1. Eighteenth-century writers referred to the concept of “buying copyrights,” and modern critics have repeated the phrase. For concision, I have adopted this terminology as well; however, it is important to clarify that the works were not copyrighted until they were printed. Thus, what the managers were actually buying was the right to print and copyright the works. Julie Stone Peters, Theatre of the Book 1480–1880: Print, Text, and Performance in Europe (New York: Oxford University Press, 2000), 77–8; John Russell Stephens, The Profession of the Playwright: British Theatre, 1800–1900 (New York: Cambridge University Press, 1992), 86–7.

2. Actor-playwright Samuel Foote ran into such problems. Foote was a talented mimic who wrote parts that allowed him to exercise that skill. After other mimics, including Tate Wilkinson, began performing Foote's roles (often in imitation of Foote himself), Foote began withholding plays from print, and on at least one occasion he threatened Wilkinson with a lawsuit for invasion of property. See Wilkinson, Memoirs of His Own Life, by Tate Wilkinson, Patentee of the Theatres-Royal, York & Hull, 4 vols. (York: Printed for the Author, by Wilson, Spence, & Mawman 1790), 3:242–3.

3. Shirley Strum Kenny writes that at the beginning of the eighteenth century, plays were typically published within a month of their premiere. This generally allowed the play to complete its full run before entering print circulation. By midcentury, some authors were printing plays before the first run had finished. Kenny, “The Publication of Plays,” in The London Theatre World, 1660–1800, ed. Robert D. Hume (Carbondale: Southern Illinois University Press, 1980), 309–36.

4. See William W. Appleton, Charles Macklin: An Actor's Life (Cambridge, MA: Harvard University Press, 1960), chap. 5, for a discussion of Macklin's role in the 1743 actor rebellion. Although Macklin acted in solidarity with his fellow actors, the walkout harmed him more than the rest of the company. Fleetwood had seen Macklin as an ally, and as Appleton puts it, “[f]or Macklin to join the rebels seemed to Fleetwood the rankest ingratitude” (62).

5. The Statute of Anne allowed authors, for the first time, to own their works. Before this act, only a member of the Stationers' Company could do so.

6. No single term is consistently used across modern scholarship to describe the author's right to control and profit from performance, and Macklin and his contemporaries did not have a clear way of discussing this yet-nonexistent concept. In this article, I follow Peters in referring to it as “performance copyright,” using the phrase to refer to the concept rather than an actual legal construction.

7. Ronan Deazley, briefly mentioning dramatic copyright in Rethinking Copyright, argues that the “origins” of “the exclusive right to perform a work in public … lie in the mid-nineteenth century” with the Dramatic Literary Property Act of 1833; Deazley, Rethinking Copyright: History, Theory, Language (Northampton, MA: Edward Elgar Publishing, 2006), 153. Isabella Alexander focuses primarily on playwrights James Planché and Edward Bulwer-Lytton and the Dramatic Authors' Society. She briefly examines the eighteenth century, but her look at Macklin considers only his suit against printers and not his dealings with managers. Alexander, “‘Neither Bolt nor Chain, Iron Safe nor Private Watchman, Can Prevent the Theft of Words': The Birth of the Performing Right in Britain,” in Privilege and Property: Essays on the History of Copyright, ed. Ronan Deazley, Martin Kretschmer, and Lionel Bently (Cambridge: Open Book Publishers, 2010), 321–46.

8. Quoted in Peter Holland, The Ornament of Action: Text and Performance in Restoration Comedy (New York: Cambridge University Press, 1979), 65.

9. David A. Brewer, The Afterlife of Character, 1726–1825 (Philadelphia: University of Pennsylvania Press, 2005), 67.

10. The divided repertory was initially upheld in London but not necessarily respected by strolling companies or Dublin theatres. A role, then, might only have been performed by one performer in London but simultaneously by others outside the metropolis.

11. Holland, 66.

12. Milhous, Judith and Hume, Robert D., “Theatrical Custom versus Rights: The Performers' Dispute with the Proprietors of Covent Garden in 1800,” Theatre Notebook 63.2 (2009): 92–125Google Scholar, at 120.

13. Hume, Robert D., “Theatre as Property in Eighteenth-Century London,” Journal for Eighteenth-Century Studies 31.1 (2008): 17–46CrossRefGoogle Scholar, at 39–40.

14. Kitty Clive, “To the Author of the London Daily Post,” London Daily Post and General Advertiser, 19 November 1736, Clive's italics.

15. “Spectator,” “To the Author of the Daily Gazetteer,” Daily Gazetteer, 4 November 1736.

16. Colley Cibber, An Apology for the Life of Colley Cibber, ed. B. R. S. Fone (Ann Arbor: University of Michigan Press, 1968), 106.

17. Thomas Davies, Memoirs of the Life of David Garrick, Esq. Interspersed with Characters and Anecdotes of His Theatrical Contemporaries … , 2 vols. (London: Printed for the Author and sold at his shop in Great Russell Street, Covent Garden, 1780), 1:54.

18. The Universal Museum and Complete Magazine, August 1765, 392–3, quoted in David Thomas, Restoration and Georgian England, 1660–1788 (New York: Cambridge University Press, 1989), 350.

19. Joncus, Berta, “‘In Wit Superior, as in Fighting’: Kitty Clive and the Conquest of a Rival Queen,” Huntington Library Quarterly 74.1 (2011): 23–42CrossRefGoogle Scholar, at 28.

20. John Johnstone, et al. A Statement of the Differences Subsisting between the Proprietors and Performers of the Theatre-Royal, Covent Garden … (London: Printed by J. Davis, Chancery Lane, for W. Miller, Old Bond Street, 1800), 62. Coauthors were Joseph George Holman, Alexander Pope, Charles Incledon, Joseph S. Munden, John Fawcett, Thomas Knight, and Henry Erskine Johnston.

21. Quoted in Milhous and Hume, “Theatrical Custom,” 114.

22. Ibid., 107.

23. Ibid., 117.

24. Appleton's narrative emphasizes parts, pointing out that not only had Sheridan angered Macklin by playing Shylock, a part that Macklin saw as his own, but he also hired Theophilus Cibber, whose repertory of parts, very similar to Macklin's, was “a perpetual reminder of the fact that his services were not essential to the company.” Appleton, 90.

25. Kinservik, Matthew J., “Love à la Mode and Macklin's Return to the London Stage in 1759,” Theatre Survey 37.2 (1996): 1–22CrossRefGoogle Scholar, at 2.

26. Charles Macklin to George Colman, 16 October 1770, Y.c.5380 (3), Folger Shakespeare Library, Washington, DC.

27. Appleton, 141.

28. Charles Macklin to George Colman, 17 February 1773, Y.c.5380 (5), Folger Shakespeare Library.

29. Smith's venture failed, and he returned to Covent Garden for the 1773–4 season. We again see Macklin's sensitivity to part possession when he proposed that the two actors should alternate nights in the parts. See Appleton, 170.

30. Charles Macklin to George Colman, 17 February 1773.

31. Ibid.

32. For a description of Macklin's Macbeth, see Kinservik, Matthew J., “A Sinister Macbeth: The Macklin Production of 1773,” Harvard Library Bulletin 6.1 (1995): 51–76Google Scholar.

33. It is interesting to note, however, that at the time of his death, Macklin owned four copies Locke's works and letters. The contents of his library are recorded in an extra-illustrated copy of Kirkman's Memoirs of the Life of Charles Macklin, preserved in the Harvard Theatre Collection. James Thomas Kirkman, Memoirs of the Life of Charles Macklin, Esq. Principally Compiled from His Own Papers and Memorandums, 2 vols. (London: Printed for Lackington, Allen, & Co., 1799).

34. Although little contemporary commentary on these performances exists, most eighteenth-century critics assumed that Doggett played Shylock as a comic villain. This assumption is based on Doggett's typical comedic roles and on brief commentary by Nicholas Rowe and John Downes. Rowe wrote that he had seen the play “Acted as a Comedy, and the part of the Jew perform'd by an excellent comedian.” See Nicholas Rowe, The Works of Mr. William Shakespear, 6 vols. (London: Printed for Jacob Tonson, 1709), 1:xix.

35. John Henderson, Letters and Poems, by the Late Mr. John Henderson. With Anecdotes of His Life, by John Ireland (London: Printed for J. Johnson, 1786), 196.

36. Touchstone [pseud.], “To the Printer of the Morning Chronicle,” Morning Chronicle and London Advertiser, 23 October 1773. Appleton attributes the review to Arthur Murphy.

37. The Present State of the Stage in Great-Britain and Ireland … (London: Printed for Paul Vaillant, 1753), 40; italics in the original.

38. George Colman and Bonnell Thornton, The Connoisseur, no. 1, 31 January 1754, 1.

39. [William Cooke], Memoirs of Charles Macklin, Comedian, with the Dramatic Characters, Manners, Anecdotes, &c. of the Age in which He Lived … (London: Printed for James Asperne, 1804), 92.

40. “Theatrical Intelligence,” London Chronicle and Universal Evening Post, 23 October 1773.

41. Davies, 1:62.

42. “Old Macklin,” Courier and Evening Gazette, 4 August 1797.

43. Appleton, 46.

44. Charles Macklin, Commonplace Book, M.a.9, Folger Shakespeare Library, 7.

45. William Rufus Chetwood, A General History of the Stage, from Its Origins in Greece Down to the Present Time … (London: Printed for W. Owen, 1749), 188–9.

46. John Locke, Two Treatises of Government by John Locke, ed. Thomas I. Cook (New York: Hafner Publishing Co., 1947), 135–6.

47. Chetwood, 189; italics in the original.

48. William Shakespeare, The Merchant of Venice, ed. Jay Halio (New York: Oxford University Press, 1993), 3.2.114–16.

49. Chetwood, 190; italics in the original.

50. John Gross, Shylock: A Legend & Its Legacy (New York: Simon & Schuster, 1992), 119.

51. William Cooke, Memoirs of Samuel Foote, Esq. with a Collection of Genuine Bon-Mots, Anecdotes, Opinions, etc., Mostly Original … , 3 vols. (London: Printed for Richard Phillips, 1805), 1:156.

52. Arthur Murphy, “Advertisement,” in Charles Macklin, Love à la Mode. A Farce. As Performed at the Theatres-Royal, Drury-Lane and Covent-Garden (London: Printed by John Bell, 1793).

53. Charles Durnford and Edward Hyde East, Reports of Cases Argued and Determined in the Court of King's Bench [8 vols., 1793–1800] (Dublin: Printed for L. White, P. Byrne, and W. Jones, 1795), 5:245.

54. Roger L'Estrange, Considerations and Proposals in Order to the Regulation of the Press (London: Printed by A. C., 1663), 1.

55. Barbara A. Mowat, “The Theatre and Literary Culture,” in A New History of Early English Drama, ed. John D. Cox and David Scott Kastan (New York: Columbia University Press, 1997), 213–30, at 217.

56. See Milling, Jane, “‘Abominable, Impious, Prophane, Lewd, Immoral’: Prosecuting the Actors in Early Eighteenth-Century London,” Theatre Notebook 61.3 (2007): 132–43Google Scholar.

57. Philip Dormer Stanhope, Miscellaneous Works of the Late Philip Dormer Stanhope, Earl of Chesterfield, 2 vols. (London: Printed for Edward and Charles Dilly, 1777), 1:231.

58. Gerald Eades Bentley, The Profession of Dramatist in Shakespeare's Time, 1590–1642 (Princeton, NJ: Princeton University Press, 1971), 198. See also (referencing Bentley) Stephen Orgel, “What Is a Text?” in Staging the Renaissance: Reinterpretations of Elizabethan and Jacobean Drama, ed. David Scott Kastan and Peter Stallybrass (New York: Routledge, 1991): 83–7.

59. Worthen, W. B., “Intoxicating Rhythms: Or, Shakespeare, Literary Drama, and Performance (Studies),” Shakespeare Quarterly 62.3 (2011): 309–39CrossRefGoogle Scholar.

60. Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, MA: Harvard University Press, 1993), 114.

61. Milhous, Judith and Hume, Robert D., “Playwrights' Remuneration in Eighteenth-Century London,” Harvard Library Bulletin 10.2–3 (1999): 3–90Google Scholar, at 35.

62. The conditions of theatrical ownership often affect print publication trends. It is worth noting that before 1642, when the Crown did not mandate a separation of repertory, theatre companies sometimes kept plays out of print to ensure their exclusive performance. See Joseph Loewenstein, “The Script in the Marketplace,” Representations 12 (Fall 1985): 101–14.

63. Peters, 77.

64. Charles Macklin and D. Hussey, “Fair Copy Draft Bill introduced in the Court of Chancery in Ireland in Macklin v. Robert Owenson,” Autograph Papers of Charles Macklin, Y.c.5382 (1–2), Folger Shakespeare Library.

65. He may also have written clauses into contracts that would fine managers for future use of the play. We know that when Henry Mossop hired Macklin for the 1763–4 season at Smock Alley, the contract stipulated that “the sole property of his Pieces were to remain in him, that they were not to be acted without his consent; and that his Farces were not to be played at Benefits, under the penalty of 500£.” See Kirkman, 1:441.

66. John O'Keeffe, Recollections of the Life of John O'Keeffe, Written by Himself, in Two Volumes (London: Henry Colburn, New Burlington Street, 1826), 1:315–16.

67. Macklin and Hussey.

68. Milhous and Hume, “Playwrights' Remuneration,” 34.

69. Ibid., 34. Macklin's contract with Drury Lane reads, “to have for his performing in the said plays and Farce [Love à la Mode] a Fifth part of the profits of the first five nights after deducting sixty-three pounds for the charges of each night during the said five nights—and the sixth night to be for the Benefit of Mr. Macklin, he paying the usual charges of sixty-three pounds.” See Kinservik, “Love à la Mode,” 9.

70. Milhous and Hume, “Playwrights' Remuneration,” 29, 39.

71. Cooke, Memoirs of Charles Macklin, 234.

72. Shirley Strum Kenny, The Performers and Their Plays (New York: Garland Publishing, 1982), xxxi.

73. Wilkinson, 2:261.

74. Ibid., 264.

75. Charles Ambler, Reports of Cases Argued and Determined in the High Court of Chancery, with Some Few in Other Courts, 2d ed., 2 vols., ed. John Elijah Blunt (London: Joseph Butterworth & Son, 1828), 2:695.

76. Ibid., 694. Chancery delayed hearing the case until a ruling was reached in Millar v. Taylor. The ruling in favor of an author's perpetual common-law property right bolstered Macklin's case.

77. Wilkinson, 4:9.

78. Macklin and Hussey.

79. Quoted in Kirkman, 2:35.

80. Ibid., 2:33.

81. Wilkinson, 4:10.

82. Charles Dibdin, A Complete History of the English Stage, 5 vols. (London: Printed for the Author, 1797–1800), 5:149.

83. Appleton, 122.

84. Wilkinson, 2:230.

85. Cecil Price, ed., The Dramatic Works of Richard Brinsley Sheridan, 2 vols. (New York: Oxford University Press, 1973), 1:215, footnote 3.

86. O'Keeffe, 1:400; 2:6.

87. Ibid., 1:400.

88. Milhous and Hume, “Playwrights' Remuneration,” 41.

89. Colman produced his own plays, including The Spanish Barber (1777), The Suicide (1778), and The Separate Maintenance (1779), without ever publishing them. See Charles Beecher Hogan, ed., The London Stage, 1660–1800, Part 5: 1776–1800, 3 vols. (Carbondale: Southern Illinois University Press, 1968), 1:cxci.

90. John Bernard, Retrospections of the Stage (London: Henry Colburn & Richard Bentley, 1830), 1:208.

91. Morning Chronicle, 17 May 1777, quoted in Price, 1:316.

92. Hogan, clxxi.

93. Gazetteer and New Daily Advertiser (London), 3 May 1777.

94. Records of the case appear to exist only in newspaper articles. Because we have such little documentation, we cannot know how the Lord Chancellor reached his decision. It is likely, though, that he did not consider performance to be a violation of copyright.

95. “Law Report. King's Bench,” Morning Herald (London), 25 February 1793.

96. Durnford and East, 5:245.

97. Ibid.

98. Durnford and East, 245; “Law Intelligence. Court of King's Bench. Saturday, May 4. Colman versus Wathen,” Lloyd's Evening Post (London), 6 May 1793; “Law Intelligence. Court of King's Bench. Saturday, May 4, 1793. Colman v. Wathen,” Morning Chronicle (London), 6 May 1793.

99. O'Keeffe, Recollections, 2:314–15.

100. T. J. Thackeray, On Theatrical Emancipation and the Rights of Dramatic Authors (London: Published by C. Chapple, 1832), 20, Thackeray's italics.

101. An Act to Amend the Laws Relating to Dramatic Literary Property (London, 1833), online at Primary Sources on Copyright (1450–1900), ed. L. Bently and M. Kretschmer, www.copyrighthistory.org/cam/tools/request/showRepresentation?id=representation_uk_1833, accessed 15 May 2015.