Zvi S. Rosen
GW Law School
zrosen@law.gwu.edu

 This presentation is based on a paper I co-wrote with
the economist Richard Schwinn, called “An Empirical
Analysis of 225 Years of Copyright Registrations,”
forthcoming in the Tulane Law Review.
 Some of the other material I reference not in that
paper can be found at my blog, “Mostly IP History.”
 Special thanks to the Library of Congress Rare Book
Room and Copyright Office, both of whom have been
of great help with my research and this talk.
The Research

 Some states passed copyright laws before 1790,
fragmentary records survive.
 Constitution gives Congress power to make copyright
laws, Congress passes one in 1790, with onerous
requirements for 14+14 years of protection:
 File title page and affirmation with local U.S. District Court,
along with 60 cent fee, prior to publication.
 Publish a notice of copyright in a US newspaper, no more
than 2 months later, for four consecutive weeks.
 Deposit 2 copies of finished book with Sec’y of State in DC
within 6 months of publication.
 In 1802, requirement of adding a copyright notice to the
book itself is added.
Early Copyright Registration

1831 Copyright Act
 First major revision, at urging of Noah Webster.
 Changes term of protection to 28 + 14 and:
 Removes poorly-followed requirement of newspaper notice
except for renewals.
 Changes deposit location from DC to local US District
Court, and provides funds for clerk to send deposited works
to DC in bulk periodically.
 Makes clear that including notice in book is required.
 In 1834, Courts are empowered to record assignments of
copyright as well.

Shifting Subject Matter
In all cases, before law was changed, courts generally
registered such works as preexisting categories (prints or
music as books, cuts, engravings, or photographs as
prints).
1790 – Books, maps, and charts part of initial copyright law.
1802 – Adds prints to protected matter under copyright law.
1831 – Adds music, cuts & engravings to protected matter...
1856 – Adds protection against unauthorized performances of
drama (but not music)
1865 – Adds photographs to protected matter under copyright law.

 From 1790-1846, deposits were sent to Sec’y of State.
 Act creating Smithsonian Institute in 1846 included
provision requiring deposit only at the new Institute
and at the Library of Congress.
 In 1859, deposit was moved solely to Patent Office
 At the urging of the new Librarian of Congress
Ainsworth Spofford, in 1865 LoC was restored as
deposit location, alongside Patent Office
Shifting Deposit Locations

 Since before his appointment Spofford had met with
clerks of the various District Courts to study copyright
registration and recordkeeping practices.
 As part of omnibus revision to IP laws, and at
Spofford’s urging, all copyright functions were moved
to Library of Congress in 1870.
 All copyright records up to this point were to be
transmitted to the Library of Congress.
The 1870 Copyright Act

 Most states with a substantial volume of copyright
records fully and readily complied.
 Spofford complained that a number of states from
New England had not sent their materials – southern
and western states also were delinquent.
 With creation of separate position of Register of
Copyrights in 1897, pre-1870 records stayed with the
Copyright Office until the 1930s, when moved to
Library’s Rare Book Room.
 Core record books microfilmed in 1970s.
Gathering the Records

Records Located Outside LoC
 New Hampshire (Record Books 1791-1827, Title Pages 1791-1870)
 Vermont (Record Books 1793-1821, Title Pages 1821-1842)
 Rhode Island (Assignments 1842-1865)
 Massachusetts (Account Books 1856-1864)
 Delaware (Complete records to 1870 interfiled with naturalizations)
 Virginia (Records from Staunton in Western VA 1847-1855)
 West Virginia (Records from Clarksburg 1847-1868)
 North Carolina (Records from Raleigh 1796-1857)
 South Carolina (Records from Charleston 1795-1855) (not online)
 Tennessee (Records from Nashville 1809-1851)
 Alabama (Records from Montgomery 1839-1869)
 Kentucky (Record Books from Lexington 1797-1862)
 Louisiana (Partial records interfiled in general record books)
 Ohio (1829-1842 – WPA survey located in 1930s, currently missing)
 Oregon (Record Book 1865-1870)
 Virginia (Title Pages 1864-1865)

 Virginia until 1863, with caveats.
 Louisiana, mostly, until 1851
 Maryland until 1831
 Rhode Island until 1831
 DC until 1845
 Connecticut before 1804
 Ohio (Southern) 1829-1842
 Texas until 1867
 Other smaller districts, especially pre-1850
Missing Records

 Form of Registration prescribed by 1790 Act, largely
unchanged for 80 years.
 Some jurisdictions had forms pre-printed.
“District of to wit: Be it remembered, that on the day of in the year of the
independence of the United States of America, A. B. of the said district,
hath deposited in this office the title of a map, chart, book or books, (as
the case may be) the right whereof he claims as author or proprietor. (as
the case may be) in the words following to wit: [here insert the title] in
conformity to the act of the Congress of the United States, intituled (sic)
‘An act for the encouragement of learning, by securing the copies of maps,
chart, and book, to the authors and proprietors of such copies, during the
time therein mentioned.’ C. D. clerk of the district of ____.”
The Registration Itself

Pre-Printed Registration
Registration from District of Connecticut

Handwritten Registration
Copy of Registration from Southern District of New York

 In 1831, the revised copyright law required Clerks of
the District Courts to periodically transmit a list of
registrations to the Secretary of State (and later Patent
Office).
 This can provide an alternative record set or a
substitute for missing records, provided the Clerk of
the court at issue actually complied.
 There are also some copies of the lists sent by clerks in
the Manuscript Reading Room of LoC.
 Records often overlap.
The “Second Set”

Main and 2nd Set
Photo courtesy of Eric Frazier, Library of Congress

Assignments
Assignment from District of Maryland

Title Pages
Title Page from District of New Hampshire.

Deposit Lists
Patent Office Deposit List - Oversized

 Newspaper Notices
 Account Ledgers (rare)
 Letter Books kept for copyright matters
 Published Deposit Lists (1790-1825 & 1846-1859)
 Library of Congress has compiled and printed
registrations from 1790-1800.
Other Records

Data source: page counts and
date ranges of Record Books

Pages of Pre-1870 Registrations
0
10000
20000
30000
40000
50000
60000
Connecticut Illinois Massachusetts Michigan New York Ohio Pennsylvania All Others States
with Under 1000
Individually
Total Pages of Registrations: 141,214

Registrations per Year
0
2000
4000
6000
8000
10000
12000
1790
1792
1794
1796
1798
1800
1802
1804
1806
1808
1810
1812
1814
1816
1818
1820
1822
1824
1826
1828
1830
1832
1834
1836
1838
1840
1842
1844
1846
1848
1850
1852
1854
1856
1858
1860
1862
1864
1866
1868
1870
1870 was a partial year, another 5,756
were filed with LoC, for 11,991 total

Registrations per 100K

Per 100K to 2015
Registration Drop in 2007-8 was due
to problems in shift to electronic registration

States as a Percentage of All
Copyright Registrations
0.00%
10.00%
20.00%
30.00%
40.00%
50.00%
60.00%
1790
1792
1794
1796
1798
1800
1802
1804
1806
1808
1810
1812
1814
1816
1818
1820
1822
1824
1826
1828
1830
1832
1834
1836
1838
1840
1842
1844
1846
1848
1850
1852
1854
1856
1858
1860
1862
1864
1866
1868
1870
MA / Nation NY / Nation OH / Nation PA / Nation IL / Nation

NY, PA, and MA as a Percentage of
Registrations
60.00%
65.00%
70.00%
75.00%
80.00%
85.00%
90.00%
95.00%
100.00%
1790
1792
1794
1796
1798
1800
1802
1804
1806
1808
1810
1812
1814
1816
1818
1820
1822
1824
1826
1828
1830
1832
1834
1836
1838
1840
1842
1844
1846
1848
1850
1852
1854
1856
1858
1860
1862
1864
1866
1868
1870

0.00
20.00
40.00
60.00
80.00
100.00
120.00
1 2 3 4 5 6 7 8 9 10 11
MA Per 100k Avg NY per 100k AVG PA per 100k AVG
Three States per 100k Avg.
Based on state population in census year.
Average of 5 years before/after for registrations.

How Many “Ghost Books?”
This Photo by Unknown Author is licensed under CC BY-NC-ND (MS Office Clipart)

“Ghost Books” 1878-1896
0.00%
10.00%
20.00%
30.00%
40.00%
50.00%
60.00%
70.00%
80.00%
90.00%
100.00%
1878 1879 1880 1881 1882 1883 1884 1885 1886 1887 1888 1889 1890 1891 1892 1893 1894 1895 1896
Percentage of Title Entries Followed by Deposit

 Right now, the records of pre-1870 are still difficult to
access outside of Washington, DC
 I’ve created two digital repositories:
 Copyright records held outside the Library of Congress
 Existing typeset lists of pre-1870 records
 In both cases I’ve included scans of all material, but it’s
only a small fraction of the records.
 In practice, researching copyright for now still means a
trip to Washington, DC
 But…
Accessing the records

 The Library of Congress has begun a project to scan all
copyright materials held in its Rare Book Room.
 This includes previously microfilmed materials.
 Thus far the Library has scanned approximately
40,000 pages, comprising essentially all the title pages
it holds from this period.
 Work is just beginning now on the record books as the
next phase of this project.
 With the materials scanned and available online, a
new avenue for research will be open.
19th Century Copyright
in the 21st Century