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Abstract
The seminal copyright case of Pope v. Curll is typically cited by lawyers as the case which, for the first time in Anglo-American law, disassociated the physical copy of a literary work from its metaphysical content. A decades-long enmity between the author Alexander Pope and printer Edmund Curll culminated in Pope’s suit against Curll for having printed stolen personal letters. While not disputing traditional understandings of Pope v. Curll, this article offers an additional, alternative reading of the arguments made by Pope in the case. The litigation is situated within the context of early modern celebrity culture to argue that Pope was pursuing property rights on three levels, not simply the two typically recognized. Pope sought property rights to the physical material of the purloined letters and for property rights in the literary content of the letters, but also for the property right in his own image-making. This third argument is essentially the modern equivalent of publicity rights – a twentieth-century quasi-intellectual property right used to protect names, images, and likenesses. This article thus reads modern publicity rights jurisprudence as having deeper roots than previously discussed. Pope v. Curll represents a road not taken in the history of copyright law.
DISCLOSURE STATEMENT
The author has no competing interests to declare.
Notes
1 Act of Settlement, 1701, 12 &13 Will. 3 chap. 2.
2 Paul Baines and Pat Rogers, Edmund Curll, Bookseller (Oxford: Oxford University Press, 2007), 89–90; Maynard Mack, Alexander Pope: A Life (New Haven, CT: Yale University Press, 1985), 293–297; Raymond N. MacKenzie, “Curll, Edmund” in Oxford Dictionary of National Biography Online, last modified January 3, 2008, https://www.oxforddnb.com/view/10.1093/ref:odnb/6984. On the Court Poems, see Robert Halsband, “Pope, Lady Mary, and the Court Poems (1716),” PMLA 68, no. 1 (March 1953): 237–250. On the obscenity charge, see Mark Rose, Authors in Court: Scenes from the Theater of Copyright (Cambridge, MA: Harvard University Press, 2016), 12.
3 [Alexander Pope] (hereinafter AP), A Full and True Account of a Horrid and Barbarous Revenge by Poison, On the Body of Mr. Edmund Curll, Bookseller (London: J. Roberts et al., 1716), 3, 4, Eighteenth Century Collections Online, Gale (hereinafter ECCO). This was actually the first of two pamphlets Pope published on the incident, see also [AP,] A Further Account of the Most Deplorable Condition of Mr. Edmund Curll, Bookseller. Since his Being Poison’d on the 28th of March (London, 1716), ECCO. On this aspect of the dispute see Pat Rogers, “The Case of Pope v. Curll,” Library 27 (1972): 326–331.
4 AP to John Caryll, April 20, 1716 in Alexander Pope, The Correspondence of Alexander Pope, ed. George Sherburn (Oxford: Oxford University Press, 1956), 1:339.
5 Pope v. Curll, (1741) 2 Atk. 342; 26 Eng. Rep. 608 (Ch.); Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, MA: Harvard University Press, 1993), 60; Ronan Deazley, “Commentary on Pope v. Curl (1741),” in Primary Sources on Copyright (1450–1900), ed. Lionel Bently and Martin Kretschmer, accessed August 3, 2020, http://www.copyrighthistory.org (hereinafter Primary Sources).
6 On this history see generally, Oren Bracha, Owning Ideas: The Intellectual Origins of American Intellectual Property, 1790–1909 (Cambridge: Cambridge University Press, 2016), ch. 1.
7 [AP,] Horrid and Barbarous Revenge, 4.
8 See e.g. in just this case, Mark Rose, Authors and Owners, 60, an observation more fully explicated in his Authors in Court, ch. 2; Sören C. Hammerschmidt, “Pope, Curll, and the Intermediality of Eighteenth-Century Character,” Word & Image 28, no. 3 (2012): 273–286; and James McLaverty, “The First Printing and Publication of Pope’s Letters,” Library 2 (1980): 264–280. One exception in this vein is Simon Stern, “From Author’s Right to Property Right,” University of Toronto Law Journal 62, no. 1 (2012): 29–91, esp. 64–68, which also suggests Pope’s arguments could be seen in a dignitary or privacy context, although does not press as far as I do on the point herein.
9 See e.g. Antoine Lilti, The Invention of Celebrity, 1750–1850, trans. Lynn Jeffress (Cambridge: Polity Press, 2017), 276–283. See also, Bärbel Czennia, ed., Celebrity: The Idiom of a Modern Era (New York: AMS Press, Inc., 2013); Fred Inglis, A Short History of Celebrity (Princeton, NJ: Princeton University Press, 2010).
10 Mark Rose, “The Author in Court: Pope v. Curll,” Cardozo Arts & Entertainment Law Journal 10 (1992): 475–493, 475. The legislation is: Act for the Encouragement of Learning, 1709, 8 Ann. chap. 19.
11 Oren Bracha, “Owning Ideas: A History of Anglo-American Intellectual Property” (S.J.D. diss., Harvard Law School, 2005), 169. See also Lyman Ray Patterson, Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, 1968), 146–47.
12 Patterson, Historical Perspective, 146–47; Mark Rose, “Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain,” Law and Contemporary Problems 66 (2003): 75–87, 75–77. For a discussion of the Stationers’ Company and copyright issues before the Statute of Anne, see John Feather, “From Rights in Copies to Copyright: The Recognition of Authors’ Rights in English Law and Practice in the Sixteenth and Seventeenth Centuries,” Cardozo Arts & Entertainment Law Journal 10 (1992): 455–473.
13 Millar v. Taylor, (1769) 98 Eng. Rep. 201 (KB).
14 Donaldson v. Becket (1774) 1 Eng. Rep. 837 (HL). Patterson, Historical Perspective, 158–59.
15 See e.g. Patterson, Historical Perspective; David Foxon, Pope and the Early Eighteenth Century Book Trade, ed. James McLaverty (Oxford: Clarendon Press, 1991); Rose, Authors and Owners; John Feather, Publishing, Piracy, and Politics: An Historical Study of Copyright in Britain (New York: Mansell, 1994); and Ronan Deazley, On the Origin of the Right to Copy (Oxford: Hart Publishing, 2004), among others.
16 See Rose, “Nine-Tenths,” 76; Martha Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’,” Eighteenth-Century Studies 17 (1984): 425–448, 426–427; Lilti, Invention of Celebrity, 6–9; Leo Braudy, The Frenzy of Renown: Fame and its History (New York: Oxford University Press, 1986), 330, 342, 345.
17 Braudy, The Frenzy of Renown, 338, 349.
18 See generally Ann C. Dean, Talk of the Town: Figurative Publics in Eighteenth-Century Britain (Lewisburg, PA: Bucknell University Press, 2007).
19 Braudy, The Frenzy of Renown, 349, 351–354, 362–363.
20 Max W. Thomas, “Eschewing Credit: Heywood, Shakespeare, and Plagiarism before Copyright,” New Literary History 31 (2000): 277–293, 283–284; J.W. Saunders, “The Stigma of Print: A Note on the Social Bases of Tudor Poetry,” Essays in Criticism 1 (1951): 139–164, 146, 157. See also Braudy, The Frenzy of Renown, 363–364.
21 A Letter from an Author to a Member of Parliament occasioned by a Late Letter Concerning the Bill now depending [sic] in the House of Commons, 1735, Bodleian Library, MS Carte 207, 16 quoted in Deazley, Right to Copy, 101.
22 Rose, Authors and Owners, esp. 107, 112, ch. 7. Similar arguments are the core of the modern continental European copyright concept of droit moral, or perpetual moral rights to art. See also Deazley, Right to Copy, 101–102.
23 Rose, Authors and Owners, 52–58; Booksellers’ Bill (London, 1737), [image 2] in Primary Sources [Original location: British Library: BS 68/16.(1)].
24 Deazley, Right to Copy, 104.
25 Feather, Publishing, Piracy, and Politics, 74; Patterson, Historical Perspective, 150–53.
26 MacKenzie, “Curll, Edmund;” Rose, Authors in Court, 27, 32.
27 Rose, Authors in Court, 28.
28 Baines and Rogers, Edmund Curll, 171–3.
29 Ibid., 112–120, 155, 167, 187–203; Mack, Pope, 465–67, 654.
30 Baines and Rogers, Edmund Curll, 157.
31 Howard Erskine-Hill, “Pope, Alexander” in Oxford Dictionary of National Biography Online, last modified November 14, 2018, https://www.oxforddnb.com/view/10.1093/ref:odnb/22526.
32 McLaverty, “First Printing,” 265, 271.
33 Rose, Authors in Court, 28.
34 Rosemary Cowler, “Introduction to A Narrative by the Method by which Mr. Pope’s Private Letters were Procured and Published by Edmund Curl, Bookseller,” in The Prose Works of Alexander Pope, ed. Rosemary Cowler, vol. 2 (Hamden, CT: Archon Books, 1986), 319–320, 320; McLaverty, “First Printing,” 265.
35 Mack, Pope, 653–54; McLaverty, “First Printing,” 275.
36 McLaverty, “First Printing,” 265, 274–75.
37 Cowler, “Introduction,” 321; Foxon, Pope and the Book Trade, 244; Deazley, Right to Copy, 103; Rose, “Nine-Tenths,” 60–61; Mack, Pope, 654; Feather, Publishing, Piracy, and Politics, 74.
38 Deazley, “Commentary on Pope v. Curl (1741).”.
39 Baines and Rogers, Edmund Curll, 257. See AP, Mr. Pope’s Literary Correspondence For Thirty Years; From 1704 to 1734, ed. Edmund Curll, 5 vols. (London: Edmund Curll, 1735–1737), ECCO.
40 See AP, A Narrative by the Method by which Mr. Pope’s Private Letters were Procured and Published by Edmund Curl, Bookseller (London: T. Cooper, 1735), ECCO.
41 McLaverty, “First Printing,” 265–6.
42 AP, Letters of Mr. Alexander Pope, and Several of His Friends (London: J. Wright, 1737), ECCO; AP, The Works of Mr. Alexander Pope, in Prose: Vol. II (London: J. and P. Knapton et al., 1741), ECCO.
43 Baines and Rogers, Edmund Curll, 267–269, 282–284. See also Edmund Curll, “Preface by the Editor,” in Dean Swift’s Literary Correspondence for Twenty-four Years from 1714 to 1738, ed. Edmund Curll (London: Edmund Curll, 1741), 1, ECCO.
44 Baines and Rogers, Edmund Curll, 284, 286; Foxon, Pope and Book Trade, 248.
45 This second iteration, as noted above, failed.
46 Pope’s Bill of Complaint and Curll’s Answer are in the property of the Public Records Office, London. Digital images of the contemporary report of the Lord Chancellor Hardwicke’s decision are available online alongside Deazley, “Commentary on Pope v. Curl (1741).” However, all three documents, have been transcribed by Mark Rose and reprinted together in an appendix to Rose, Authors and Owners, 145–53. The citations that follow are to that transcription, wherein punctuation and numerals, but not spelling, have been regularized.
47 Rose, Authors and Owners, 147.
48 Ibid., 147, 149.
49 Ibid., 150. See also Rose’s reading of the text at 63.
50 Ibid., 151,150.
51 Ibid., 152–153.
52 Ibid., 64–65.
53 Ibid., 153.
54 William Warburton, “A Letter from an Author to a Member of Parliament; concerning Literary Property,” in The Works of the Right Reverend William Warburton, ed. R. Hurd, 12 vols. (London: Cadell & Davies, 1811), 12:405–416, digital images of which are available alongside Ronan Deazley, “Commentary on Warburton’s Letter from an Author (1747),” in Primary Sources.
55 Rose, Authors and Owners, 71–74. See Millar v. Kinkaid (1750) 98 Eng. Rep. 210 (CS Scot.).
56 Warburton, “A Letter,” 12:408.
57 Millar, 252.
58 Inglis, A Short History, 3.
59 Ibid., 8; Lilti, Invention, 99–101.
60 Braudy, The Frenzy of Renown, 364, and on Franklin, see 366–371; Lilti, Invention, 6–7, 10–12, 48–85; Inglis, A Short History, 4–5, 8.
61 Adam Rounce, Fame and Failure, 1720–1800 (Cambridge: Cambridge University Press, 2013), 11.
62 John Adams, Diary and Autobiography of John Adams, ed. L.H. Butterfield (Cambridge, MA: Harvard University Press, 1962), 1:78 [Entry for March 14, 1759].
63 Lilti, Invention, 95–101.
64 Alexander Hamilton, The Papers of Alexander Hamilton, ed. Harold C. Syrett (New York: Columbia University Press, 1961–1987], 9:55–59 [Letter from Fisher Ames to Alexander Hamilton, August 15, 1791].
65 AP, “Preface” in Letters of Mr. Alexander Pope [unpaginated, image 10].
66 Rose, Authors and Owners, 51, 82. See also Hammerschmidt, “Intermediality,” 273.
67 Oxford English Dictionary Online, s.v. “propriety, n.,” accessed June 2020, http://www.oed.com/view/Entry/1528476. My usage here is distinct from that Gregory Alexander, who theorizes property “as propriety” or the “material foundation for creating and maintaining the proper social order, the private basis for the public good.” My reading is closer to ‘propriety as property’ and leans into the alternative, more traditional theorization of property as commodity, grounded in Lockean concepts of negative liberties. Gregory Alexander, Commodity & Propriety: Competing Visions of Property in American Legal Thought, 1776–1970 (Chicago: University of Chicago Press, 1998), 1–3.
68 Thomas, “Eschewing Credit,” 286–288, quote on 288.
69 Rose, Authors and Owners, 62; Rose, Authors in Court, 28–33. See also Braudy, The Frenzy of Renown, 351, 363, 366.
70 Rosemary Coombe, “Challenging Paternity: Histories of Copyright,” Yale Journal of Law and Humanities 6 (1994): 397–422, 404. See also Rose, Authors and Owners, 62. On the similar concurrent agricultural growth metaphor see Mario Biagioli, “Vegetable Genius,” in Intellectual Property and the Design of Nature, ed. Jose Bellido and Brad Sherman, 1–26 (Oxford: Oxford University Press, 2023), esp. 3–6; and on metaphors of intellectual property generally see Mark Rose, “Copyright and Its Metaphors,” UCLA Law Review 50, no. 1 (October 2002): 1–16.
Tilar J. Mazzeo, writing about the Romantic era, makes the interesting analogy between the removal of biological parental rights due to immoral behavior, and the disavowal of authorial paternity—the illegitimation of a work—in connection to immoral or unpopular speech. Mazzeo also emphasizes the growing currency of the authorial paternalism metaphor in the decades after Pope, both in British discourse and in the continental development of moral rights. See “Byron and the Scandal of Paternity: Anonymity, Plagiarism, and the Natural Rights of Authors,” in Originality and Intellectual Property in the French and English Enlightenment, ed. Reginald McGinnis, 153–174 (New York: Routledge, 2009), esp. 156, 168–169.
71 Coombe, “Paternity,” 404.
72 Mack, Pope, 655; McLaverty, “First Printing,” 280. Rose, Authors in Court, 28, 32–3.
73 AP to the Earl of Oxford, September 15, 1729 in Pope, Correspondence, 3:54.
74 Coombe, “Paternity,” 405; Rose, Authors in Court, 28.
75 See e.g. Feather, Publishing, Piracy, and Politics, 77.
76 AP to Ralph Allen, July 14[?], 1741 in Pope, Correspondence, 4:350.
77 AP, “Preface,” image 10.
78 Rose, Authors in Court, 26.
79 Leo Braudy in particular also connects Lockean political theory and the advent of natural rights philosophy to the eighteenth century’s more merit-based, individualized and personalized notion of fame. See The Frenzy of Renown, 345, and citing C.B. Macpherson, 370.
80 Alice Haemmerli, “Whose Who? The Case for a Kantian Right of Publicity,” Duke Law Journal 49 (1999): 383–492, 388.
81 Name, image or likeness is the “paradigmatic” description of the scope of publicity rights, although the actual scope has broadened over time to include a person’s voice, key phrases, even well-known characters associated with an individual. Mark P. McKenna, “The Right of Publicity and Autonomous Self-Definition,” University of Pittsburgh Law Review 67, no. 1 (Fall 2005): 225–294, 232.
82 Hayley Stallard, “The Right of Publicity in the United Kingdom,” Loyola L.A. Entertainment Law Journal 18 (1998): 565–587, 566; Sheldon W. Halpern, “The Right of Publicity: Commercial Exploitation of the Associative Value of Personality,” Vanderbilt Law Review 39 (1986): 1199–1255, 1203. However, Jennifer Rothman, in her The Right of Publicity: Privacy Reimagined for a Public World (Cambridge, MA: Harvard University Press, 2018), disagrees with the traditional emphasis on Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.), cert. denied, 346 U.S. 816 (1953) as the key American publicity rights case.
83 Stallard, “Publicity in the United Kingdom,” 565–567, 587. See generally, Huw Beverley-Smith, The Commercial Appropriation of Personality (Cambridge: Cambridge University Press, 2004).
84 See e.g. Reshma Amin, “A Comparative Analysis of California’s Right of Publicity and the United Kingdom’s Approach to the Protection of Celebrities: Where Are They Better Protected?” Case Western Reserve Journal of Law, Technology and the Internet 1, no. 2 (Spring 2010): 92–120; Kelsey Farish, “Do Deepfakes Pose a Golden Opportunity? Considering Whether English Law Should Adopt California’s Publicity Right in the Age of the Deepfake,” Journal of Intellectual Property Law & Practice 15, no.1 (2020): 40–48. The Supreme Court has only addressed the right of publicity once, in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), finding that Ohio’s recognition of the right of publicity did not violate the First Amendment.
85 Halpern, “The Right of Publicity,” 1205. The key text on the American judicial doctrine of right to privacy is Louis Brandeis and Samuel Warren, “The Right to Privacy,” Harvard Law Review 14 (1890): 193–220.
86 Human Rights Act 1998, chap. 42 (England).
87 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, as amended, C.E.T.S. 005, Rome, Italy, November 4, 1950, https://www.coe.int/en/web/conventions/full-list/conventions/treaty/005.
88 One notable post-HRA case is Douglas v. Hello! Ltd. (No. 8) (2007) UKHL 21 (HL), affirming the existence of a breach of confidence tort, in the context of Article 8 ECHR.
89 Beverley-Smith, Commercial Appropriation of Personality, 144.
90 Amy Gajda, “What If Samuel D. Warren Hadn’t Married a Senator’s Daughter?: Uncovering the Press Coverage that Led to ‘The Right to Privacy,’” Michigan State Law Review 2008, no. 1 (2008): 35–60. It should be noted however, that Charles E. Coleman has suggested a very different—and plausible—familial origin story for the Warren-Brandeis collaboration: a protective instinct over his openly gay brother Edward (“Ned”) Perry Warren. Coleman, “About Ned, “Harvard Law Review Forum 129 (2016): 138–152, accessed January 6, 2024, https://harvardlawreview.org/forum/vol-129/about-ned/. Coleman interestingly argues that the origin of the use of English precedent like Millar v. Taylor was at least in part due to Ned’s residence in the United Kingdom. Coleman, “About Ned,” 145–6.
91 “A Brilliant Bridal,” Washington Post, January 26, 1883, 4 quoted in Gajda, “What If,” 37. For decades, it was thought that Warren’s ire was in respect to press intrusion of his daughter’s wedding, but this has since been disproven. See William L. Prosser, “Privacy,” California Law Review 48, no. 3 (1960): 383–423, in contrast to Stuart Banner, American Property: A History of How, Why, and What We Own (Cambridge, MA: Harvard University Press, 2011), 138. See also David Rosen and Aaron Santesso, “Inviolate Personality and the Literary Roots of the Right to Privacy,” Law & Literature 23, no. 1 (2011): 1–25, note 9, tracing the problematics of the Prosser article.
92 Gajda, “What If,” 51–55.
93 Ibid., 47–51, 55–56. See also Samantha Barbas, Laws of Image: Privacy and Publicity in America (Stanford, CA: Stanford University Press, 2015), 26.
94 Brandeis and Warren, “The Right to Privacy,” 205; Barbas, Laws of Image, 26.
95 Barbas, Laws of Image, 38.
96 Brandeis and Warren, “The Right to Privacy,” 207, 200.
97 Ibid., 205, emphasis added.
98 See Ibid., 207–212, on breach of confidence torts in both British and American law.
99 See McKenna’s analysis in “Autonomous Self-Definition,” 234–240, esp. 235.
100 Brandeis and Warren, “The Right to Privacy,” 198, 202. Yates’ dissent clung to the even then-antiquated concept that writings could just not be property. He allowed that the legislature could construct one, but he refused to find a natural right. In the absence of statute, Yates maintained that publication affected a public grant, thereby creating a vision of the public commons unconstrained by the tropes of property law. Millar v. Taylor, 233; Rose, “Nine-Tenths,” 79.
101 Guy H. Thompson, “The Right to Privacy as Protected at Law and in Equity,” Central Law Journal 47, no. 8 (August 19, 1898): 148–158, 148, ProQuest. See also “Coram Non Judice: The Right to Immunity from Wrongful Publicity,” Central Law Journal 73, no. 8 (August 25, 1911):140–141, ProQuest. American jurists were certainly aware of Pope v. Curll as far back as the early Republic. One of the earliest American copyright cases, Denis v. LeClerc, 1 Martin’s 159 (Superior Court of the Territory of Orleans, 1811), reprinted in Wilma S. Davis, “Bulletin No. 13 A – GAR,” Decisions of the United States Courts Involving Copyright (1789–1909) (Washington, DC: U.S. Copyright Office, Library of Congress, 1980), 744–755 (also cited as 13–16 C.O.Bull. 744), was decided on the basis of Pope v. Curll, dicta in Millar v. Taylor and other eighteenth-century precedents.
102 Prince Albert v. Strange (1849) 47 Eng. Rep. 1302 (Ch.) at 1307. The Strange case emphasizes how English law circumvented an explicit privacy right. See Brandeis and Warren, “The Right to Privacy,” 199–205. See also Megan Richardson and Lesley Hitchens, “Celebrity Privacy and Benefits of Simple History,” in New Dimensions in Privacy Law, ed. Andrew T. Kenyon, and Megan Richardson, 250–269 (Cambridge: Cambridge University Press, 2006); Daniel F. Tritter, “A Strange Case of Royalty: The Singular Copyright Case of Prince Albert v. Strange,” Journal of Media Law and Practice 4, no. 2 (September 1983): 111–129; Lionel Bently, “Prince Albert v. Strange (1849),” in Landmark Cases in Equity, ed. Charles Mitchell and Paul Mitchell, 235–267 (Oxford: Hart Publishing, 2012).
103 Rose, Authors and Owners, 147–149. Murray also argued for physical control of letters written to Pope as well as by him, which implicitly violates any potential dignity claim of his correspondents – an oversight which indicates to me that privacy was not at the top of Pope’s concerns.
104 Barbas, Laws of Image, 2.
105 Jonathan Kahn, “Privacy as a Legal Principle of Identity Maintenance,” Seton Hall Law Review 33 (2010): 371–410, 373.
106 Brandeis and Warren, “The Right to Privacy,” 201.
107 Peter L. Felcher and Edward L. Rubin, “Privacy, Publicity, and the Portrayal of Real People by the Media,” Yale Law Journal 88 (1979): 1577–1622, 1581.
108 Barbas, Laws of Image, 162.
109 Ibid., 89, 84–95, 154–159, 162, 178, 186.
110 McKenna, “Autonomous Self-Definition,” 228.
111 Sheldon W. Halpern, “The Right of Publicity: Maturation of an Independent Right Protecting the Associative Value of Personality,” Hastings Law Journal 46, no. 3 (March 1995): 853–874, 854n4.
112 Julie E. Cohen et al., Copyright in a Global Information Economy, 2d ed. (New York: Aspen Publishers, 2006), 676.
113 Stacey L. Dogan and Mark A. Lemley, “What the Right of Publicity Can Learn from Trademark Law,” 58 Stanford Law Review 58 (2005): 1161–1220, 1181; David Westfall and David Landau, “Publicity Rights as Property Rights,” Cardozo Arts and Entertainment Law Journal 23 (2006): 71–123, 118–120.
114 Haelan Laboratories, Inc., 868. The matter was appealed to the Supreme Court, which declined to take the case.
115 Stephano v. News Group Publications, Inc., 474 N.E.2d 580 (N.Y. 1984).
116 Barbas, Laws of Image, 89, 84–95, 154–159.
117 Michael Madow, “Private Ownership of Public Image: Popular Culture and Publicity Rights,” California Law Review 81 (1993): 127–240, 135.
118 Madow’s principal argument is to discredit of popular arguments supporting publicity rights.
119 Madow, “Private Ownership,” 147–78. For a treatment of Franklin and publicity both in France and America, see generally Gordon S. Wood, The Americanization of Benjamin Franklin (New York: Penguin Press, 2004).
120 Madow, “Private Ownership,” 134.
121 Madow, “Private Ownership,” 151, 135.
122 Halpern, “The Right of Publicity,” 1205.
123 Madow, “Private Ownership,” 151; Lilti, Invention, 6–7, 10–12, 48–85; Inglis, A Short History, 4–5, 8.
124 AP, “Preface” in Letters of Mr. Alexander Pope, [unpaginated, image 10].
125 Rose, Authors in Court, 11.
126 AP to the Earl of Oxford, September 15, 1729 in Pope, Correspondence, 3:54. On Elvis’ right of publicity see Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 221 (2d Cir. 1978).
127 Rose, Authors in Court, 28.
128 Ibid., 20, quote on 26.
129 Ibid., 34.
130 Ibid., 34.
131 Ibid., 31–32.
132 Rosemary Coombe, “Author/izing the Celebrity: Publicity Rights, Postmodern Politics and Unauthorized Genders,” Cardozo Arts & Entertainment Law Journal. 10 (1992): 365–395, 368.
133 On moral rights in Europe see Mira T. Sundara Rajan, Moral Rights: Principles, Practice and New Technology (Oxford: Oxford University Press, 2011), esp. ch. 2.
134 On post-mortem publicity right see e.g. Aubrie Hicks, “Right to Publicity after Death: Postmortem Personality Rights in Washington in the Wake of Experience Hendrix v. HendrixLicensing.com,” Seattle University Law Review 36 (Fall 2012): 275–297.
135 See generally, Coombe, “Celebrity,” and Madow, “Private Ownership.”
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Jennifer W. Reiss
Jennifer W. Reiss is a Ph.D. candidate in History at the University of Pennsylvania. Her research focuses on early American history and the Atlantic world, with particular interests in disability history, gender, and various aspects of Anglo-American legal history. She holds bachelor’s and master’s degrees, both in History, from Penn, a J.D. from Harvard Law School, and two master’s degrees, in Law and American History, respectively, from the University of Cambridge. Prior to academia, she worked as an attorney at major law firms in New York and London. She would like to gratefully acknowledge the helpful feedback of William Fisher, Roger Chartier, Jane Manners, Karen Tani and Penn Carey Law School’s Legal History “Writer’s Bloc,” reviewers at the 2021 James A. Barnes Conference at Temple University, and the Law & Literature editors on too many earlier iterations of this manuscript. An earlier version of this article was runner up in the 2023 Morris L. Cohen Student Essay Competition of the American Association of Law Libraries, Legal History and Rare Books Section.