What the Age of the “Hack” Teaches Us About Copyright Terms

(Originally published at Copyright Alliance as part its “Secret History of Copyright” series of blogs.)

“Students of the nineteenth-century drama come sooner or later to the realization that the most important dramatist of the period was Shakespeare.”  – Marvin Felheim, The Theater of Augustin Daly (1956) –

Most people are probably familiar with the word hack as a pejorative for a bad writer, or as a neutral colloquialism for a cab driver, but few may be aware that both connotations derive from the same source. Hackney, according to Merriam-Webster, is a 13th century term for a horse “suitable only for ordinary riding or driving.” Consequently horse-drawn hansom cabs were manned by hackney drivers, and the word hack for cabbie persisted beyond the invention of the automobile.

Meanwhile a hack writer was largely (if not exclusively) a phenomenon of the burgeoning American theater industry, especially in postwar New York. The Civil War transformed the city into an industrial powerhouse, and this spawned a new and growing middle-class, which meant that more Americans were suddenly at their leisure to attend theater performances. But finding a supply of new dramatic material was another matter. “There are no American works on American stages,” complained one critic of the period.

Due principally to the absence of international copyright agreements—a condition that lasted roughly sixty years from first debates on the matter to first adoption in 1891—a large volume of American theater production was based upon hastily adapted or translated literary and dramatic works from Europe. And the writers paid to do all that frenzied scribbling were called hacks.

What the copyright watcher may find interesting, though, is that this era for the American theater—a market largely predicated on a copyright free-for-all—resembled a world that contemporary public domain advocates seem to project as ideal for creativity. It was not. Least of all by contemporary standards.  

Most advocates for the primacy of the public domain espouse a general hypothesis that the duration of copyright protection fails to “promote progress” by draining the common well from which all authors must drink. This assertion endures, despite considerable evidence that contemporary authors (pandemics notwithstanding) have been producing new works much faster and more abundantly than the market can consume them.

Taking a very literal view of the author’s need to “build upon” precedent works, critics of copyright terms allege, almost as a moral imperative, that works must fall into the public domain more rapidly than they do. And this thesis is usually supported by hypothetical predictions that may best be described as the Who knows what might be done? school of copyright theory. But rather than gaze bewilderingly through a fog of possible futures, we can instead focus lucidly on the microcosm of mid-late nineteenth American theater, when the market conditions looked very much like the public domain paradigm that contemporary term critics believe should be restored.

Early Broadway was certainly an exciting market, if not a literarily sophisticated one. Centered around 14th Street in Manhattan, theater managers were constantly swapping out their playbills in a time when a month was long run for a show.  Audiences were more often drawn to see their favorite stars, or by on-stage spectacles like city fires and storm-tossed ships, than they were by playwriting itself.

It would not be accurate to say that all writers of the period lacked talent, or that some fine, original works did not emerge between the cracks. But even one of the best dramatists of the era, Dion Boucicault, complained that he could be paid more for a hack adaptation of an unlicensed “safe bet” than he could for a new and original play. This phenomenon mirrored the stifling effect that the lack of international copyright agreements had on early American publishing inasmuch as the theater industry likewise feasted, for a while, on a steady diet of transatlantic poaching rather than invest in new material.

The absence of international copyright agreements, between roughly 1865 and 1881, was undistinguishable from having a very large volume of works in the public domain—a condition that many of today’s copyright critics advocate rather strenuously. Yet for all the market activity theater managers derived from all that rampant appropriation, many of the dramatic works themselves were, in every sense, hackneyed retreads of works in the commons. Not surprisingly, hack work produced a lot of disposable plays, while the market forces of the time stymied development of more inventive playwriting.

Appropriation in nineteenth century theater was so constant that many authors (e.g. Dickens) found various workarounds to earn at least some revenue from play adaptations that they could not prevent or control. Meanwhile many dramatists were themselves such incorrigible pirates, that there were limits as to how much they could accuse one another of infringement. Not that litigation did not occur among playwrights—some landmark cases happened during this period—but the point is that nearly all dramatists of that era were very liberally drinking from a common well, just as contemporary public domain advocates would have them do.

But by the turn of the century, contemporaneous with the adoption of international copyright agreements, dramatic works authors turned their attention inward, rather than outward, for source material. Henrik Ibsen, usually credited as the father of modern drama, revealed how theater can explore the labyrinths of human psychology, that a play can be about the subtle dynamics of a family within the four walls of an ordinary home. Naturalism changed everything, including audience expectations, as the demand for subtlety in both subject matter and performance crossed into the 20th century.

Because the quantum universe of human drama is, in fact, a bottomless well of source material, it is no accident that as copyrights grew stronger, neither playwrights nor audiences suffered from a dearth of appropriation. On the contrary, not only does O’Neill’s Long Day’s Journey into Night not need to take anything (in a copyright sense) from A Doll’s House, but no modern audience would want it to. By the time we get to Pinter’s minimalist masterpiece Betrayal, or anything by Beckett, we recognize that a finite universe of common themes is infinitely divisible into an endless range of expression through dramatic works.

The aesthetics that molded creative expression throughout the twentieth century reveal that originality is as limitless as copyright’s protections are nuanced. The skeptics who claim that contemporary authors suffer for want of more works in the public domain not only tend to misunderstand the creative process of individual authors, but they also fail to acknowledge that history has, at times, shown us what their ideal paradigm would look like. And there is a reason why we still refer to those authors who rely overmuch on using the works of others as hacks.


Image: Street types of New York City: Hansom driver standing in front of horse and cab. , ca. 1896. Photograph. https://www.loc.gov/item/2002699101/.

© 2020, David Newhoff. All rights reserved.

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