Copyright, the Confederacy and Bulwer-Lytton

Victorian novelist and politician Edward George Earl Bulwer-Lytton (1803-1873) has inspired, dubiously, an annual contest, found at this link. The goal of the contest is to recognize the worst opening sentences to imaginary novels. Although best known for "The Last Days of Pompeii" (1834), which has been made into a movie three times, originating the expression "the pen is mightier than the sword," and phrases like "the great unwashed" and "the almighty dollar," as well as writing the novel that served as the libretto for Wagner's opera "Rienzi," Bulwer-Lytton's reputation now rests on the opening of novel Paul Clifford (1830):

It was a dark and stormy night; the rain fell in torrents--except at occasional intervals, when it was checked by a violent gust of wind which swept up the streets (for it is in London that our scene lies), rattling along the housetops, and fiercely agitating the scanty flame of the lamps that struggled against the darkness."

Here is the winner of the 2005 contest:

As he stared at her ample bosom, he daydreamed of the dual Stromberg carburetors in his vintage Triumph Spitfire, highly functional yet pleasingly formed, perched prominently on top of the intake manifold, aching for experienced hands, the small knurled caps of the oil dampeners begging to be inspected and adjusted as described in chapter seven of the shop manual.
Dan McKayFargo, ND

The competition website notes that the entry "extol[s] a subject that has engaged poets for millennia, [and] may have been inspired by Roxie Hart of the musical "Chicago." Complaining of her husband's ineptitude in the boudoir, Roxie laments, "Amos was . . . zero. I mean, he made love to me like he was fixing a carburetor or something."

Bulwyer-Lytton also inspired some unusual copyright initiatives, as related in a book published at the end of November by Professor Melissa Homestead, American Women Authors and Literary Property, 1822-1869. Many of the details of copyright in the Confederacy have been known, but Professor Homestead adds some nice touches. Previously known, for example, is an infringement opinion published by the Copyright Office's reported series of cases, Goetzel v. Titcomb, 14 Copyright Office Decisions, 1789-1909 (C.S.D. Mobile, Alabama 1863). That case involved "Hardee's Rifle and Military Tactics," by General William J. Hardee. Hardee, a graduate of West Point, had created the work with funding from the U.S. Congress which did not assert a claim in the work, although it was published in Philadelphia by a private publisher, in 1855. With secession, Hardee, a Georgian, joined the Confederacy, and revised the manual at Jefferson Davis' request. When Southern publisher S.H. Goetzel, Hardee's assignee, sued a rival publisher who reprinted the Philadelphia edition, the court refused to enjoin it, on the ground that the work was in the public domain in the Confederacy.

Where does Bulwer-Lytton fit into this? On March 11, 1861 (following by four days adoption of the Confederacy's Constitution, which contained a direct copy of the Union's Article I, sec. 8, clause 8), the Confederate Congress passed a resolution urging its diplomats to encourage Britain, France, and the German states to enter into reciprocal copyright relations with the South. Britain was of particular interest, given the large market it represented for cotton, and the widespread dissatisfaction felt by English authors such as Dickens over the lack of copyright protection in the U.S. (Protection did not come until 1891). The South would show it was different and protect, on a reciprocal basis, foreign authors.

The first Confederate copyright act, passed on May 21, 1861, contained a reciprocal rights provision. (An April 1863 amendment and a private act took care of Goetzel's problem). But Goetzel announced prominently in newspaper advertisements that he would voluntarily pay Bulwer-Lytton royalties. Much to his surprise, Bulwer-Lytton, perhaps in recognition of the larger Yankee market, subsequently announced that he had not received royalties from Goetzel, but had received handsome royalties from his New York publisher, Harper & Co.

The South's effort's at copyright foreign diplomacy failed, but not for lack of trying, and 30 years before the U.S. Congress got around to it. Even then protection was based on a punitive domestic manufacturing requirement that lingered like an almost terminal illness until 1986.

Bulwer-Lytton had earlier been involved directly with copyright, lobbying for passage, in 1833, of the U.K. statute (3&4 Will. 4, ch. 15), granting for the first time dramatic rights. Professor Laurence Tribe and Michael Dorf have written that Bulwyer-Lytton convinced Dickens to change the ending of "Great Expectations." According to them, Dickens originally planned to have Pip's love for Estrella remain unrequited. On Bulwer-Lytton's advice, "Dickens changed the ending, uniting the hero and his love," Laurence Tribe and Michael Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1072 (1990). Bulwyer-Lytton's reputation remains, of course, as a parody, awash in ample bosoms and Stromberg carburetors.