Rethinking Fictional Characters in the Eighteenth

Rethinking Fictional Characters in the Eighteenth-Century Literary Commons
Matthew H. Birkhold
Abstract
Situated between the decline of the obsolete privilege system and the rise of copyright, literary borrowing in
the eighteenth century has long been characterized as unregulated. However, studying the production and
consumption of eighteenth-century fan fiction – literary works written by readers who appropriate characters
invented by other authors – reveals that such appropriations were actually governed by a set of unwritten
customary laws. This paper situates fan fiction and its rules within the larger intellectual property debate of the
eighteenth century. In addition to identifying fictional characters as a special form of communal property, this
paper redefines the “literary commons” of eighteenth-century Germany. Understanding how fan fiction fits
into the history of intellectual property ultimately reveals an overlooked history of moral rights in literary
works and compels a reevaluation of the concept of literary property.
Rethinking Fictional Characters in the Eighteenth-Century Literary Commons
Frustrated by the prevalence of piracy plaguing the late-eighteenth-century German book trade, the
anonymous author of the 1787 essay, “Thoughts on the Booktrade and Piracy” [“Gedanken über
Buchhandlung und Nachdruck”], complained that “privileges are only a game of chance,” further
lamenting that “there remains no other means” to protect books from unpermitted copying.1 Indeed,
situated between the decline of the obsolete privilege system and the rise of copyright, the second half of
the eighteenth century existed in an ostensible legal vacuum with regard to authors’ rights in their literary
creations.2 German authors, publishers, philosophers, and jurists consequently engaged in a “legendary
1
“Privilegien sind . . . nur Spielwerk,” further lamenting that “es bleibt kein ander Mittel übrig.” Anonymous. “Gedanken über
Buchhandlung und Nachdruck,” in: Neue Litteratur und Völkerkunde. VIII. August, 1787, p. 204; quoted in: Fischer, vol. 1, p.
359.
2
For foundational accounts of the evolution of literary property rights in Germany, see: Bappert, Walter. Wege zum
Urheberrecht. Die geschichtliche Entwicklung der Urheberrechtsgedankens. Frankfurt a. M.: Klostermann, 1926; Gieseke,
Ludwig. Die geschichtliche Entwicklung des deutschen Urheberrechts, Göttingeer rechtswissenschaftliche Studien 22, Göttingen:
Otto Schwarz, 1957; Vogel, Martin. Deutsche Urheber Und Verlagsrechtsgeschichte Zwischen 1450 Und 1850: Sozial- Und
Methodengeschichtliche Entwicklungsstufen Der Rechte Von Schriftsteller Und Verleger. Frankfurt am Main: BuchhändlerVereinigung, 1978. See also: Woodmansee, Martha. “The Genius and the Copyright: Economic and Legal Conditions of the
‘Author,’” in: Eighteenth-Century Studies 17, no. 4 (Summer 1984), p. 425-48; Woodmansee, Martha. “Publishers, Privateers,
Pirates: Eighteenth-Century German Book Piracy Revisited,” in: Making and Unmaking Intellectual Property: Creative
Production in Legal and Cultural Perspective. Biagioli, Mario, Peter Jaszi, and Martha Woodmansee, eds. Chicago: University
of Chicago Press, 2011, p. 192.
Birkhold
intellectual property debate” to sort out the competing rights at stake.3 In the process, they broke new
ground compared to the the French, British, and Americans, resulting in what Theisohn calls a “quasimythischen Epoche” with regard to the rise of intellectual property.4
As the locus of changing economic, legal, and aesthetic conditions in the eighteenth century, Germany is
an important source of many debates about literary appropriations and author’s rights. The reading
revolution that occurred in the second half of the eighteenth century was led by Germany, where the
number of authors, books, and readers surpassed that of France to make Germany the leading consumer of
the written word in Europe.5 In addition to market concerns that accompanied the growth of the book
trade, new aesthetic developments and social anxieties generated a contemporaneous discussion about
reading. And as home to leading thinkers about genius and originality, Germany produced central
treatises on authorship that record emerging attitudes about proprietary interests in texts and their
constitutive parts, including characters.6 The result was a widespread discussion about the production and
consumption of literature, including fan fiction.
Fan fiction describes stories and novels that make use of pre-existing characters invented by other authors
– for instance, when an enthusiastic reader of Harry Potter writes a prequel or sequel to the story.
Although fan fiction is often considered a uniquely modern phenomenon, fan fiction proliferated in the
eighteenth century. It quickly evolved from an “unheard of” phenomenon in 1761 (as one author reports)
3
Woodmansee, “Publishers, Privateers, Pirates,” p. 192.
Baldwin argues that German thinkers were “breaking new ground” in large part thanks to Kant and Fichte, who “rejected the
analogy between conventional and literary property altogether.” Baldwin, Peter. The Copyright Wars: Three Centuries of TransAtlantic Battle, Princeton: Princeton University Press, 2014, p. 77. Theisohn, Philipp. Plagiat: Eine Unoriginelle
Literaturgeschichte. Stuttgart: Kröner, 2009, p. 250.
5
Though, Schenda estimates that only 25% of the population was truly literate in 1800. This figure, however, was only 15% in
1770. See: Kiesel, Helmuth, and Paul Münch. Gesellschaft Und Literatur Im 18. Jahrhundert: Voraussetzungen U. Entstehung D.
Literar. Markts in Deutschland. München: Beck, 1977. See also: Engelsing, Rolf. Der Bürger als Leser. Lesergeschichte in
Deutschland 1500-1800. Stuttgart: Metzler, 1974. “Jean Paul estimated that the literary public in Germany, including members of
the reading societies and customers of the lending libraries, consisted of at most 300,000 persons….” in: North, Michael.
Material Delight and the Joy of Living: Cultural Consumption in the Age of Enlightenment in Germany. Aldershot, Hampshire,
England: Ashgate, 2008, p. 25.
6
See: Woodmansee, Martha. “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘author’.”
Eighteenth Century Studies. Vol. 17, Iss. 4 (1984), p. 425-448.
4
2
Birkhold
to an expected practice by 1780, such that critics could anticipate its arrival in the wake of a popular
novel. Eighteenth century readers wrote fan fiction in a variety of forms, including sequels, prequels,
spin-offs, alternative universe stories, stories from substitute perspectives. By the end of the century, fan
fiction was everywhere.
Although fan fiction was written across Europe, Germany is perhaps the richest source of contemporary
ideas and attitudes about the writing practice. Unlike France and England, the German-speaking lands
were a legal quagmire. Consisting of some 300 territories, each with its own laws and unable or unwilling
to enforce the laws of neighboring territories, the German states could not hope to resolve early disputes
about literary borrowings in the legal arena alone.7 The resulting intellectual property debate was carried
out by philosophers and legal scholars as well as authors and literary critics.8 In addition to a wider range
of voices contributing to the discussion, the debate in Germany was more expansive than in neighboring
countries. In England and France, the discussion about intellectual property was often confined to the
facts of litigated cases and was circumscribed by existing statutory language.9 In comparison (and by
necessity), Germans could think more freely and about more problems related to intellectual property.10
The result is a profound discourse about literary appropriations and an embedded system of customary
laws governing the spread of literary ideas.
In this period, the concept of “intellectual property” first emerged. And by the final decades of the
century, German philosophers and jurists sought to define the rights in a literary work as a unique form of
property. The famed publisher Georg Joachim Göschen asked “under what legal conditions” authors,
7
Saunders, David. Authorship and Copyright. London; New York: Routledge, 1992, p. 107. See also: Woodmansee, Martha.
“Publishers, Privateers, Pirates: Eighteenth-Century German Book Piracy Revisited,” in: Biagioli, Mario, Peter Jaszi, and Martha
Woodmansee (eds), Making and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective.
Chicago: University of Chicago Press, 2011, p. 192.
8
Woodmansee, “Publishers, Privateers, Pirates: Eighteenth-Century German Book Piracy Revisited,” p. 192.
9
In England, for example, the Statute of Anne, was implemented in 1710.
10
Saunders explains that philosophy and jurisprudence were “German specialties” owing to the lack of an administrable national
territory and no practical possibility of policing the book market. Saunders, David. Authorship and Copyright. London; New
York: Routledge, 1992, p. 106.
3
Birkhold
publishers, and book dealers “should deal.”11 Knigge sought to define the “duties, judgments, and rights
of the author.”12 Mendelssohn contemplated how far “the property right in a work of the mind
stretched.”13 Others wanted to define “commerce in intellectual products.”14 And, most famously,
Immanuel Kant and Johann Gottlieb Fichte weighed in on the debate. In the process, contemporaries
discussed the propriety of a wide variety of writing practices, from piracy and plagiarism to excerpting
and translation. As early as 1785, Wieland observed that “for a long time, there has been no more
problematic matter, about which right or wrong depends, that has been precisely and thoroughly
examined than the question of the property right of writers to their works….”15 Everyone, it seemed, was
discussing intellectual property.
In particular, the eighteenth-century debate centered on piracy. By 1793 the topic was so widely
discussed, one author in the Braunschweigisches Journal suggested there was nothing left to say on the
matter.
The questions of the legality or illegality, justice or injustice, usefulness or harmfulness
of the piracy of widely-read books have, for some time, occupied a considerable number
of our philosophers and jurists, and are, in fact, from so many sides and with such
completeness discussed, that one could now well see the case as closed without having to
worry about any accusation of rashness.16
11
“unter welchen rechtlichten Bedingunen” authors, publishers, and book dealers “handeln soll[en].” Göschen, Georg Joachim.
Meine Gedanken über den Buchhandel und über dessen Mängel, meine wenigen Erfahrungen und meine unmaßgeblichen
Vorschläge, dieselben zu verbessern. Bloß abgedruckt für die Herrn Vorsteher und meine übrigen Herren Kollegen zur Prüfung,
Verbesserung und Ergänzung, Leipzig, Göschen, 1802; cited in: Rietzschel, p. 16.
12
“Pflichten, Vorurtheile und Rechte des Schriftstellers.” Knigge, Schriftsteller, p. 3.
13
“sich das Eigenthumsrecht über die Werke des Geistes . . . erstrecket.” Mendelssohn, “233. Brief,” p. 271.
14
“das Verkehr mit Geistesproducten.” Kayser, A. C. Die Abstellung des Büchernachdruckes als ein in der neusten kaiserlichen
Wahlkapitulation der reichsoberhauptlichen Abhilfe eben so nöthig als unbedenklich zu übertragender Gegenstand betractet.
Regensburg: Zeitler, 1790, p. 68.
15
“[i]n langer Zeit ist wohl keine problematische Materie, wobey es auch Recht oder Unrecht ankommt, genauer und
vollständiger untersucht worden als die Frage über das Eigenthumsrecht der Schriftsteller an ihre Werke…” Wieland, Christoph
Martin. “Actenstücke zur Oesterreichischen Nachdruckergeschichte,” in: Der Teutsche Merkur. Vol. 2 (1785), p. 154-172, p.
155.
16
“Die Fragen über Rechtmäßigkeit oder Unrechtmäßigkeit, Billigkeit oder Unbilligkeit, Nützlichkeit oder Schädlichkeit des
Nachdruckens vielgelesener Bücher haben seit geraumer Zeit eine so ansehnliche Zahl unsrer Philosophen und Rechtsgelehrten
beschäftigt, und sind in der That von so vielen Seiten mit einer solchen Vollständigkeit erörtert worden, daß man jetzt wohl ohne
irgend einen Vorwurf der Voreiligkeit zu befürchten, die Acten für gechlossen ansehen könnte.” Anonymous. “Ueber das
Eigenthum der Gedanken,” in: Schleswigsches ehem. Braunschweigisches Journal. Vol. 3 (1793), p. 314-348, p. 314.
4
Birkhold
Given the importance of the piracy debate to the development of intellectual property, most scholarly
attention has been devoted to this issue. However, in the shadow of the larger debate about what laws
should govern the reproduction of literary works, German authors and thinkers engaged in a discussion
about fan fiction. Studying this ancilliary debate provides an alternative view of the rise of intellectual
property in Germany, revealing overlooked ideas about authors’ rights that developed in the eighteenth
century.
After briefly discussing the key concepts that emerged from the piracy debate, this paper argues that fan
fiction was treated as a unique issue, the regulation of which compelled a distinct solution. This paper
then analyzes eighteenth-century attitudes toward fictional characters as a special form of communal
property, redefining the “literary commons” of eighteenth-century Germany. Finally, it briefly evaluates
the ways in which this commons balanced the competing interests at stake in the intellectual property
debate. Understanding how fan fiction fits into the history of intellectual property in Germany ultimately
compels a reevaluation of the concept of literary property and the history of moral rights.
Ideas, Expressions, and the Foundation of Moral Rights
Although intellectual property was hotly contested in the eighteenth century, several influential ideas
were widely accepted by the end of the century. Authors became vested with legal capacity, capable of
holding rights based on the creation of a text. And authors’ rights were progressively considered a form of
intellectual property right.17 While scholars today dispute the motivation for this shift in the concept of the
“author” – variously suggesting political, aesthetic, and economic motives – it is clear that the final
decades of the eighteenth century mark an epistemological new beginning for the concept of the author.18
17
See: Klippel, Diethelm. “Die Idees des geistiges Eigentums in Naturrecht und Rechtsphilosophie des 19. Jahrhunderts,” in:
Historische Studien zum Urheberrecht in Europa: Entwicklungslinien und Grundfragen, Schriften zur europäischen Rechts- und
Verfassungsgeschichte, 10. Elmar Walde, ed. Berlin: Duncker & Humblot, 1993, pp. 121-38, at 126.
18
At least in terms of being a rights-holder, if not in more ways. See, for example: Bosse, Heinrich. Autorschaft Ist
Werkherrschaft: Über Die Entstehung Des Urheberrechts Aus Dem Geist Der Goethezeit. Paderborn: Schöningh, 1981 (arguing
5
Birkhold
Conceptualizing the author as the owner of her intellectual effort grew out of the fight of publishers
against pirates. But this effort soon gave way to a desire to establish the rights of authors vis-à-vis
publishers, well embodied by the Gelehrtenrepublik, in which Klopstock names authors the “owners of
their writings.”19 Literary scholars and legal historians, like Bosse and Theisohn, have reconstructed the
debates led by thinkers like Johann Heinrich Reimarus, Philipp Erasmus Reich, Johann Georg Feder, and
Johann Stephan Pütter that resulted in the emergence of the author’s “Eigentumsrecht” which enabled the
author to claim legal rights in her literary output.20 Instead of dwelling on the historical development of
these rights, this paper focuses on how this evolution led to the delineation of distinctive proprietary
interests in literature, arguably the most important of which was the differentiation between the physical
book from its content.
The influential Göttingen law professor Johann Stephan Pütter argued in 1774 that the purchaser of a
book could do anything he wanted with it: “read, review, gift, borrow, pledge, resell for more or less,
exchange; yes, he may tear, cut, burn it, or use it however he likes; in this way he uses the right of his
property without infringing on the rights of any other.”21 Pütter emphasizes that the buyer himself holds a
property right in the book, but Pütter limits that right to the physical, material object. This distinction
became common in discussions of intellectual property rights. Reich, for istance, formulated it as the
that the author emerges as an expression of a political, aesthetic, and epistemological new beginning). Woodmansee maintains a
similar argument. For a sampling of the various explanations, see: See, for example, Woodmansee, Martha. “The Genius and the
Copyright: Economic and Legal Conditions of the ‘Author,’” in: Eighteenth-Century Studies 17, no. 4 (Summer 1984), p. 425-48;
Rose, Mark. “The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship,” in: Representations 23
(1988), p. 51-85; Jaszi, Peter. “Toward a Theory of Copyright: The Metamorphoses of ‘Authorship,’” in: Duke Law Journal, 40.2
(1991), p. 455-502; Rose, Mark. Authors and Owners: The Invention of Copyright. Cambridge, Mass: Harvard University Press,
1993.
19
“Eigenthümer ihrer Schriften,” as Theisohn observes, p. 265.
20
The evolution of the author’s “Eigentumsrecht’ is well summarized in Bosse, Autorschaft, 37-64.
21
“lesen, zur Parade hinstellen, verschenken, verleyhen, verpfänden, theurer oder wohlfeiler wieder verkaufen oder vertauschen;
ja er mag es zerreissen, zerschneiden, verbrennen, oder sonst anwenden wie er will; so benutzt er die Rechte seines Eigenthums
ohne einem andern Rechte Eintrag zu thun.” Pütter, Johann Stephan. Der Büchernachdruck nach ächten Grundsätzen des Rechts.
Göttingen, Vandenhoeck, 1774, p. 46.
6
Birkhold
“corporelle” (the printed paper) versus the “spirituelle” (the content).22 And Fichte similarly distinguished
the “körperliche” from the “geistiges.”23
But in his 1793 essay, “Proof of the Illegality of Reprinting” [“Beweis der Unrechtmäßigkeit des
Büchernachdrucks”], Fichte goes a step further, proposing a revolutionary concept.24 Beyond dividing the
physical from the intellectual, Fichte classifies different kinds of “learned stuff” [“gelehrte Stoff”].
Specifically, the philosopher distinguishes the “Geistigen” into “the Materielle, the content of a book, the
thoughts it declaims; and […] the Form of these thoughts, the manner and connections in which the
phrases and words are put forward.”25 By arguing that the physical form of the book carries two distinct
kinds of content, Fichte solves the problem of what belongs to the author in what William Beatty Warner
considers an “ingenious fashion.”26 Under this model, Warner notes, “both the physical book and the
ideas it transmits pass to the reader. But the particular form within which the ideas are vested, the unique
style of thought and language, are as unique and distinct to the author as his or her face.”27
Fichte then argues that the form is the author’s “exclusive property.”28 An idea, in contrast, is not an
author’s exclusive property. Consequently, an author might own her particular expression of her idea, but
not the underlying idea itself. Instead, it was considered a form of what Fichte names “communal
property.”29 This conceptualization of an idea as communal property was repeated throughout the
eighteenth century. In 1791 Johann Albert Heinrich Reimarus had already claimed with confidence that
22
Quoted in: Meyer, F. Hermann. “Reformbestrebungen im achtzehnten Jahrhundert,” in: Archiv für Geschichte des Deutschen
Buchhandels 12 (1889), p. 201-300, p. 213.
23
Originally from: Fichte, Johann Gottlieb. “Beweis der Unrechtmäßigkeit des Büchernachdrucks,” in: Berlinische
Monatsschrift. Berlin 1793, vol. 21, p. 443-474. Subsequent citations to this volume will be in the form of “Fichte, ‘Beweis,’”
followed by a page number.
24
Theisohn, p. 269.
25
“das Materielle, den Inhalt des Buches, die Gedanken, die es vorträgt; und […] die Form dieser Gedanken, die Art wie die
Verbindung in welcher, die Wendungen und die Worte, mit denen es sie vorträgt.” Fichte, “Beweis,” p. 225.
26
Warner, William B. Licensing Entertainment: The Elevation of Novel Reading in Britain, 1684-1750. Berkeley: University of
California Press, 1998, p. 280.
27
Ibid.
28
“ausschließendes Eigentum.” Fichte, “Beweis,” p. 228.
29
“gemeinschaftliches Eigentum.” Ibid. p. 229.
7
Birkhold
the author “owned no exclusive right over the thoughts, which he made known.”30 And Carl Friedrich
Bahrdt similarly asserted in 1792 that “the matters of which a book is comprised, that is, the individual
thoughts, sentences, and individuals words, are a common good [Gemeingut].”31 But, Bahrdt continues,
“this compilation and juxtaposition of materials, the order and the manner, is the property of the inventor,
here, of the writer.”32 By the end of the century, despite the revolutionary nature of Fichte’s concept, the
idea-expression dichotomy (as it is referred to today) was widely accepted as a way to distinguish what an
author possessed and what belonged to the public.33
Concurrently, another theory of authorial rights evolved in Germany, granting still greater importance to
the person of the author as creator. As Stef van Gompel notes, the new abstract distinction between ideas
and their expression provided new justification for an exclusive right to be vested in the author. “By
assuring protection against any taking of the personal and unique form in which the author had expressed
his thoughts or ideas, this new abstract concept linked everything back to the personality of the author.”34
According to this theory, elaborated by Kant in his 1785 essay, “On the Unlawfulness of Reprinting”
[“Von der Unrechtmäßigkeit des Büchernachdrucks”] and and later in his Metaphysische Anfangsgründe
der Rechtslehre, the form of an expression is so unique to an individual that it warrants protection.35 Kant
viewed an author’s ideas as more important than the text that communicated them. For Kant, ideas could
not be taken from their thinker, preparing, as Baldwin notes, “the way for a conception of authors’ rights
30
“besaß kein ausschließendes Recht über Gedanken, die er bekanntmachte.” Reimarus, J. A. H. “Nachtrag zu der Erwägung des
Bücherverlags und dessen Rechte,” in: Deutsches Magazin, vol. 2, Julius bis Dezember (1791), p. 564-96, p. 571.
31
“die Materie, aus der das Buch besteht, d.h. die einzelnen Gedanken, Säze und Wort, sind ein Gemeingut.” Bahrdt, Carl
Friedrich. Rechte und Obliegenheiten, der Regenten und Unterthanen in Beziehung auf Staat und Religion. Vol. 3 of: System der
moralischen Religion zur endlichen Beruhigung für Zweifler und Denker. Riga: Hartknoch, 1792, p. 148.
32
“diese Zusammenstellung und Aneinanderreihung der Materien, die Ordnung, die Manier, ist Eigenthum des Erfinders d.h. hier
– des Schriftstellers.” Ibid. p. 148-149.
33
See, for example, Spinello, Richard A, and Maria Kanellopoulou-Botē. A Defense of Intellectual Property Rights. Cheltenham,
UK: Edward Elgar, 2009, p. 157 (referring to Fichte as introducing the idea-expression dichotomy).
34
Gompel, Stef van. “Formalities in the Digital Era: An Obstacle or Opportunity?” in: Global Copyright: Three Hundred Years
Since the Statute of Anne, from 1709 to Cyberspace. Bently, Lionel, Uma Suthersanen, and Paul Torremans, eds. Cheltenham,
UK: Edward Elgar, 2010, p. 395-424, p. 413.
35
Kant, Immanuel. “Von der Unrechtmäßigkeit des Büchernachdrucks,” in: Berlinische Monatsschrift, 5 (1785), p. 403-17.
Kant, Immanuel. Metaphysische Anfangsgründe Der Rechtslehre. Königsberg: F. Nicolovius, 1797, p. 127-129.
8
Birkhold
based on a foundation other than property.”36 Kant conceptualized the book as a kind of speech, better
considered an act than a thing: “that it is not a thing that it thereby transmitted, but an opera, namely a
speech.”37 In the context of piracy, Kant argued that the publisher’s delivery of this speech (the book)
depended on the author’s permission; consequently, the unauthorized reproduction was wrongful because
the pirate spoke on behalf of the author without her authority. For Kant, the author therefore possessed a
kind of personal right (jus personalissimum) that entitled her speech to be given in her name and as she
intended.
Although Kant formulated the right as the publisher’s to disseminate the author’s speech, the publisher
was required to act according to the author’s wishes. The publisher was therefore not the autonomous
owner of the work. Consequently, scholars like Baldwin argue that “Kant foreshadowed what would later
be known as the moral rights of attribution and integrity—the right of the author to be acknowledged as
the creator and to control changes to the work.”38 Baldwin concludes, “Kant here granted the author a
control over his work, even after having alienated it, that was not yet foreseen in the Anglophone or
French discussion.”39 Until Kant’s groundbreaking suggestion, if a work was considered property,
alienation of that work meant the new owner could exercise full rights, including aesthetic control. But by
defining works as acts, Kant “sidestepped the problem that would bedevil those theorists, jurists, and
lawmakers who remained beholden to the idea of works as property.”40 Together with Fichte’s distinction
between idea and form, Kant’s philosophy has been interpreted as providing the basis for moral rights in
intellectual property.
36
Baldwin, p. 77.
“daß es keine Sache ist, die dadurch überbracht wird, sondern eine opera, nämlich Rede.” Kant, “Unrechtmäßigkeit,” p. 407.
38
Baldwin, p. 78. Baldwin notes, however, that “[m]any scholars have argued that Kant did not foreshadow authors’ rights
formulated as a right of personality and that the personal right he mentioned was the publisher’s right to disseminate the author’s
speech to his audience.” Baldwin, p. 77, citing: Gieseke, Ludwig. Die Geschichtliche Entwicklung Des Deutschen Urheberrechts.
Göttingen: Otto Schwartz, 1957; David Saunders, David. “Approaches to the Historical Relations of the Legal and the
Aesthetic,” in: New Literary History 23, 3, (1992): 506–7; Hubmann, Heinrich. “Immanuel Kants Urheberrechtstheorie,” UFITA
106 (1987): 151; Oberndörfer, Pascal. Die Philosophische Grundlage Des Urheberrechts. Baden-Baden: Nomos, 2005, p. 97-98.
39
Baldwin, p. 78.
40
Ibid.
37
9
Birkhold
Today, moral rights are understood to protect an artist’s reputation, right to attribution, and the integrity
of her artistic vision and intent.41 The Berne Convention for the Protection of Literary and Artistic Works,
an international agreement that governs copyright in 168 counties worldwide, codified the moral rights of
attribution and integrity.42 According to the Convention, “[i]ndependently of the author’s economic rights,
and even after the transfer of the said rights, the author shall have the right to claim authorship of the
work and to object to any distortion, mutilation or other modification of, or other derogatory action in
relation to, the said work, which would be prejudicial to his honor or reputation.”43
A Matter of “Billigkeit”
As eighteenth-century thinkers sought to define the rights of an author in her text, they also debated the
best method for securing and enforcing those rights. Summarizing the prevailing question about piracy,
the anonymous author of the 1793 essay “On the Property of Thoughts” [“Ueber das Eigenthum der
Gedanken”] asked: “if it is right and good for this activity to be declared a crime through a positive
law?”44 The same question was debated with regard to fan fiction, but resulted in a different answer.
Many bemoaned the lack of statutory laws governing the relationship between readers, authors,
publishers, and book dealers. “It belongs unfortunately to the shortcomings of our legislation,” Wieland
41
For a thoughtful discussion of moral rights, see: Kwall, Roberta R. The Soul of Creativity: Forging a Moral Rights Law for the
United States. Stanford University Press, 2010; Sundara, Rajan M. T. Moral Rights: Principles, Practice and New Technology.
Oxford: Oxford University Press, 2011.
42
Rigamonti, Cyrill P. “Deconstructing Moral Rights,” in: Harvard International Law Review vol. 47, iss. 2 (2006), p. 353-412,
here, p. 356, noting the the Berne Convention is “universally understood as codifying the moral rights of attribution and
integrity.”
43
Berne Convention for the Protection of Literary and Artistic Works, July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221 art.
6(bis)1.
44
“ob es recht und gut sey, daß diese Handlung durch ein positives Gesez für ein Verbrechen erklärt werde?” Anonymous.
“Ueber das Eigenthum der Gedanken,” in: Schleswigsches ehem. Braunschweigisches Journal. vol. 3 (1793), p. 314-348, p. 317.
10
Birkhold
groused, “that we in Germany do not have a universal positive law, through which it is precisely
determined what should be right in all possible disputed cases between an author and publisher.”45
Others extolled the absence of a formal law, including Georg Joachim Göschen, who published works by
Schiller, Goethe, Wieland, and Klopstock. In his 1802 treatise, My Thoughts about the Booktrade and
about its Shortcomings, my few experiences and my humble suggestions to better them,46 Göschen argues
that “the trade must, according to its nature, remain free,” advocating that the booktrade remain formally
lawless.47 Knigge adopted a similar position, insisting that the rights and duties of an author are imperfect
rights, meant not for the positive law: “these obligations are, so far as I can apprehend, are only juris
imperfecti (of imperfect liability). I believe that the State neither correctly acts nor causes good when it
promulgates forced laws and thereby inhibits the free circulation of ideas.”48 Many believed that the State
could not properly regulate the rights and interests in the newly emerging concept of intellectual property.
Furthermore, different legal solutions were sought for different literary practices. For instance, many of
the same thinkers who argued for statutory laws forbidding piracy insisted that plagiarism should not be
subject to formal laws. Others were confused by the separate treatment. Commenting in 1783 on the
prevailing opinion not to formally regulate plagiarism [“den gelehrten Diebstahl”] and those who thereby
steal intellectual property [“geistigen Eigenthume raubt”], Krause, for instance, exasperatedly asked,
“Why? Just because it is easier to prevent priacy, it alone should be prevented? Because it is easier to
45
“Es gehört unglücklicherweise unter die Mängel unserer Gesetzgebung,” Wieland groused, “daß wir in Deutschland kein
allgemeingültiges positives Gesetz haben, wodurch genau bestimmt wäre, was in allen streitigen Fällen, die zwischen Autor und
Verleger vorkommen können, Rechtens sein solle.” Wieland, Christoph Martin. Grundsätze, woraus das merkantlische
Verhältnis zwischen Schriftsteller und Verleger bestimmt wird. Printed by Karl Buchner in Wieland und die Wiedmannsche
Buchhandlung, p. 135-54, here § 17. Reprinted in Rietzschel, p. 193.
46
Meine Gedanken über den Buchhandel und über dessen Mängel, meine wenigen Erfahrungen und meine unmaßgeblichen
Vorschläge dieselben zu verbessern.
47
“Der Handel muß seiner Natur nach frey seyn,” Göschen, Meine Gedanken, p. 3-4, in: Fischer, vol. 2, p. 269-270.
48
“diese Pflichten sind, so viel ich es einsehe, nur juris imperfecti; (von unvollkommner Verbindlichkeit.) Ich glaube, daß der
Staat weder gerecht handelt, noch würklich Gutes stiftet, wenn er hierüber Zwangs-Geseze giebt und dadurch den freyen Umlauf
der Gedanken hemmt.” Knigge, Schriftsteller, p. 14.
11
Birkhold
capture a sheep than a wolf, should the latter remain free?”49 Krause questions why one matter should be
left to law and the other to an individual’s honor. Like the specification of the “positive law” [“positives
Gesetz”] in Wieland’s complaint, Krause’s criticism hints at the existence of multiple regulatory schemes,
including both the positive law and customary norms, which could be used to govern intellectual
property.
As the century progressed, the relationship between authors, publishers, and readers became increasingly
formalized.50 Where the positive law was not employed to define these new rights, actors in the book
trade turned to private contracts and customary laws. In several instances, semi-juridical industry
regulations were proposed as an alternative to state-sponsored laws. In 1804, leading publishers created a
“Contract of Bookdealers regarding several objects of their trade,”51 written and signed by a deputation
that included Cotta, Breitkopf und Härtel, Göschen, Vieweg, and Wappler, who claimed to be “men
chosen from all the bookdealers across all of Germany, who justly represent the union of all individual
memebers of the booktrade.”52 The agreement outlined how members “should act in [specified] cases”53
and defined booksellers’ rights and obligations to each other and publishers.54 Such a contract, however,
was exceptional.
49
Wie? also bloß, weil es leichter ist, den Nachdruck zu hindern, soll er auch gehindert werden? weil es leichter ist, ein Schaaf zu
fangen, als einen Wolf, soll der leztere frei bleiben?” Krause, Chr. S. “Ueber den Büchernachdruck,” in: Deutsches Museum,
Fünftes Stück. Mai, 1783, p. 429; quoted in: Fischer, vol. 1, p. 242. A similar question was posed about Schmähschriften. See, for
example, Anonymous. “An den Verfasser des Aufsazes über den Büchernachdruch,” in: Deutsches Museum, Zweites Stück.
Februar, 1784, p. 136. In: Fischer, vol. 1, p. 282.
50
Haferkorn discusses the increasing formalization, in: “Der freie Schriftsteller,” col. 631.
51
“Vertrag der Buchhändler über einige Gegenstände ihres Handels.”
52
“von den Buchhändlern aus ganz Deutschland erwählten Männer repräsentiren mit Recht die Vereinigung aller einzelnen
Mitgleider des Buchhandels.” Vertrag der Buchhändler über einige Gegenstände ihres Handels, 1804, p. 4; cited in: Fischer, Vol.
2, p. 302.
53
“in den erwähnten Fällen handeln wollen” Ibid.
54
Ibid.
12
Birkhold
Most aspects of the book trade were governed instead by an unwritten customary law, what Bahrdt refers
to “this stilent contract”55 and Fichte describes as the “tacit contract of the writer.”56 Unlike the positive
law, this silent contract was thought to be implicitly governed by the more general concept of “Billigkeit.”
In the eighteenth century, as today, “Billigkeit” was an imprecise concept related to customary notions of
justice and equity.57 As the 1804 treatise On the Equity of Decision of Legal Cases [Ueber Die Billigkeit
Bey Entscheidung Der Rechtsfälle] makes clear, legal decisions were to be guided by both the law and
“Billigkeit,” but the latter was a separate basis for adjudicating cases and it could lead to different
results.58 As a result, eighteenth-century thinkers regularly contrasted the positive law with “Billigkeit” in
the debate about intellectual property rights. In the absence of positive law, it was especially common for
authors and publishers to appeal to “Billigkeit” as a distinct concept and separate adjudicatory scheme.
Discussing piracy, the anonymous author of the essay “On the Property of Thoughts” [“Ueber das
Eigenthum der Gedanken”], raises “the question of the legality or illegality, justice or injustice” of piracy,
thus treating “Billigkeit” and legality [“Rechtmäßigkeit”] as a distinct concepts.59 Klopstock similarly
appealed to “Billigkeit” as the basis for deciding a contract dispute with the publisher Carl Hermann
Hemmerde – despite the positive law – urging that “according to Billigkeit the matter must be decided
differently….”60 Discussing piracy in Leben und leben lassen. Ein Project für Schriftsteller und
Buchhändler, Lessing exclaims: “if only Germany stood under one ruler, who would and could achieve
natural justice through the positive law!”61 By hoping for a positive law that corresponded with natural
55
“dieser stille Kontrakt,” Bahrdt, Rechte und Obliegenheiten, p. 153.
“stillschweigenden Vertrag der Schriftsteller,” Fichte, “Beweis,” p. 230.
57
Maye, Harun. “Die Paradoxie der Billigkeit in Recht und Hermaneutik,” in: Urteilen / Entscheiden. Cornelia Vismann and
Thomas Weitin, eds. München: Wilhelm Fink, 2006. p. 56-71
58
Jordan, Ludwig H. Ueber Die Billigkeit Bey Entscheidung Der Rechtsfälle. Göttingen: Dieterich, 1814.
59
Anonymous. “Ueber das Eigenthum der Gedanken,” p. 314.
60
“nach der Billigkeit muß die Sache doch entschieden werden….” Friedrich Gottlieb Klopstock to Carl Hermann Hemmerde, 22
December 1772. Klopstock, Friedrich Gottlieb and Franz Muncker. “Briefwechsel Klopstocks mit Hemmerde,” in: Archiv für
Literaturgeschichte. Vol. 12. (1884), p. 225-288, p. 275.
61
“Freilich, wenn Deutschland unter einem Herrn stünde, welcher der natürlichen Billigkeit durch positive Gesetze zu Hülfe
kommen könnte und wollte!” Lessing, Gotthold Ephraim. Werke und Briefe in zwölf Bänden. Die Erziehung des
Menschengeschlechts. Werke 1778-1781. Vol. 10. Eds. Arno Schilson and Axel Schmitt. Frankfurt am Main: Deutscher
Klassiker Verlag, 2003, p. 236.
56
13
Birkhold
justice, Lessing implicitly identifies a potential gap between the norms. “Billigkeit” might justify an
outcome that the positive law fails to demand.
In his 1791 essay, “Supplement to the Consideration of the Book Contract and its Rights,”62 Reimarus
explains “the essential distinction between law [Recht] and equity [Billigkeit].”63 According to Reimarus:
The law must must be determined once and for all, for every case, according to the
general conditions and without reference to special circumstances, otherwise general
uncertainty would result. However, because the boundaries of equity are unstable, it
cannot be determined through the law, but must be left to the conscience and a fine
consideration of the consequences.64
Billigkeit, according to Reimarus, allows for a more nuanced adjudication of cases. Instead of treating
every instance the same, resolving a dispute according to “Billigkeit” requires individual circumstances
and unique details to be taken into consideration. For Reimarus, this was especially important with regard
to literary disputes that involved so many intricacies.
Reimarus’ differentiation of Billigkeit and Recht was widely accepted. Citing Reimarus two years later in
1793, an anonymous commentator summarized the prevailing idea: “Billigkeit, namely, understands the
relationship between individual people and individual cases […] Recht, however, in consideration of the
general relationship of society, is a for once and all fixed rule. – Therefore, it explains how something that
is inequitable can be lawful, and how something equitable can be contrary to the law.”65 In addition to
underscoring the notion that Billigkeit and the positive law represented distinct normative systems, the
62
“Nachtrag zu der Erwägung des Bücherverlags und dessen Rechte”
“den wesentlichen Unterschied von Recht und Billigkeit.” Reimarus, “Nachtrag,” p. 588-189.
64
“Das Recht muß, wie gesagt, nach den allgemeinen Verhältnissen der Gesellschaft, ein für alle Mahl, ohne auf jeden
besondern, Fall zu sehen, bestimmt werden, weil sonst allgemeine Unsicherheit wäre. Billigkeit aber, da die Grenzen
schwankend sind, kann nicht durch Gesezze bestimmt seyn, sondern muß eines Gewissen und feiner Erwägung der Folgen
überlassen werden.” Ibid.
65
“Billigkeit nemlich begreift die Beziehung unter einzelnen Personen und in einzelnen Fällen . . . . Recht aber ist eine, in
Rücksicht auf das allgemeine Verhältnis der Gesellschaft, ein für alle Mahl festzusetzende Regel. – Daher läßt sich erklären, daß
etwas Recht seyn kann, was doch höchst unbillig ist, und billig, was dem Rechte zuwider.” Anonymous. “Ueber das Eigenthum
der Gedanken,” p. 323.
63
14
Birkhold
author underscores the advantages of Billigkeit as better-suited to regulate the unique relationships among
actors in the book trade. The author continues, paraphrasing and expanding Reimarus’ formulation:
Billigkeit remains discretionary to the conscience of the private individual, and concerns
actions where the borders of allowed and unallowed behavior are so uncertain, as every
defender of the publishing-property admits in light of the remotemeness or the time and
diverse other circumstances that can be no general law.66
In particular, Billigkeit was considered useful where the boundary between permitted and forbidden
behavior was ambiguous. In such cases, the positive law was thought too blunt an instrument, unable to
account for the complexities of literary production. The author concludes by noting that neither Kant nor
Pütter thoroughly discussed this question with regard to the “public communication of ideas.”67
In the eighteenth century, the regulation of fan fiction was explicitly left to customary law as a better
means of policing authors’ newly emerging intellectual property rights.68 In the myriad statutory schemes
proposed, none suggest that fan fiction should be governed by the positive law. Rather, disputes
concerning fan fiction were thought better regulated by “Billigkeit.”69 This decision is understandable; it
is difficult to imagine how a positive law could consistently navigate the sometimes murky distinctions
between instances of fan fiction. For the same reason, copyright law today cannot regulate fan fiction with
any predictability. In contrast to piracy cases, which required no literary analysis but only a
straightforward judgment of whether a work was reproduced, fan fiction was thought better dealt with
66
“die Billigkeit bleibt dem Gewissen der Privatpersonen anheim gestellt, und über Handlungen, wo die Grenzen des Erlaubten
oder Unerlaubten so unsicher sind, wie hier auch jeder Vertheidiger des Verlags-Eigenthums in Ansehung der Entlegenheit oder
der Zeit und verschiedener anderer Umstände zugiebt, läßt sich kein allgemeines Gesetz geben.” Ibid. p. 323-24.
67
“öffentliche Mittheilung der Gedanken,” Ibid. p. 328-29.
68
The examples are countless. For instance, the anonymous author responding to Lotz’s question acknowledges that this is not a
matter of positive law. “So geht es mit vielen andern Rechten, die nicht im allgemeinen anwendbar und durch Local und PrivatStatute beschränkt werden.” But he makes it clear that it is still a matter of “permitted behavior” placing it clearly in the category
of customary norms. Anonymous, “Erinnerung,” in: Kaiserlich priviligierten Reichs-Anzeiger. Num. 112. Freytags, den 16. May
1794, p. 1069-71.
69
See, for example, Lotz, “Beantwortung der Frage,” col. 712-718; Rössig, Handbuch, p. 228.
15
Birkhold
through appeals to “Billigkeit” and a system of customary laws, resulting in the creation of a special
literary commons.70
Characters as Communal Property
In the final decades of the eighteenth century, German thinkers resolved that ideas were the common
property of all and that particular expressions thereof were the property of their authors. When it came to
the unauthorized reproduction of entire works of literature, it was eventually settled that a positive law
should forbid the practice. After all, piracy resulted in the appropriation not just of an author’s ideas, but
also their form. Characters, however, are vexingly situated between an idea and its expression.71 As John
Frow describes, fictional characters are “ontologically hybrid beings,” composed “of words, of images, of
imaginings.”72 Characters may amount to no more than a stock figure or common trope, but their
appearance on the printed page is owed to the specific expression of an author. Yet even the most detailed
character is still fleshed out and completed, to some extent, in the mind of a text’s readers, making the
character more akin to an idea.73 Nevertheless, fictional characters were treated as ideas in the eighteenth
century, rendering them common property. But rather than creating a statutory regulation, eighteenth
70
Fan fiction was not the only aspect of the book trade that was regulated by a system of customary law. Selwyn notes that
respectable publishers, those who followed the governing norms, “joined together to fight their less law-abiding colleagues, or
members of other branches of the book trade who overstepped legal or customary boundaries, but also took other measures to
ensure a certain degree of peace within the trade.” Selwyn continues, “[a]mong respectable booksellers, at least within the same
city, it was considered proper to inquire whether one was intruding on any territory before undertaking a project involving works
from another publisher’s firm.” As an example, Selwyn cites an incident from 1780, when the author Rudolph Zacharias Becker
offered a manuscript answering the Berlin Academy’s essay contest to Nicolai, who refused it. According to Nicolai, because his
colleague Voß published the prize essays, it was improper for Nicolai to accept even the revised version offered by Becker. In
addition, Selwyn notes that publishers also, for instance, regularly asked each other for permission to print excerpts from works
printed by the other publisher, although no statutory law required securing such authorization. Selwyn, Pamela E. Everyday Life
in the German Book Trade: Friedrich Nicolai As Bookseller and Publisher in the Age of Enlightenment, 1750-1810. University
Park, Pa: Pennsylvania State University Press, 2000, p. 116-17.
71
Kurtz, Leslie. “The Independent Legal Lives of Fictional Characters,” in: Wisconsin Law Review vol. (1986), p. 429-1061;
Schwabach, Aaron. Fan Fiction and Copyright: Outsider Works and Intellectual Property Protection. Farnham, Surrey: Ashgate,
2011, p. 21-57.
72
Frow, John. Character and Person. Oxford: Oxford University Press, 2014, p. 1.
73
Why and how this occurs has been the subject of much scholarship, particularly on eighteenth-century literature. Vermeule, for
instance, studies readers’ attachments to fictional characters using insights from cognitive science, focusing primarily on
eighteenth-century British literature. Vermeule, Blakey. Why Do We Care About Literary Characters? Baltimore: Johns Hopkins
University Press, 2010. Other helpful studies include: Lynch, Deidre. The Economy of Character: Novels, Market Culture, and
the Business of Inner Meaning. Chicago: University of Chicago Press, 1998; Gallagher, Catherine. Nobody's Story: The
Vanishing Acts of Women Writers in the Marketplace, 1670-1820. Berkeley: University of California Press, 1995.
16
Birkhold
century thinkers governed the appropriation of pre-existing characters according to “Billigkeit,” that is,
according to customary norms.
The Rules of Fan Fiction
Following Ellickson’s influential study, Order Without Law,74 considerable work has been done in the
past two decades to understand how customary norms shape individual behavior across a range of
disciplines, including: dueling practices in the antebellum American South as a means to resolve injuries
and demarcate the social elite;75 dispute resolution among ranchers in Shasta County, California;76
informal regulations of the diamond industry;77 industry rules governing Atlantic whaling in the
eighteenth and nineteenth centuries;78 and joke-stealing norms governing contemporary American
comedians.79 The methodology relies on the detection of patterns of behavior and sanctions. Based on a
careful analysis of private letters, publishing contracts, publishing records, book catalogues, legal
treatises, philosophical essays, advertisements, book reviews, and literary texts, the customary rules
governing the production of fan fiction in eighteenth-century Germany have been similarly identified.
In eighteenth-century Germany, a reader could do anything she liked with a character originally invented
by a foreign or deceased author. If the source author was still-living and German, however, additional
rules applied to the fan fiction. The second norm stipulated that the fan fiction-writing reader would
ideally ask the source author for permission before publishing the fan fiction – or, at least, give notice.
Authors of fan fiction were also expected to properly identify their works as fan fiction. Any attempt to
confuse the reader into thinking that the work was written by the source author was strictly prohibited.
74
Ellickson, Robert C. Order Without Law: How Neighbors Settle Disputes. Cambridge, Mass: Harvard University Press, 1994.
Lessig, Lawrence. “The Regulation of Social Meaning,” in University of Chicago Law Review, vol. 62, (1995), p. 943-1047.
76
Ellickson, Robert C. Order Without Law: How Neighbors Settle Disputes. Cambridge, Mass: Harvard University Press, 1991.
77
Bernstein, Lisa. “Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry,” in: The Journal
of Legal Studies, Vol. 21, No. 1 (1992), pp. 115-157.
78
Ellickson, Robert C. 1989. “A Hypothesis of Wealth-Maximizing Norms: Evidence from the Whaling Industry,” in: Journal of
Law, Economics, and Organization. Vol. 5, no. 1 (1989), p. 83–92.
79
Oliar, Dotan, and Christopher Sprigman. “There's No Free Laugh (Anymore): the Emergence of Intellectual Property Norms
and the Transformation of Stand-Up Comedy,” in: Virginia Law Review. 94.8 (2008): 1787-1867.
75
17
Birkhold
The customary norms further governed the content of fan fiction. According to these rules, the
appropriated character had to be portrayed consistently with its original depiction. That is, an appropriated
literary figure was expected to have the same character in the work of fan fiction as in the source work.
Dramatic alterations of the character’s personality were not tolerated. Just as characters were expected to
demonstrate a unity of character within a text, a similar unity was required across texts – even if they
were written by different authors. Relatedly, works of fan fiction were also required to conform to – or at
least not undermine - the source author’s overall artistic intent.
Characters as Communal Property
Just as an author’s ideas were considered “communal property” [“gemeinschaftliches Eigentum”]80 over
which the author had “no exclusive right” [“kein ausschließendes Recht”],81 literary characters were
understood as belonging to the public, free for anyone to use. Eckermann’s flippant retort to Nicolai: “if
you also have a privilege to exclusively narrate Nothanker’s life,” underscores the notion that authors did
not possess such an exclusive right.82 But in the second half of the eighteenth century, literary characters
were treated as a special form of communal property and commonly referred to as such by celebrated
critics and little-known commentators alike.
Discussing Nicolai’s appropriation of Sebaldus Nothanker, Blanckenburg cites a dictum from Horace’s
Ars Poetica about “proprie Communia” to argue that a fictional character was a public good.83 In his 1782
translation, Horace’s Letters, translated from the Latin with historical Introductions and other necessary
80
Fichte, “Beweis,” p. 229.
Reimarus, “Nachtrag,” p. 571.
82
Eckermann, D.C. to Nicolai, 22 February 1775, NN 17.
83
Difficile est proprie Communia dicere: tuque Rectius Iliacum Carmen deducis in actus Quam si proferres ignota indictaque
prius. As Rita Copeland notes, the phrase proprie Communia “has proved one of the most controversial lines in Latin literature,
even to modern commentators.” Indeed, throughout history and even today scholars have assigned opposite meanings to this
expression. Yet in the eighteenth-century, Blanckenburg made clear how he interpreted the disputed phrase, stating that he was
not following Lambin, Dacier, Sanadon, and Griffoli. Instead, he assumed the alternative interpretation, according to which
“proprie Communia” refers to material already treated by another author, later equated with “publica materies.” Blanckenburg
essentially argues that Sebaldus Nothanker is a public good. Wieland later follows the same interpretation. Blanckenburg,
“Sebaldus Nothanker,” p. 261. Copeland, Rita. Rhetoric, Hermeneutics, and Translation in the Middle Ages: Academic
Traditions and Vernacular Texts. Cambridge: Cambridge University Press, 1991, p. 171. Copeland also offers an overview of the
various readings and commentaries of the much-disputed phrase.
81
18
Birkhold
Explanations,84 Wieland translates the same subject as “a material, to which everyone has a right.”85
Similarly, Lessing unquestioningly allows an author to take a pre-existing character, permitting him to
“jump around however he likes, as long as he does not set the character in contradiction.”86 And Dusch
plainly asserts that appropriating pre-existing characters is allowed. Echoing Wieland, he refers to
“characters that are already existing,” as “a material that already belongs to the public.”87
When a second author used a pre-existing character, contemporaries described the practice using verbs
like “use” [“benutzen”], “adopt” [“aneignen”] and, most commonly, “appropriate” [“bemächtigen”]. In a
review of the fan fiction text Anhang zur Sophiens Reise, for example, Musäus asks of the fan fiction
author: “whether it is to be chided, that the author appropriated the material of his master without asking
him.”88 As in Adelung’s 1793 Grammatisch-kritisches Wörterbuch der Hochdeutschen Mundart, the
1854 Deutsches Wörterbuch von Jacob und Wilhelm Grimm offers several definitions for “bemächtigen,”
most relating to the taking possession, occupation or usurpation of foreign land: “to appropriate a land,
empire, dominion, a city, fortress, entrenchment, a ship, is to violently occupy it, to take it; to capture a
person, a man, a child, a fugitive.”89 This understanding would align German accounts of fan fiction with
84
Horazens Briefe aus dem Lateinischen übersetzt und mit historischen Einleitungen und anderen nötigen Erläuterungen.
“Ein Stoff, auf welchen jeder gleiches Recht hat.” Wieland, Christoph Martin. Werke, IX: Übersetzung des Horaz. Manfred
Fuhrmann, ed. Frankfurt am Main: Detuscher Klassiker-Verlag, 1986, p. 522. Subsequent references to this text will be in the
form of “Wieland, Horaz,” followed by a page number. For a thoughtful discussion of Wieland’s translation, see: Curran, Jane V.
Horace's Epistles, Wieland and the Reader: A Three-Way Relationship. Leeds: W.S. Maney for the Modern Humanities Research
Association and the Institute of Germanic Studies, University of London, 1995, p. 62-64.
86
“umspringen, wie er will, solange er sie nur nicht mit den Charakteren in Widerspruch setzet.” Dreiunddreißigstes Stück, 21
August 1767. Lessing, Gotthold Ephraim. Werke und Briefe in zwölf Bänden. Minna Von Barnhelm, Hamburgische Dramaturgie,
Werke 1767-1769. Vol. 6. Ed. Klaus Bohnen. Frankfurt am Main: Deutscher Klassiker Verlag, 1985, p. 346.
87
“Charaktere, die bereits vorhanden sind,” as “Ein Stoff, der dem Publiko schon angehöret.” Dusch, Johann Jacob. Briefe zur
Bildung des Geschmacks an einen jungen Herrn von Stande. Gänzlich umgearbeitete Auflage. Erster Theil. Leipzig; Breslau:
Meyer, 1773, p. 326.
88
“ob es gleich an diesem sehr zu tadeln ist, daß er sich der Materie seines Meisters bemächtigt, ohne denselben darum zu
fragen.” Musäus, Johann Karl August. “Anhang zu Sophiens Reisen,” in: Allgemeine deutsche Bibliothek. 33.1 (1778), p. 35-36,
p. 36.
89
sich eines landes, reichs, der oberherschaft, einer stadt, burg, schanze, eines schiffes bemächtigen, sie gewaltsam besetzen,
einnehmen; einer person, eines mannes, kindes, flüchtlings, ihn gefangen nehmen.” Grimm, Jacob, and Wilhelm Grimm.
Deutsches Wörterbuch von Jacob und Wilhelm Grimm. Leipzig: Hirzel, 1971. Vol. 1, col. 1457. See also: Adelung Johann
Christoph. Grammatisch-kritisches Wörterbuch der Hochdeutschen Mundart. Vol. 1. Leipzig, 1793, p. 846. “Sich einer Sache
bemächtigen, sie in seine Macht oder Gewalt in Besitz nehmen. Sich einer Stadt, einer Festung, eines Landes bemächtigen. Sich
der Oberherrschaft bemächtigen. Sich einer Person bemächtigen, sie in Verhaft nehmen. Auch figürlich. Eine tiefe Schwermuth
bemächtigt sich meiner Seele. Unter den angenehmsten Vorstellungen bemächtigte sich der Schlaf meiner Sinne. So auch die
Bemächtigung.”
85
19
Birkhold
their English counterparts, which frequently described characters as “kidnapped.”90 German characters,
however, were rarely pronounced kidnapped in the sense of being stolen persons. Rather they are more
accurately described by the alternative meaning of “bemächtigen” suggested by the Grimm dictionary: “to
use or take advantage of,” to “master” material.91
“Bemächtigen” also had a distinct legal connotation. Fichte utilizes the term repeatedly in “Proof of the
Illegality of Reprinting.” For example, the philosopher asserts: “what is certainly first offered for sale
through the publication of a book is its content, for those who have the head and diliegence enough to
appropriate [bemächtigen] it.”92 The term regularly comes up in legal treatises, including the 1802 tome,
Das natürliche Privat-Recht, in which Franz von Zeller analyzes “if in an extreme emergency, the right is
granted to appropriate [bemächtigen] the property of another to avert mortal danger.”93 In his Dictionary
for the Explanation and Germanification of foreign Expressions entered into our Language,94 Campe
defines usurpation as “the unjust or illegal taking of possession” and gives the example “appropriating
[bemächtigen] without right or authority.”95 By noting that something could be bemächtigt “without
right,” Campe leaves open the possibility that something could be “bemächtigt” according to a legal right.
In these cases, “bemächtigen” is treated as a neutral legal concept, capable of indicating rightful or
wrongful behavior. As such, the term appositely describes the use of characters in fan fiction, which could
be permitted or forbidden, depending on the individual use.
90
Judge, Elizabeth F. “Kidnapped and Counterfeit Characters: Eighteenth-Century Fan Fiction, Copyright Law and the Custody
of Fictional Characters,” in: Originality and Intellectual Property in the French and English Enlightenment. Reginald McGinnis,
ed. New York: Routledge, 2009, p. 22-68.
91
The alternate definition also include Schiller’s use of “bemächtigend” as a synonym for “einnehmend” or charming. Ibid.
92
“Was also furs erste durch die Bekanntmachung eines Buchs sicherlich feilgeboten wird, ist […] der Inhalt desselben, für
jeden, der Kopf und Fleiß genug hat, sich desselben zu bemächtigen.” Fichte, “Beweis,” p. 226.
93
“ob nicht der äusserste Nothfall das Recht ertheile, sich fremden Eigenthumes zur Abwendung der Lebensgefahr zu
bemächtigen.” Zeller, Franz von. Das natürliche Privat-Recht. Vienna: Wappler und Beck, 1802, p. 95.
94
Wörterbuch zur Erklärung und Verdeutschung der unserer Sprache aufgedrungenen fremden Ausdrücke
95
“die rechtwidrige oder widerrechtliche Besitznehmung” and gives the example “sich mit Unrecht oder ohne Befügnis
bemächtigen.” Campe, Joachim Heinrich. Wörterbuch zur Erklärung und Verdeutschung der unserer Sprache aufgedrungenen
fremden Ausdrücke. Zweiter Band, F.-Z. Braunschweig: Schulbuchhandlung, 1801, p. 276.
20
Birkhold
Conditions on the Commons: Reconceptualizing the Literary Commons
Following Simon Stern, legal and literary scholars regularly refer to a “literary commons” when
discussing the rise of intellectual property rights in the eighteenth century.96 A “commons” refers to a
resource held in common, free to be used by anyone within the relevant community.97 As Lawrence
Lessig puts it: “no one exercises the core of a property right with respect to these resources – the
exclusive right to choose whether the resource is available to others.” Because it is associated with the
absence of an exclusive right to exclude, the literary commons is frequently equated with “free culture,”
as Jaszi and Aufderheide suggest.98 And the pre-copyright eighteenth-century literary commons, in
particular, has been characterized as a free field, open for to all to use however they saw fit.99 Up to the
enclosure triggered by the enactment of copyright laws, the literary commons are typically cast as a
completely unregulated space.100
96
Stern, Simon. “Tom Jones and the Economies of Copyright,” in: Eighteenth-Century Fiction, vol. 1, issue 4 (1997), p. 429-446,
p. 436. As a recent example, Pravilova notes of eighteenth-century Russia that “plots, motifs, and ideas represented the ‘literary
commons’.” Pravilova, Eketerina A. A Public Empire: Property and the Quest for the Common Good in Imperial Russia.
Princeton, Princeton University Press, 2014, p. 217. Of course, the metaphors we use to discuss intellectual property profoundly
shape our thinking. And, as Judge observes, “[t]he land metaphor has had a tenacious stronghold on the discourse of copyright
through the current digital copyright debates…. From the eighteenth-century forward to today, there is frequent analogizing, with
respect to reader access to original works, to real property with terms such as covenants, easements, trespass, and fences,
culminating in the advocacy movement for supporters of a wider public domain finding fertile precedential strategies and
resources in the earlier environmental law movement.” Judge, p. 53.
97
See: Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House,
2001, p. 19-21 for a discussion of various commons.
98
Aufderheide and Jaszi equate the commons with “free culture.” Aufderheide, Patricia, and Peter Jaszi. Reclaiming Fair Use:
How to Put Balance Back in Copyright. Chicago: The University of Chicago Press, 2011, p. 54.
99
For example, Saint-Amour equates the literary commons with freedom and openness. Saint-Amour, Paul K. The Copywrights:
Intellectual Property and the Literary Imagination. Ithaca, N.Y: Cornell University Press, 2003, p. 219. And Watson casts the
textual commons as one without any proprietary prerogatives. Watson, David. “Transcendental Untranslatables: Emerson and
Translation,” in: Institutions of World Literature: Writing, Translation, Markets. Ed. Stefan Hegelsson, Pieter Vermeulen.
Routledge, New York, 2016, p. 209-24, p. 220. In her study of historical fan fiction, even Jamison mischaracterizes the
eighteenth-century literary commons incorrectly. Jamison, Anne E. Fic: Why Fanfiction Is Taking Over the World. Dallas: Smart
Pop, 2013, p. 26-37.
100
Although understanding this writing practice as a “commons” is not the only option, copyright has long been understood
through metaphors of land and space. The meaning of this metaphor, however, has been far from stable. Stern skillfully shows
that the tract-of-land metaphor took on competing meanings already in the eighteenth-century. Stern, Simon. “‘Room for One
More’: The Metaphorics of Physical Space in the Eighteenth-Century Copyright Debate,” in: Law and Literature, vol. 24 (2012),
p. 113-50.
21
Birkhold
David Brewer’s assessment is typical of scholarship on proprietary attitudes toward characters in the
eighteenth century.101 In his groundbreaking study, The Afterlife of Character, Brewer asserts that
fictional characters, as part of this “textual commons,” were treated as “the common property of all.”102
As a result, Brewer concludes, readers could use pre-existing characters however they liked, arguing that
they “could feel free to invent whatever additional performance struck their fancy without having to
worry that they were being unjust or larcenous.”103 He contends that such use of pre-existing charcters
was governed by “no mortal law.”104 The only other studies of pre-twentieth-century fan fiction,
Jamison’s Fic and Judge’s “Kidnapped and Counterfeit Characters,” both follow Brewer’s lead,
characterizing the literary commons as entirely unregulated.105 However, none of these studies relies on
substantial empirical work or seriously considers the role of customary law.
Consequently, scholars of the eighteenth century tend to overlook that, even if all were welcome to “hunt
on the commons,” there might still have been rules regulating that use.106 They regard the absence of a
positive law as evidence of a lack of any regulation. Yet, tracing the rise of intellectual property through
fictional characters suggests that this commons is different than scholarship characterizes. Indeed, the
literary commons – at least in Germany – was regulated by a robust system of customary norms.
101
Most scholarly accounts of the eighteenth-century literary commons hew closely to the mythologized ideal of the commons as
a free space characterized by sharing, access, and collaboration. For example, describing the eighteenth-century “literary
commons” more generally, Bannet describes an unregulated space, claiming that “[e]ighteenth-century editors and writers felt
free to provide characters in extant narratives with new episodes and adventures, to give their stories a different ending or to
reorient the ‘argument,’ as well as to write continuations of other authors’ tales.” Bannet, Eve T. Transatlantic Stories and the
History of Reading, 1720-1810: Migrant Fictions. Cambridge: Cambridge University Press, 2011, p. 9. For more on the
mythologized allegory of the commons, see: Liang, Lawrence. “Beyond Representation: The Figure of the Pirate,” in: Biagioli,
Mario, Peter Jaszi, and Martha Woodmansee. Making and Unmaking Intellectual Property: Creative Production in Legal and
Cultural Perspective. Chicago: University of Chicago Press, 2011, p. 176.
102
Brewer, David A. The Afterlife of Character, 1726-1825. Philadelphia: University of Pennsylvania Press, 2005, p. 13, p. 2.
Here, Brewer is discussing Britain, the focus of his study. Geography – and the existing statutory laws of a jurisdiction – likely
played a role in shaping customary norms governing intellectual property.
103
Ibid. p. 11
104
Ibid.
105
Jamison, Anne E. Fic: Why Fanfiction Is Taking Over the World. Dallas: Smart Pop, 2013, p. 26-37; Judge, Elizabeth F.
“Kidnapped and Counterfeit Characters: Eighteenth-Century Fan Fiction, Copyright Law and the Custody of Fictional
Characters,” in: Originality and Intellectual Property in the French and English Enlightenment. Reginald McGinnis, ed. New
York: Routledge, 2009, p. 22-68. Discussing Britain, again, Warner argues that whatever succeeded on the market was allowed.
Warner, William B. Licensing Entertainment: The Elevation of Novel Reading in Britain, 1684-1750. Berkeley: University of
California Press, 1998, p. 225.
106
To borrow a common expression, already used in eighteenth-century descriptions of the literary commons. See: Brewer, p. 12.
22
Birkhold
The act of writing fan fiction was not itself considered an invasion of an author’s rights in her literary
creation. There are scant suggestions that other authors were absolutely prohibited from using another
author’s literary character. In fact, there is plenty of evidence that fan fiction was expected, especially in
the wak of a particularly successful novel.
In short, using the ideas of another author was permitted, including fictional characters. A character,
though, had to be used properly, according to the rules of fan fiction discussed above. In his chapter on
intellectual property and the “Rights of the Author” [“Rechte des Schriftstellers”], Rössig explains that an
author can use the “material already presented by others,” but only if it is “appropriately used.”107 Dusch
similarly notes that using a pre-existing character presents no problem, “one can make an alreadydepicted character into his own,” but adds a caveat that only “if it is properly done.”108 Eighteenth-century
commentators regularly noted that fictional characters had to be used appropriately, that is, according to
the rules that regulated the production of fan fiction in the late eighteenth century. Above all, these rules
required second authors to portray borrowed characters consistently with their initial depiction. In this
regard, writers of fan fiction were obliged to respect the artistic intent of the first author. The norms
further required second authors to provide notice of their appropriation and prohibited them from
presenting their spin-off texts in a manner that would exploit potential confusion about the author’s
identity.
Although these norms were limited to characters invented by still-living, German authors, Virgil is
routinely cited as the shining example of how to appropriate a pre-existing character. Blanckenburg, for
instance, lauds “the art, with which Virgil, among others, picks up the individual threads of the character
of Aeneas from the great Homeric fabric, and brings it into an identically colors, thick, and complete
107
“schon bey andern vorhandenen Materialien,” but only if it is “zweckmäßig benutzt[].” Rössig, Handbuch, p. 89-90.
man kann sich einen schon geschilderten Charakter . . . zu eigen machen,” but adds a caveat that only “wenn sie gehörig
bearbeitet wird.” Dusch, Briefe, p. 326.
108
23
Birkhold
piece through his additions, this deserves the highest praise of the strictest critics.”109 To describe Virgil’s
craft, Blanckenburg employs the same weaving metaphors common to descriptions of properly written
fan fiction. Then, he offers a final lesson after severely critiquing Nicolai’s portrayal of Sebaldus
Nothanker (a character whom Nicolai appropriated from the poet Thümmel).110 “Through the preceding
investigation,” Blackenburg expounds, “young poets should learn with how much care the connection to
the whole must be handled, with how much attention to character and situation they should proceed….”111
By citing Virgil as an example to be followed, Blanckenburg not only anticipates such appropriations in
the future, he telegraphs their propriety. However, this “precise connection,” the critic explains, can be
demanded “mit Recht.”112
If the rules were broken, the offending fan fiction author could be punished with a panoply of social
enforcement mechanisms. Authors made unofficial complaints to officials in the book trade, coordinated
negative reviews of transgressing works, placed advertisements discrediting offending fan fiction, wrote
counteracting works and confrontational authors’ notes. In some cases, authors even launched personal
attacks on fan fiction authors in an attempt to ruin their literary careers. Wieland describes one such
mechanism in his 1782 translation of Horace’s Ars Poetica, updated for his eighteenth-century German
audience.113 After describing characters as “a material to which everyone has an equal right,” Wieland
notes that appropriators will follow certain rules, in part, due to their “fear of censure.”114 Merkel also
declares that a first author, in the event of improper appropriation, could “vindiciren” the matter,
109
“die Kunst, mit welcher Virgil, unter andern, die einzelen Fäden zum Charakter des Aeneas, aus dem großen homerischen
Gewebe heraus zu nehmen, und in ein eigenes, gleichfarbiges, dichtes, ganzes Stück durch seine Zusätze zu bringen gewußt hat,
verdient allerdings das größte Lob des prüfenden Kunstrichters.” Blanckenburg, “Sebaldus Nothanker,” p. 262-63.
110
“strenge Prüfung seines Charakters,” Ibid. p. 278.
111
“[A]n der vorhergegangenen Untersuchung,” Blanckenburg expounds, “mögen junge Romanendichter lernen, mit wie vieler
Sorgfalt die Verknüpfung des Ganzen behandelt werde müsse, wie viel Rücksicht auf Charakter und Situation zu nehmen sey….”
Ibid.
112
Ibid.
113
Curran makes a similar observation, explaining that “Wieland does not translate [the Ars poetica] word for word or deny
himself the freedom to amplify the original in order to emphasize certain points.” Curran, p. 63.
114
“[e]in Stoff, auf welchen jeder gleiches Recht hat,” “Furch vor Tadel,” Wieland, Horaz, p. 522.
24
Birkhold
introducing another legalistic term into the discussion about fan fiction.115 According to Zedler’s
Universal Lexikon, “vindicieren”
means, also in those rights, in part, to seek revenge, to punish, defend, shield, and also in
part and more often, to arrogate something for oneself, to take make demands on a thing,
to inhere in it, and to keep it and give it away as one’s own, to hold in possession until it
is discharged, or to bring the hypothecarian charge, and also not just the ownership of a
thing, but also any other right, whichever one may claim, and to demand it from the
possessor.116
In the context of fan fiction, “vindiciren” denotes not just punishment, but also protection. The first author
can defend (“vertheidigen”) and shield (“beschirmen”) the character from the offending use. Moreover,
Merkel’s use of “vindiciren” implies a limitation on the right of second authors: if they misappropriated a
fictional character, they could lose their right to that property. Characters, in other words, could be freely
used as a “common good” [“Gemeingut”].117 But that use was subject to conditions, the transgression of
which resulted in sanctioned punishment. With respect to fictional characters, the literary commons was
governed by this set of customary norms and the limitations they imposed.
Accordingly, the eighteenth-century German literary commons departs from most scholarly accounts. It is
a special kind of commons – one regulated by conditions. Under the system that developed in the late
eighteenth century, readers were allowed to write fan fiction using fictional characters invented by other
authors; after all, authors did not have an exclusive right to literary figures, which were considered
common property. But these fictional characters had to be “bemächtigt” in the appropriate manner, that is,
115
Merkel, Briefe, p. 676. The concept of “vindicieren” is connected to property throughout the late-eighteenth century. The 1794
Allgemeines Landrecht für die Preußischen Staaten includes a title “Von Verfolgung des Eigenthums” with a section devoted to
“Wer vindiciren könne.”
116
“heist so wohl in denen Rechten . . . theils so viel, als rächen Rache suchen, eifern, straffen, vertheidigen, beschirmen, theils
aber auch und gar öfters sich eines Dinges anmassen, eines Sache in Anspruch nehmen, sich dieselbe zueignen, für die seinige
halten und ausgeben, bis zum Austrag der Sache in Besitz nehmen, oder die Hypothecarische Klage anstellen, und also nicht nur
das Eigenthum einer Sache, sondern auch überhaupt ein jedwedes anders Recht, so man nur an derselben haben mag, zu
behaupten suchen, und dieselbe ihren Besitzer wieder abfordern.” Zedler, Johann H, and Johann P. Ludewig. Grosses
Vollständiges Universal Lexikon Aller Wissenschaften Und Künste. Halle und Leipzig: Zedler, 1732-1750, vol. 48, col. 804.
117
Bahrdt, Rechte und Obliegenheiten, p. 148.
25
Birkhold
following the rules of fan fiction. Otherwise, the second author could be punished. The extra-legal
customary norms regulating fan fiction in the eighteenth century therefore functioned analogously to a
limited licensing scheme resembling the creative commons of the internet era.
In the creative commons, a user can exploit “any work that has a Creative Commons license under the
terms that the license specifies. The owner has, with that license, given [the user] blanket permission for
some uses, and has also usually imposed some limitations.”118 The twenty-first century creative commons
aims to modify the default of intellectual property rights. Instead of granting the author exclusive control,
the creative commons permits free use with certain conditions. The literary commons of the eighteenth
century made a similar gesture and reached a strikingly similar result, but began from a different starting
point because no copyright or exclusive right yet existed. The customary norms of fan fiction transformed
the default of the eighteenth-century literary commons. Instead of completely unconstrained use of preexisting characters, the use was subject to certain conditions. Unlike the creative commons licensing, of
course, eighteenth-century authors did not individually specify the terms of those conditions. But, insofar
as the rules embody customary norms, they did reflect the literary community’s collective desires.
Balancing Interests
Governed by the conditions imposed by the rules of fan fiction, the eighteenth-century literary commons
operated as a proto-intellectual property scheme that balanced the competing commercial, artistic, and
public interests discussed in fan fiction.119
118
Aufderheide, Patricia, and Peter Jaszi. Reclaiming Fair Use: How to Put Balance Back in Copyright. Chicago: The University
of Chicago Press, 2011, p. 141
119
Ginsburg describes the multiple ways in which copyright can be understood: “as a personality right conferring on the author
the ownership of the fruits of her labor, or as an economic incentive scheme to promote the production of works of authorship, or
as a public works program designed to fill the public domain (or, most accurately, as a combination of the three)….” Ginsburg,
Jane C. “The Right to Claim Authorship in U.S. Copyright and Trademarks Law,” in: Houstan Law Review 41.2 (2004), p. 263307, p. 306-07. Indeed, most scholars understood copyright as aiming to balance competing interests. On the need for balance
between over-protection and under-protection in intellectual property, see: Spinello, Richard A, and Maria Kanellopoulou-Botē.
26
Birkhold
While judging the merits or success of this balance is beyond the scope of this work, it is clear that the
competing interests were protected in some measure. For instance, by requiring that characters be used in
a manner consistent with their initial portrayal, the rules safeguarded the integrity of the first author’s
artistic vision, thus protecting what today would be considered the author’s moral rights. The same rule
also preserved the character’s value as a brand or trademark of the author’s identity. And the rules also
required writers of fan fiction to acknowledge source authors and restricted the misleading attribution of
their works. The rules therefore further protected a source author’s financial interests, which Bahrdt
argued in 1783 was essential to incentivizing artistic creation. “For if people were granted no property
right to the products of their minds, all drive, courage, strength would suffocate from the people who
create such products: so would the happiness of the individual, as well as the perfection of the whole of
human society be destroyed.”120 Because the rules afforded moderate safeguards for the artistic and
commercial value of a fictional character, authors could profit from their literary creations.121
Simualtenously, the rules left room for downstream artistic creation, enabling second authors to express
themselves creatively and profit from their writings, though subject to the limitations that demanded
consistency and attribution. With regard to the use of pre-existing characters, the customary norms
thereby avoided what the jurist Lotz termed “intellectual despotism” [“Geistesdespotie”] in 1794.122
A Defense of Intellectual Property Rights. Cheltenham, UK: Edward Elgar, 2009, vi-vii. See also: Ang, Steven. The Moral
Dimensions of Intellectual Property Rights. Cheltenham UK, Edward Elgar, 2013, p. 228.
120
“Denn wenn dem Menschen über die Produkte seines Geistes gar kein Eigenthumsrecht zugestanden würde, so würde aller
Antrieb, aller Muth, alle Kraft, unter den Menschen zur Hervorbringung solcher Produkte erstiken: so würde das Glück des
Einzelnen so wohl als die Vervollkommnung der ganzen menschlichen Gesellschaft zerstöhret werden.” Bahrdt, Rechte und
Obliegenheiten, p. 152-53.
121
Although there were many complaints about the economic harm caused by fan fiction, there was no clear rule that works that
caused commercial competition were not allowed. However, the rules collectively mitigated against harms arising from
commercial competition and brand dilution. Woks of fan fiction that styled themselves continuations as if they were written by
the source author were not allowed. And these would have caused the most economic harm by occupying the exact same position
on the market. Moreover, the rules about notice and permission meant that authors would have the opportunity to negotiate with
fan fiction authors, possibly about retitling works. Additionally, ensuring that attribution was proper and that titles could not
falsely style themselves continuations by the same author also protected this interest. In essence the rules forbid fan fiction from
appearing under the same title – i.e. from claiming to be a continuation or a “second part” – without additional elaboration or
attribution or acknowledgement of new authorship.This prohibition protected the trademark-like value of a work, thus protecting
the commercial and reputational value of characters.
122
Lotz, “Beantwortung der Frage,” col. 716.
27
Birkhold
Eighteenth-century commentators observed that this system benefited broader society as well. Owing to
the freedom to create fan fiction, Lotz envisioned a more perfect German literature.123 And describing
imitators more generally, Krause identified an additional benefit for the consumer: the second-comer
“makes his work either noticeably worse than the inventor; this boosts the latter, more than it harms him;
- or better; in this regard, the public wins twiceover: better wares and better prices; - or about the same as
the inventor, but cheaper; so the inventor must reduce the price, in order to prevent harm.”124
In addition to balancing competing interests, the literary commons was, by all accounts, exceptionally
egalitarian in terms of who was protected and who could use the common property of characters. There is
no indication that male and female authors were treated differently. Nor were female and male readers
subject to different rules when they appropriated fictional characters for use in fan fiction. Amateurs and
professionals were also treated alike. Although the rules demanded a nuanced evaluation of fan fiction
according to “Billigkeit” to determine whether pre-existing characters were properly used, the status of
the creator was evidently immaterial. Instead, the focus seemed to have been on an individual text and the
particular instance of fan fiction.
But it was precisely this advantage of the nuance-attuned rules that amounted to a clear disadvantage.
Particularly with regard to a character’s portrayal, the standard was subjective and difficult to apply. As
eighteenth-century commentators observed, the borders of Billigkeit are murky and cannot be determined
by positive laws, but rather require a finer deliberation of the circumstances.125
The widely divergent opinions about Nicolai’s appropriation of the character Sebaldus Nothanker
highlight the administrative difficulties. Blanckenburg, for instance, objects that “the character of the later
123
“die Vervollkommnung unserer Litteratur,” Ibid., col. 718.
“macht sein Werk entweder sichtbar schlechter, als der Erfinder; dies hebt leztern mehr, als es ihm schadet; - oder besser; so
gewinnt das Publikum doppelt: bessere Waare, und bessern Preis; - oder ungefähr eben so, wie er, aber wohlfeiler; so darf der
Erfinder nur seine Waare herabsezen, um schadlos zu sein.” Krause, Chr. S. “Ueber den Büchernachdruck,” in: Deutsches
Museum, Fünftes Stück. Mai, 1783, p. 509. Quoted in: Fischer, vol. 1, p. 265.
125
Reimarus, “Nachtrag,” p. 589.
124
28
Birkhold
Sebaldus has not the slightest similarity with the Sebaldus from Wilhelmine.”126 Blanckenburg argues that
Nicolai’s novel and Thümmel’s work were completely unrelated. But a reviewer in the Neue Critische
Nachrichten considered the two works as seamlessly transitioning into each other. “Whoever has read the
comic novel Wilhelmine by Thümmel already has the honor of knowing the Magiser Sebaldus. Where this
first poet ceased to narrate, there began again the author of Leben und der Meinungen des M. Sebaldus. . .
.”127 The fact that the appropriation of a character could be contradictorily interpreted exposes the
limitations of the customary norms. Under such a scheme, authors themselves may not have been aware
that they were transgressing the rules, even if they acknowledged their existence. This may help explain
Nicolai’s otherwise paradoxical creation of fan fiction and simulataneous complaints about it.
Blanckenburg even speculates that Nicolai must have believed that he wrote the character consistently:
“Why did the author of the novel not maintain the character of Thümmel’s Sebaldus? Likely, because it
did not jar with his intention; after all, we can surely not doubt that he could not recognize the difference
between his Sebaldus and the Sebaldus in Wilhelmine.”128 In Blanckenburg’s estimation, Nicolai must
have thought he was adhering to the acceptable standards. Despite (or precisely because of) the
administrative difficulties, however, contemporaries elected to judge fan fiction according to “Billigkeit,”
foregoing a positive-law solution as too blunt an instrument to deal with the intracacies and nuances of
appropriating literary figures.
Rethinking the rise of intellectual property
126
“In dem Charakter des spätern Sebaldus findet sich nicht allein, nicht die entfernteste Aehnlichkeit mit dem Sebaldus der
Wilhelmine.” Blanckenburg, “Sebaldus Nothanker,” p. 263.
127
“Wer den komischen Roman des Hrn. von Thümmel die Wilhelmine gelesen hat, der hat schon die Ehre den Herrn Magister
Sebaldus namentlich zu kennen. Wo dieser Dichter aufhört zu erzählen, da fängt der Verf. des Lebens und der Meinungen des M.
Sebaldus wieder an. . . .” Anonymous. “Das Leben und die Meinungen des Hernns Magister Sebaldus Nothanker. Erster Band.
Berlin und Stetting 1773. 231 Seiten in 8,” in: Neue Critische Nachrichten. 9.28 (1773), p. 217.
128
“Warum hat nun der Verfasser des Romans den Charakter des Thümmelschen Sebaldus nicht beybehalten? Vermuthlich, weil
er sich seinen Absichten nicht vertrug; den daß Er den Unterschied zwischen seinem Sebaldus und dem Sebaldus der
Willhelmine nicht erkenne sole, daran getrauen wir uns nicht zu zweifeln.” Blanckenburg, “Sebaldus Nothanker,” p. 260.
29
Birkhold
Reconceptualizing the literary commons as a regulated space, at least with regard to the appropriation of
pre-existing fictional characters, complicates the traditional understanding the rise of intellectual property
rights and challenges common conclusions drawn from that history. By focusing on piracy and the
positive law and neglecting fan fiction and customary norms, legal and literary scholars have overlooked
noteworthy eighteenth-century attitudes about authors’ rights and literary creation.
An early reflection of moral rights?
According to the prevailing scholarly narrative, eighteenth-century German ideas about authors’ moral
rights were not reflected in practice until long after Kant’s philosophy was introduced. Horst-Peter
Götting contends in his recent Geschichte des Persönlichkeitsrechts that the Kantian-inspired effort to
create such a legal right was not achieved until the late nineteenth century with the work of Otto von
Gierke (1841-1921).129 Elaborating upon Kantian philosophy, von Gierke asserted that personality rights
were distinct from and superior to author’s economic rights, adding to German law the idea that an author
could freely attain her artistic intentions.130 As Peter Baldwin notes, “[i]mplicit here were attribution
(claim to reputation) and integrity (achievement of goal),” thus reserving for the author the right to retain
control over his works inneren Bestand as a form of personality rights, even if the author alienated his
work.131 Consequently, the late nineteenth century is typically identified as the first time that German
thinkers began seriously formulating rules that would allow an author to fully alienate her work without
abandoning all aesthetic control.132 But this myopic focus on the positive law has led to a critical
oversight.
129
Götting, Horst-Peter, Christian Schertz, and Walter Seitz. Handbuch Des Persönlichkeitsrechts. München: C.H. Beck, 2008,
p. 32. See also: Leuze, Dieter. Die Entwicklung Des Persönlichkeitsrechts Im19. Jahrhundert, Zugleich Ein Beitrag Zum
Verhältnis Allgem: Persönlichkeitsrecht--rechtsfähigkeit. Bielefeld: E. und W. Gieseking, 1962. p. 60-121.
130
Gierke, Otto. Deutsches Privatrecht. Leipzig: Duncker & Humblot, 1895
131
Baldwin, p. 108-09. Gierke, Otto. Deutsches Privatrecht. Leipzig: Duncker & Humblot, 1895.
132
Indeed, most scholarship first looks for manifestations of Kant’s philosophy first in late-nineteenth and early-twentieth
century laws. For an indicative recent example, see: Beverley-Smith, Huw, Ansgar Ohly, and Agnès Lucas-Schloetter. Privacy,
Property and Personality: Civil Law Perspectives on Commercial Appropriation. Cambridge, UK: Cambridge University Press,
2005, p. 10.
30
Birkhold
An early concept of moral rights was already reflected in the rules that governed the creation of fan
fiction in the late-eighteenth century. Moral rights protect the author’s right to “object to any distortion,
mutilation or other modification of, or other derogatory action in relation to, the said work.”133 Further,
they protect the author against actions that would be prejudicial to her honor or reputation and empower
her to claim authorship of her work. The rules governing the production of fan fiction similarly protect a
work’s integrity and an author’s artistic intentions by demanding the second user portray characters
consistently with their initial depiction. The rules also call for proper attribution and protect against
behavior that could harm an author’s reputation. Moreover, although eighteenth-century thinkers elected
to use the more nuanced tool of customary laws to decide fan fiction disputes, violations of these rules did
not go unpunished. On the contrary, an author’s artistic intent and the integrity of a work were protected
by attacking the transgressing work and vindicating the wrongfully-appropriated character. The rules
governing fan fiction thus represent a practical manifestation of protections akin to moral rights. Such
rights were not merely a philosophical fantasy of eighteenth-century theorists eventually manifested in
twentieth-century Continental law. Rather, there has been a long tradition of respecting authors’ moral
rights while still encouraging and permitting second-comers to appropriate other authors’ literary works.
Besides demonstrating that a form of proto-moral rights were reflected in customary practice earlier than
copyright scholars have identified, examining the history of intellectual property through fan fiction
shows that many scholars have an overly-narrow view of the source of these rights. Most claim that such
moral rights are rooted in the Romantic notion of the author. As Sonya Bonneau recently put it: “moral
rights epitomize the legacy of the Romantic author as a cultural trope embedded in the law.”134 Scholars
like Lior Zemer similarly link moral rights with twenty-first-century copyright’s “misplaced reliance on
133
Berne Convention for the Protection of Literary and Artistic Works, July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221 art.
6(bis)1.
134
Bonneau, Sonya G. “Honor and Destruction: The Conflicted Object in Moral Rights Law,” in: St. John’s Law Review, 87.1
(2013), p. 47-105, p. 48.
31
Birkhold
romantic authorship rhetoric.”135 They see the protection of moral rights as premised on the view that art
is a reflection of the Romantic author as an individual and solitary genius.136 Indeed, Kant’s notion of
personality rights and the concept of the Romantic author did emerge in parallel. But writing practices in
the late eighteenth century were more complicated than most legal scholars acknowledge.
Examining this history from the perspective of eighteenth-century fan fiction tells a different story. The
eighteenth-century literary commons suggests that norms respecting the integrity of a work and an
author’s reputation are rooted in a robust practice of interactive authorship and borrowing – not in the
idea that authors should have exclusive control over their creations and the right to exclude second users.
The customary norms governing eighteenth-century fan fiction did not grant source authors complete
control, but rather balanced the competing interests in literary works. The moral rights protected by this
system were therefore not based in the concept of the author as a fully original and isolated creator, but
were instead built on an understanding that literary works and fictional characters were the property of all.
If the conditions on the literary commons in the context of fan fiction in the eighteenth century represent
one of the first instances of moral rights-like protections, this protection is linked to a more complex
concept of authorship than the “Romantic” author alone. The motivation for protecting the rights of
integrity and reputation may be partially based in the notion that an author put a unique stamp on her
work as an individual creator. But the rules governing fan fiction also existed because literary borrowing
was freely permitted, expected, and encouraged. Existing scholarship has simply overlooked this practice
because eighteenth-century thinkers elected to regulate fan fiction with customary law. Scholars like
Martha Woodmansee argue that property rights in literary texts were the invention of avaricious
publishers and authors who deployed the new concept of the Romantic author. But studying this history
through the prism of fan fiction shows that proprietary interests in literary works – those regulated by
135
Zemer, Lior. “Moral Rights: Limited Edition,” in: Boston University Law Review. 91.4 (2011), p. 1519-1568, p. 1568.
Durham, Alan L. “The Random Muse: Authorship and Indeterminacy,” in: William and Mary Law Review. 44 (2002), p. 569642, p. 615.
136
32
Birkhold
“Billigkeit” and not the positive law – were alternatively motivated by a desire to balance the various
competing interests in texts while acknowledging collaborative authorship and second uses.
Challenging copyright today
In the eighteenth century, as thinkers debated how to allocate and protect rights in literary works, turning
to the positive law represented just one solution. The debate about fan fiction shows that eighteenthcentury thinkers embraced a variety of tools for regulating disputed literary practices. Existing studies of
literary borrowing and descriptions of the “literary commons” mistakenly conflate the freedom of the
commons with unrestricted use. Even scholars who study the history of fan fiction and its related
practices have failed to take into account the customary norms that governed the creation of such texts.
Studying fan fiction adds new nuance to this history, compelling us to reconsider current claims based on
the traditional narrative about the rise of intellectual property rights.
Critics like Lessig claim that the law today, by increasingly interfering with the use of creative works, has
diverted wildly far from its eighteenth-century roots.137 In Free Culture, Lessig bemoans the loss of our
long tradition of “free culture.” According to Lessig, this free culture aims to guarantee “that follow-on
creators and innovators remain as free as possible from the control of the past.”138 But the norms
governing fan fiction in the eighteenth-century did not free follow-on creators from the past. They rather
bound them to it. The rules, after all, required fan fiction authors to portray appropriated characters
consistently with their initial depiction. In this sense, the eighteenth-century literary commons does not
represent the “free” culture Lessig suggests. Instead of supporting claims that we are losing a tradition of
137
Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity.
New York: Penguin Press, 2004, p. 99, 168.
138
Ibid., p. xiv. Lessig opposes a “free culture” against a “permission culture.” If the same conceptual vocabulary is applied to
the eighteenth-century literary commons, it was indeed a “free culture” insofar as second authors were not strictly required to ask
for permission. But Lessig’s concept of a “free culture” supports and protects creators while simultaneously guaranteeing that
“follow-on creators” remain as “free as possible from the control of the past.” In this latter regard, the eighteenth-century literary
commons is less free than most scholars acknowledge.
33
Birkhold
free culture by embracing increased moral rights, the history of intellectual property – examined from the
perspective of fan fiction – actually suggests the opposite: that we might be returning to an eighteenthcentury culture of permissive but conditional borrowing, not departing from it. Contemporary copyright
laws that increase protections for authors’ moral rights may not be diverging from their roots, but may be
incorporating historical customary practices, like the conditions imposed on the literary commons in the
eighteenth-century.
Understanding the literary commons as a regulated space and customary law as an elected alternative to
the positive law further undermines arguments made on both sides of the contemporary copyright
debate.139 Today, critics argue that copyright is either over- or under-protective of an author’s rights and
interests in her literary work. Legal theorists in support of a robust copyright argue that providing such
protections incentivizes authorship, echoing claims already made in the eighteenth century, epitomized by
Bahrdt.140 To dispel this argument, proponents of copyright reform regularly draw conclusions from the
history of intellectual property as it is traditionally reported. The German copyright historian Eckhard
Höffner, for instance, points to the prolific productivity of German writers in the eighteenth and
nineteenth centuries as proof that intellectual property rights are not needed to incentivize literary
creation.141 According to this argument, because eighteenth-century writers created literary works despite
having only minimal intellectual property rights, the incentives created by copyright are unnecessary. But
by examining only the positive law, this argument overlooks the fact that authors were afforded
protections in the form of customary norms that safeguarded authors’ financial, reputational, and artistic
interests. To have persuasive force, such historically-based arguments must be reevaluated in light of the
reinterpretation of the commons as a regulated space.
139
Larsson, Stefan. Metaphors and Norms: Understanding Copyright Law in a Digital Society. Lund: Lund University,
Department of Sociology of Law, 2011, p. 18 discussing contributions to the “copyright debate.”
140
“Denn wenn dem Menschen über die Produkte seines Geistes gar kein Eigenthumsrecht zugestanden würde, so würde aller
Antrieb, aller Muth, alle Kraft, unter den Menschen zur Hervorbringung solcher Produkte erstiken….” Bahrdt, Rechte und
Obliegenheiten, p. 152-53.
141
Höffner, Eckhard. Geschichte Und Wesen Des Urheberrechts. München: Verlag europäische Wirtschaft, 2010, p. 349-372.
Höffner’s argument has been repeated in popular media. See, for example, Thadeusz, Frank. “Explosion des Wissens,” in:
Spiegel Online, Number 31, August 2 (2010).
34
Birkhold
Understanding fictional characters as special form of geistiges Stoff and a distinct type of Gemeingut also
indicates that there are historical alternatives, besides the positive law, to safeguard authors’ financial,
artistic, and personality interests while still protecting downstream users and the public. Although in a
different time and different context, this history shows that exclusive-use statutory protections were once
considered an overly-blunt means of balancing the competing interests at stake. This history suggests that
we might explore how to re-conceptualize characters in the current debate about fan fiction and consider
alternative methods of regulating fan fiction. After all, the customary norms regulating fan fiction in the
eighteenth century demonstrate that protecting moral rights and second users are not incompatible goals.
In this regard, fan fiction also provides a much-needed theoretical framework for understanding
intellectual property and proprietary rights in literary works. Piper and Sachs note that the history of print
and media is “most often written from either side of an uncrossable fence. Either print is a story of
liberation and access OR it is a story of decline and fall. Either print arrests the word and stabilizes
knowledge OR it proliferates writing and drowns out authority in a sea of competing voices and
versions.”142 By allowing multiple authors to write a fictional character’s story – but requiring that it
remain consistent with a source author’s vision – fan fiction and the norms governing its production show
how both of these phenomena can be co-present.
Ultimately, studying the history of fan fiction adds new nuance to our understanding of the emergence of
intellectual property rights in Germany. It identifies the long-overlooked tradition of “sharing and
sharedness,” as Piper puts it, and reveals norms that regulated this complex practice.143 Conclusions about
eighteenth-century writing practices and attitudes towards authors’ rights cannot be based on the mistaken
belief that literary borrowing was unregulated. The literary commons, it turns out, was less free and more
complicated than scholarship has recognized. Copyright scholars and literary scholars of the eighteenth
142
Piper, A, and J Sachs. "Introduction: Romantic Cultures of Print - from Miscellaneity to Dialectic." Romanticism and
Victorianism on the Net. (2010), p. 57-58, p. 58.
143
Piper, Dreaming, p. 126.
35
Birkhold
century must take into account these practices when making claims about concepts of authorship, the
history of moral rights, and authors’ proprietary interests in fictional texts.
36