SOURCE: “After the Fall: The Chute of a Play, Droits d'Auteur, and Literary Property in the Old Regime,” in French Historical Studies, Vol. 22, No. 4, Fall, 1999, pp. 465-91.

[In the following essay, Brown examines literary property rights of eighteenth century playwrights, considering the views of Beaumarchais in advocating greater control for authors in the royal theater.]

Among the papers of Pierre-Augustin Caron de Beaumarchais, there is a manuscript titled “Difficulté de fixer le taux de chute d'une pièce.” Begun in August 1777, these twelve folio pages argue that the royal theater, the Comédie Française, should assure playwrights droits d'auteur and propriété littéraire.¹ Beaumarchais offers no high-minded defense of free expression or physiocratic comparison of writers' scripts to real estate, as did Denis Diderot in a pamphlet republished the same year defending printers' privilèges. This difference in argument can be attributed to context—Beaumarchais expressed to the First Gentlemen of the Royal Bedchamber the playwrights' desire for new regulations of the royal theater, while Diderot addressed the director of the Book Trade on behalf of printers. On 30 August 1777, the director issued six decrees that reformed Book Trade regulations to allow writers for the first time to register their works for privilèges in their own name and thus enjoy the commercial benefits of publication. Consequently, Diderot's pamphlet, written at the request of printers, and not Beaumarchais's petition on behalf of playwrights, has been read as an exemplary Enlightenment argument for literary property as authors' rights.²

Indeed, studies of modern French literary property theory and law consistently argue that the 1777 Book Trade decrees introduced to French literary property law a Lockean concept of the property-owning individual, and that in 1793, the French Revolution synthesized this concept with the Kantian ideal of individual genius to produce an “author-centered” tradition, distinct from the Anglo-American, “market-centered” copyright. This view has been widely accepted; from poststructuralist literary critics concerned with historicizing “authorship,” to cultural and intellectual historians of the Enlightenment interested in the birth of the autonomous self, to French jurists seeking the origins of modern droit d'auteur, all have adopted the premises of this argument: that Diderot's issue, book publishing, provides the relevant context in which to study the origins of French literary property law and that his Enlightenment ideals of individual autonomy and rational pursuit of economic interest became codified in the decrees and revolutionary law.³

Playwriting has not been much considered in this scholarly literature, which has therefore overlooked the most widespread and heavily debated eighteenth-century example of literary property in practice and the topic of Beaumarchais's memorandum—“the fall [la chute]” of plays. Consequently, scholars have not appreciated the specific senses of both droits d'auteur and propriété littéraire deployed by Beaumarchais and other late-eighteenth-century playwrights. The inattention to theater in studies of literary property arises from the tendency in the past generation of scholarship on eighteenth-century cultural and intellectual life, especially the dynamic field of histoire du livre, to under-appreciate public theater, especially the royal theater of the Comédie Française, as a social and cultural institution mediating between the court and commercial Parisian society. As a consequence of this oversight, the rich body of work on Enlightenment gens de lettres has consistently asserted but never demonstrated that playwrights, through the commercial theater, came more directly into contact with the literary marketplace and thus could achieve a greater degree of personal autonomy, enabling them to influence public opinion more broadly while better advancing their personal material interests.⁴

Three recent trends in eighteenth-century French historical studies lead us to question these presumptions and the conclusions to which they have led for literary property: in cultural history, the reintegration of theater in general and the Comédie Française in particular into discussions of public life; in economic and social history, research on the multiple forms of property in Old Regime society; and in intellectual and literary history, efforts to chart the changing status and identities of writers in an emerging “literary field.”⁵ Drawing on all three developments, this article details the specific situation of playwrights in seeking literary property from the Comédie Française in the second half of the eighteenth century, to question the presumption that dramatic authors were more commercially oriented than book authors, because of the supposedly more commercial nature of theater relative to publishing. More broadly, it revisits the still prevalent view of gens de lettres in the Age of Enlightenment as becoming economically and psychologically autonomous actors by turning away from court culture, to the literary marketplace and the public, through print shops as well as the public theater.

THE COMéDIE FRANçAISE AND THE FALL

For early modern commercial troupes to purchase and stage new plays involved a considerable, but necessary, outlay of money and effort, so when such companies acquired a new work, they sought to perform it as many times as possible.⁶ Yet fixed troupes, as opposed to ambulatory ones, risked boring theatergoers by repeatedly performing the same play. To ensure a change in the repertory at the precise moment when audience interest lagged, early seventeenth-century troupe leaders developed a mechanism, known as “the fall [la chute],” for withdrawing a play from the active repertory when interest fell below the level at which paid admissions generated revenues sufficient to return a profit to the theater. By 1680, when Louis XIV founded by royal Letters Patent the Comédie Française, Parisian actors and authors expected a play that had been performed sufficiently to satiate audience interest “to fall [tomber]” from the active repertory.⁷

Yet the Comédie was not merely another commercial theater; the king granted it a monopoly over commercial performances of spoken-language works in French in the capital. He also designated it as the royal troupe for command performances at court. Because of the Comédie's close identification with the crown, the troupe would not be left under its own authority, under the municipal government of Paris, or under the control of the Archbishop of Paris; rather, it would be directly answerable for all artistic and financial matters to the court, in the person of the Dauphine until June 1684 and thereafter to the First Gentlemen of the Royal Bedchamber.⁸ To ensure the Comédie would perform new works by the capital's leading writers, while protecting the company and the crown from the financial risk such new works carried, the earliest “orders and regulations” issued to the theater, in spring 1683, included a provision for “the fall.” This so-called regulation of the Dauphine specified minimal gate receipts of 550 and 350 livres for winter and summer, respectively; after two consecutive performances drew gate receipts below these levels, the troupe would “abandon the play, without any further return for the author.”⁹ The first complete set of regulations for the Comédie Française, issued by the First Gentlemen in 1697 (and then published in 1719), retained this provision, which remained in effect until the reorganization of the royal theater (and its regulations) in 1757. At that point, the First Gentlemen raised the minima substantially, in response to both the rising costs per performance and the anticipated greater revenue due to changes in pricing policy.¹⁰

From 1680 to 1757 the limited size of the Parisian theater-going public meant that even a moderately popular new play might begin to produce marginal diminishing returns and “fall” after as few as four stagings. Indeed, of the 151 full-length plays premiered at the Comédie Française between 1715 and 1750, seventy-four attracted four thousand or fewer total spectators—to a modal number of four performances. The most successful productions attracted approximately twenty thousand spectators to upwards of twenty shows.¹¹ For the Comédie Française “the fall” thus served an important purpose in distinguishing between the theater's two repertories: those plays performed on command at the royal court and those performed commercially in Paris. The mechanism of “the fall” allowed the admission-paying public to express its preference over plays performed in Paris, while the king could choose what he wanted performed at Fontainebleau, Marly-le-Roi, or Versailles.

BEFORE THE FALL: LITERARY PROPERTY AS AUTHORIAL POWER

For a playwright, however, having a play “fall” after only a few performances represented not merely a commercial failure, but a public loss of face that undercut one's personal standing in Parisian literary life and one's potential for gaining recognition and patronage at court. Aspiring writers therefore worried greatly about how to avoid such a fate. Especially those whose work was staged at the Comédie for the first time worried that a cabal in the audience (organized by their rivals to generate a negative response to the premiere) might dissuade others from attending the play and lead to a rapid fall. Moreover, given that the Comédie Française performed every day of the week, playwrights also worried that their plays might be scheduled to premiere on a “small day” (Tuesdays, Thursdays, and Saturdays, which generally drew less attendance) and thus not be given a fair chance to succeed. Furthermore, because the Comédie's accounting system did not distinguish between fixed costs and per-performance costs, it became impossible to specify exactly at what point a play ceased to be profitable. To allay these concerns, the First Gentlemen in 1757 raised the minimal revenues that a play must generate to avoid a fall to 1,200 livres in winter (All Saint's Day to Easter) and 800 livres in summer.

The fall held an even graver consequence for writers, more than merely the withdrawal of their play from the active repertory; by tradition (and after 1697 by theater regulation), a fallen work passed definitively into the theater's permanent repertory, and the author would not have a share in the revenue generated by any subsequent performances. Moreover, after the fall, consent for any subsequent performance by another theater would have to come from the Comédie, which prevented an author from selling the work to a provincial theater. Thus, according to each version of the regulations, a work that had “fallen under the rules [tombé dans les règles] henceforth will belong [appartiendra]” to the troupe; the author would no longer have to consent or even be notified of performances of his fallen work, nor would he receive payments (which the regulations referred to as the droits d'auteur and specified as one-ninth of the net proceeds of each performance), free-entry privileges (droits d'entrée), or any creative control over the production, such as the distribution of roles to specific members of the troupe, ordinarily accorded playwrights for works on the active repertory.¹²

To this point, the fall appears a strictly commercial arrangement, by which authors sold their plays to the troupe in return for one-ninth of revenues until the fall. After the fall, it would appear, the play became the troupe's property. Indeed, the actors at times represented it in this way. For example, the actor Jean-Claude Gilles Colson, known as Bellecour, in a long memorandum to the First Gentlemen written during the 1777-78 season, rejected Beaumarchais's and other playwrights' claims of “property” and compared his colleagues to “merchants [commerçants]” who purchased fabric from “manufacturers [fabricants]” for a price and thus took control entirely of the merchandise to dispose of as they saw fit. Bellecour's representation has become the dominant one in modern scholarship; even the most astute historians of early modern literary life have considered playwrights more commercially oriented than other writers under the Old Regime.¹³

As William Sewell and Jean-Laurent Rosenthal, among others, have demonstrated, however, modern, commercial language such as Bellecour's could not adequately describe most early modern property exchange, because ownership of a commodity was rarely considered separate from the personal power to use it. Since this personal power often could not be alienated, the commodity could not be sold or leased outright.¹⁴ The fall was one such instance, because although it ended payments and other droits for the author, it did not result in complete alienation of control over the play to the troupe. While the decision to stage future performances of the play—and the full proceeds from any such performance—passed to the troupe upon the fall, all those concerned (authors, actors, audiences, and supervisors at court) understood the writer should continue to have certain powers over his play, notably the prerogative to have the work printed. When commercially successful editions created new audience demand for a fallen play, the author would generally be notified by the troupe and asked to assist in preparing the revival, the regulations notwithstanding. In some cases, the company even asked the author make revisions in light of criticisms that had appeared in the press of either the performed play or the published text.

In April 1768 the theater's newly created supervisory council of five prominent Parisian lawyers adopted this convention into the regulations, so that all playwrights would be consulted to distribute roles among the troupe members for all performances of their plays, even if the work had fallen.¹⁵ However, six years later, upon the accession of Louis XVI to the throne, the council reversed itself and decided that “the authors should have the droit to distribute the roles of their plays only so long as the plays belong to them.”¹⁶ In response, two writers whose works had recently fallen, Charles Simon Favart and Pierre-Antoine de La Place, protested, writing separately to the council to argue that their prerogatives to distribute roles and modify the text could not be revoked, since such powers depended on neither the First Gentlemen's regulations nor the council's rulings. Each writer claimed such authority as part of their “property,” which they retained even after they were no longer receiving monetary compensation for their play.¹⁷ In 1779, Etienne François de Lantier wrote the theater, admitting to have no further claim to “what are called the droits d'auteur” for his play L'Impatient, but as the author, he should be able to request “six or eight performances … on good days … late in the season,” rather than the poorly attended late summer months.¹⁸

A similar dispute over the author's powers after the fall arose over Antoine Le Mierre's Veuve du Malabar, first performed six times before its fall in 1770. In 1779 the author suggested to the troupe that the work warranted a revival; the actors agreed and requested that Le Mierre revise the play. When the revival became a commercial success, Le Mierre asked to be accorded his full droits d'auteur, arguing that his alterations had been so substantial as to constitute a new play. In response, the actors refused, claiming that the regulations on the fall were clear: “his droits had been lost when the play fell.” They did, however, offer him an “honorarium, only to show … [their] personal affection for him,” which they would pay after the revival. In early July they sent him an accounting and an offer of 8,000 livres, with an accompanying note assuring him of their esteem, based on which “they were willing, for one time only, to bend this article of the regulation which makes them absolute proprietors of all fallen plays.” The troupe's offer amounted to substantially less in monetary terms than one-ninth of net proceeds from the performances, and at first Le Mierre protested, claiming that the regulations assured him of full payment until the new version had fallen. The troupe had, in its estimation, acquiesced to his request for a revival and invited him to revise the text based on custom rather than regulation; yet these actions appeared to Le Mierre as indications that the company recognized that as creator of the play he retained certain powers, even after the play's original fall. In early September, Le Mierre informed the troupe that he would be content simply with the theater's “honorarium” as recognition of his efforts. Thanks in part to the recent success of his revived play, he had become the leading candidate for an open seat in the Académie Française, and he valued such markers of his status as a Comédie Française author as entrance privileges more than the commercial revenues. Finally, on 10 September after having been elected to the Académie, he renounced entirely any further claim to his droits for the play.¹⁹

Such recognition as Le Mierre had sought of his permanent status as author of his play is also evident in the troupe's custom of allowing playwrights, even after the fall, to contract with a printer for an edition without asking for a share of any payments the author received for such an edition. Although neither the theater regulations nor those of the Book Trade discussed dramatic editions, the troupe never sought a privilège for any edition of a play for which it held performance power after a fall, as sixteenth- and seventeenth-century commercial troupes had regularly done.²⁰ (After 1777, when Book Trade regulations allowed authors to obtain privilèges in their own names, the troupe did not seek to prevent playwrights from doing so for plays that had fallen.) Indeed, the Comédiens in certain cases favored authors with whom they were on good terms by granting their requests for revivals of fallen works to coincide with the printing of a new edition; often authors making such requests signaled to the troupe that the authors considered the regulations not to be binding or contractual but mere guidelines concerning literary property. For example, the troupe revived Bernard Saurin's play L'Orpheline léguée on 23 November 1772, under the title L'Anglomane, after the author had politely solicited a revival for which he had made clear that “my intention is not at all to profit from the droits of the revival, and I humbly ask the Comédie to consider the work as belonging to it.”²¹

Another prerogative that some playwrights claimed as markers of their status as authors, even after a fall, was the “privilege to distribute [free] tickets” to performances. As early as 1764, a year before he would achieve great success with Siège de Calais, Pierre-Laurent Buirette de Belloy claimed the power to distribute free tickets to a revival of Zelmire, which had already fallen. In a letter to the troupe, he explained that he considered this prerogative to belong to him personally as the author and thus to be valid throughout his life, not expiring upon the fall. Then, in 1773, by this time widely renowned, Belloy made an even stronger claim when the troupe scheduled a revival of Siège de Calais. Noting that during its successful premiere run in 1765 he had asked the troupe to withdraw the play from the repertory before the fall, he now asserted “it still belongs to me.” At the same time, Belloy renounced any claim to a share of any proceeds, asking only for the full complement of free tickets assured an author by the regulations. Clearly, he considered monetary remuneration to be distinct from—and not as important as—the more publicly visible aspects of the “propriety [propriété]” he claimed to hold over his works.²²

In correspondence with the Comédie Française in the 1760s and 1770s, playwrights generally referred as “property” to any markers—material or not—that distinguished them as the sole authors of their works, even when those markers were not granted by the regulations and had nothing to do with the commercial exploitation of the play through public performances. In a letter to the troupe of 22 September 1777. Claude Joseph Dorat ceded “the revenue from my plays … but conserved the property,” specifying that he intended to continue to “enjoy the droits attached to this property,” such as his personal entrance privileges to the theater and his ability to purchase twenty admissions to the pit for performances directly from the caissier rather than having to line up to purchase them at the door. Dorat made clear that what he sought to preserve was his “status as master of my works … it is only the interest which I abandon.” Dorat reiterated the distinction between “the revenue from my works [that] I abandon forever” and “the property” that he retained.²³

There was thus an evidently noncommercial significance to authors of their “property” and even of the droits owed them by the Comédie. Whether determined by custom, by the regulations, or by a private agreement between the author and the troupe, the perquisites claimed by authors as property rarely could be reduced to monetary payments, nor could they be alienated from the author's person by the mechanism of the fall. Their property claims appear to have been based on concerns not for compensation in commercial exchange but based on recognition of their personal status, just as patrons in Renaissance court culture accorded writers in their entourage powers (such as the privilege of wearing the patron's coat of arms) based on recognition for the individual's personal status and thus independent of any work the individual produced.²⁴ Such marks of recognition as much as or more than financial support had been the basis for traditional forms of royal and elite patronage, and the First Gentlemen and especially the playwrights considered such personal recognition a more appropriate justification for remuneration of men of letters than merely payment for intellectual labor performed.²⁵

DROITS D'AUTEUR: PROPERTY AND PROPRIETY

This noncommercial conception of authorial compensation also manifests itself at the court in the midcentury revision of theater policy toward playwrights. Just after the revised regulations took effect for the 1760-61 season, the First Gentlemen drafted a plan to provide marks of “distinction … to excite the genius” and to promote “the progress of talent” of writers by granting medals as awards, depending on the number and length of works a given author had contributed to the royal theater. The proposed plan would award authors of two successfully staged, full-length works—in addition to their one-ninth payments and their “entrance privileges for life”—“a gold medal” and a “gratification” (one-time payment) of 300 livres; moreover, the court would publicly announce the award in the press. Subsequent full-length works would earn an additional 100 livres of gratification until the fifth work, at which time the award would become an annual pension of 600 livres. Furthermore, while these awards would not be made retroactively, all authors who had previously had at least one full-length work staged successfully would be awarded a medal upon the next successful staging of a full-length play.²⁶

While this proposed system was much more in keeping with traditional forms of royal and elite patronage than the calculation of the author's cut of the revenues, it nevertheless represented a significant departure from the royal pensions and gratifications of the late seventeenth and early eighteenth centuries. Such earlier patronage had been issued to writers directly known to the patron—the king or his minister—and were generally not in response to or exchange for any single work so much as they were awarded to a man of letters himself. Under the proposed system, the degree of monetary and symbolic capital of such awards—to be made in the king's name—would be determined by factors well out of the control of the crown and the court. Moreover, the personal worthiness of prospective recipients would not be a consideration, because the playwright could be, in principle, utterly unknown within the urban elite and at the court. The provision allowing publication of the news in the periodical press makes clear that the intended audience for this recognition would be much broader than merely the court or Parisian elite; it would be, in principle, society at large. Although clearly conceived of as an alternative and an addition to the mere monetary remuneration suggested by the provisions of the regulations, this proposed system of medals similarly assumed a more standardized and impersonal relationship among playwrights, audiences, the troupe, and the court, in which each could and even should remain personally unknown to each other over the course of their relations. Such a system—like the fall—presumed royal recognition to be secondary to the judgment of the commercial, theater-going public. Indeed, the First Gentlemen's draft of the order explicitly stated that medals would make it possible for authors who had “gathered the suffrages of the public” by their success on the commercial Parisian stage also to be accorded “the graces of the King.”

The concept of a playwright's droits as analogous to patronage became evident when, like Molière, the well-known Belloy died before the fall of his plays Pierre le Cruel and Gabrielle de Viergy on 5 March 1775, and a dispute arose over the inheritance of his literary property. When early the next year the Comédie performed Gabrielle, the writer's son and heir, Philippe Nicolas de Buirette, claimed to be the rightful inheritor of his father's property, including remuneration for Belloy's plays and his other prerogatives as an author, such as free entrances and invitations for six guests to performances of “his” play. To support his claim of these powers as his “property,” the heir Buirette submitted to the troupe a notarized document dated April 3, 1775, authorizing him to represent his father in all aspects of his estate, including receiving from the Comédiens Français “all emoluments, privileges, and author's shares which can and could be due by the actors to the successors and heirs of said Sieur de Belloy” and even to reach “treaties and conventions with the Comédiens which he would judge appropriate.” In response, the troupe effectively restated the position that the author Belloy had himself adopted in 1765: that authorial privileges were “strictly personal” attributes of the author himself, and just as they could not be alienated back to the troupe by a play's fall, these privileges could not be handed on to an heir.²⁷

The following autumn, when the troupe staged Pierre le Cruel, the young Buirette again requested entrance rights, and the troupe again rebuffed him on the same grounds. A month later, however, Buirette informed the troupe that he intended to have Pierre printed for the first time, and the company raised no objection. While the troupe recognized that the author (or the author's heir) never lost his right to seek a privilège for an edition, the rights to the performed play—whether ceded by a “personal convention” or under the terms set by the regulations—were not transferable because they had been accorded to the author's person. Having achieved some satisfaction, Buirette then sent the actors a long memorandum in fall 1778 in which he estimated the total droits d'auteur due him to be 14,800 livres for posthumous performances of his father's six plays. Rather than claim these payments as compensation due under the regulations, however, he offered to cede completely all claims of remuneration to the troupe in exchange for merely 6,000 livres and “the privilege, for all performances of the plays of M. de Belloy, of six [free] amphitheater seats and to purchase up to twenty tickets to the pit” at the normal price. The players agreed, and by a notarized contract dated 4 November 1778, Buirette granted the troupe “the dramatic works of the late … Belloy to dispose of … in the manner which seems to them best and as belonging to them in all propriety, as of this day.”²⁸

In claiming the legacy of his father's droits d'auteur, Buirette fils sought not only or even primarily the remuneration; he explicitly and repeatedly demanded public markers of personal status, such as being able to invite an entourage to appear at the theater with him. Moreover, he incorporated these concerns over status into his claims to be the heir and therefore proprietor over his father's works, even as he claimed that his propriety justified the sale of the plays as commodities. Despite the contractual nature of the exchange that he proposed in his memorandum, Buirette clearly retained a sense of inalienable personal privilege, and hence personal prominence, as central to his understanding of the droits d'auteur and propriété. Buirette's claims demonstrate a tension between the payment of the playwright as, on the one hand, monetary compensation due the proprietor of a play for control over its commercial exploitation, and, on the other hand, as one among several symbols of social recognition due the writer in recognition of his personal status.

In this way Buirette deployed what Norbert Elias has called different “registers” in a “gradient” of discourse—in this case, ranging from courtly, clientelistic, and purportedly disinterested to contractual, impersonal, and interest-oriented. To Elias, such facility in deploying different registers was crucial to the social success of the later eighteenth-century “court bourgeois,” because it allowed one to adhere to both the traditional norms of clientelism at court and to the increasingly commercial norms of the larger society. Like Mozart, whose position in the 1770s Elias analyzed at length, Buirette and many other playwrights claiming “literary property” from the Comédie Française held the difficult position of “established outsider”: marginalized among court elites and therefore needing to demonstrate adherence to courtly norms of subservience, disinterest, and self-effacement, while at the same time needing publicly visible markers with which to distinguish themselves to the outside world as possessing a comfortable prominence at court. The tension inherent in their claims of droits might be seen as strategy for trying to achieve both of these goals at once. Yet many Comédie Française playwrights in the 1770s faced a problem in doing so. Unlike Mozart, for example, most playwrights lacked experience in relations with the troupe and court. Thus they struggled to find the appropriate language for addressing the troupe, the First Gentlemen, and the council as they sought droits as markers distinguishing them as playwrights for the royal theater.²⁹

As petitioners to the Comédie Française, playwrights found themselves in a different situation from composers such as Mozart, who generally worked directly for patrons, or from those book authors who rendered their work public through print alone. By virtue of the Letters Patent granting it sole authority to stage French-language plays in Paris, the Comédie Française constituted the only legitimate outlet for dramatic literature. Moreover, by order of the lieutenant-general of police, editions of plays could be authorized only if the work had been staged by a royal theater. Finally, because of its great prestige, the Comédie Française served as a gatekeeper to provincial and foreign theaters, who generally composed their repertories from works that had already fallen from its stage.³⁰ Unlike a printer's privilège for an edition, which expired after a set number of years, control of a play after the fall reverted definitively, if incompletely, from the playwright to the theater. Thus, authors claimed, the Comédie could control the conditions under which they put their works before a commercial public—a dominating gatekeeper position that no printer held over writers seeking to publish works.

Playwrights, thus holding a subordinated position to the Comédie, had to base their demands for literary property on a concept that suited this configuration. Whereas authors petitoning for recognition of their literary property by printers could call for freedom of exchange between producer and consumer and for their personal autonomy as individuals to speak to a public, playwrights could not describe their relations to their public in terms of market exchange, precisely because the Comédie occupied such a powerful position as the sole legitimate venue in which to publicize their works. A model of commercial exchange thus favored the interests of the monopolistic royal theater rather than individual authors. Moreover, playwrights proposing works to the Comédie implicated themselves not only in a commercial enterprise but also in an institution of the royal court, where they faced a set of cultural imperatives not present in relations between writers and printers. Thus, to be considered worthy of a public identification with the royal theater, dramatic authors had to present themselves in language and comportment as honnêtes hommes—as self-effacing and disinterested in personal gain and, above all, consistent with the hierarchical norms of the court. At the same time, as previously discussed, playwrights demanded recognition by the theater of certain personal prerogatives. To make these demands without violating the imperative of honnête comportment, playwrights expressing their concern for property and droits at the same time insisted they had no concern for whether their play held commercial value or whether they were entitled to money under the regulations. Instead, they asked for something of no import in relations between writers and printers: personal powers that would distinguish them publicly as authors for the Comédie and thus as gens de lettres.

BEAUMARCHAIS: MAN OF PROPERTY

This context must be kept in mind to understand properly Beaumarchais's petition for “literary property” on behalf of the Société des auteurs dramatiques (SAD), a group of twenty-two playwrights Beaumarchais assembled in July 1777 at the request of the due de Duras, to recommend reforms to the regulations governing the fall, droits d'auteur, and author-theater relations in general.³¹ The petition, first drafted in August 1777 and then revised and submitted in mid-1780 to Duras, complained of the “Comédiens’ usurpation … of the authors' property [and] their droits” and asserted that the Comédiens deliberately abused the “fall … to appropriate exclusively for themselves the future fruits of brilliant revenues in which the author will no longer share [after the fall].” Avoiding any discussion of personal interest—his own or the authors' collectively—Beaumarchais argued that the Comédie, meaning the actors and their council of lawyers, committed “a manifest theft” from the public and the crown by depriving playwrights. Not only did such an “absolute loss of their property” constitute a financial hardship for “men of letters”; it had the more deleterious social consequence of “discouraging many from working for the theater and thus diminishing the attraction of the theater for the public.”³²

Beaumarchais allowed in his memorandum that the fall had been a useful practice for theaters in the seventeenth century; in that age, authors and actors alike understood that the point at which the play no longer generated a profit (and thus no longer held interest to the public) effectively represented the end of any profitable commercial exploitation. Thus seventeenth-century authors had had no reason to contest the provision that upon the fall, the play should pass from the active into the permanent repertory. In effect, Beaumarchais implied, the fall had functioned well until recently, because authors, the troupe, and the public had acted with honnêteté—personal disinterest and mutual respect for each other's standing. Moreover, he stated explicitly, the fall had functioned well until 1759, when the entirety of the theater's revenue came from daily admissions sold at the door, so there had been no difficulty assessing when a play fell. Authors in those years had understood that a play that could no longer generate more revenue than production costs held no further interest for the theater or the public.

However, Beaumarchais argued, this simple mechanism—and the honnête basis for social relations it presumed—had become complicated in the past twenty years by cultural and economic changes in the theater, including the audience's growing desire for new works and an increasing effort by the ministry of the Royal Household to cut theater costs and enhance revenues. This combination, he claimed, had led the First Gentlemen to approve the installation of box seats in the theater, admissions to which were purchased by subscription and therefore not counted in the daily receipt. This change, along with the increased minima established by decrees in 1757 and 1766, had caused new plays to fall more quickly, after only a handful of performances—well before audience interest and the commercial potential of a play had been exhausted. This situation, Beaumarchais argued, created a conflict of interest within the theater. As a play appeared to approach a fall (that is, when it had once generated revenues below the minimum), the nature of relations between authors and the troupe changed from one of mutual interest (presumably in service to the public) to one of wariness. Authors now had an incentive to withdraw a play from the active repertory (and thus the public) before the fall, while the troupe could gain by precipitating the fall of a new play and then adding it to the permanent repertory.

To avoid giving the court an impression that he and the other playwrights sought self-interest in bringing this complaint, Beaumarchais framed the case in terms of service by “men of letters” to “the public.” He argued that the exclusion of revenues from subscriptions in determining the fall deprived the public of opportunities to see additional performances of plays for which it expressed a continuing interest—this interest being demonstrated by the revenue these additional performances would generate, if the subscription revenue were included. Moreover, Beaumarchais suggested that the troupe did not want to honor this desire of the public; he charged the troupe with seeking to generate greater revenue for itself by paying authors less. By not readjusting the calculation of the fall (and thereby not seeking to augment the number of performances of a new play), Beaumarchais argued, the actors and not the authors showed themselves to be mercenary, self-interested, and without honnêteté. For the troupe, he argued, the fall had become a mechanism for maximizing the theater's revenue (and the actors' shares) and no longer allowed the public to express its continuing desire for a play. As a consequence of “having clandestinely stolen from the authors the propriety [propriété] over their plays,” Beaumarchais wrote, the troupe members turned the fall to their own interests at the public's expense.

To rectify this abuse, Beaumarchais proposed that playwrights should receive full droits for all performances, whether or not the play had fallen. Thus the fall would continue to provide a mechanism for ensuring turnover of new plays in the repertory, but it would be separated entirely from the issue of control over the work. Authors then would be eligible for droits—payment and the accordance of personal prerogatives such as free entrances and the authority to distribute roles—for every performance regardless of the work's commercial value. Moreover, to further “the noble idea of freeing men of letters from any complicated calculations” based on arbitrary commercial factors, Beaumarchais proposed a lump-sum system of authorial remuneration to replace one-ninth of the net revenues. Going further than had Le Mierre or Buirette while remaining disinterested and thus honnête, Beaumarchais proposed an alternative idea of authorial property as a personal attribute, existing anterior to and not dependent on the commercial exploitation of the work.³³

In this respect. Beaumarchais's petition also made a much further-reaching assertion of authorial property than the Book Trade regulations of August 1777, which recognized only the author's right to a privilège—a monopoly over commercial exploitation—and not any anterior property over a text by virtue of having created it.³⁴ In contrast, his argument that droits d'auteur not cease with the fall implied that the author should be recognized as having a proprietary status over the text from the moment of its creation, through commercial exploitation, and even after the author's life—regardless of any variation in the work's commercial value.

In calling for droits to be awarded an author even after the fall, Beaumarchais implied that the author's personal prerogatives should be considered a personal attribute and would not be alienated through commercial exchange—just as a seigneur could demand droits in exchange for use of his land while always retaining his “property” in the sense of power over the domain. Indeed, only this sense of property would have suited his claims, given that he was concerned to distinguish between the theater's commercial exploitation of playwrights' literary property and the personal, permanent, and inalienable status of authorship.³⁵ In accusing the Comédiens of a “usurpation” of authors' droits, Beaumarchais meant that the Comédiens were not honoring the obligations (droits) they had incurred toward those with the personal attribute of being authors, a status that could not be determined by the market or the royal theater regulations. Thus the essential problem addressed in his petition was not monetary payments but the underlying question of when, in what ways, and for what purposes a playwright ought to be recognized as having the personal status of an author.³⁶

Beaumarchais reiterated this sense of propriété littéraire in a letter to Duras written on 20 July 1780, in which he specified that his “property” involved two separate questions: the condition of being entitled to certain prerogatives as the play's author and the payment of one-ninth of the net commercial revenue. In this letter he again questioned the validity of the fall as the end of the author's property, arguing that although the fall might signal the end of commercial revenues to the theater from the play, it did not end his status as an author and thus the prerogatives due him as author. Beaumarchais insisted here that even after the fall, literary property and droits must be recognized precisely so playwrights could continue to be “men of letters.” If deprived of their material and moral prerogatives as a consequence of a play's fall at the Comédie, playwrights would be unable to “live honnêtement,” even were they to receive “places and pensions.” A writer without “property,” even if compensated in royal largesse, would be debased, having to “prostitute his pen to subsist, among distasteful persons [dégoûts] who are always showered with the favor of the great.” At that point, Beaumarchais implied, even if he enjoyed sufficient material support, he would indeed have become self-interested because he would be compensated for what he wrote, not who he was; at that point, he would cease to be a “man of letters.” Beaumarchais clearly and explicitly equated the social recognition—by the theater and presumably by the larger society—of his status as proprietor with the status of honnête homme, but not as one who lives off the commercial value of his property. Beaumarchais's ideal of a literary proprietor was one who could avoid seeking revenues of any sort from his works, even patronage, which was becoming less available to him and to other writers in the late 1770s.³⁷

Beaumarchais again expressed a desire for recognition of his literary property as a marker of his social status—rather than as merely a source of revenue—in a subsequent letter to Duras. When frustrated with the slow progress being made on new theater regulations, he threatened to “leave the path of accommodation” if an agreement was not reached soon on the fall and the droits d'auteur. If the First Gentlemen could not recognize playwrights' personal status as “men of letters” by granting them droits for all performances of their works, he and the other members of the sad would have to establish that status for themselves through a “public discussion of our interests.” Here again, Beaumarchais avoided making a Lockean argument from economic interest in which personal property is valued as a guarantor of both economic autonomy and a stake in the established social order. Instead, he argued precisely the inverse: for social recognition of writers' property as a status, to guarantee they could interact as honnêtes hommes with the royal theater (and its superiors, such as Duras) on a basis other than pursuit of personal interest.³⁸

In this respect Beaumarchais's arguments for literary property recall Robert Darnton's famous discussion of “Grub Street hacks” as those deprived of patronage, forced into venality, and thus resentful toward a “High Enlightenment,” which they equate with the exclusivity and hierarchalism of the court.³⁹ Darnton, and the many attempts to use, modify, or refute his model of a “High Enlightenment” and a “Low-Life,” effectively frame the question as those forced onto the literary marketplace versus those kept safe from it by noncommercial revenue, such as patronage. Here Beaumarchais takes a different perspective altogether, when he equates clients who receive patronage with being “distasteful persons … who prostitute their pens to subsist”; moreover, he argues for authorial property neither as a necessary component of a literary marketplace in which he and other writers could achieve autonomy (which they never could in the context of the theater, given the need for actors, costumes, etc.) nor as an alternative to patronage (because the payments from the royal theater could be understood as both commercial revenues and patronage). Even if we consider this phrase as an example of Beaumarchais's penchant for figurative language well suited to the moment, it is worth noting that his letters to Duras specifically reject any desire at all for personal autonomy through pursuit of “interest.” Furthermore, they explicitly equate both patronage and commercial compensation with a derogation of his status as an “honnête … man of letters.” In petitioning for literary property from the theater and the court, Beaumarchais sought neither patronage nor absolute property rights but the recognition of the nonmaterial, personal powers he called droits.

OLD RéGIME DROITS VERSUS ENLIGHTENMENT PROPERTY

Scholarship on eighteenth-century literary life has established book publishing as the norm and Enlightenment ideals of economic rationality as the expected motivations of Old Regime gens de lettres. For this reason, the efforts of Beaumarchais and the sad to have the Comédie Française regulations revised in 1777 have been interpreted as coincidental and ancillary to the intense pamphlet debate of that year over new regulations for the Book Trade. This coincidence has been interpreted in turn as evidence of a common desire of all Enlightenment-era writers for greater personal autonomy, understood in part as commercial property rights that could provide individuals a basis for unfettered self-expression.⁴⁰ However, this discussion has shown how Beaumarchais's claims of literary property ought to be understood in the context of the theater, as distinct from book publishing. To do so, one must then read his petition as drawing from a different tradition of thinking about property—a distinctly early modern conception that he could most clearly express as droits d'auteur. Himself the seigneur of an entailed fief from which he took his name, Beaumarchais drew from a legal theory in which droits utiles, meaning payments, were not made in exchange for goods but as instances of droits honorifiques, paid in recognition of the recipient's “quality.” This theory arose from seigneurial law, in which personal propriété described not a commodity but a power, or more precisely, a status of dominion over both a resource and those who used that resource. In terms of seigneurial law, vassals paid droits not as direct compensation in commercial exchange but as personal obligations due to the lord out of recognition of his dominant status.⁴¹

To understand this concept of literary property, it is necessary to step away from the tendency of Enlightenment scholars to view eighteenth-century writers (and Beaumarchais in particular) as avatars of modern consciousness, individuals seeking to break out of the restraints of early modern French society and to establish personal moral and material autonomy in a modern, commercial society. Such anachronism is particularly evident in French legal writing on the Old Regime, which generally interprets the term droit d'auteur to mean the category of law concerning an author's powers in the commercial exploitation of his works; the term did not take on this sense in legal or common usage until the Second Empire, however.⁴² At the same time, most U.S. scholarship on the topic has sought to explain the eighteenth-century origins of and divergences between French droit d'auteur and U.S. “copyright.” However, like the French jurists, U.S. scholars have not considered differences between theater and book publishing in France; consequently, the discussion has not looked into other early modern French theories of property beyond those thought to be consistent with the Enlightenment, namely Lockean, Smithian, and Kantian ideals of property, labor, and genius, respectively. Scholars have thus achieved a near consensus attributing the differences to national variations on Enlightenment themes, in which English, Scottish, German, and American thought more closely embraced the author as an individual in the market, whereas French thinking emphasized personal genius as resulting from a social process of Enlightenment and thus conceived literary property law as an encouragement for writers to serve the public good.⁴³

This largely idealist framework has led most commentators to suggest that droit d'auteur appeared as a new term in the eighteenth century as a function of new Enlightenment conceptions of the property-owning, autonomous individual—and thus having already the contemporary meaning of the payments due the author for each reproduction of the work.⁴⁴ Moreover, most scholars treat the term propriété littéraire as meaning an alienable commodity free from personal obligation—a sense of property not common until well after the French Revolution. This view thereby ignores the drastic changes in the meanings of the terms droits and propriété during the Revolution, reading Old Regime instances as carrying contemporary rather than distinctly early modern meanings. By focusing primarily on the late Old Regime Book Trade decrees, jurists, critics, and historians have taken a Whiggish view of the Convention's 1793 legislation interpreting personal intellectual property rights as the synthesis of Kantian ideas of genius into the Lockean ideas of property codified by the 1777 Book Trade reforms.⁴⁵

A measure of the influence of this view is that the leading contemporary historian of revolutionary literary property legislation, Carla Hesse, looks only to the Book Trade for prerevolutionary concepts of literary property, and thus does not consider the possibility that Revolutionary legislators debating droits d'auteur from 1791 to 1793 sought to replace not only printers' privilèges but also playwrights' droits—in the sense of personal, noncommercial powers over their works. Hesse does point out that Comédie Française playwrights, led by Beaumarchais and fellow veterans of the sad, took the lead in 1790 in agitating for legislation assuring personal “authors' rights,” thereby certainly suggesting the need to integrate playwrights' pre-1789 claims for droits d'auteur into our understanding of the origins of revolutionary literary property law.⁴⁶ Further evidence supporting the need to look more widely for origins and consequences of the 1793 legislation comes from recent work on figurative artists, since the Convention also closed the Académie royale de peinture et de sculpture in 1793 and awarded artists' not only sole commercial control over their works but also protection from reproductions.⁴⁷ To question the dominant paradigm, scholarship on literary property should also learn from recent treatments of revolutionary legislative debates over agricultural property, which have demonstrated how revolutionaries willfully misread Old Regime droits seigneuriaux (the exploiter's obligations to the proprietor) as political droits (in the sense of “rights”) in an unsuccessful effort to collapse many Old Regime meanings of property into a single one.⁴⁸

PROPERTY AND POWER IN THE AGE OF ENLIGHTENMENT

Hesse, Roger Chartier, and others have demonstrated that the 1777 Book Trade decrees drew propriété littéraire from the tradition of droit de copie by which an author could sell to a printer the power to reproduce a work commercially (a power represented by a privilège); moreover, they have shown that the privilège indeed was regarded by printers and writers as commercial, alienable, and allodial (i.e., not subject to personal obligation).⁴⁹ This tradition indeed viewed the author as an interest-oriented property owner, deserving compensation for the commercial exploitation of his valuable commodity, by virtue of the labor and genius he put into creating it, but whose compensation comes when he sells outright his work as property. But if this tradition can no longer be seen as the sole source of revolutionary and subsequent literary property legislation in France, as previously argued, where else should historians seek an alternative?

Droits de copie and privilèges had never existed in the royal theaters that—especially from the founding of the Comédie Française in 1680 to its reform in 1757—operated according to courtly principles of patronage and clientage, and in which authors' rewards were understood primarily as markers of social status rather than monetary compensation for a text as an alienated commodity or as remuneration for labor performed in writing a text. Moreover, printers purchasing droit de copie never paid authors droits or awarded other prerogatives for reproductions of the work; the relationship was entirely contractual, involving a cession of powers to exploit the work commercially for a fixed period of time in exchange for a fixed sum of money. Although some early seventeenth-century playwrights such as Alexandre Hardy had sold what amounted to performance rights for their plays to troupes for lump sums, the Comédie Française never followed this practice. Instead, the royal regulations always dictated that authors be paid a share of proceeds and awarded other prerogatives, until the fall.

Especially after 1757, playwrights needed to demand actively their proceeds and prerogatives from an increasingly commercially oriented, yet still monopolistic, royal theater. To make these demands without sacrificing credibility and good relations with the royal theater (and, by extension, at court and before the Parisian public), they claimed droits not as payments made in exchange for the value of the play or compensation for intellectual labor performed but as markers of personal status. In effect, Beaumarchais and others of his generation were making new arguments for recognition from the theater (and its audiences) of each individual's social prominence and personal identity, but based on an early modern concept of property as a distinguishing status marker rather than as a personal, commercial interest. Drawing on traditional ideas of property to claim new personal powers, the recognition of propriété littéraire they sought meant not the right to sell their plays as commodities (for which they had no other market than the Comédie) but the nonmonetary prerogatives they expressed as droits d'auteur.

Thus conceived, playwrights' demands for droits d'auteur indicate an altogether different understanding than either an equivalent of “copyright” or an author's “right” in the natural law sense of droit de l'homme. Given what we have seen to be the nature of many playwrights' demands, it is clear that by droits d'auteurs Beaumarchais and others sought not just monetary payments but rather personal powers, which might be understood as droits honoraires. In this sense, payments of droits d'auteur would be best understood by the eighteenth-century meaning of “royalty” payments. In English the term royalties has meant, since the late nineteenth century, payments made to an author for each commercial use of a work for which the author holds “literary property.” The term originated with the sense of personal prerogatives enjoyed by the sovereign, such as the exclusive power to mine the land. In French, mining rights were among the droits régaliens, those powers belonging to the king by virtue of his sovereign status. In return for paying droits honoraires (by the eighteenth century, in cash), a private individual would be granted permission by the crown to exploit commercially what was mined from the land, but these payments in no way constituted a purchase of either the land or the power, even temporarily, to mine it. The English equivalent—royalties—had an identical etymology, and in English the word was adopted directly into intellectual property. In French, however, the term for similar payments for use of intellectual property became droits d'auteur. This semantic shift occurred in theater rather than the book trade because only the theater employed such practices as the fall and the payment of one-ninth of revenues—and because public theater, while commercial, still existed much closer to the world of the court, which retained early modern languages and values (of property as status and power), than to the market, where new concepts of property were being articulated.

Liberal historians, from the Third Republic to today, have emphasized these newer, commercial concepts of property in Enlightenment discourse. Moreover, they expected such assumptions of individual autonomy and interest-oriented pursuit of property to inform the comportment of leading eighteenth-century writers such as Beaumarchais. Jules Bonnassiès and Jacques Boncompain, for example, have both read Beaumarchais's demand for literary property and droits d'auteur as based on a modern sense of natural rights. The evidence and arguments presented in this article suggest however that Beaumarchais's claims should be read instead as demands that the royal troupe recognize its obligation to men of letters, through acquiescence to their desires in revising texts, distributing roles, scheduling of performances, enjoying free entrance privileges, and so forth, and above all, that this obligation be recognized regardless of the varying commercial value of the play. Indeed, the emphasis that Buirette, Le Mierre, Beaumarchais, and others put on nonmonetary droits suggests that they were concerned first and foremost with their ability to control the publication of their work and be recognized for it (rather than to profit from it).⁵⁰

In playwrights' responses to the fall, there is clear evidence of an alternative concept of authorial property—one necessarily emerging from the world of theater and thus of early modern court culture, based not on Lockean ideals of property, interest, and personal autonomy, but on a distinctly early modern sense of property as a relationship between status and power—and one that needs now to be integrated into our understandings of Enlightenment thought, of the motivations of eighteenth-century gens de lettres, and of how literary institutions operated in public life at the end of the Old Regime.

Notes

1. Paris, Beaumarchais Family Archives (baf)XI bis, XVI, fols. 1-12.

2. Denis Diderot, Lettre historique et politique sur le commerce de la librarie (in his Ouvres complétes [Paris, 1963-73] 5: 305-81), originally written in 1763 and republished as Lettre sur la liberté de la presse (Paris, 1777). On this text as exemplary expression of Lockean thinking on literary property, see Roger Chartier, The Cultural Origins of the French Revolution, trans. Lydia G. Cochrane (Durham, N.C., 1991), 53-56; and Carla Hesse, “Enlightenment Epistemologies and the Laws of Authorship in Revolutionary France, 1777-1793,” Representations 30 (1990): 114-16. The six decrees are reproduced in E. Laboulaye and G. Guiffrey, La Propriété littéraire au XVIIIe siècle (Paris, 1859), 127-50.

3. The standard legal references on the history of droit d'auteur in France take this point of view: Marie-Claude Dock, Etude sur le droit d'auteur (Paris, 1963), 127-40, and Henri Desbois, Le Droit d'auteur en France, 3d ed. (Paris, 1978), both draw heavily on Paul Olagnier, Le Droit d'auteur (Paris, 1934). See also the recent important historical works on literary property by Roger Chartier (Cultural Origins, 42-56), Carla Hesse (“Enlightenment Epistemologies”), and Raymond Birn (“The Profits of Ideas: Privilèges en librairie in Eighteenth-Century France,” Eighteenth-Century Studies 4 [1970]: 131-68). For the distinction between American and French traditions, see Jane C. Ginsburg, “A Tale of Two Copyrights: Literary Property in Revolutionary France and America,” in Of Authors and Origins, ed. Brad Sherman and Alain Strowel (Oxford, 1994), 131-59.

4. This argument is made or implied in all of the following: Jules Bonnassiès, Les Auteurs dramatiques et la Comédie Française aux XVII et XVIIe siècles (Paris, 1874): Jacques Boncompain, Auteurs et comédiens au XVIIIe siècle (Paris, 1976); Rémy Landy, “La Harpe, Beaumarchais et les revendications des auteurs dramatiques, 1777-1799,” Dix-huitieme siècle 11 (1979): 355-70: Roger Chartier, “Trajectoires et tensions culturelles de l'Ancien Régime,” in Les Formes de la culture, vol. 4 of Histoire de la France, ed. André Burguière and Jacques Revel (Paris, 1993), 373: idem, “Figures of the Author,” in The Order of Books: Readers, Authors, and Librairies in Europe between the Fourteenth and Eighteenth Centuries (Cambridge, 1994), 29-59; idem, Cultural Origins, 56-66; and Robert Darnton, “The Facts of Literary Life in Pre-Revolutionary France,” in The Political Culture of the Old Regime, ed. Keith Michael Baker (Oxford, 1989), 261-91.

5. On the first, see Jeffrey S. Ravel, The Contested Parterre: Public Theater and French Political Culture, 1680-1791 (Ithaca, N.Y., 1999), and Roger Chartier, Forms and Meanings (Philadelphia, 1995), 43-83; on the second, William Sewell, Work and Revolution in France: The Language of Labor from the Old Regime to 1848 (Cambridge, 1980), 115-21: and on the third, Alain Viala, La Naissance de l'écrivain (Paris, 1985). Viala argues that by 1680 the “first literary field” had been constituted in France, but that certain commercial aspects of an “autonomous” field, including the development of “literary property,” had been “braked” by the growing power of the crown over that field. On writers in the eighteenth-century literary field, see Eric Walter, “Les Ecrivains et le champ littéraire,” in Histoire de l'édition française, ed. Henri-Jean Martin and Roger Chartier, (Paris, 1984), 2: 382-99; on the genesis of a commercially driven, politically autonomous field in the nineteenth century, see Pierre Bourdieu, The Rules of Art (Stanford, Calif., 1996), 47-140, 285-312.

6. Dominique Leroy, Histoire des arts du spectacle en France (Paris, 1990), 213-37, explains that a reliance on new plays—rather than on the celebrity of specific performers—characterized the “stock system” on which seventeenth- and eighteenth-century fixed commercial troupes were organized. The stock system involved a troupe composed of fixed personnel performing a variable repertory of plays over the course of a season in a single venue.

7. On the development of French commercial theater before 1680, see W. L. Wiley, Early French Public Theater (Cambridge, Mass., 1960). On the establishment of the fall, see Pierre Mélèse, Le Théâter et le public sous Louis XIV (Geneva, 1967), 179-87. Mélèse discusses the founding and early history of the Comédie Française on 29-80; the “Lettre de cachet pour l'établissement des Comédiens du Roi” is in Paris, Bibliothèque de la Comédie Française (bcf), IV A, #1.

8. Jules Bonnassiès, La Comédie Française: Histoire administrative, 1658-1757 (Paris, 1874). The First Gentlemen were named “superiors” for the theater by a royal “Ordonnance sur la surveillance des Comédiens,” Bibliothèque Nationale de France. Département des manuscrits, Fonds français (bnf-mss ff), 24330, fol. 93.

9. bcf, “Feuilles d'assemblée,” 22 Mar. and 5 Apr. 1683.

10. bcf, IV A, #2 bis, 1719: Paris, Archives Nationales (an) Minutier Central, XLIV, 1011. #52, 1757. The latter were printed as Arrests du Conseil d'état du Roi, Lettres Patentes, Acte de société et Règlements de Messieurs les Premiers Gentilshommes de la Chambre du Roi, concernant les Comédiens Français (Paris, 1761).

11. Henri La Grave, Le Public à Paris, 1715-1750 (Paris, 1973), 173-76.

12. For a fuller discussion of playwrights' droits under royal theater regulations, see Gregory S. Brown, “A Field of Honor: The Cultural Politics of Playwriting in Eighteenth-Century France.” (Ph.D. diss., Columbia University, 1997), 38-167.

13. bcf, dossier, “Démèlés avec Mssrs les auteurs.”

14. Sewell, Work and Revolution in France, 115-20: Jean-Laurent Rosenthal, The Fruits of Revolution: Property Rights, Litigation, and French, Agriculture: 1700-1860 (Cambridge, 1992), 59-100, 125-48, on the market of water-use rights. See also William Doyle, Venality: The Sale of Offices in Early, Modern France (Oxford, 1996), 196-238.

15. bcf 124a. fol. 35; 1 Apr 1768.

16. bcf 124e: 22 Jan. 1774, article 2.

17. bcf 137a, fol. 18. Favart had enjoyed success not only at the Française but also at some of the less prestigious “boulevard theaters,” which generally purchased plays outright from authors for a lump-sum payment; thus they had no fall.

18. bcf 137a, p. 104, 2 Aug. 1779. Like Favart, Lantier had been successful in the boulevard theaters before the royal troupe solicited L'Impatient, which rapidly fell.

19. bcf 137a, p. 110, 18 June 1780: bcf, dossier, “Le Mierre,” letter dated “July 1780”; bcf 137a, p. 110, 1 Sept., p. 116, 10 Sept.

20. Alexandre Hardy had been sued by a commercial troupe in 1625 after selling to a printer several plays that the troupe had already purchased from Hardy, performed, and then withdrawn from its active repertory. See the documents in S. Wilma Deierkauf-Holsboer, Vie d'Alexandre Hardy (Paris, 1972), 211-16.

21. bcf 52-24, fol. 20. Requests for one-show revivals of their works to accompany second printed editions were also made in Feb. 1776 by Dorat for Célibataire and Favart for Anglais à Bordeaux (bcf 124a, fols. 17-18).

22. bcf 124a, fol. 5 (1764); fol. 67 (1773).

23. bcf 137a, fol. 54.

24. On early modern patronage to writers on a model other than commercial exchange, see Cynthia J. Brown. Poets, Patrons, and Printers: The Crisis of Authority in Late Medieval France (Ithaca. N.Y., 1995); Chartier, “Figures of the Author”; Natalie Zemon Davis. “Beyond the Market: Books as Gifts in Early Modern France,” Transactions of the Royal Historical Society 33 (1983): 69-88: and Viala, Naissance de l'érrivain, 54-57.

25. The sense of honoraires being marks of recognition rather than compensation for services performed characterized the self-conceptions of another group of non-noble but socially prominent gens d'esprit—lawyers—up until the 1760s. On how lawyers interpreted their remuneration in the Old Regime, see Michael P. Fitzsimmons, The Parisian Order of Barristers and the French Revolution (Cambridge, Mass., 1987), 12-22; and especially David A. Bell, Lawyers and Citizens (Oxford, 1993). Bell argues for a significant transformation in this concept in the 1770s from the traditional view of lawyers as orateurs working for gloire toward an alternative but equally non-commercial concept of themselves as defenders of public liberty, which especially appealed to younger more marginal barristers.

26. an 01 844, #2. 1 Jan. 1762. Similar systems of reward—not linked to the commercial success of any play but to the number of works contributed—would later be instituted at the Academie royale de musique (Opéra) and the Comédie Italienne.

27. bcf, “Belloy,” #20; #16.

28. bcf, “Belloy,” #12, 30 Nov. 1777; #13, 13 Dec. 1777; #9. The troupe's discussion of this offer at the assembly of 30 Sept. 1778 is recorded in bcf, Register 137a, p. 78, where it agreed to these terms “to assure for the Comédie the rights to Belloy's tragedies forever and to calm le Sieur Buirette.” In the margins of the ensuing treaty, Buirette's signature acknowledges receipt of 6,000 livres in two payments, 26 Nov. 1778 and 23 Feb. 1779 (bcf, “Belloy,” #19).

29. Norbert Elias, Mozart: Portrait of a Genius (Cambridge, 1993), 29-35 and 104: and for more in general on “established and outsider relations” (as opposed to relations determined by economic interest such as class), see Elias's Established and the Outsiders (London, 1994).

30. On the sociological concept of a gatekeeper as a mediation in the production, circulation, and appropriation of cultural forms, see Lewis A. Coser, Charles Kaduskin, and Walter W. Powell, Books: The Culture and Commerce of Publishing (Chicago, 1982), 4-5 and 362-74.

31. On the history of the sad, active from 1777 to 1780, see Brown, “A Field of Honor,” 308-593.

32. baf XI bis. XVI. fols. 5-12. This same language of “usurpation” of property also occurs in Beaumarchais's “Observations” on the Comédie Française, written on 26 April 1780 and distributed that spring to his fellow authors, the First Gentlemen and the troupe (bnf ff 9228, fol. 87) and in the lengthy narrative of the sad he wrote in late 1780 (an 01 845 B).

33. baf XI, XVI, 36.

34. Pierre Recht, Le Droit d'auteur (Gembloux, Belgium, 1969), 33, distinguishes between the privilège granted by the decrees of 1777 and the twentieth-century French legal understanding of literary property as a power of the author, a concept that appears to describe playwrights' claims in the Old Regime.

35. Sewell, Work and Revolution in France, 115-20, identifies three different kinds of property rights: absolute personal dominion, property held for the public good, and property in public functions, the third of which included seigneurial property, which best describes Beaumarchais's use of “property.”

36. In arguing that Beaumarchais was concerned above all in his petition with the status of authorship, I am suggesting that he understood this to be an attribute of a person rather than of a text. This distinction sets off the question at hand from what Foucault famously discussed as the “author-function” of a text in “What Is an Author?” in Textual Strategies, ed. Josué Harari (Ithaca, N.Y., 1979). Much recent American literary scholarship on the eighteenth century has generally followed Foucault in considering “authorship” an attribute of a published text; see the articles in The Construction of Authorship (Durham, N.C., 1994), ed. Martha Woodmansee and Peter Jaczi. This school of thought can be contrasted with recent work on this question by French historians who (like Beaumarchais) tend to emphasize the ascription of the social identity of “man of letters” based on personal comportment and associations, rather than the writing or publication of a text: see Viala. Naissance de l'écrivain; Walter, “Les Ecrivains et le champ littéraire”; Chartier, “Figures of the Author”; and Daniel Roche, “L'Intellectuel au travail,” in Républicains des lettres: Gens de culture et de lumières au XVIIIe siècle (Paris, 1989), 218-23, and “République de lettres on royaume de moraux?” Révue d'histoire moderne et contemporaine 43 (1996): 293-306. The distinction between authorship as a personal attribute and authorship as a function of the published work is also significant to contemporary legal scholars, who consider it a crucial difference between French and Anglo-American traditions of literary property.

37. Beaumarchais to Duras, 20 July 1780. Reprinted in Révue retrospective, 2d ser., 7 (1835): 446-52.

38. Beaumarchais to Duras, 27 July 1780, in Révue retrospective, 453-54.

39. Robert Darnton, “High Enlightenment and Low-Life of Literature in Pre-Revolutionary France,” in Literary Underground of the Old Regime (Cambridge, Mass., 1982), 1-40.

40. Chartier, in Cultural Origins, mentions Beaumarchais and the sad after discussing the Book Trade decrees as further evidence of the “autonomisation of the literary field” (65). Even specialists on eighteenth-century playwrights, from Bonnassiès's Auteurs dramatiques to the more recent Boncompain's Auteurs et comédiens, have attributed Beaumarchais's formation of the sad in 1777 to the debate over Book Trade regulations.

41. The conception of droits described here is drawn from the sections droits seigneuriaux and droits honorifiques in the article “Droit” of the first edition of the Encyclopédie (5: 142-47; quoted from the artfl database <http://humanities.uchicago.edu/ARTFL/=) as well as the entry “droits seigneuriaux” in Marcel Marion, Dictionnaire des institutions de la France, XVIIe-XVIIIe siécles (Paris, 1923), 191, and the article “droit” in Emile Littré, Dictionnaire de la langue française (Paris, 1965), 6: 6564. According to Jean Nicot, Thrésor de la langue française (Paris, 1606), droits in the plural meant “obligations to the feudal lord,” which some lords began to collect as cash payments when their vassals “duties [debvoirs]” were not fulfilled (215, quoted from artfl). On the distinction between property in the early modern sense of a personal power of dominion, which included but was not limited to usufruct over an economic resource, and the contemporary sense of property as a commodity, see Robert Brenner, Merchants and Revolution (Princeton, N.J., 1993), 649-53, and Grégoire Madjardian, L'Invention de la propriété (Paris, 1991), 181-90.

42. Marie-Claude Dock, Henri Desbois, and Paul Olagnier (see note 3) are each criticized strongly by Pierre Recht for their use of droit d'auteur as a “natural right,” yet Recht opts instead for a liberal sense of droit d'auteur as an inviolable, alienable property “right.” While all four of these works are concerned with the origins of droit d'auteur, they each presume the concept to have appeared first in Enlightenment writings on commerce and to have developed and retained a single, stable meaning from the eighteenth century onward. According to the entry “droit” in the Trésor de la langue française (tfl), 3: 966-97, however, the sense of droit d'auteur as a category of law first appears in 1866. A standard late Third Republic legal manual. Arts et littérature dans la société contemporaine (Paris, 1936), 8402, discusses as antiquated the distinction between droits d'auteur as “payment … received by an author … each time one of his works is reproduced” and the rarely used droit d'auteur, meaning a “disposition of the author to accord or refuse the reading or performance of one of his works, according to previously established conditions.” In their respective articles on droit, neither the tlf, nor Littré, nor the Dictionnaire historique (Paris, 1994) provide any historical references to suggest when this distinction appeared. There are no entries for either droit d'auteur or droits d'auteur in the Encyclopédie (artfl) or in any of the first five editions of the Dictionnaire de l'Académie française (1694-1798).

43. American copyright and French droit d'auteur are discussed as contemporaneous, ideologically driven developments by Ginsburg, “A Tale of Two Copyrights.” On the evolution of English “copyright” as being heavily influenced by Locke, see Marc Rose, Authors and Owners: The Invention of Copyright (Cambridge, 1993); on the relationship of Smithian and Kantian ideas in English concepts of intellectual work, see Z. Tenger and P. Trolander, “Genius versus Capital: Eighteenth-Century Theories of Genius and Adam Smith's Wealth of Nations.” Modern Language Quarterly 55 (1994): 169-89; and on the consequences of copyright for English literary history, see Trevor Ross, “Copyright and the Invention of Tradition,” Eighteenth-Century Studies 26 (1996): 1-27. Similarly, scholarship on the German lands tends to attribute the development of urheberrechtes in the eighteenth century to distinctly German Enlightenment ideas about the market. See Martha Woodmansee, The Author, Art, and the Market (New York, 1994), and Martin Vogel, “Der Literarische Markt und die Entstehung des Verlags- und Urheberrechtes bis zum Jahre 1800,” in Rhetorik, Ästhetik, Ideologie: Aspekte einer Kritischen Kulturwissenschaft, ed. Joachim Gott (Stuttgart, Germany, 1973), 117-36.

44. Viala, La Naissance de l'écrivain, 86-90, most clearly distinguishes between droits d'auteur (in the early modern sense) and the anachronistic (for this period) droit d'auteur or droits des auteurs: see also Jacques Boncompain. “Le Droit d'être auteur,” in La Révolution des auteurs, 1777-1793 (Paris, 1984) Dock (Etude), Desbois (Droit d'auteur en France), and Olagnier (Droit d'auteur) draw no such distinction.

45. See, for instance, Jean-Michel Ducomte, “La Révolution française et la propriété littéraire et artistique,” in Propriété et révolution, ed. Geneviève Koubi (Paris, 1990), 109-26. Ginsburg, “Tale of Two Copyrights,” and David Saunders, in Authorship and Copyright (London, 1992), 75-95, both argue that twentieth-century French legal scholarship has failed to distinguish adequately between early modern and postrevolutionary ideas of property.

46. Hesse, Enlightenment Epistemologies, 117-31.

47. Katie Scott, “Authorship, the Académie, and the Market in Early Modern France,” Oxford Art Journal 21 (1998): 27-41. Prior to 1789, the Académie had policed the art market, legitimated and remunerated artists and prevented counterfeiting, thus functioning as an even more powerful cultural gatekeeper than the Comédie Française. See Nathalie Heinich, Du peintre à l'artiste (Paris, 1993).

48. Sewell, Work and Revolution in France, 133-38; and James Q. Whitman, “Les Seigneurs descendent au rang de simples créanciers: Droit romain, droit féodal, et Révolution.” Droits 17 (1993): 19-32.

49. See for example the article “Droit de copie,” in Encyclopédie (artfl), 5: 147.

50. A similar concept would be codified in nineteenth-century French literary property law as droit moral, on which see Saunders, Authorship and Copyright, 75-105; Scott, “Authorship,” 38-39; and Patricia Senéchal, “Origine et évolution du droit au respect de l'œuvre” (Thèse du 3eme cycle, Université de Paris II, 1989), 104-18.

The author wishes to thank the following people, who contributed greatly to the writing of this article: Madame Alice de Beaumarchais for making available documents from the Beaumarchais Family Archives, Maitre Yves Nedelec for helpful explanations of French legal theory on droit d'auteur, Roger Chartier for helpful bibliographic advice as well as general intellectual guidance, and Sondra Cosgrove for research assistance.