Poe vs. Property
In 1841, Graham’s Magazine published Edgar Allan Poe’s short story, “The Murders in the Rue Morgue,” and, in so doing, created the modern detective story genre.
The story was published at a pivotal moment for copyright: only a decade earlier, Congress passed the Copyright Act of 1831, extending US copyright to foreign authors for the first time in US history.
1841 was also the year that a Massachusetts court ruled Folsom v. Marsh, the first “fair use” case in US copyright history, finding that using someone else’s copyrighted work was fair when it served a public purpose and didn’t unduly burden the original rightsholder.
Poe’s story was eligible for 28 years of copyright from the moment he set the words down on paper, and moreover, Poe was entitled to renew that copyright for another 14 years at the end of the term (he didn’t get to exercise this privilege because he died a mere eight years after the publication of “Murders”).
But Poe’s incredible act of imagination — creating detective fiction itself — was not eligible for copyright. Anyone could write a story about a detective solving a mystery. Many did. They still do.
Why didn’t Poe get the right to control the mystery story? If you were a Martian peering down at the Earth through a telescope, you’d be hard pressed to explain why Poe should get 28 years of exclusive rights to his story, but not the genre the story created.
The answer lies in the historical context of copyright, and what that answer says about the idea of property itself is hugely important for understanding the stories we tell ourselves today — both the literary tales, and the social narratives that have the power to preserve or upend our status quo.
Copyright needs a story. By default, if someone creates something, the rest of us are moved to duplicate, repeat, share and build upon it. Think of how your first impulse on hearing a fantastic joke is to file it away so you can tell it to someone else. Think of how the first thing you want to do when a striking image shows up on your phone’s screen is show it to someone else. Think of how the songs that move you become lodged in your mind and sometimes escape from your…