Primary Sources on Copyright (1450-1900)
Commentary on Pope v. Curl (1741)
School of Law, University of Birmingham, UK
Please cite as:
Deazley, R. (2008) ‘Commentary on Pope v. Curl (1741)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
1. Full title
3. The decision in Pope v. Curl (1741)
4. The Statute of Anne, unpublished work, and the letter in eighteenth century Britain
5. The origins of the idea-expression dichotomy
1. Full title
Pope v. Curl (1741) 2 Atk. 342
Decision of the Chancery Court concerning the unpublished correspondence of Alexander Pope, in which Lord Chancellor Hardwicke draws a distinction between the ownership of a letter, as a physical document, and the right to authorise the first publication of that letter, a right which he concludes remains with the author of the same.
Drawing upon the Public Records Office Archives the commentary explores the background to, and substance of, the decision, the nature and significance of epistolary correspondence in eighteenth century society, and subsequent related commentary and case-law. The commentary argues that the decision is of particular significance in the development of the concept of the author's text as intangible property.
3. The decision in Pope v. Curl (1741)
In 1735 Alexander Pope (1688-1744) published an essay in which he sought to clear up "an Affair which seem'd at first sight a little mysterious" but which was "useful as a Warning, and perhaps flagrant enough as an Example, to induce the LEGISLATURE to prevent for the future, an Enormity so prejudicial to every private Subject, and so destructive of Society it self". The offence was the unauthorised publication of some of the poet's private correspondence by his old enemy, the bookseller Edmund Curl (1683-1747). In his Narrative he described the problem in the following manner:
"This is a Practice frequent with Booksellers, to swell an Author's Works, in which they have some Property, with any Trash that can be got from any Hand; or where they have no such Works, to procure some. Curl has in the same manner since advertiz'd the Letters of Mr. Prior and Mr. Addison. A Practice highly deserving some Check from the Legislature; since every such Advertisement, is really a Watch-word to every Scoundrel in the Nation, and to every Domestick of a Family to get a Penny, by producing any Scrap of a Man's Writing, (of what Nature soever) or by picking his Master's Pocket of Letters and Papers."
Pope's request that the legislature provide some ‘check' to prevent such publications went unheeded. His opportunity for legal redress would come six years later when, in June 1741, he filed a bill in Chancery complaining about the publication of a volume of correspondence which he had both written and received from, amongst others, Jonathan Swift (1667-1745), John Arbuthnot (bap.1667, d.1735), and John Gay (1685-1732). The bookseller was Pope's old adversary, Curl. Having entered his bill on 5 June, Pope was granted an injunction until answer by Curl. The bill itself, drafted by William Murray (1705-1793), later Lord Mansfield, provided little more than a factual account of the events leading up to the litigation; importantly though it sought to rely upon the Statute of Anne 1710 to restrain Curl's publication. It set out that Pope, being the "sole author of the said letters" and "never having disposed of the Copy right of such letters" to anyone "hath the sole and absolute right of printing, reprinting, vending and selling the same as he should think fit". In relation to the correspondence Pope had received from Swift, the plaintiff also set out his hope that neither "those other letters which were sent and addressed to [him] would have been printed, published or sold without [his] consent". Pope, somewhat inconsistently, was claiming authority over his own writings, regardless of the ownership of the physical letter, as well as the writings of others that had been addressed to him. In response, Curl moved to have the injunction dissolved. He put it to Lord Chancellor Hardwicke (1690-1764) that the letters which Pope had sent were to be considered as gifts to the recipients, that they were no longer Pope's property, that he was no longer "the author and proprietor of all or any of the said letters". In short, he claimed that Pope's dominion over the letters began and ended with the physical manuscript. Pope, on the other hand, argued that while he was no longer the proprietor of the letters in question, he was still their author, and as such retained the ability to decide whether or not they should be printed and published. It is in the answer to this dilemma that Lord Hardwicke provided one of the first truly seminal copyright decisions of the eighteenth century.
Hardwicke, in resolving the case, drew a distinction between those letters which Pope had written, and those letters which he had received from others. As to the first, he rejected Curl's argument, observing that:
"I am of opinion that it is only a special property in the receiver, possibly the property of the paper may belong to him; but this does not give a licence to any person whatsoever to publish them to the world, for at most the receiver has only a joint property with the writer." 
Campbell, the author of Lives of the Lord Chancellors, working from manuscripts in his own possession written by a Mr Jodderell, a Chancery barrister, relates the Lord Chancellor's opinion on this issue in the following terms:
"[T]hat where a man writes a letter, it is in the nature of a gift to the receiver, I am of opinion that the receiver only acquires a qualified interest in it. The paper on which it is written may belong to him, but the composition does not become vested in him as property, and he cannot publish against the consent of the writer." 
Whether "special property" or "qualified interest", both reports of Hardwicke's analysis amount to the same thing: Curl was unable to print those letters that Pope had written. As to the letters which he had received from others, while Atkyns records that the injunction was continued only as to those letters "written by him, and not as to those which are written to him", Campbell recounts the Lord Chancellor's decision in the following way: "[A]s for the letters in this volume written to Mr.Pope, I think that he cannot be heard to complain. They may possibly be published with the authority of the writers of them, and from copies taken from before they were sent to him".
4. The Statute of Anne, unpublished work, and the letter in eighteenth century Britain
How and why did Hardwicke come to decide as he did? While the Statute of Anne had set out for the first time that authors would have a property in their published work, it was as a result of what the Act had not said, that one such author was now addressing his court. This issue was just one of a number of concepts that had been left unresolved by the Statute of Anne: who had the right to first publish any written manuscript? and, upon what foundation? The Act had specified protection for works upon first publication, but said nothing about an unpublished manuscript or private correspondence. Pope may have brought the action for reasons concerning both property and propriety; however, it can be argued that Hardwicke's commentary and decision was primarily guided by the fact that what protection the author might have lay in an act that was passed "for the encouragement of learning" and the continued production of "useful books". "[I]t would be extremely mischievous" - he suggests - "to make a distinction between a book of letters ... and any other learned work". To deny Pope any form of redress would have been problematic, especially in light of the fact that epistolary exchanges of the time were very often used to serve a valuable instructional and educational function. Indeed, letter-writing in the eighteenth century had established itself as a practice in which all levels of society might engage, and was certainly one that amounted to more than a simple carrier of personal news. As Ransom notes, the letter could be adapted to perform any number of disparate functions; it might carry news, entertain, chastise, persuade or inspire, as well as providing "a sound pedagogical device" for the instruction of others. In short, as Bannet puts it, "letters were central to eighteenth-century culture". The Lord Chancellor was certainly of the opinion that "no works have done more service to mankind than those which have appeared in this shape upon familiar subjects". Moreover, in his view, it was very often because such letters were not intended for publication that they were so instructive; it was this very fact that often rendered them "so valuable". Thus, while the Statute of Anne remained silent as to an author's unpublished correspondence, to deny the letter-writer any protection might discourage the very practice of this kind of writing.
That the Act made no provision for the unpublished manuscript or personal correspondence should perhaps not surprise. It was, after all, a piece of legislation lobbied for and secured on behalf of the book trade, albeit not in terms that entirely suited their best interests. If the Statute of Anne only made reference to the published book, this was because the booksellers were in the business of publishing books. If the statute said nothing as to an author's rights over his unpublished work, this was simply because it was a question that held no real interest for the bookseller. As Kaplan notes: "[T]he draftsman [of the 1710 Act] was thinking as a printer would - of a book as a physical entity; of rights in it and offences against it as related to ‘printing and reprinting' the thing itself". In any event, the decision confirmed that the personal letter was to be considered "writing" within the meaning of the legislation (or at least within the concept of "books and other writings" referred to within the preamble to the legislation). More than this, however, in arriving at the decision, and in observing that the recipient of a letter only acquires "a qualified interest in it" such that "the composition does not become vested in him as property", the Lord Chancellor provided one of the earliest elaborations upon the problematic nature of copyright, and the relationship between the author, the reader, the book and the text. Rose considers the decision of crucial significance, describing it as "a transitional moment in the conception of authorship and a pivotal moment in the production of the concept of intellectual property". The observation is not overstated. In resolving the issue before him in the way that he did, in a manner that best accorded with the underlying principle of the Statute of Anne, Lord Hardwicke divorced Pope's physical letter from its metaphysical content, splitting the book and the text asunder in a way that the legislators responsible for the Act had never contemplated.
5. The origins of the idea-expression dichotomy
This nascent formulation of the author's text as intangible property was subsequently taken up by William Warburton (1698-1779), Pope's executor, editor and the beneficiary of his literary estate. Three years after Pope's death, Warburton published A Letter from an Author, to a Member of Parliament; concerning Literary Property, which commentary, he claimed, would prove "that an author has an undoubted right of property in his works". Warburton was one of a number of writers who, throughout the course of the next thirty years, provided opinions that fed into the broader debate being played out before the courts as to the very nature of copyright. In particular, whether copyright was a purely statutory phenomenon or whether it existed at common law as the natural right of an author. Warburton fell squarely within the latter camp. He began his classification of property with the observation that property, as traditionally understood, exhibited two essential criteria: "that they be useful to mankind; and that they be capable of having their possession ascertained". He continued:
"Of these, some are moveable, as goods; some immoveable, as lands: and they become property either by first occupancy, or by improvement. Of moveables, some are things natural; others, things artificial. Property in the first is gained by occupancy, in the latter, by improvement."
Moveable property was of two kinds: "the product of the hand, and of the mind; as an utensil made; a book composed"; moreover, "the product of the mind is as well capable of becoming property as that of the hand". This, for Warburton, was self-evident in that a product of the mind had in it "those two essential conditions ... namely common utility, and a capacity of having its possession ascertained". Thus, his classification, and argument, traveled full circle.
For Warburton, the product of the mind, the book composed, was not confined to the physical manuscript or book. Rather what was protected was "the doctrine contained in it"; that was "the true and peculiar property in a book". A book as "a composition of paper and ink drawn out in artificial characters" was a work of the hand; however, "the complete idea of the book" incorporated the work of the mind, the composition, "a doctrine contained". This distinction between the tangible and the intangible was later taken up by William Blackstone (1723-1780) in Tonson v. Collins (1762), who articulated a more essential distinction between the book, the ideas conveyed in the book, and the words "in which an author his clothed his ideas":
"Style and sentiment are the essentials of a literary composition. These alone constitute its identity. The paper and print are merely accidents, which serve as vehicles to convey that style and sentiment to a distance. Every duplicate therefore of a work... if it conveys the same style and sentiment, is the same identical work, which was produced by the authors labour and invention."
Blackstone comments were further elaborated upon by a pamphleteer writing in the same year. A book, he suggested, could be conceived of as both a doctrinal composition, and a mechanical composition. The doctrinal composition could be further divided into the ideas it contained, and the language of the author in conveying those ideas. The book as "visible permanent characters on paper", and the ideas it contained, were free for the reader to do with what he would:
"[F]or he who obtaineth my copy may appropriate my stock of ideas, and by opposing my sentiments, may give birth to a new doctrine; or he may coincide with my notions, and by employing different illustrations, may place my doctrine in another point of view: and in either case he aquireth an exclusive title to his copy, without invading my property: for though he may be said to build on my foundation, yet he rears a different superstructure."
Ideas common to the public could be confined within the private language of the individual author. What remained with the author after publication was his individual expression, the particular sentiments he employed in conveying his doctrine to the reader.
And so, Hardwicke, in Pope v. Curl, had begun to unravel a conceptual thread that ran through these later writers and commentators, a thread which is still very much a part of fundamental copyright discourse today, in the guise of the idea/expression dichotomy. That there emerged no meaningful response to this strain of philosophical conjecture during the mid-eighteenth century was largely due to the nature of the counter-position that the opponents of the common law right had adopted. In short, they argued that, absent legislative intervention, an author's work was simply not "susceptible of property" at all. When Joseph Yates (1722-1770), the opposing counsel in Tonson (1762), raised the argument that property had to be something that could be "seen, felt, delivered, lost or stolen", he was criticised from the bench by Lord Mansfield, as well as by his opposing counsel Blackstone, for ignoring the distinction that could be drawn between corporeal and incorporeal rights. When An Enquiry into the Nature and Origin of Literary Property was published, the author took this very distinction as his point of departure: "[p]roperty is either corporeal or incorporeal". He continued however that those incorporeal properties acknowledged in law, were of two kinds:
"[E]ither original as Bonds, Contracts and Obligations, (for these arise from Compact and Agreement of the Parties) or derivative, as Estovers, Advowsons, and Rights of Common, which imply a prior Property from whence they issue."
The property claimed, he asserted had to fall within this second category, and yet all these derivative incorporeal rights were predicated upon the prior existence of a corporeal body. Before there could exist a right of common, there had to be created a Manor; before estovers could be granted, a property had to subsist in the wood or forest; the goodwill of an Inn could not precede the building of the Inn itself; without a theatre there could be no right of "setting in a Theatre". In this respect, he continued, the concept of copyright "totally differs from every other incorporeal Right which the Law acknowledges" and if it existed at all "must necessarily partake of the Nature and Qualities of a corporeal Property". This he concluded would truly be a "strange Phenomenon!"
The problem, however, with denying that the general tenets of property law admitted any such thing as literary property, was that it necessarily ruled out any examination of the nature of literary property itself. It also required an adherence to the concept that what protection authors should receive could only be provided by a paternalistic legislature and an extraordinary act of the state. This necessarily bound them to the language of the Statute of Anne, which was itself grounded in the tangible, in "the copies of printed books", in "the sole liberty of printing and reprinting such book or books". In contrast, the proponents of copyright at common law, freed of the strictures of the 1710 Act, were able to explore and advance a more intellectually beguiling theory as to the "true" nature of the relationship between the author, the book and the text.
Government papers and legislation
Statute of Anne, 1710, 8 Anne c.19
Millar v. Kincaid (1751) The Case of the Appellants, 8 February 1751, British Library, 18th century reel 4065/03 and The Case of the Respondents, 11 February 1751, British Library, 18th century reel 4065/04
Tonson v. Collins (1761) 1 Black W. 301
Tonson v. Collins (1762) 1 Black W. 321
Millar v. Taylor (1769) 4 Burr 2303
Donaldson v. Becket (1774) 4 Burr 2408
Books and Articles
Anon., A Vindication of the Exclusive Rights of Authors to their own works: A subject now under consideration before the 12 judges of England (London: Griffiths, 1762)
Anon., An Enquiry into the Nature and Origin of Literary Property (1762). Reprinted in Horace Walpole's Political Tracts 1747-1748 with Two by William Warburton on Literary Property, 1747 and 1762. Edited by Parks, S. (New York & London: Garland, 1974)
Bracha, O., Owning Ideas: A History of Anglo-American Intellectual Property, http://www.obracha.net/oi/oi.htm [accessed 1 May 2007]
Campbell, J., Lives of the Lord Chancellors, 8 vols. (London: John Murray, 1846-1869)
Goodman, D., "Epistolary property: Michel de Servan and the plight of letters on the eve of the French Revolution". In Early Modern Conceptions of Property. Edited by Brewer, J., and Staves, S. (London and New York: Routledge, 1996)
Kaplan, B., An Unhurried View of Copyright (New York and London: Columbia University Press, 1967)
Mack, M., Alexander Pope: A Life (New York & London: Norton & Co, 1985)
Nichol, D.W., Pope's Literary Legacy: The Book-Trade Correspondence of William Warburton and John Knapton with other letters and documents, 1744-1780 (Oxford: The Oxford Bibliographical Society, 1992)
Pope, A., A Narrative of the Method by which Mr. Pope's Private Letters were procured and published by Edmund Curll, Bookseller. Reprinted in The Prose Works of Alexander Pope, Vol.II: The Major Works, 1725-1744. Edited by Cowler, R. (Oxford: Basil Blackwell, 1986)
Ransom, H., "The Personal Letter as Literary Property", Studies in English, 30 (1951): 116-31
Rose, M., "The Author in Court: Pope v. Curll (1741)", Cardozo Art & Ent. L.J., 10 (1991-92): 475-49
Rose, M., Authors and Owners: The Invention of Copyright (London: Harvard University Press, 1993)
Taylor Bannet, E., Empire of Letters: Letter Manuals and Transatlantic Correspondence, 1688-1820 (Cambridge: Cambridge University Press, 2005)
Warburton, W., A letter from an Author, to a Member of Parliament; concerning Literary Property (London: Knapton, 1747). Reprinted in The Works of William Warburton, 12 vols. (London: Cadell & Davies, 1811)
 A Narrative of the Method by which Mr. Pope's Private Letters were procured and published by Edmund Curl, Bookseller; reprinted in R. Cowler, ed., The Prose Works of Alexander Pope, Vol.II: The Major Works, 1725-1744 (Oxford: Basil Blackwell, 1986), 327-56.
 See M. Mack, Alexander Pope: A Life (New York & London: Norton & Co, 1985), 296-301.
 Cowler, 331.
 Dean Swift's Literary Correspondence for 24 Years from 1714-1738 (London: Curl, 1741). See: Pope v. Curl (1741) 2 Atk. 342; The National Archives (NA), c.11 1569/29 (see: uk_1741c), c.33 376/350 (see: uk_1741d).
 In fact Rose suggests that Pope tricked Curl into publishing the letters "thereby creating a situation which would allow him to protest against the indignity of being exposed in print and at the same time, open the way for an authorized version"; M. Rose, "The Author in Court: Pope v. Curll (1741)", Cardozo Art & Ent. L.J., 10 (1991-92): 475-493 (481). See also: Mack, 653-57, and Cowler, 319-22.
 NA, c.33 376/350 (see: uk_1741d).
 NA, c.11 1569/29 (see: uk_1741c).
 J. Campbell, Lives of the Lord Chancellors, 9 vols. (London: John Murray, 1857), 6: 202. About this report, Campbell writes: "It consists of four quarto volumes, beautifully written by Mr. Jodderell, an eminent Chancery barrister. He often does more justice to Lord Hardwicke than Atkyns or Vesey, sen.; and I am told that, upon a reference to the register's book, he is found to be more accurate"; ibid., 198.
 The use of both these phrases "special property" and "qualified interest" seem to have a precedent at the time, in the law and the language of bailments. Blackstone, writing in 1765, categorised personal property as either "property in possession" or "property in action". As to property in possession, he divided this category into "absolute property" and "qualified property". In relation to this second category, he wrote that "qualified, limited, or special property ... is such as is not in its nature permanent, but may sometimes subsist and at other times may not subsist", noting that often "[t]hese kinds of qualification in property depend upon the peculiar circumstances of the subject matter, which is not capable of being under the absolute dominion of any proprietor". Blackstone continued that "property may also be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership. As in the case of bailment, or delivery of goods to another person for a particular use; as to a carrier to convey to London, to an inn keeper to secure his inn, or the like. Here there is no absolute property in either the bailor or the bailee, the person delivering, or him to whom it is delivered: for the bailor hath only the right, and not the immediate possession; the bailee hath the possession, and only a temporary right. But it is a qualified property in them both; and each of them is entitled to an action, in case the goods be damaged or taken away: the bailee on account of his immediate possession; the bailor, because the possession of the bailee is, mediately, his possession also". W. Blackstone, Commentaries on the Laws of England, Book the Second (Oxford: Clarendon Press, 1766), 389-96.
 Pope v. Curl, 343.
 Campbell, 6: 202.
 Pope v. Curl, 342.
 See in general: E. Taylor Bannet, Empire of Letters: Letter Manuals and Transatlantic Correspondence, 1688-1820 (Cambridge: Cambridge University Press, 2005), 3-8.
 H. Ransom, "The Personal Letter as Literary Property", Studies in English, 30 (1951): 116-31 (118-19). On the importance of letter writing in eighteenth century France, see D. Goodman, "Epistolary property: Michel de Servan and the plight of letters on the eve of the French Revolution", in Early Modern Conceptions of Property ed. J. Brewer and S. Staves (London and New York: Routledge, 1996), 339-64.
 Bannet, ix.
 Lord Hardwicke did, however, concede that it is often the case that "letters which are very elaborately written and originally intended for the press, are generally most insignificant, and very little worth any persons reading"; Pope v. Curl, 342.
 See: uk_1710.
 B. Kaplan, An Unhurried View of Copyright (New York and London: Columbia University Press, 1967), 9. Bracha, writing about early conceptions of stationers' copyright, suggests that it "was originally understood and practiced as an exclusive entitlement to peruse [pursue] a certain economic activity, to print a specific text. Just as early patents were not thought of in terms of general control of certain information constituting ‘invention', the direct ‘object' of the copyright entitlement was the action of printing rather than some postulated intangible entity. This focus of copyright on the entitlement to pusue an economic activity suited its existence within the framework of a trade guild. It was very different from the concept of copyright that crystallized during the late eighteenth century and later"; O. Bracha, Owning Ideas: A History of Anglo-American Intellectual Property, http://www.obracha.net/oi/oi.htm [accessed 1 May 2007], 169.
 In fact the provisions of the legislation apply only to "any book or books"; s.1.
 Campbell, 6: 202.
 M. Rose, Authors and Owners: The Invention of Copyright (London: Harvard University Press, 1993), 60.
 Interestingly, when the same issue concerning ownership of the letter was contemplated by the French lawyer, Michel de Servan, over thirty years later, he argued that "a letter no more belongs to the person who receives it than to the one who writes it: it is a communal property, and neither of the two can dispose of it without the express permission of the other"; cited in Goodman, 347. Other of Servan's contemporaries, such as Diderot, suggested, in a more orthodox fashion, that an author's written expression remained the property of the writer alone; see Goodman, 344-52.
 Pope's will ran as follows: "I also give and bequeath to the said Mr. Warburton the property of all such of my Works already printed, as he hath written, or shall write Commentaries or Notes upon, and which I have not otherwise disposed of, or alienated; and all the profits which shall arise after my death from such editions as he shall publish without future alterations"; quoted in D. W. Nichol, Pope's Literary Legacy: The Book-Trade Correspondence of William Warburton and John Knapton with other letters and documents, 1744-1780 (Oxford: The Oxford Bibliographical Society, 1992), xxxii.
In June 1751 John Knapton published The Works of Alexander Pope Esq., In Nine Volumes Complete. With his last Corrections, Additions and Improvements; As they were delivered to the Editor a little before his Death: Together with the Commentaries and Notes of Mr. Warburton. Warburton's profits from the first five editions of the work ran in excess of £2500.
 A letter from an Author, to a Member of Parliament; concerning Literary Property (London: Knapton, 1747), reprinted in The Works of William Warburton, 12 vols. (London: Cadell & Davies, 1811), vol.12.
 See for example: Millar v. Kincaid (1751) The Case of the Appellants, 8 February 1751, British Library, 18th century reel 4065/03, and The Case of the Respondents, 11 February 1751, British Library, 18th century reel 4065/04; Tonson v. Collins (1761, 1762) 1 Black W. 301, 321; Millar v. Taylor (1769) 4 Burr 2303; Donaldson v. Becket (1774) 4 Burr 2408.
 Anon., A Vindication of the Exclusive Rights of Authors to their own works: A subject now under consideration before the 12 judges of England (London: Griffiths, 1762). In Millar v. Taylor Aston J, speaking in the majority, commented as follows: "[P]ublication of a composition does not give away the property in the work; but the right of the copy still remains in the author; and that no more passes to the public, from the free will and consent of the author, than an unlimited use of every advantage that the purchaser can reap from the doctrine and sentiments which the work contains. He may improve upon it, imitate it, translate it; oppose its sentiments; but he buys no right to publish the identical work"; ibid., 2348. Lord Mansfield, in the same decision, observed: "The property in the copy ... is equally in incorporeal right to print a set of intellectual ideas or modes of thinking, communicated in a set of words and sentences and modes of expression. It is equally detached from the manuscript, or any other physical existence whatsoever"; ibid., 2396.
 An Enquiry into the Nature and Origin of Literary Property (1762), reprinted in S. Parks, ed., Horace Walpole's Political Tracts 1747-1748 with Two by William Warburton on Literary Property, 1747 and 1762 (New York & London: Garland, 1974). This has often been misattributed to Warburton himself. That he should adopt such a contrary position is unlikely, given that in 1759, fifteen years after Pope's death, he supervised the sale of John Knapton's share in Pope's works to Andrew Millar and Somerset Draper, and in the same year, wrote to Mercy Doddridge sharing his thoughts on copyright with her in the following terms: "If the work was written within fourteen years, the property is secured by Act of Parliament; when that time is elapsed, it is then claimed by Common Law"; see Nichol, lix, 129.