Reading circles penned annotations in the margins,
3
circulated
alternate endings, corresponded with authors to advocate for happier endings, and shared
their revisionist interpretations with other fans (as with Lady Bradshaigh and her
“improved” ending for Sameul Richardson’s Clarissa). Rival authors wrote parodies
(such as Henry Fielding’s Shamela reply to Richardson’s 1740 novel Pamela), while
lesser known authors profited by writing unauthorized sequels featuring the continued
adventures of popular characters before the original author could satisfy popular demand
(as with Daniel Defoe’s Robinson Crusoe). In reply, contemporary fans made fascinating
interventions in these characters’ lives by casting them in sequels, migrating them to
different genres, and spawning character merchandise, such as waxworks, fans, and
china.
2
Rosemary Coombe discusses the fanzine community in The Cultural Life of Intellectual
Properties: Authorship, Appropriation, and the Law (Durham: Duke UP, 1998) at pp. 117-118.
3
On the marginalia phenomenon, see H.J. Jackson, Marginalia: Readers Writing in Books (New
Haven: Yale University Press, 2001).
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4
Fan fiction, then and now, incorporates audience and reader responses to copyrighted
expression through alternate endings, reinterpretations and sequels, and more
transgressively, through re-imaginings of the original characters in different places, eras,
or modified traits, such as the oddly prolific Harry Potter erotica. Peter Sabor and Tom
Keymer’s description of the inauthentic sequels to Pamela in Pamela in the Marketplace
could just as easily stand as a defence for the modern fan fiction writer on the internet,
speaking of the “self-sustaining dynamism in which new contributions could appropriate,
recycle, or respond to other appropriations as much as to the original novel, in ways that
kept the process alive and carried it forward well beyond the furore surrounding first
publication.”
4
Eighteenth-century authors of the original works, like Laurence Sterne
with Tristram Shandy, Cervantes, and Richardson, were not averse to integrating and re-
working these comments back into their subsequent volumes to enrich them, in the same
way that some screenwriters of serial programming candidly acknowledge that they read
fan sites.
I import the modern “fan fiction” term back to the eighteenth century to highlight similar
instabilities in copyright as with fan fiction practices today (particularly as relates to
internet archives of fan fiction) and, as is the custom today, use the term fan fiction to
denote the enthusiasts’ homages and also the critics’ parodies. I do so intentionally as a
way to deflect attention (at least temporarily) away from the economic aspects and
toward the expressive qualities of these eighteenth-century re-workings.
4
Thomas Keymer and Peter Sabor, Pamela in the Marketplace: Literary Controversy and Print Culture in
Eighteenth-Century Britain and Ireland (Cambridge: Cambridge University Press, 2005), p. 15.
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This paper examines a few key historical examples of fan fiction (responses to
Richardson’s Pamela and Defoe’s Robinson Crusoe) and sets them in their legal context
to examine the eighteenth-century contours of originality and notions of cultural
properties. These well-documented examples of extensive reader response to fictional
characters that became cultural phenomena, spawning numerous unauthorized sequels in
novels, plays, and short stories, lively correspondences between fans and the author,
satires by rival established authors, and character merchandising, illustrate how fictional
characters, like Pamela and Crusoe, who reach iconic status within a culture are subject to
competing claims of ownership as well as competing affections. The paper focuses
especially on when and why popular, creative and often even affectionate inclusions of
these eighteenth-century fictional characters into works by other people were, more often
than not, treated by the original authors as akin to legal wrongs—“kidnappings” and
“counterfeitings”—and treated analogously to the word-for-word copying of entire works
that was condemned as “pirating,” despite the lack of legal foundation to underlie these
assertions.
Defoe, Bunyan and Cervantes avowedly wrote the sequels to Robinson Crusoe (1719),
Pilgrim’s Progress (1678-1684), and Don Quixote (1605-1615) in order to reclaim their
characters from rival authors of inauthentic sequels who “kidnapped and pirated these
popular characters through specious namesakes. As Cervantes explains in his Dedication
to the Second Part of Don Quixote of La Mancha, Don Quixote “has put [his spurs] on
and he is on his way. . . [F]rom many parts I am urged to send him off, so as to dispel the
loathing and disgust caused by another Don Quixote who, under the name of The Second
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Part, has run masquerading through the whole world.”
5
Bunyan introduces his sequel to
Pilgrim’s Progress by bidding his Pilgrim book to go forth but to be warned that “some
have of late, to Counterfeit/ My pilgrim, to their own, my Title set;” so if the readers do
not believe they see the true Pilgrim, “I will Testifie that only you/ My Pilgrims are; And
that alone will do.”
6
Modern copyright law, in part to keep pace with new technologies for reproduction and
dissemination, protects not only the literal right to copy an original work (to prevent
pirated editions) but also grants the author the right to prevent others from creating
derivative works including adaptations and character merchandising. Even under modern
copyright law’s expansive author rights (relative to the eighteenth century), there are
continuing legal debates as to when fan fiction infringes the copyright of the original
work, when it can be the subject of copyright, and the extent to which modern copyright
law permits fictional characters to be copyrightable subject matter independent from the
work in which they appear.
7
Copyright legislation in the US and Canada has resisted
extending explicit and separate protection to fictional characters, although fictional
characters can be protected as component parts of an underlying work (and thus taking
5
Miguel de Cervantes, The Ingenious Gentleman Don Quixote of La Mancha, ed. J.R. Jones and K.
Douglas, trans. J. Ormsby (New York: Norton, 1981) at p. 418.
6
John Bunyan, The Pilgrim’s Progress, ed. N.H. Keeble (Oxford: Oxford UP, 1984) at p. 136.
7
Discussions of fictional character copyright can be found in Kurtz, “The Independent Legal Lives
of Fictional Characters, (1986) Wisc. L. Rev. 429; M. Marks, “The Legal Rights of Fictional Characters”
(1980) 25 Copyright Law Symposium (ASCAP) 35; D.L.A. Kerson, “Sequel Rights in the Law of Literary
Property” (1960) 48 Cal. L. Rev. 685; L. Zissu, “Whither Character Rights: Some Observations” (1981) 29
Bull. of the Copyright Soc’y of the USA 121; F. M. Nevins, “Copyright + Character = Catastrophe” (1992)
39 J. of the Copyright Soc’y of the USA 303; K. Spahn, “The Legal Protection of Fictional Characters”
(1992) 9 U. of Miami Ent. and Sports L. Rev. 33. On Canadian copyright see generally, S.L. Nemetz,
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the fictional characters could constitute infringement of the larger work in which they
appear). A 1965 report to Congress from the United States Registrar of Copyright
commenting on a copyright revision bill supported this interpretation. The Registrar
advised Congress not to add a legislative category making fictional characters a
copyrightable work in themselves. The Registrar acknowledged characters could be
“developed in detail and with such breadth and depth” as to have the appropriate quantum
of expression to be copyrightable as a separately identifiable part of the copyrighted work
in which they appear; however, given that “others, perhaps the large majority,” of
fictional characters are not “independent creations apart from the literary or pictorial
works depicting them,” it would be “unnecessary and misleading to specify fictional
characters as a separate class of copyrightable work.”
8
Likewise, England’s Whitford
committee in its 1973 review of copyright law also resisted urgings to introduce a
“character right” because “there would be real difficulty in defining exactly what a
‘character is, i.e., in deciding what are the essential features that make the character
distinctive and which are therefore worthy of protection.”
9
These hesitancies thus point
to the elusiveness of an administrable definition of “copyrightable fictional character,”
and the ambiguity and subjectivity in commentators’ efforts to define fictional characters.
This uncertainty was not surprisingly more pronounced in the eighteenth-century when
the novel as a genre was emerging and the role of its fictional characters still developing.
“Copyright Protection of Fictional Characters” (1999) 14.1 IPJ 59; R. Brackley, “Fictional Characters and
Their Legal Homes” (1999) 16 C. I. P. R. 127.
8
Supp. Rep. of the Reg. of Copyrights on the General Revision of U.S. Copyright Law: 1965
Revision Bill, 89 Cong., 1st Sess. (1965) at 6; see M. Nimmer, Nimmer on Copyright, vol. 1, sec. 2.12 n.2
(1981); and L. Kurtz, Independent Legal Lives of Fictional Characters, supra note 26, at n. 67
9
Cmd. 6732 (1977) para 909, quoted by S. Nemetz, “Copyright Protection of Fictional Characters,”
(Dec. 1999) 14.1 IPJ 59 at 69-70.
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The 1710 Statute of Anne made few pretenses of providing rights to prevent the
“spurious” sequels against which Bunyan, Cervantes and Defoe complained. It did not
stretch to protect against the cloned Quixotes and “counterfeited Pilgrims” that appeared
in new imaginative works and more certainly not the purportedly “same” characters when
they appeared under different names. However, during the eighteenth century, although
unauthorized sequels featuring someone else’s characters were not strictly governed by
copyright law, there was an active cultural exchange about the norms that should govern
creativity, imitation, originality, and authorship, which was actively played out in this
debate about fictional characters and their appearances in fan fiction. But, there was no
consensus between authors and readers about these practices and no clear relationship
between the cultural norms of originality and the law’s provisions on copyright.
Through Defoe’s Robinson Crusoe and Richardson’s Pamela the competing claims to
fictional characters who reach iconic status within a culture and the intersecting legal and
cultural debates can begin to be traced. Situated in the context of the period’s copyright
debates, the reception of fan fiction, particularly involving iconic characters like Pamela
and Crusoe, influenced the meaning of “original expression” for copyright law.
Copyright law would later come to influence how fictional characters were culturally
constructed as a legal property that could be owned, appropriated and reclaimed, but the
authorial inclination to protect characters’ integrity as independent creations, which was a
prevalent strain of the discourse around the newly emerging novel in this period, has had
less of an identifiable effect on the development of common law jurisdictions’ copyright
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law. As there was no established legal precedent for claiming intellectual property in
fictional characters per se, these debates between authors and readers and their
contending claims to characters help to identify norms that were circulating over the long
eighteenth century. These norms were then incorporated into descriptive legal categories
of proprietary claims which re-formed the governing legal framework and re-positioned
the cultural claims from custodial to proprietary interests. Shifting the focus from the
pirating of fictional works (by which we view the debate primarily from the booksellers’
and printers’ lens) to the kidnapping of fictional characters (by which we view the debate
from the authors’ eyes) highlights how “copying” began to be transformed from a mere
literal copy-right to a more expansive protection against such “kidnappings” and sets the
groundwork for copyright protection for non-literal re-workings that were themselves
creative. However, the authorial interests in preserving characters’ integrity, which were
prevalent in the early discourse, has not had as direct an effect back on the legal
constructions and current copyright conversation to shape the interest away from
proprietary- toward integrity-based protection.
Instead, this period’s authors and readers are typically viewed in hindsight as actively
engaged in creating contending constructs of “fictional characters” as private property, on
the one hand, and as public commons, on the other hand, and as key players in widening
the scope of controlled original expression under copyright law. But their participation in
the imaginary welfare of the characters was articulated more often at the time in a
discourse of less proprietary terms. This mode of framing the debate, in which both
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10
authors and readers participated, has not been as attended to as those of the publishing
trade with respect to the book.
Defoe, Richardson, and Copyright History
Defoe and Richardson both had direct associations with the literary property debate. In
his 1704 Essay on the Regulation of the Press, Defoe strenuously advocated for authors’
rights in their literary works, as a necessary corollary, he argued, to the liability an author
faced: “for every Author being oblig’d to set his Name to the Book he writes, has, by this
Law, an undoubted exclusive Right to the Property of it.”
10
He continued to press this
theme in the years preceding the Statute of Anne, citing Lockean justifications, as in his
1709 Review article where he describes an author whose work is taken as having “his
Good stolen, his Pocket pick’d, his Estate ruin’d, his Prospect of Advantage ravish’d
from him, after infinite Labour, Study and Expense.”
11
Samuel Richardson, as both a printer and author, was more imbricated in the literary
property debates than most writers, and enjoyed clearer legal rights under the copyright
act, a super-status to which he alluded when, in the wake of Irish booksellers advertising
Richardson’s final novel, Sir Charles Grandison, he was prompted to assert, “Never was
Work more the Property of any Man, that this is his. The Copy never was in any other
10
Daniel Defoe, Essay on the Regulation of the Press (1704). On Defoe, authorial liability, and the
copyright act, see Jody Greene, The Trouble with Ownership: Literary Property and Authorial Liability in
England, 1660-1730 (Philadelphia: University of Pennsylvania Press, 2005), ch. 3 “Daniel Defoe, the Act
of Anne, and the Obligations of Ownership.”
11
Daniel Defoe, The Review (6 December 1709), quoted in Mark Rose, Authors and Origins: The
Invention of Copyright (Cambridge: Harvard University Press, 1993), p. 37.
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Hand: He borrows not from any Author: The Paper, the Printing, entirely at his own
Expence.”
12
These authorial assertions grounded in claims of authorial property are less reflective of
the copyright statute that had resulted given that eighteenth-century copyright law
formally primarily protected economic interests in print. “The so-called Copyright Act of
1710,” as John Feather describes, “mentions neither copyright nor authors; it was little
more than a codification, an inadequate and inaccurate codification as it proved, of
existing book trade practices” and an “author’s right to be treated as the creator and
owner of literary property is not defined in any English statute before the Copyright Act
of 1814.”
13
Copyright theory today, if one generalizes in broad brushes, typically traces two branches
for copyright: England’s economic focus, rooted in Lockean labour appropriation, and a
civil law European focus on personality rights, rooted in Hegel.
14
12
Quoted by Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge: Harvard
UP, 1993) at p. 116. On Richardson and the Irish piracy of Grandison, see Kathryn Temple, Law and
Authorship in Britain, 1750-1832 (Ithaca: Cornell University Press, 2003), ch. 1 “Printing like a
Postcolonialist: The Irish Piracy of Sir Charles Grandison.”
13
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, in Martha Woodmansee and Peter
Jaszi, eds. The Construction of Authorship: Textual Appropriation in Law and Literature (Durham: Duke
University Press, 1994), pp. 208-209 and 191.
14
For historical studies and different perspectives on copyright law and the rights of authors and
publishers over the eighteenth century, see generally Rose, Authors and Owners; B. Sherman and L.
Bently, The Making of Modern Intellectual Property Law: The British Experience, 1760-1911 (Cambridge:
Cambridge UP, 1999); Ronan Deazley, On the Origin of the Right to Copy: Charting the Movement of
Copyright Law in Eighteenth-Century Britain (1695-1775) (Oxford: Hart Publishing 2004); J. Loewenstein,
The Author’s Due: Printing and the Prehistory of Copyright (Chicago: University of Chicago Press, 2002);
Rosemary J. Coombe, “Challenging Paternity: Histories of Copyright” 6 Yale Journal of Law and the
Humanities (1994): 397; T. Ross, “Copyright and the Invention of Tradition,” 26.1 Eighteenth-Century
Studies (1992): 1; L. Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University
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Economic rights are usually more strongly associated with the English “copyright”
tradition, and moral rights with the “droit d’auteur” civil law tradition. As Justice Binnie,
for the majority of the Supreme Court of Canada, recently said of these two traditions:
It is not altogether helpful that in the French and English versions of the
[Canadian Copyright] Act the terms ‘copyright’ and ‘droit d'auteur’ are treated as
equivalent. While the notion of ‘copyright’ has historically been associated with
economic rights in common law jurisdictions, the term ‘droit d'auteur’ is the
venerable French term that embraces a bundle of rights which include elements of
both economic rights and moral rights. As Professor Strowel observes:
[TRANSLATION] The expressions ‘droit d'auteur’ and ‘copyright’ speak
volumes in themselves. It has been pointed out that the distinction
between the copyright tradition and the ‘droit d'auteur’ tradition is based
on a question of terminology: where the followers of the first tradition, the
British and their spiritual heirs, talk about ‘copyright’ to refer to a right
that derives from the existence of a ‘copy,’ an object in itself, the
Press, 1968); Martha Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the
Emergence of the Author” 17 Eighteenth-Century Studies (1983-1984): 425-448; H. Ransom, The First
Copyright Statute: An Essay on An Act for the Encouragement of Learning, 1710 (Austin: University of
Texas, 1956). Ronan Deazley recently remarked that there is no single axis on which the movement from
the Statute of Anne to Donaldson v. Becket can be traced and that the “orthodox tale buckles under the
weight of numerous identifiable but disparate threads of influence” (p. 222). My intention here is not to
propose another teleology for copyright, but rather to foreground eighteenth-century authors’ and fans’
responses to fan fiction and fictional characters. By doing so, I hope to highlight another aspect of the
literary history, suggest some complications in the narrative of the legal history, and to point out some
parallels with our own current instabilities in copyright law that digital copyright issues have raised (but
without adopting a presentist perspective).
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followers of the second tradition talk about ‘author's right’ (droit d'auteur)
to refer to a right that stems from intellectual effort or activity brought to
bear by an author, a creator. This is the fundamental difference: on the one
hand, a right that is conceived of by reference to the author, the creative
person, and, on the other, by reference to the copy of the work, the
product of the creative activity that is protected against copying.
(A. Strowel, Droit d'auteur et copyright: Divergences et convergences: Étude
de droit comparé (1993) at pp. 19-20.)
15
These perceptions of conceptual differences between the “droit d’auteur” of the
continental civiliste tradition and the English copyright tradition as rooted in the
eighteenth-century legal history colour the theory and discourse. In particular, there is a
tension in the philosophy between a natural law idea that views copyright as affirming
pre-existing rights that authors have in their work and emphasizes the work as an intrinsic
part of the author’s personality, which is said to be inhospitable to historically rooted
English views, and the English system based on the idea that copyright consists only of
statutory rights and emphasizes economic rights. A copyright system based on the
English system from the Statute of Anne characterizes:
copyright primarily as a system designed to organize the economic management
of intellectual property, and regards copyright primarily as a mechanism for
15
[2002] 2 S.C.R. 336
at 367, 210 D.L.R. (4
th
) 385,
17 C.P.R. (4th) 161, 285 N.R. 267, [
Théberge
cited to
S.C.R.]
.
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protecting and transmitting the economic values associated with this type of
property and with the use of it.
16
However,
Moral rights, by contrast, descend from the civil law tradition. They adopt
a more elevated and less dollars and cents view of the relationship
between an artist and his or her work [than the English copyright
tradition]. They treat the artist's oeuvre as an extension of his or her
personality, possessing a dignity which is deserving of protection. They
focus on the artist's right ... to protect … both the integrity of the work and
his or her authorship of it (or anonymity, as the author wishes).
17
I’d like to suggest that this traditional way of looking at copyright—with economic rights
being traced to eighteenth-century England and its protection of the copy and continental
Europe’s concern with personality-based rights—does not necessarily fit how eighteenth-
century authors and their readers (including the participating fan fiction writers)
did not prohibit imaginative re-workings of famous characters. But the authorial
response to these unauthorized sequels nonetheless figured these fictional escapades in
criminal law terms as kidnappings of their beloved characters. If the history of copyright
law is traced through the treatment of fictional characters rather than fictional works, we
16
Editions Chouette (1987) Inc. v. Despeuteaux, [2003] 1 S.C.R. 178 at 215, 223 D.L.R. (4th) 407,
23 C.P.R. (4th) 417, 301 N.R. 220 and see Théberge, supra note 7 at 347-48.
17
Théberge
at p. 348.
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get a better sense through author’s perceptions, rather than the trade’s perceptions, of the
laws and norms that governed authorship and originality and would see less divergence
philosophically between the traditions. While the trade looked to the literal taking of
print, authors posed a different question of when original characters could be prevented
from being taken and in so doing formulated a more expansive view of which kinds of
expressions’ integrity mattered. This, in turn, influenced a more expansive view of
copyright property. In the authors’ view, aspirational under the law but descriptive under
prevailing authors’ norms, authors could (and should) control the afterhours lives of their
characters. Inserted into the legal framework, these authorial (and fan) interests in
preserving characters’ integrity was subsequently propertized into an issue of when
original characters could be “claimed,” “owned,” and “taken.”
Eighteenth-Century Fan Fiction
Eighteenth-century sequels and re-writings have often been analysed primarily as
marketable commodities within a consumer culture and the characters too, viewed as
dislocatable and circulating figures, as marketplace subjects.
18
This theory is consistent
with the prevailing narrative of England’s economic copyright rights, but an alternative
literary history can be constructed and would affect how the legal history is understood.
To be sure, some authors who wrote spurious sequels were “cashing in” as the economic
view suggests; but, in other cases, the fiction was authored by inspired fans who were
18
See, for example, Deidre Shauna Lynch, The Economy of Character: Novels, Market Culture, and the
Business of Inner Meaning (Chicago: University of Chicago Press, 1998); Keymer and Sabor, Pamela in
the Marketplace.
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prompted by non-commercial and expressive and aesthetic reasons. That said, these re-
uses too, however, received a chilly response from the original authors. This aspect is
brought out more clearly when fan fiction is re-positioned within the literary property
debates—as the authors (rather than the trade) viewed the issues that were at stake. Seen
as a relationship of reader and authors to fictional characters, not printed works, and the
ongoing custodial interests that both readers and authors felt toward these characters
helps to illustrate another side of this debate which has been lost among the talk of landed
metaphors, the marketplace, and the focus on the Stationers’ property in the copy which
dominated the legal articulation of the contending interests. As between eighteenth-
century authors and their fan reader-writers, the dynamic, despite the lack of legal rights
for support, is about authors as their fictional characters’ guardians, protecting them
against corrupting outside influences. This was true even as to those those seemingly
benevolent fans who wished for “better” lives for the characters, as can be seen in the
campaign to save Clarissa that Richardsons’ devoted fans waged.
The eighteenth century can claim character phenomena that rivalled, perhaps even
surpassed, the cult hits of today. In Clarissa, Samuel Richardson’s serially published
eighteenth-century novel about a heroine, Clarissa Harlowe, who is raped, by Richard
Lovelace, and, for the last five hundred pages of the seven-volume book, dies, the reading
circles, like the serial drama and soap opera fans today, had ample time to lobby the
author to save the heroine and plead that she marry her seducer. Subsequent
opportunities presented themselves as Richardson published four editions of the novel,
with substantial revisions. Lady Bradshaigh (under the pen name “Belfour”) wrote
Richardson after two installments to beg that Clarissa be saved: “let me intreat (may I
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say, insist upon) a turn, that will make your almost despairing readers half mad with
Joy.”
19
In the alternative ending Lady Bradshaigh spins in her annotated copy of
Clarissa, Clarissa is spared the “last outrage,” lives, but apart from Lovelace, and is
reconciled with her family.
Many will say, had Clar.
a
lived she might in time have been prevail’d upon
to marry Lovelace, for which reason, I wou’d have spar’d her Life, to have
proved the contrary…. I cou’d have wish’d the two principal Characters
had been suffer’d to have liv’d , the one for Example & Benefit to her
fellow creatures, the other for a warning, in linguring out a miserable Life,
after receiveing a wound from James Hawlow, & thereby becoming a
cripple, & a sincere penitent, from frequent reviews of his past Life &
from the letters of the most excellent Clarissa, whom I wou’d have had
persevered in her resolution of a Single Life, spent with satisfaction at her
own House. The last outrage I wou’d have had attempted, but not
executed, & that succeeded by the prison scene, her Illness & even to the
making her Will & eery other preparation for death. But by a
reconciliation with her friends….
20
Lady Elizabeth Echlin, Lady Bradshaw’s sister, wrote a more full blown alternative
ending in prose format. She similarly spares Clarissa from the rape, converts Lovelace’s
19
Belfour to Richardson, 10 October 1748, in Barbauld IV 179.
20
The Annotations in Lady Bradshaigh’s Copy of Clarissa, ed. J. Barchas and G. Fulton, no. 76
(Victoria: ELS Monograph, 1998), p. 140. See also, Janice Broder, “Lady Bradshaigh Reads and Writes
Clarissa: The Marginal Notes in Her First Edition” in Clarissa and Her Readers: New Essays for The
Clarissa Project, Carol Houlihan Flynn and Edward Copeland, ed. and intro, vol. 9 of Florian Stuber, ed.
The Clarissa Project (New York: AMS Press, 1999), 97-118.
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compatriots, but has Lovelace die a penitent, while at least nominally retaining the tragic
nature of the book by preserving Clarissa’s death.
Richardson resisted Lady Brashaigh’s proposed “happy ending” as contrary to his
Christian ethic of an afterlife reward for the meritorious (but long suffering) Clarissa and
the displaced tragedy of Lady Echlin’s ending. He jokingly wrote the latter that Lovelace
may as well have been made Governor of an American colony, but his rejection of the
revisionist ending was firm.
21
While failing to shape what they hoped was a malleable
artistic product, the slighted fans nevertheless disseminated re-tooled copies of the novels
with happier-ever-after chapters for which they had advocated.
22
Richardson rebuffed these efforts from the loyal readers of his Clarissa as conclusively
as he did the bawdy un-bowdlerized unauthorized sequels of his first epistolary novel’s
heroine, Pamela Anderson, albeit more temperately phrasing his refusals to the
cognoscenti whose interest in his novels he courted. His eponymous heroine Pamela is a
maidservant who marries her deceased employer’s son, Mr B, after he attempts to rape
her. The novel was massively popular in the eighteenth century and is a mainstay of
history of the novel criticism, especially on class and gender relations in the novel.
21
See Tom Keymer, Richardson’s Clarissa and the Eighteenth-Century Reader (Cambridge:
Cambridge University Press, 1992), p. 214.
22
See e.g. Lady Elizabeth Echlin’s An Alternative Ending to Richardson’s Clarissa, ed. D.
Daphinoff (Bern, 1982). Tom Keymer discusses this ending in Richardson’s Clarissa and the Eighteenth-
Century Reader (Cambridge: Cambridge UP, 1992) at 214-18. Lady Bradshaigh also suggested two
“improved” comic endings. See The Annotations in Lady Bradshaigh’s Copy of Clarissa, ed. J. Barchas
and G. Fulton, no. 76 (Victoria: ELS Monograph, 1998). Richardson’s biographers discuss his friends’
attempts to influence the ending during the manuscript phase. T.C.D. Eaves and B.D. Kimpel, Samuel
Richardson: A Biography (Oxford: Clarendon P, 1971), chap. 10.
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19
Pamela, character and novel, is a confusing admixture. She can reasonably be interpreted
as a scheming, too-knowing, coarse vixen or a virtuous, ingenuous, refined naïf. Mr B
snidely calls her a “subtle artful Gypsey” (29), whereas his neighbours in Bedfordshire
can hardly contain themselves in extolling her. She is pert, bold, vocal, precocious, and
disarmingly candid, admitting when she “would a little dissemble” (87). Terry Eagleton
contends that how “‘bold’ or ‘devious’ Pamela is is finally undecidable.” Pamela, he
remarks, is “neither ‘naturally’ saucy nor a straitlaced girl driven desperately to
impudence; she is neither deliberately scheming nor in the least blind to self-interest,
neither initially high-minded nor a hypocrite.”
23
Pamela, the novel, meanwhile, as Ian
Watt memorably remarked in The Rise of the Novel, manages to offer the “combined
attractions of a sermon and a striptease,” a pornography of prudence, or as Leslie Fieldler
calls it, “at once practical, prurient, and edifying.”
24
It is not surprising then that the novel attracted such a proliferation of fan fiction, by
devotees and more financially motivated sequelizers, for there was a built-in reading
public for these continued adventures. Moreover, the very indecipherability of the
original character as schemer or innocent provided fertile ground for exploration (and
mockery) with some versions “clarifying” Pamela’s character with their decided bent
toward the lewd and mischievous.
23
Eagleton, The Rape of Clarissa, p. 35.
24
Ian Watt, The Rise of the Novel: Studies in Defoe, Richardson and Fielding.
(London: Hogarth Press, 1987), p. 173; Leslie A. Fieldler, Love and Death in the American Novel, with a
new afterword by the author (New York: Anchor Books, 1992), p. 63.
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Richardson, however, was exercised by the wild turns that the namesake character
experienced in these escapades and of the supposed revelations of her “real” feelings.
Irate over the prospect of the unauthorized sequel of Pamela’s Conduct, he took umbrage
that his characters would be ill-used, much like Gary Larson lamenting the afterhours life
of the Far Side characters in cyberspace: “my Plan,” Richardson complains, “should be
basely Ravished out of my hands, and, probably, my Characters depreciated and debased,
by those who knew nothing of the Story, nor the Delicacy required in the Continuation of
the Piece….
25
Richardson later wrote to Lady Bradshaigh (herself a fan fiction author),
that he hoped his Christ-figure hero Grandison from his final novel “may be suffered to
end where I now have concluded it,” deflatedly but rightly recognizing that this ability to
preclude afterhours adventures of his beloved characters was not a legally enforceable
right but a claim that could be asserted as a culturally cognizable one.
In reference to the proliferating Pamela sequels, Richardson complained of the “Baseness
as well as Hardship it was, that a Writer could not be permitted to end his own Work,
when and how he pleased, without such scandalous Attempts of Ingrafting upon his
Plan.”
26
By the time of Clarissa, which succeeded Pamela, he had learned his lesson and
(literally) closed the crypt door to a repeat of the Pamela craze: spitefully, he killed off
his heroine rather than having to be forced to disown her after her reputation was sullied.
Interestingly, the authors of the unauthorized sequel to Pamela’s Conduct made the same
rhetorical move to buttress their authenticity, announcing they “have been obliged to Kill
25
See Pamela in the Marketplace, p. 56.
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Pamela” so Richardson could not murder her, in turn provoking Richardson’s response
that the murder of the spurious Pamela would “impose new Continuations upon the
Publick.” Richardson perhaps is alluding here to the idea that once the concept of only
one authentic character was broken there was nothing to close the gates to further
spurious sequels. With Clarissa, and the heroine’s memorable, tragic, prolonged, and
indubitable death, Richardson can be seen to be testing the theory that an unauthorized
continuation that forced would-be fans to actually re-write the ending, rather than merely
continue an open-ended plot, set up higher obstacles to dampen the ardour of a devoted
fan. This might be especially so after the original novel went from manuscript stage to
publication, when the pleas from the inner circle of fans who were privileged to see the
manuscript in progress could not affect the original author’s decisions.
Highlighting these expressive interests of authors and fans is not to deny that there were
marketplace effects at play here in the elevated rhetoric about fictional characters’
reputations. Debased characters could—economically—harm the original author’s
reputation. In the same way, the nomenclature of “economic” rights and “moral” rights
does not mean that moral rights do not also have an economic dimension. But the intense
protective interest seen here is more than an economic one—it is, I suggest, parental more
than proprietary, and that parental emphasis suggests a re-interpretation of English
copyright law’s basis for control and rights.
Fan Fiction, Fictional Characters, and Author’s Interests
26
Quoted at ibid.
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That the history of copyright and the history of the novel developed in parallel, both
temporally and discursively, is significant. There are deep connections between the
origins of the English novel as a distinct genre and the origins of English copyright law,
and these literary property debates are not coincidentally tied in to the development of
full fictional characters. Eighteenth-century fan fiction highlights the tentative nature of
the “novel” as a literary project, its developing and distinctive practices of fictional
characterization, the emerging descriptive and normative definitions of “fictional
characters,” the scope of public and authorial attachment to fictional characters, the
development of identity through a shared lexicon of popular (and “rounded”) characters,
and early copyright law. The cultural discourse around fan fiction in the eighteenth
century sheds light on eighteenth-century interpretations of “originality,” “imitation,” and
“authorship,” and the extent to which copyright law shaped (and was shaped by) cultural
perceptions about the ownership of fictional characters and the emerging genre of the
novel.
Fan fiction debates were able to flourish in the eighteenth century because full, or
rounded, fictional characters were emerging with the origins of the novel. All (authors of
the fan fiction, authors of the original fiction, and both of their readers) identified and
reacted to these unauthorized sequels and revisionist explorations of the character
because of the perceived continuity of the protagonist or the cast of characters (whether
or not the characters are similarly named). What makes the fan fiction identifiable as a
“sequel” or re-working is the reader response that recognizes the “same” character, which
is no small feat for a literary work where there is no visual manifestation to compare two
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versions of characters. Interestingly, such a recognition test in intellectual property terms
is more akin to trade-mark than to copyright concepts, although the formal law of trade-
mark lies a century further ahead than this period.
27
From a market perspective, those fan
fiction authors who wished to cash in surely intended the sequels to be interpreted as
featuring the same character (even under a name change). The authors thus could hardly
be blamed as over-reacting that “their” characters were being kidnapped and transported
to a new fictional vehicle because the characters were in fact identified by the readers and
authors as likenesses, whether twins, counterfeits, or kidnapped characters, when the
characters appeared in a new fictional vehicle.
Aesthetically Richardson was claiming that the circulation of these revisionist endings
would fundamentally damage the integrity of Clarissa because these depictions
misunderstood her fundamental nature, an intriguing and somewhat paradoxical view
which can at once see that re-worked character as Clarissa while fretting that the new
plots are “out of character” for the character. However, for authors, these concerns over
the welfare of their characters, the integrity of the character of the character, so to speak,
was part of the literary property debate and informed the conversation.
Fan fiction is problematic to categorize, both legally and aesthetically, because a
character can be fully realized for authors and readers even though not everything is
27
On convergence in intellectual property rights with respect to protection of fictional character
properties, see M.T. Helfand, “When Mickey Mouse is as Strong as Superman: The Convergence of
Intellectual Property Laws to Protect Fictional Literary and Pictorial Characters” (Feb. 1992) 44 Stan. L.
Rev. 623 at 628; Dorothy Howell, Intellectual Properties and the Protection of Fictional Characters, (New
York: Quorum Books, 1990); E.F. Brylawski, “Protection of Characters--Sam Spade Revisited” (1974) 22
Bull. of the Copyright Soc’y of the USA 77 (criticizing convergence).
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shared. These early novel authors were asserting they knew the character, but of course
not everything about a fictional character can ever be fully told within the inherent
limitations of finite generic bounds (and limited patience and time among readers). This
necessarily invites the possibility that any character, no matter how developed can have
stories that haven’t been told and thus opens up expressive and economic opportunities
for others to explore.
As E. M. Forster has cogently described in his famous study of characters in Aspects of
the Novel, characters are “real not because they are like ourselves (though they may be
like us) but because they are convincing”):
A character is real. . . when the novelist knows everything about it. He
may not choose to tell us all he knows—many of the facts, even of the
kind we call obvious, may be hidden. But he will give us the feeling that
though the character has not been explained, it is explicable, and we get
from this a reality of a kind we can never get in daily life. . . . [I]n the
novel we can know people perfectly, and, apart from the general pleasure
of reading, we can find here a compensation for their dimness in life.
28
Literature, and notably novels, excels at introspection and psychology, permitting us to
“know” a literary character in a different way than the visual recognition of a pictorial
fictional character. Literary characters develop incrementally by nuances, mannerisms,
telling incidents, and revealing remarks. Fan fiction’s affinity then for crossing
28
E. M. Forster, Aspects of the Novel (New York: Harcourt Brace Jovanovich, 1927), at 63. Another
curiosity is that the most predictable and unsurprising characters are vulnerable to being labelled as
stereotypes and therefore excluded from copyright protection as ideas. See N. Frye, S. Baker, and G.
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boundaries and pursuing the unsaid (or unsayable) in the original work makes it difficult
to discern when the same character is re-appearing in a different literary work and yet can
still “be” that character and when, by contrast, it is another character inspired by the first
or created specifically to show how a different character could react to similar plot
devices. Henry James rhetorically queried, “What is character but the determination of
incident? What is incident but the illustration of character?”
29
Under this view, where a
fan fiction writer gives a character new incidents which the official work would not
pursue as part of a serial development, then there is indeed a new character. The
reactions by eighteenth-century authors and readers, however, seem to suppose an
immanent fictional character, separable from the original work and the original plot,
whose integrity can be damaged, but even injured it is still the same character which
suffers.
Custodial Interests in Fictional Characters
Significantly in these conversations, authors were defining their relationship to fictional
characters, not merely to the work itself and not merely to economic interests. As Mark
Rose has described, copyright has been guided by two metaphors: the book as real estate
and authorship as paternity.
30
Perkins. “Characters,” in The Harper Handbook to Literature (New York: Harper, 1985) at 97. A stock
character is conventionally unprotected because it is a mere idea under copyright law.
29
H. James, “The Art of Fiction,” in Criticism: The Foundations of Modern Literary Judgment, ed.
M. Schorer, J. Miles, G. McKenzie (New York: Harcourt, 1948) at 50.
30
See Rose, Authors and Origins and “Copyright and Its Metaphors” 50 University of California
Law Review (2002): 1.
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The author as the parent of the book goes back to Plato and is a common metaphor
through early modern writings and prevalent over the long eighteenth century. Mary
Shelley, for instance, famously confessed her “affection” for her “hideous progeny” in
her 1831 Introduction to Frankenstein. Defoe in a 1710 Review article, refers to the book
as the “child of his inventions, the brat of his brain…these Children of our Heads are
seiz’d, captivated, spirited away, and carry’d into Captivity, and there is none to redeem
them.”
31
Similarly, the realty metaphor is certainly common in eighteenth-century discourse and
was a predominant fixture of the copyright debates. Justice Yates, the only judge
dissenting from the 1769 case of Millar v. Taylor (where the King’s Bench upheld an
author’s perpetual common law rights; that result was reversed a few years later in
Donaldson v. Becket by the House of Lords in 1774), referred to the act of publication as
a forced dedication to the public: “when an author prints and publishes his work, he lays
it entirely open to the public, as much as when an owner of a piece of land lays it open
into the highway.”
32
As Rose, David Brewer and Simon Stern, among others, have
discussed with respect to the eighteenth-century literary property debates, the prevalent
comparison of books with land established an idea of literary works as scarce physical
resources.
33
This elided the distinction between intangible expression and the material
object. The land metaphor has had a stronghold on the discourse of copyright through the
31
Quoted Rose, “Copyright and Its Metaphors,” n. 23.
32
98 E.R. at 233.
33
David Brewer, The Afterlife of Character, 1726-1825 (Philadelphia: University of Pennsylvania
Press, 2005); Simon Stern, “Tom Jones and the Economies of Copyright” 9 Eighteent-Century Fiction
(1997): 429-444.
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current digital copyright debates, with supporters of greater access speaking in land-based
terms of the public commons and public domain. From the eighteenth-century forward to
today, there is frequently analogizing, with respect to reader access to original works, to
real property terms such as covenants, easements, trespass, and fences, culminating in the
advocacy movement today for supporters of a wider public domain to find fertile
precedential strategies and resources in the earlier environmental law movement.
34
On the other side, the parental metaphor has been much less influential in shaping
contemporary debates and framing legal reform. This too muted effect stems from a
persistent inattention to author’s interests (rather than the copyright owner’s interest,
namely the publishing trade) and, I suggest, to a corollary tendency to underestimate the
symbolic capital of fictional characters and their attraction as both emotional beings and
economic vehicles. From the publisher’s perspective and the resulting Statute of Anne,
the main concerns were centered around the treatment of the work in its entirety and its
printing as a material object: piracy and counterfeiting, the literal copy right. Even the
parenting metaphor too has been frequently deployed in reference to the birth of the book,
34
See Mark Rose, “Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the
Public Domain” 66 Law & Contemporary Problems (2003): 75. Among the vast literature on the public
domain, for a description of the public domain, see Pamela Samuelson, “Mapping the Digital Public
Domain: Threats and Opportunities” 66 L. & Contemp. Probs. 147 (Winter/Spring 2003). On the
importance of preserving the public domain, see the papers from the Duke University Conference on the
Public Domain, November 2001; L. Lessig, Free Culture: How Big Media Uses Technology and the Law to
Lock Down Culture and Control Creativity (New York: Penguin, 2004); L. Lessig, The Future of Ideas:
The Fate of the Commons in a Connected World (New York: Vintage Books, 2001); Y. Benkler, “Free as
the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain” (1999) 74
N.Y.U. L. Rev. 354; J. Litman, “The Public Domain” (1990) 39 Emory L. J. 965; M. Madow, “Private
Ownership of Public Image: Popular Culture and Publicity Rights” (1993) 81 Calif. L. Rev. 125; D. Lange,
“Recognizing the Public Domain” (1981) 44 L. and Contemp. Problems 147; R.J. Coombe, The Cultural
Life of Intellectual Properties; and W.J. Gordon, “A Property Right in Self-Expression: Equality and
Individualism in the Natural Law of Intellectual Property” 102 Yale L. J. 1533.
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displacing the parental interest in the characters themselves and deflecting legal attention
away from authorial—and readerly—interests in preserving the characters’ integrity.
This focus on the entire work does not adequately capture the felt response of authors and
their interests during these debates, which included authorial demands for attribution and
for preserving integrity. Authors’ concerns were often about the welfare of their fictional
characters and not merely the handling of the book. Eighteenth-century novel writers
applied the parenting metaphor to the fictional characters themselves as distinct beings,
and indeed such a domestic non-commercialized metaphor of parenting seems to find a
more comfortable home when applied to characters than to books. When these novelists
referred to the “ownership” of their fictional characters the connotation is ownership not
as an assertion of a proprietary interest, as would be true for a sovereign control over
chattels over land, but a custodial interest in a child (or sentient animal, if one prefers).
Authors’ responses to fan fiction, where they speak of adoptions, runaways, and
kidnappings, foreground the trope of parenting (or its converse of “disowning” a child) in
a way that the legal metaphor of landownership (or its converse, of a dedication of land to
the public domain) could not capture. In other words, Defoe lamenting kidnappings
embraces a guardianship interest rather than market-oriented status for the characters.
That plagiarist comes from Latin, as one who abducts or steals the child or slave of
another (OED), provides further rhetorical echoes.
The fans, too, invoked custodial interests, and their perception of the conflict was that it
was less about a struggle over rival property rights than a disagreement over the best
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interests of the character. Clarissa, Lady Bradshaigh and Lady Echlin felt, deserved a
better ending here on earth than the one her author-parent provided, and they lobbied for
her to win both the rewards of the afterlife and the here and now (with a comfortable and
quiet life in the country or death only after familial reconciliation).
This literary history suggests that the legal history of copyright may be recounting a
fictionalized story. In narrating copyright as a binary story of English economic rights
and continental European authorship rights (moral and personality rights), we may not be
listening to what these emerging English novelists were saying about their characters and
the reader reception and fans’ zealous engagement with the characters’ lives. The
suggestion that “author’s rights,” in the sense of the moral rights and droit d’auteur
tradition, are not as much a part of the English history—that it is absent in norms, rhetoric
and in law—is belied by the custodial interest in which authors’ expressed their concerns
about characters’ afterhour lives: the gee, Mom, I’m in someone else’s book and I’m
behaving badly and I don’t feel quite like myself. Can you come get me? Or, to convert
this to the eighteenth-century language, the concerns that characters were being
“debased,” “kidnapped,” and “ravish’d.”
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