally staged readings were too late to influence their copyright status, since his works had already been published as novels and plays (Chap. 3 discusses his staged readings further). Authors who did take advantage of this option include Corelli, who organised dramatic readings of her novels as soon as they were published, in order to register her own performance copyright of them.⁶⁵ Writing on Corelli’s life in 1903, T.F. Coates and Warren Bell, describe how this necessity would often take the form of “a ‘sham’ play performed before a ‘sham’ audience with ‘sham’ actors” (191). Louisa Ransom credits this way of assuring ownership of her work on the stage to Corelli’s prior negative experience with adaptation of her work by others in 1896–7 (see 1999, 87–8).

The staging of authorial copyright performances was an established tactic by the late 1880s, which, according to Derek Miller, earned “regular notice in the theatrical press,” became “a selling point for theatre owners” and acquired a “unique term of art,” as well as revealing “the complex interaction between economics and aesthetics in the late nineteenth century” (2012, 167–76). Miller, however, describes many “copyright performances” as “failed” theatrics, as he highlights the paradox, in which writers “successfully performed legal work without working as a theatrical performance” (174).

Copyright performances were so commonly used to secure the stage rights of a work for its author that, when Burnett took legal action against Seebohm’s unauthorised adaptation of her work in 1888, she was criticised in the press for her failure to lawfully secure it in that way:

If Mrs Burnett thought that Little Lord Fauntleroy was worth preserving for the adaptor, why did she not secure it in the legal way? A copyright performance can be easily done for about £30, a mere trifle to a successful lady novelist. (The Era, 3 March 1888: 13)

Burnett again learned from the experience, doing so with subsequent publications. However, these were not without problems. Gretchen Gerzina’s biography of Burnett recounts how Burnett’s copyright performance of Phyllis (1889) caused tension and confusion within and between the press, when it was mistaken for an actual trial matinee (2004, 129–30), because as the Washington Post had observed the day before its staging in London, Burnett declined “to follow the usual custom of having the lines merely read from the stage; she prefers to pay the expenses herself of a finished performance” (1 July 1889). In so doing, she brought criticism upon herself as a dramatic author in the World:

She should let experienced dramatists do this sort of work for her while she writes more stories. It is quite as absurd for her to make her own plays at it would be for her to make her own dresses. They do not fit and what she saves in wages she loses in time. (qtd. in Thwaite 1974, 123).

Despite the World being corrected and taken to task by the Spirit of the Times for their error, Burnett’s reputation as a writer had been compromised by the ambivalent copyright performance.⁶⁶ Nonetheless, such copyright performances worked to blur boundaries between prose fiction and plays. Miller argues that these subtly changed theatrical aesthetics from nineteenth-century spectacle to the more literary theatre commencing in the 1890s (2012, 175). Going further than Miller, I argue that attempts to secure authorial rights in the reaction against the failure of copyright laws to secure them contributed not only to new theatrical aesthetics, but also to new forms of hybrid writing and adaptation across media, a subject to which my study returns throughout.

The Author as Plagiariser

Prose fiction authors were not solely victims of what they perceived to be unjust copyright laws: they were also able to benefit from lax copyright laws by adapting other people’s work, though the risk of reputational damage meant that they sought to hide their sources. One particularly popular method was the “borrowing” of French plays for the London stage, which, according to Stephens (1992), was actively encouraged and did not require crediting or remuneration until the Berne Convention of 1886. Two popular writers who were accused of this action were Charles Reade and Dion Boucicault, though Sarah Meer (2015) suggests that they used this practice to test legislations and to create case-law for adaptation.

Controversially, though not illegally, Braddon also adapted foreign plays to her own British novels without crediting them. Carnell claims that British stage adaptations of French plays influenced Braddon, tempting her to plagiarise them for her prose fiction. Rather naively, Carnell considers this “odd,” claiming that Braddon had “fathomless imagination,” while conceding that the vast amount of writing that Braddon was producing at the height of her fame in the 1860s made her turn to plagiarism out of financial need and in search of ideas, an explanation that Braddon advances herself in Hostages to Fortunes (1875), which features a playwright who finds himself “desperate for money, bereft of ideas, and so resorts to using a French play” (2000, 220).

Braddon’s 1864 novel, The Doctor’s Wife, adapts Gustave Flaubert’s Madame Bovary (1856) for English readers, changing the ending and fates of the characters.⁶⁷ However, her 1867 novel, Circe, written under the pseudonym Babington White,⁶⁸ is more of a direct translation of Octave Feuillet’s Dahlia (1857) than an adaptation. When she was exposed as the author, she was accused by the press of plagiarism and of being a “literary thief” (Carnell 2000, 220), a clear indication that, in spite of there being no legal prohibitions to what she had done, public opinions were changing and placing pressure on existing copyright laws. Although she could not be prosecuted, her authorial reputation was thoroughly compromised by her actions. The fact that she published the work under an alias further suggests that she was aware of the moral breach that she was committing and showcasing a double standard with regard to literary ownership in the context of adaptation, protesting when her own work was adapted without credit, while doing the same to fellow authors.

Burnett, who had protested against unauthorised stage adaptations of her fiction, was similarly charged with plagiarising Little Lord Fauntleroy (1886). Newspapers picked up on similarities between Burnett’s novel and other works, such as a story written by A.T. Winthrop in 1880, entitled “Wilfred,” a source that Burnett dismissed.⁶⁹ Mark Twain believed that Burnett might have appropriated his work, as he wrote in a letter to a friend: “I doubt if Mrs. Burnett knows whence came to her the suggestion to write ‘Little Lord Fauntleroy,’ but I know; it came to her from reading ‘The Prince and the Pauper’ [1881],” adding that: “In all my life I have never originated an idea, and neither has she, nor anybody else” (in 1917, 814). Twain here shows not only unusual generosity to a potential plagiariser of his work, he also anticipates theories of poststructuralist intertextuality and postmodern scepticism regarding Romantic theories of originality prevalent in his own day.

Originality was tied not only to ownership, but also to aesthetics: it was, and still is in many contexts, seen to be a hallmark of fine writing in any medium (discussed further in Chap. 3). When Burnett defended herself from these accusations of plagiarism, this was only further detrimental to her reputation, since few believed her defence. The Spectator (1890), for example, described her response as “a reply which is in very bad taste, exceedingly contemptuous and angry, and not at all the kind of answer which those who are interested for her reputation could have desired” (164–5). Those who wished to decide for themselves were nevertheless free to do so, since both her work and the work she was said to plagiarise were in print—a further consequence of copyright law.

As evidenced in this chapter, copyright law greatly influenced adaptation practices in the nineteenth century in ways that have been largely overlooked by prior adaptation studies. While theatrical adaptation indubitably benefited prose fiction authors, increasing the reach of their fiction and reputation to wider audiences, the lack of financial or official nominal credit resulted in a loss of control and ownership of their intellectual property and additional profits. Copyright laws produced a variety of responses from authors, ranging from authorising adaptations by others to self-adaptation and from legal actions to public and fictional outcries in print. Despite their protests, some authors took advantage of the law from both dramatic and prose sides, adapting the work of others as well as being adapted by others and adapting their own work. Authors’ proactive engagements with copyright law resulted in changed public opinions which eventually led to substantial changes in copyright law, discussed further in Chap. 4. They also contributed to and reflected other social, economic, cultural, class, and aesthetic relations between prose and theatrical writers and writing and to adaptations between prose and play, which are addressed in Chap. 3.