Shakespeare would thrive in a world with copyright.


I saw it again the other day. In a sarcastic tweet that flew by. A familiar theme. Without naming names, it said something like this: As if creativity didn’t exist before 1709. There was no Shakespeare.

For one thing, this is the kind of pugnacious statement that I can’t believe ever informs the copyright debate. Because I don’t know anyone who asserts that creativity did not exist before copyright. Creativity existed in pre-homo-sapiens. But so what? That fact is as useful to a discussion about contemporary life as observing that eating predates cooking.  True but ick.

The year 1709 is of course a reference to England’s Statute of Anne, which is identified as the precursor to modern copyright law because that legislation was the first to grant exclusive rights in written works to authors rather than publishers. And if it is sufficient for some to condense four centuries of history since Shakespeare’s death into a single tweet, maybe this reveals something about those who both say and believe unexamined statements that invoke the Bard as exemplary of copyright’s irrelevance. In particular, this line of reasoning makes two fundamental mistakes.  The first is one of overstating the extent to which Shakespeare relied upon borrowing; and the second is one of understating the significance of the idea/expression dichotomy in copyright law, which dictates that ideas may not be copyrighted and only unique expressions may be.

As explained in a previous post, the reason Shakespeare and his contemporaries so often borrowed, or even outright plagiarized, existing work had a great deal to do with the exigencies of producing high-volume, high-speed theater in 16th-century England and little to do with the abilities of the writers themselves to be inventive. Had the Arthur Brooke estate, for instance, owned a copyright on The Tragicall History of Romeus and Juliet, everything we know about Shakespeare’s gifts implies that he had both the talent and the desire to work around this relatively minor creative barrier. Moreover, the result would almost certainly have been a more distinctive play than Romeo & Juliet. After all, Brooke would not have owned the idea of ill-fated lovers, just his own expression of it.

The idea/expression dichotomy is the reason why a large volume of works can share many qualities with one another and still remain distinctive enough to be considered individually “original” and, therefore, separately copyrightable. And in the generalized debate—especially when it’s made tweet-sized—I think people fail to recognize just how subtle the distinctions among works can be in order to render them non-infringing upon one another. Combine this error with a glancing knowledge of Shakespeare, and it’s easy to make The Bard into an unwitting poster child for the importance of borrowing or building upon prior works.

Part of Shakespeare’s genius—as historian Bill Bryson puts it—was to “…take pedestrian pieces of work and endow them with distinction and, very often, greatness.” The manner in which he achieved distinction and occasional greatness was both by invention (e.g. a plot device here, a twist on an idea there) and by his remarkable ability to produce indelible sounds from the fledgling English language. If we were to keep his raw talent intact, remove the political, social, and economic barriers of his time, and replace these instead with only the boundaries of modern copyright, Shakespeare’s ability to draw upon source elements and make them uniquely his own suggests that he would have done quite well in such a regime.  To put that in a contemporary context, if author E.L. James is skilled enough to adapt her Twilight fanfic into the separately copyrightable 50 Shades of Grey, I think it’s fair to say that Shakespeare would be up to a similar task.

To Bryson’s point, we should view Shakespeare as already wrangling with the idea/expression dichotomy by revising existing notions and elements into richer expressions than they had been.  Like any artist, we see him working around the barriers of his own internal aesthetics and sensibilities. And by contrast, the external barriers of copyright are quite minimal to the author, which is why this entire line of criticism doesn’t tend to come from creators and artists themselves. Perhaps more relevant to my initial point, though, is the fact that a great deal of Shakespeare’s often-exaggerated “borrowing” would be consistent with copyright anyway. This would likely be the case with all of the history plays or certainly with plot devices taken from ancients like Plautus, who died in 185 BC.  There’s a lot more to Shakespeare than Romeo & Juliet, and we have far more reason to imagine that he would thrive in a world with copyrights than to assume that he would wither.

It’s just too easy to conjure Shakespeare as a lofty trope of literary brilliance and then assume that the works as we know them are now fossilized in the only form they could ever have taken. No one who has ever created anything would make this mistake because the end product is almost never the only way the process could have gone. If Shakespeare had both copyright and free speech, it is more rational to expect that he would have been even more prolific and profound than it is to imagine that he would have produced less—or nothing. As it stands, he was modestly prolific by both 16th-century and contemporary measures. Sam Shepard, Tennessee Williams, Neil Simon, Eugene O’Neill, and Arthur Miller—to name a few—all wrote more than Shakespeare and all certainly worked in a world with copyrights. So, of course creativity itself predates copyright law; but invoking Shakespeare — though it may seem counter-intuitive — only suggests that creativity was weaker without it.

© 2016, David Newhoff. All rights reserved.

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  • Thomas Dillon

    I do not believe that anything the Bard wrote would be regarding as infringing today. His expression is uniquely his own. But the casually ignorant tweet presents the Copyleft’s chin for the punch. Copyright is not only about money, but about artistic expression and the integrity of the work. So in the introduction to the First Folio of 1623, the editors say that they are rescuing the author’s works from pirate copies: “as where (before) you were abused with divers stolne, and surreptitious copies, maimed, and deformed by the stealthes of injurious impostors, that expos’d them”. They make no bones, however, about the commercial underpinning of the edition: “whatever you do, buy”.

    • David Newhoff

      Thanks, Thomas. We have to admit that Shakespeare and his contemporaries did outright steal certain passages, but as mentioned, this was not necessary to the creative process but was instead part of making theater in that time and place. I chose not to mention in the post the tangential point that had Shakespeare owned copyrights, he would have had a vested interest in the manuscripts themselves. As such, we might today be the beneficiaries of more “pure” copies of his work since what we do have is something of a hodgepodge of the best efforts of his former partners along with various adulterations by printers and other interlopers.

  • One of the things about Shakespeare is that, in addition to being a playwright, he was also a grain merchant. This is often brought up by those arguing that Shakespeare didn’t actually write the plays attributed to him — usually in favour of then attributing them to some much more aristocratic individual. However, I’ve always thought that being a grain merchant made perfect sense given his financial situation.

    As a playwright, what sources of income would Shakespeare have had. He might have received a one-off payment from a playing company on delivery of a manuscript — there are no records that he did, but we know Elizabethan playing companies did occasionally make such payments. More likely, as a member and part owner of the company the Lord Chamberlain’s Men (later the King’s Men), providing the play would just have been seen as part of his contribution and he would have gotten part of the ticket proceeds from each performance as well as part of whatever monies were provided by the company’s patron (the Lord Chamberlain and later King James I). He would have gotten nothing from any productions of his plays put on by other companies — and we know they were popular enough that other companies of players were routinely stealing them — nor from any of the unauthorized folios doing the rounds. As such, his income from writing plays would have been sporadic and precarious.

    It would make sense for him to take the money he earned and to invest it in a much more solid and sound business like, well, dealing in grain. Given the steady demand for grain and a basic business acumen (which Shakespeare possessed), that would have given him a solid financial foundation that would have allowed him to live a good life, support his family and aspire to being a gentleman who could apply for his own coat of arms.

    I’m reminded of an old interview with Ringo Starr who said that when he joined the Beatles he hoped that, if the band were successful, he would earn enough to be able to invest in two or three hair dressing salons to secure his future.

    If Shakespeare could have earned a steady income from his plays — or even become wealthy, given the popularity of those plays — it would have made more sense for him to invest his time and effort in creating more plays, rather than dealing in grain.

    So, while creativity existed before copyright, it seems to have been much more limited. One of the features of the copyright era (post 1709) is the explosion in creative works appearing compared to what came before.

    • David Newhoff

      Thanks, Zoran. Based on what record there is, Shakespeare’s primary income did come from playwriting, but you’re right that this income was due to his partnership in the Lord Chamberlain’s Men. It is estimated that the going price for a play was about £6, but the plays were owned by the theater companies. Shakespeare’s stake in the company ranged between 1/14th and 1/10th at various times, according to Bryson. I don’t know that there is any record of other theater companies performing Shakespeare’s plays, and this would be somewhat inconsistent with the way in which those companies produced and competed with one another. They kept active repertoires of about 30 plays in their heads, and the companies’ ownership stake in the plays themselves was likely enforceable through the Master of Revels. It’s possible that there was theater “piracy” afoot, though it seems it would be fairly insubstantial and potentially dangerous to the point of being fatal.

      With his theater earnings, Shakespeare made some fairly shrewd investments, including a substantial one in grain tithes in 1605. These investments likely yielded more money than he earned from theater, but I don’t believe there is any record that he was actually a merchant. In particular, the period from 1605 until is death in 1616 were years when he wrote a substantial portion of his work. Overall, Shakespeare died fairly prosperous for a commoner, though downright poor compared to the nobility.

      It is reasonable to assume that a talent like Shakespeare, left solely to invest in his writing, would produce even more volume and diversity. That is, of course, part of the point of this post. It’s meaningless when copyright critics declare that creativity existed before copyright. Creativity existed before free speech, too. Is anyone in the free world going to argue that creative works were “better” as a result?

      • Shakespeare’s patron was Henry Carey, 1st Baron Hunsdon:,_1st_Baron_Hunsdon

        and the history plays were written to satisfy court propaganda and justify the Tudor dynasty. How much more was prescribed by the political patronage is unknown, but Shakespeare was not free to write as he may have wished.

      • David Newhoff

        He certainly was not free to write anything he wished. Although, the history plays were produced with respect to the boundaries of the pleasure of the court, I don’t think it would be accurate to describe them as akin to commissions by the court for propaganda purposes. One production of Richard II, commanded by Essex on the eve of his attempt to depose Elizabeth, got the company briefly investigated for their “role” in the plot. And Shakespeare did collaborate on a play about Sir Thomas More, which might have been abandoned for political reasons, but that he approached the material all is informative.

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