Property, Propriety, and Publicity: A Different Look at Pope v. Curll (1741)

Abstract

The seminal copyright case of Pope v. Curll is typically cited by lawyers as the case which, for the first time in Anglo-American law, disassociated the physical copy of a literary work from its metaphysical content. A decades-long enmity between the author Alexander Pope and printer Edmund Curll culminated in Pope’s suit against Curll for having printed stolen personal letters. While not disputing traditional understandings of Pope v. Curll, this article offers an additional, alternative reading of the arguments made by Pope in the case. The litigation is situated within the context of early modern celebrity culture to argue that Pope was pursuing property rights on three levels, not simply the two typically recognized. Pope sought property rights to the physical material of the purloined letters and for property rights in the literary content of the letters, but also for the property right in his own image-making. This third argument is essentially the modern equivalent of publicity rights – a twentieth-century quasi-intellectual property right used to protect names, images, and likenesses. This article thus reads modern publicity rights jurisprudence as having deeper roots than previously discussed. Pope v. Curll represents a road not taken in the history of copyright law.