Poor Richard Revised: Benjamin Franklin and the Ritual Economy of Copyright in Colonial America

Abstract

Benjamin Franklin was the most prolific and profitable author in colonial America. Work on the history of intellectual property has increasingly identified Franklin as a central figure, particularly in the philosophical development of American copyright law. His understanding and use of what we now think of as intellectual property are potentially illustrative of its emerging theorization in the eighteenth century. Evidence of this can be found in his thoughts and actions regarding copyright and patent specifically, as well as related issues such as the attribution and development of ideas. Adapted from economic anthropology, the theory of ritual economy provides a framework through which to consider how Franklin’s worldview materialized in everyday economic practices, including interactions with proto-intellectual property issues.

Notes

1 “Poor Richard, 1733,” The Papers of Benjamin Franklin (hereafter PBF) accessible at http://www.franklinpapers.org. Franklin’s papers have been digitized and made available online in their entirety. The original language of these papers, including spelling and capitalization, is preserved throughout this article.

2 James N. Green, “Benjamin Franklin as Publisher and Bookseller,” in Reappraising Benjamin Franklin: A Bicentennial Perspective, ed. J. A. Leo Lemay (Newark, NJ: University of Delaware Press, 1993), 98–99.

3 Meredith L. McGill, “Copyright,” in A History of the Book in America, Volume 2, An Extensive Republic: Print, Culture, and Society in the New Nation, 1790–1840, ed. Robert A. Gross and Mary Kelley (Chapel Hill: University of North Carolina Press, 2010), 200.

4 The first state copyright statutes did not appear until 1783. See Thorvald Solberg, ed., Copyright Enactments of the United States, 1783–1906. (Washington, DC: Government Printing Office, 1906), 11–31.

5 See, for example, “On Conversation,” October 15, 1730, PBF; “Apology for Printers,” June 10, 1731, PBF; “Alice Addertongue,” September 12, 1732, PBF; “On Literary Style,” August 2, 1733, PBF; and “Half-hour’s Conversation with a Friend,” November 16, 1733, PBF.

6 US Constitution, art. 1, sec. 8, cl. 8, which reads, “The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

7 There is no evidence of any direct influence by Franklin on the language of the Copyright and Patent Clause. See Lyman Ray Patterson, Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, 1968), 192–196 for a succinct history of the clause’s inclusion in the US Constitution.

8 Carl van Doren, Benjamin Franklin (New York: Viking Press, 1938), 782.

9 See, for example, Norman S. Grabo, “The Journalist as Man of Letters,” in Reappraising Benjamin Franklin, ed. Lemay, 31–39; Patricia Bradley, “Forerunner of the ‘Dark Ages’: Philadelphia’s Tradition of a Partisan Press,” American Journalism 13, no. 2 (Spring 1996): 126–140; David Yerkes, “Franklin’s Vocabulary,” in Reappraising Benjamin Franklin, ed. Lemay, 396–411; J. A. Leo Lemay, The Life of Benjamin Franklin, Volume 2: Printer and Publisher, 1730–1747 (Philadelphia: University of Pennsylvania Press, 2006), 124–134; Larzer Ziff, “A Silent Revolution: Benjamin Franklin and Print Culture,” in Publishing and Readership in Revolutionary France and America, ed. Carol Armbruster (Westport, CT: Greenwood Press, 1993), 45–57; and Ralph Frasca, “‘The Glorious Publick Virtue So Predominant in Our Rising Country’: Benjamin Franklin’s Printing Network during the Revolutionary Era,” American Journalism 13, no. 1 (Winter 1996): 21–37.

10 Steven Wilf, “Intellectual Property,” in A Companion to American Legal History, ed. Sally E. Hadden and Alfred L. Brophy (Hoboken, NJ: Blackwell, 2013), 443.

11 See, for example, Ronald V. Bettig, Copyrighting Culture: The Political Economy of Intellectual Property (Boulder, CO: Westview Press, 1996); Ruth Towse, Creativity, Incentive and Reward: An Economic Analysis of Copyright and Culture in the Information Age (Cheltenham, UK: Edward Elgar Publishing, 2001); Ruth Towse, Copyright in the Cultural Industries (Cheltenham, UK: Edward Elgar Publishing, 2002); Melissa J. Homestead, American Women Authors and Literary Property, 1822–1869 (Cambridge, UK: Cambridge University Press, 2005); Benedict Anderson, Imagined Communities: Reflections on the Origins and Spread of Nationalism, rev. ed. (London: Verso, 2006), 47–65; and Martin T. Buinicki, Negotiating Copyright: Authorship and the Discourse of Literary Property Rights in Nineteenth-century America (New York: Routledge, 2006).

12 See, for example, Peter Jaszi, “Toward a Theory of Copyright: The Metamorphoses of ‘Authorship,’” Duke Law Journal, 1991, no. 2 (April 1991): 455–502; Jane C. Ginsburg, “A Tale of Two Copyrights: Literary Property in Revolutionary France and America,” in Publishing and Readership in Revolutionary France and America, ed. Carol Armbruster (Westport, CT: Greenwood Press, 1993), 95–114; Lyman Ray Patterson and Craig Joyce, “Copyright in 1791: An Essay Concerning the Founders’ View of the Copyright Power Granted to Congress in Article I, Section 8, Clause 8 of the US Constitution,” Emory Law Journal 52 (2003): 909–952; and Lawrence Lessig, “Re-crafting a Public Domain,” Yale Journal of Law and the Humanities 18 (2006): 56–83.

13 Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, MA: Harvard University Press, 1993).

14 David Saunders, Authorship and Copyright (London: Routledge, 1992), 154.

15 Grantland S. Rice, The Transformation of Authorship in America (Chicago: University of Chicago Press, 1997), 50–80.

16 Peter Baldwin, The Copyright Wars: Three Centuries of Trans-Atlantic Battle (Princeton, NJ: Princeton University Press, 2014), 402.

17 See Ralph Frasca, Benjamin Franklin’s Printing Network: Disseminating Virtue in Early America (Columbia: University of Missouri Press, 2006), 13–15.

18 Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates (Chicago: University of Chicago Press, 2009), 191.

19 Ibid., 197.

20 Doron S. Ben-Atar, Trade Secrets: Intellectual Piracy and the Origins of American Industrial Power (New Haven, CT: Yale University Press, 2004), 77.

21 Lewis Hyde, Common as Air: Revolution, Art and Ownership (London: Union Books, 2010), 99.

22 Ibid., 127.

23 Ibid., 156.

24 Ibid., 177.

25 Ibid., 214.

26 Ibid., 253–276.

27 Ibid., 260.

28 Jessica Litman, “The Politics of Intellectual Property,” Cardozo Arts & Entertainment Law Journal 27, no. 2 (November 2009), 313–320.

29 Patricia A. McAnany and E. Christian Wells, “Toward a Theory of Ritual Economy,” in Dimensions of Ritual Economy, ed. E. Christian Wells and Patricia A. McAnany (Bingley, UK: Jai Press, 2012), 3. Note that this passage cites Wells’s previous work for this definition, but that it is codified in this precise wording for the first time in the passage cited here.

30 Jason Lee Guthrie, “Taking the Liberty: Toward a Theory of Copyright and Creativity,” Journal of the Music and Entertainment Industry Educators Association 16, no. 1 (2016): 97–123.

31 William Patry, Moral Panics and the Copyright Wars (Oxford, UK: Oxford University Press, 2009), 97.

32 “To Robert Morris,” December 25, 1783, PBF.

33 “From Benjamin Franklin: Queries and Remarks on ‘Hints for the Members of Pennsylvania Convention’ (unpublished),” November 3, 1789, PBF.

34 Benjamin Franklin, The Autobiography of Benjamin Franklin (hereafter ABF), ed. Leonard W. Labaree, Ralph L. Ketcham, Helen C. Boatfield, and Helene H. Fineman (New Haven, CT: Yale University Press, 1964), 53.

35 ABF, 59.

36 ABF, 96. See also John T. Winterich, “Benjamin Franklin: Printer and Publisher,” in Books and Printing: A Treasury for Typophiles, ed. Paul A. Bennett (Cleveland, OH: World Publishing Company, 1951), 359.

37 “Plan of Conduct,” 1726, PBF.

38 ABF, 148–152.

39 “Journal of a Voyage, 1726,” July 29, 1726, PBF.

40 See “From Benjamin Franklin: Speech in the Convention on the Constitution (unpublished),” September 17, 1787, PBF.

41 “Articles of Belief and Acts of Religion,” November 20, 1728, PBF, emphasis in original.

42 See ABF, 114, for Franklin’s comment on Deism that “tho’ it might be true, was not very useful.”

43 ABF, 150.

44 ABF, 158; LeMay, Benjamin Franklin, Volume 2, 376–401; Walter Isaacson, Benjamin Franklin: An American Life (New York: Simon & Schuster, 2003), 60–72.

45 Mary Carruthers, The Book of Memory: A Study of Memory in Medieval Culture (Cambridge, UK: Cambridge University Press, 2008), 273.

46 Joseph Lowenstein, The Author’s Due: Printing and the Prehistory of Copyright (Chicago: University of Chicago Press, 2002), 87.

47 Elizabeth L. Eisenstein, The Printing Revolution in Early Modern Europe, 2nd ed. (Cambridge, UK: Cambridge University Press, 2005), 94.

48 Michael B. Kline, Rabelais and the Age of Printing (Geneva: Librairie Droz, 1963), 54–55.

49 Lemay, Benjamin Franklin, Volume 2, 170–191.

50 ABF, 167.

51 “A Defense of Mr. Hemphill’s Observations,” 1735, PBF; “Observations on the Proceedings against Mr. Hemphill, 1735, PBF”.

52 ABF, 168.

53 ABF, 241.

54 J. A. Leo Lemay, Ebenezer Kinnersley: Franklin’s Friend (Philadelphia: University of Pennsylvania Press, 1964), 81–87.

55 ABF, 199. Consequently, Franklin’s scheme to elicit individual subscriptions that would be matched by funds from the legislature is often cited as the first matching gift, and it can be considered an early example of crowdfunding.

56 “Supplement to the Boston Independent Chronicle,” April 22, 1782, PBF.

57 Ellen R. Cohn, ed., et al., The Papers of Benjamin Franklin Volume 37, March 16 through August 15, 1782 (New Haven CT: Yale University Press, 2003), 184–186.

58 Lorraine Daston and Peter Galison, Objectivity (New York: Zone Books, 2007), 37.

59 “A Proposal for Promoting Useful Knowledge,” May 14, 1743, PBF.

60 “Constitutions of the Academy of Philadelphia,” November 13, 1749, PBF.

61 ABF, 243–244.

62 I. Bernard Cohen, Benjamin Franklin’s Science (Cambridge, MA: Harvard University Press, 1990), 9–10. See also Michael Brian Schiffer, Draw the Lightning Down: Benjamin Franklin and Electrical Technology in the Age of Enlightenment (Berkeley: University of California Press, 2003), 47–66.

63 “To Sir Joseph Banks (unpublished),” November 21, 1783, PBF.

64 “Amelia Evans: Receipt,” February 19, 1766, PBF.

65 ABF, 243.

66 Bernard Bailyn, The Ordeal of Thomas Hutchinson (Cambridge, MA: Harvard University Press, 1974), 221–238.

67 “William Whately’s Chancery Suit against Franklin: I. The Bill in Equity,” January 7, 1774, PBF.

68 “William Whately’s Chancery Suit: II. Franklin’s Answer,” April 19, 1774, PBF.

69 “To William Strahan,” July 29, 1747, PBF.

70 “To William Strahan (unpublished),” August 19, 1784, PBF.

71 “From William Strahan (unpublished),” November 21, 1784, PBF.

72 “To William Strahan (unpublished),” March 5, 1785, PBF.

73 “Observations on Mr. Parker’s State of the Account,” n.d., PBF. The content of this document suggests that it was written in the final years of Franklin’s life.

74 “To Edward Bancroft (unpublished),” November 26, 1786, PBF.

75 Franklin called his invention the “Pennsylvania Fire Place,” and his innovations did eventually influence what is today known as the “Franklin Stove,” but there are fundamental design differences between the two.

76 ABF, 192, emphasis in original.

77 Paul M. Zall, Franklin on Franklin (Lexington: University of Kentucky Press, 2000), 145. See also Colin T. Ramsey, “Stealing Benjamin Franklin’s Stove: A New Identification for the ‘Ironmonger in London,’” ANQ 20, no. 2 (Spring 2007): 25–30.

78 See, for example, “Silence Dogood, No. 1–14,” 1722, PBF; “The Busy-body, No. 1–5,” 1729, PBF; and “The Speech of Miss Polly Baker,” April 15, 1747, PBF.

79 “From Benjamin Franklin: Will and Codicil (unpublished),” July 17, 1788, PBF.

80 McAnany, “Theory of Ritual Economy,” 2, emphasis in original.

81 See Patterson, Copyright in Historical Perspective, 180–183 for a seminal analysis of the balance struck between content creators, publishers, and the public in American copyright legislation circa 1783–1834.

82 Baldwin, Copyright Wars, 405.

83 Ibid., 405–409.

84 Gordon S. Wood, The Americanization of Benjamin Franklin (New York: Penguin Press, 2004), 1–16.

85 See, for example, “Information to Those Who Would Remove to America,” March 9, 1784, PBF, which described “the kind of persons to whom an Emigration to America may be advantageous” such as industrious farmers, tradesmen, and artisans.

86 See, for example, Paul W. Conner, Poor Richard’s Politicks: Benjamin Franklin and His New American Order (New York: Oxford University Press, 1965); Jeffery A. Smith, Franklin and Bache: Envisioning the Enlightened Republic (New York: Oxford University Press, 1990); Joyce E. Chaplain, The First Scientific American: Benjamin Franklin and the Pursuit of Genius (New York: Basic Books, 2006); and Douglas Anderson, The Unfinished Life of Benjamin Franklin (Baltimore: Johns Hopkins University Press, 2012).

87 ABF, 110; “Plain Truth,” November 17, 1747, PBF; “Advertisement of the General Magazine,” November 13, 1740, PBF; “To Giambatista Beccaria,” July 13, 1762, PBF.

88 “Poor Richard Improved, 1758,” PBF.

89 See Carys J. Craig, Copyright, Communication and Culture: Towards a Relational Theory of Copyright Law (Cheltenham, UK: Edward Elgar Publishing, 2011), 1–7.

90 See http://www.franklinpapers.org.