Were Works by Slaves Eligible for Copyright? A Case Study of Frederick Douglass

At the oral argument before the DC Circuit this September in Thaler v. Perlmutter, regarding whether a piece of graphical art conjured by a computer program without prompting can be registered for copyright, Judge Robert L. Wilkins asked a sensitive question of the government’s counsel – “Do you know whether enslaved people were granted copyright?” (at around 21 minutes in the audio recording).[1] I was at the argument, and the government’s counsel did not have an answer to the question. I had some suspicions, and decided to research the issue a bit.

Now, if the question is simply was registration of copyright by works made by persons who were legally the property of someone else, the answer is pretty clearly yes. Like the most famous example, the Narrative of the Life of Frederick Douglass, an American Slave, Written by Himself, was registered for copyright on May 14, 1845. According to the registration, Douglass made the application on his own behalf with the deposit of a printed title page at the U.S. District Court for the District of Massachusetts to Francis Bassett, who had served as clerk of the court since 1828. At the time Douglass was still a runaway slave legally, and his freedom was purchased the following year.

I’d be careful of assigning too much legal significance to to the decision by Bassett to register Douglass’s copyright. The copyright registration system then was very different then it was now – until 1870 one would register for copyright with the clerk of the local federal District Court (as Douglass did) by depositing a printed title page and paying the fee. Copyright registration was available only to citizens and residents of the United States. The fees were (after 1831) fifty cents for the registration itself and an optional additional fifty cents for a registration certificate. This would be done prior to publication, and after publication the registrant would perfect the registration by giving the clerk of the Court a copy of the book to send it to Washington, DC. The following year (1846) the law creating the Smithsonian Institution would also require that additional copies be sent to the Smithsonian and Library of Congress, but that would not be in effect yet. The clerks of the court were not paid a regular salary and instead simply kept all fees they collected, and unsurprisingly instances of copyright claims being refused are hard to find – I’m not aware of any examples from Boston (or New York, or Philadelphia) for 1790-1870. I am aware of a few copyright registrations being refused in Buffalo, NY, and I go into all this more in my article Examining Copyright.

Mentioning Buffalo, though, Douglass did receive a copyright registration there for his book My Bondage and Freedom, published in 1855. Strangely the copyright registration certificate from Douglass’s papers shows a date of 1845 but that seems wrong. The publishers Miller, Orton, and Mulligan initially claimed the copyright in that work at publishers on July 6, 1855, but on July 18 the copyright was reissued in Douglass’s name as author, and that was how it was printed. As I’ve written about here, clerk of the court there, Aurelian Conkling (older brother of Roscoe), would go on record the following year as refusing to register patent medicine labels following the decision of the court in Scoville v. Toland, showing a vigor in enforcing the law in copyright registration even when it was not in his personal interest. Unfortunately, this fails to show us that much on the issue at hand, since at this point Douglass had been manumitted years earlier, but it is interesting, and I don’t know if the multiple copyright registrations for the 1855 work are known.

Following the Supreme Court’s Dred Scott decision which held that African-Americans in the United States were not citizens, copyright registrations continued to be granted to African-Americans, as I wrote about in my piece Copyright’s Promise of Dignity in the 19th Century, in The Cambridge Handbook of Intellectual Property and Social Justice (Jamar & Mtima, eds.). Whether this was done because they continued to be residents of the United States even if not citizens, civil disobedience, or simply accepting an additional dollar in fees and not asking questions, I cannot say for sure. In the past five years the Library of Congress has scanned essentially the entire corpus of copyright records from before 1865 that survive, and I’ve supplemented this project with all records I could find which did not make their way to the Library of Congress. A complete answer to this question would require a much more in depth study of these records than I can provide in a blog post. Likewise I am unaware of an instance where someone who owned an enslaved person claimed copyright in their work, but it surely happened. Perhaps even more likely, did a publisher register a copyright as proprietor on assignment from a slave owner purporting that they were the author? Not all the copyright registrations from the Southern United States have survived, and they were never that numerous as most of the publishing industry was in the Northeast, so records from the major publishing centers would need to be consulted as well.

This is all a somewhat long-winded way of saying that registrations were made to individuals who were officially enslaved, in the author’s own name. I do not know if these would have held up in a court of law if challenged, nor am I aware of such a challenge being made. There is a well-known incident from the latter 1850s of the owner of a slave attempting to register the slave’s invention for a patent and the registration being rejected because the slave’s owner could not properly sign the affidavit that they were the inventor. To my knowledge there was no analogous incident in copyright law. H.E. Baker, an African-American individual who served as Second Assistant Examiner at the Patent Office in the 1880s, wrote that a “a patent is a contract between the government and the inventor or his assignees…[t]he slave, although the inventor, could not under the law be a party to a contract, and therefore could not secure the patent himself.” Baker was a pioneer of the study of African-American patents, and his research on the issue continues to be essential.

It isn’t clear to me that the same analysis would apply to copyrights per se. Contract theory is one of the recognized theories of patent law (but not the only one), but although I’m sure someone has suggested it, contract theory hasn’t received much traction in the realm of copyright law. Alina Ng has suggested a social contract theory of copyright law but that isn’t quite the same thing. However, it’s difficult to identify much of a alternative test for humanity other than ability to enter into a contract (that sounds properly obtuse and legalistic I realize). The government’s brief in the Thaler case suggests the ability to enter into contracts is one of the indicia of being a human for purposes of copyright, but does not offer a conclusive set of factors. The copyright law

measures a copyright’s term by the author’s natural life and death. Several sections reference an author’s family or heirs. Still others assume an author’s ability to execute employment arrangements and legal contracts. These provisions plainly contemplate an author’s humanity.

Appellent’s Brief at 18.

Of course, it’s a bit awkward to apply these arguments to slavery as well, which suggests the fundamental difficulties of making a definition of humanity for purposes of copyright law. The issue is a somewhat uncomfortable one. The word robot “derives from the Czech word ‘robota,’ or forced labor, as done by serfs. Its Slavic linguistic root, ‘rab,’ means ‘slave.’” In the oral argument the question was paired with questions from Judge Millet about whether married women could own copyrights in the nineteenth century due to the doctrine of coverture (where a married woman was “hidden” legally from the law through a unity with her husband who in practice was the sole legal person), an issue the Supreme Court elided in the 1892 decision of Belford v. Scribner. It reminds us of a dark past where people were treated as being less than human, and raises awkward questions about what exactly we are building with generative AI, especially with the push towards AGI. I can’t claim to answer these questions, but I hope this post is at least helpful in knowing the history of the law thus far.

[1] Judge Wilkins was a member of the presidential commission on the establishment of the Smithsonian Institution’s National Museum of African American History and Culture. He wrote about this experience, and the long history of the project, in Long Road to Hard Truth: The 100 Year Mission to Create the National Museum of African American History and Culture, published in 2016. (per Wikipedia)