In the summer of 1829, Joseph Smith completed his translation of the Book of Mormon.1 One year removed from the harrowing loss of the initial 116 pages of the translation in the summer of 1828,2 he was determined to not lose this work again, in any sense. On June 11, 1829, Joseph deposited, with the clerk of the Northern District Court of New York, a single printed page that resembled what would become the title page of the 1830 Book of Mormon, in order to secure a copyright in the work.3 The court clerk, Richard Ray Lansing, generated the official executed copyright form, which he retained; Lansing’s record book was eventually deposited in the Library of Congress. In December 2004, this official form and the accompanying title page were photographed by the Library of Congress4 (see pages 97–99 in this issue), prompting a reevaluation of the law and the events surrounding the original copyright of the Book of Mormon.
A copyright—the legal property right in a creative work—would ensure that Joseph alone had the authority to publish the Book of Mormon. Obtaining the copyright was seen as a validation of the reality of his work. In October 1829, Joseph wrote from Pennsylvania to Oliver Cowdery concerning the Book of Mormon: “There begins to be a great call for our books in this country. The minds of the people are very much excited when they find that there is a copyright obtained and that there is really a book about to be produced.”5
Joseph may have also seen the copyright as a help in recouping the considerable costs of producing the book. Another publisher could have cut into sales, but a copyright would prevent such competition. This financial factor is evidenced by the Prophet’s sending Hiram Page and Oliver Cowdery to Canada in 1830 to license the copyright in that country. Page later said that Joseph saw this as an opportunity to raise a substantial amount of money, although the endeavor was ultimately unsuccessful.6
Whatever the specific reasons for Joseph’s seeking a copyright in the Book of Mormon, he genuinely wanted to acquire that legal protection. Therefore, he made diligent efforts to do what the law required in order to secure that right.
Most historians have treated Joseph’s June 11 filing as the sole event necessary to vest in him all legal rights to the Book of Mormon.7 Joseph’s efforts to secure the copyright seem to have paid off in early 1830, when he successfully defended his rights against Abner Cole, an opportunistic editor who pirated selections from the Book of Mormon and printed them in his newspaper.8 It is logical to assume that Joseph was successful because he had filed for the copyright several months prior to the altercation with Cole. But his efforts to secure a federal copyright are probably not why Joseph succeeded against Cole. Indeed, the young prophet probably did not meet all five of the federal law’s requirements for a valid copyright. Joseph’s legal victory over Cole was more likely premised on common law rights that Joseph held in the unpublished manuscript simply by virtue of having created the work.
Copyright Laws in Nineteenth-Century America
Before turning to Joseph Smith’s clash with Abner Cole, one needs a general understanding of the copyright laws in the United States in the early nineteenth century. That understanding requires one to know the difference between statutory law and common law.
Statutory law is defined as “the body of law derived from statutes rather than from constitutions or judicial decisions.”9 It consists of all the written laws created by the legislative bodies of governments. Common law is “the body of law derived from judicial decisions, rather than from statutes or constitutions.”10 Historically, common law was considered inarticulate until put into words by a judge. Where statutory law did not answer the question in a particular case, a judge might turn to common law and would decide the issue “in accordance with morality and custom,” and later judges would regard this decision as precedent.11 In 1829, both statutory law and common law provided copyright protections to an author’s work: statutory law applied to both published and unpublished works, and common law applied only to unpublished works.
As with most areas of American law, the antecedents of these copyright laws can be traced back to England. The first copyright act, passed in England in 1709, was the Statute of Anne. Prior to the Statute of Anne, the Stationers’ Company, a guild of printers, held perpetual copyrights in the works it published.12 The new act reversed that and vested the copyright in the authors of the works. But rather than preserve the perpetual nature of copyrights, the Statute of Anne granted authors the sole right to print and sell their works, subject to certain conditions, for a period of only fourteen years.13 Many authors and publishers took the position that this statute was merely an appendage to a common law right that gave authors lifetime ownership in their creative works. In 1774, however, the House of Lords ruled against this argument in the case Donaldson v. Beckett, declaring that no common law right of copyright existed.14 The statute alone granted authors rights in their works. A similar statutory scheme was later adopted in America.
In 1783, the Continental Congress, lacking the authority to make a federal copyright law, recommended that each state establish its own copyright law. Following the pattern set forth in the Statute of Anne, the Congress recommended that authors be given rights to their works for at least fourteen years.15 Most states complied with the request of Congress, including New York in 1786.16 Trouble soon arose, however, because copyright protection in one state could not guarantee an author’s protection in another state. Moreover, inconsistencies from one state to another demonstrated that the states could not “separately make effectual provision for [copyrights].”17 Solving this problem was important enough that copyright law was covered in the United States Constitution, ratified in 1789.
Under the Constitution, the states ceded to the federal government the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”18 Under this authority, Congress enacted the first federal copyright statute in 1790.19 The Copyright Act of 1790 granted to “the author and authors of any map, chart, book or books . . . the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books, for the . . . term of fourteen years from the time of recording the title thereof in the [district court] clerk’s office.”20 The copyright was renewable for an additional fourteen years, provided the author met certain conditions. The disparate state copyright statutes were preempted as the federal government exercised full authority to create statutory copyright law.21
The protections afforded by this federal statute went further than some state protections.22 Under the new law, after an author or proprietor (a person who had acquired the rights from the author) had secured the copyright to a book, any other person who printed or published the work without consent of the author or proprietor, or who knowingly sold unauthorized copies, was required to forfeit all such copies to the author or proprietor.23 The offender was also required to “pay the sum of fifty cents for every sheet which shall be found in his or their possession,” with one half of the payment going to the copyright holder and the other to the federal government.24 If an author failed to do all that was necessary to secure a copyright in a book, he or she could still print and sell it, but the statute would not preclude others from likewise printing and selling the book.
Some lawyers argued that this federal statute functioned concurrently with the common law in protecting an author’s rights in his or her creative works. But, as had occurred earlier in England, the United States Supreme Court eventually rejected that argument in 1834 in the case Wheaton v. Peters, holding that no common law copyright existed in published works.25 But at the same time the Supreme Court accepted the commonly held position that common law copyright protection existed for as yet unpublished works:
That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavors to realise a profit by its publication, cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world.26
Thus, in affirming an author’s property interest in his unpublished manuscript, the Wheaton decision established a principle of copyright law under the common law, according to which Joseph Smith could have successfully asserted copyright protection regarding the Book of Mormon before, but not after, the book’s publication. At that point, he would have to rely on compliance with the federal statute.
Obtaining a Federal Statutory Copyright
In order to secure the copyright granted by the federal statute, Joseph Smith would have to meet all the law’s requirements. The 1790 copyright law, as amended in 1802, granted an author the copyright in a work, commencing at the time the title was filed in the clerk’s office, but more than that initial step was required. No person was “entitled to the benefit of this act” unless that person satisfied the following five requirements:27
1. Give notice to the clerk: “Deposit a printed copy of the title of such map, chart, book or books, in the clerk’s office of the district court where the author or proprietor shall reside.”28
2. Pay the clerk: “Sixty cents” for the clerk’s preparing of the copyright certificate and “sixty cents for every copy under seal actually given to such author or proprietor.”29
3. Give full notice in the book: “Give information by causing the copy of the record [the clerk’s certificate] . . . to be inserted at full length in the title-page or in the page immediately following the title of every such book or books.”30
4. Give notice to the public: “Within two months from the date [of the certificate], cause a copy of the said record to be published in one or more of the newspapers printed in the United States for the space of four weeks.”31
5. Provide a public copy of the book: “Within six months after the publishing [of the book], deliver, or cause to be delivered to the Secretary of State a copy of the same, to be preserved in his office.”32
Evidence Relevant to Joseph Smith’s Compliance with the Statutory Requirements
Joseph Smith clearly satisfied the first and third requirements, and presumably the second, but, as explained below, he may well have fallen short regarding the fourth and fifth requirements.
Requirement 1. Richard Ray Lansing, clerk of the United States District Court for the Northern District of New York, processed Joseph’s filing for the Book of Mormon copyright in June 1829. He gave to Joseph a signed office copy of the copyright application, which has been held for many years in the Church Archives in Salt Lake City and published on occasion.33 As noted above, the official court-executed copy of the copyright form and the accompanying “title” page were recently located in the Library of Congress.34 Requirement 1 was fully met.
It would be interesting to know more about how and where the filing with Lansing was accomplished. Joseph Smith’s history simply states that “our translation drawing to a close, we went to Palmyra, Wayne county, New York, secured the copyright, and agreed with Mr. Egbert B. Grandin to print five thousand copies for the sum of three thousand dollars.”35 This statement does not necessarily mean that the copyright form was filed in Palmyra, and such a scenario is unlikely. Federal law required the applicant to file in the clerk’s office of the federal district court where he resided. Both Manchester-Palmyra, where the Joseph Smith Sr. family lived, and Fayette, where Joseph took up residence at the Peter Whitmer home a week before June 11, 1829, belonged to the Northern District of New York, with the court clerk’s office located in Utica. Normally, then, such copyright applications would have been made in Utica.
Still, a filing in or near Palmyra is not out of the question: The district court may have been holding a term or function of court in or around Palmyra in June of 1829, enabling Joseph to file the title page close to home.36 In 1830, the district court for the Northern District of New York was required to hold three terms of court: twice in Albany, on the third Tuesday of January37 and second Tuesday of May38; and once in Utica, on the last Tuesday of August.39 Additionally, the district judge was authorized “to appoint and hold a court or courts at any other time or place . . . within and for the said northern district, as the business therein may require.”40 Because Congress had earlier required terms of court to be held at Canandaigua,41 just fifteen miles from Palmyra, it is conceivable a term of court was being held there in June 1829 under the district judge’s discretion. The clerk of the court, appointed by the district judge, was to attend the various terms of court “and do all the duties of said office of clerk, which may accrue at or from the sessions of the court at said places, both in and out of court.”42
Had Lansing been in or near Palmyra in June of 1829, Joseph could have gone to him to file for copyright of the Book of Mormon. But little concrete evidence is available to support this theory. Issues of the Wayne Sentinel, a Palmyra newspaper, for May and June 1829, while reporting proceedings of local courts in Palmyra and Canandaigua, contain no mention of a term of the federal district court. Furthermore, the printed certificate signed by Lansing states that the title of the Book of Mormon was deposited for copyright purposes “in this Office,” presumably in Utica. Although these words were preprinted on the form, no notation indicates that the filing took place elsewhere. The evidence, while not conclusive, suggests that Lansing received the title page of the Book of Mormon in Utica. Also unknown is how the title page was delivered to Richard Lansing. Church historian Larry C. Porter writes, “It is not certain whether Joseph Smith simply submitted his title entry by mail to Lansing at Utica, New York, or whether it was delivered by hand.”43
Joseph may have made the trip to Utica, about one hundred miles each way from Fayette, but with so many other concerns and activities in Palmyra and Fayette at this time, such a trip seems difficult, if not unlikely.44 It would have taken the better part of a week to make the round trip journey. Another person may have gone in Joseph’s behalf, carrying the signed forms. In a letter to Hyrum Smith from St. Lawrence County, New York, dated June 17, 1829, Jesse Smith, Hyrum’s uncle, refers to a visitor he received, a “fool” who “believes all [about the golden plates] to be a fact.”45 Richard Lloyd Anderson suggests that the man referred to in Jesse’s letter was Martin Harris, who, on his way to St. Lawrence County, could have stopped in Utica to deposit the title page of the Book of Mormon in the district court.46
Regardless of where or by whom the form was submitted, Lansing signed the copyright certificate, which identified Joseph Smith as “author and proprietor” of the work, and the first step to securing the copyright was complete. Although Joseph did not “author” the Book of Mormon, he identified himself as the book’s author to comply with the wording of the federal statute, which made copyrights available to authors or proprietors of books and other works.47 In calling himself the “author and proprietor,” Joseph adopted the language used in the statute. Furthermore, as John W. Welch has pointed out, “A translator was qualified, for copyright purposes, as the author of a book he had translated.”48
Requirement 2. Together with this filing, Joseph must have paid the requisite fee, or he would not have received the certificate in return. The fees probably totaled $1.20: sixty cents for recording the official copy and another sixty cents for giving a copy of the certificate to Joseph.49
Requirement 3. Joseph also met the third requirement by having the full wording of the certificate received from Lansing printed on the back of the title page of the 1830 edition of the Book of Mormon.
Requirement 4. Less certain is whether Joseph completely satisfied the statutory requirement of publishing the court’s certificate in a local newspaper for four weeks within the two months after filing the book’s title. On June 26, 1829, Egbert B. Grandin, with whom Joseph later contracted to print the Book of Mormon, published the text of the book’s title page in his Palmyra newspaper, the Wayne Sentinel. This text was again published in August by two other local papers: in the Palmyra Freeman, on August 11, and in the Niagara Courier, on August 27. The articles in the Freeman and the Courier spoke derogatorily of the “Golden Bible,” and probably copied the title page from the Wayne Sentinel.
Joseph Smith attempted to follow the law by having Grandin publish the text of the title page, but the law required the publication of the entire copyright certificate. Furthermore, the title page did not appear in a newspaper “for four weeks” before August 11, the date by which the publishing requirement was to be met.
On March 26, 1830, Grandin again published the title page of the Book of Mormon in the Wayne Sentinel and announced that the book was available for purchase. This was followed by publication of the book’s title page in the Wayne Sentinel on April 2, 9, and 16, and May 7. These consecutive notices may have been a second attempt on the part of Grandin and Joseph Smith to satisfy the legal requirements for copyright. Richard Lloyd Anderson notes that Joseph and his associates “may have thought they were complying with the intent of the law by printing just what they had originally submitted to the clerk of the court—the title page.”50 While the notices in Grandin’s newspaper could have merely been advertisements for the sale of the book, the fact that there were four of them in consecutive weeks, as required by the statute, might indicate otherwise. Still, these notices, coming almost a full year following Joseph’s original filing with R. R. Lansing would not appear to satisfy the law’s two-month requirement.
Requirement 5. Given the evidences of Joseph’s efforts to comply with the foregoing statutory requirements, it is quite possible that he or Grandin sent a copy of the published Book of Mormon to the U.S. Secretary of State, who at the time was Martin Van Buren. However, no record has survived indicating that a copy was submitted to Van Buren, as required, within six months of the book’s publication, which was in March 1830.51
Based on all available evidence, Joseph Smith did not satisfy the federal law requirements to secure a copyright in the Book of Mormon. But he was not alone in his shortcomings. An extensive examination of several New York and Pennsylvania newspapers printed in the 1820s revealed very few occasions on which an author published the full copyright certificate from any federal district court.52 At the same time, advertisements for the sale of newly published books are numerous. Moreover, several books published in the early nineteenth century claimed to be copyrighted but did not include a copy of the court’s certificate printed in the book.53 Though some authors no doubt complied with every aspect of the federal copyright statute, it may still be true that Joseph Smith did more than most.
Legal Consequences of Failing to Meet All of the Statute’s Requirements
In light of these shortcomings, one wonders: would these defects have compromised Joseph’s full copyright protection of the Book of Mormon? Court opinions from the time indicate that Joseph’s actions would have been insufficient to uphold in court any statutory copyright protection, despite his good-faith efforts and partial compliance.
In 1808, a Connecticut state court ruled that the provisions of the federal copyright law requiring the publication of the copyright notice in a newspaper and the delivery of a copy of the work to the secretary of state were “merely directory, and constitute no part of the essential requisites for securing the copyright.”54 The state court explained:
The publication in the newspaper is intended as legal notice of the rights secured to the author, but cannot be necessary, where actual notice is brought home to the party. . . . The copy to be delivered to the secretary of state, appears to be designed for public purposes, and has no connection with the copyright.55
While this opinion seems favorable to Joseph Smith’s case, the facts of the 1808 case involved a claim to a copyright secured before the 1802 federal amendment. Under the prior 1790 federal law alone, the court found essentially that an author only had to file for copyright in the district court.
Sixteen years later, in 1824, Judge Bushrod Washington of the United States Supreme Court, sitting on the Circuit Court in the Eastern District of Pennsylvania, ruled that an author must comply strictly with all the provisions of the copyright act in order to receive its benefits.56 Like the Connecticut judge, the federal judge stated that if it were not for the 1802 amendment, “I should be of opinion that [securing the copyright] would be complete, provided he [the author] had deposited a printed copy of the title of the book in the clerk’s office.”57 But, in light of the language in the 1802 amendment, Judge Washington held that a person seeking copyright protection must perform all of the acts prescribed by the copyright law “before he shall be entitled to the benefit of the act.”58 Under this analysis, Joseph Smith would not have been entitled to copyright protection for the Book of Mormon. A different federal judge in New York would not necessarily have been required to follow Washington’s reasoning, and Joseph Smith could have asserted that his acts were sufficient, but in all likelihood this argument would have failed. The United States Supreme Court ruled on the issue four years after the publication of the Book of Mormon, when, in Wheaton v. Peters, it agreed with Judge Washington, declaring that compliance with all of the provisions of the copyright act was necessary to secure the statutory rights.59
Unless some evidence of newspaper publication is forthcoming, based on the relevant federal statutes and court opinions applicable in 1830, Joseph’s copyright was deficient. Accordingly, after the Book of Mormon was published in March 1830, another person probably could have reprinted and sold the book without Joseph’s permission and without legal restraints. But, as noted above, common law would have prevented others from publishing the Book of Mormon before the book’s public release, and this is the strongest legal explanation for Joseph’s success against Abner Cole in January 1830.
Abner Cole’s Infringement
Well before the publication of the Book of Mormon, the youthful Joseph Smith had already acquired familiarity with the workings of the law. As early as 1819, he was called and qualified as a credible witness in a case involving a promissory note signed by his father and brother Alvin. Six years later, in 1825, the Smiths were sued by Russell Stoddard for payment earned while working on the family’s house.60 That same year, Joseph observed the legal taking of his family’s farm when an agent sold the deed to another.61 In 1826, Joseph was the defendant in a case, answering the charge of being a disorderly person.62 So he was not unfamiliar with the legal process when he found himself involved in legal matters connected with the publication of the Book of Mormon, specifically with preventing Abner Cole from publishing portions of the book.
Joseph did not leave a record of his encounter with Cole. The only account of the dispute comes from Joseph’s mother, Lucy Mack Smith, who recorded the incident several years after its occurrence. The problem arose while Joseph was spending most of the winter of 1829–30 in Harmony, Pennsylvania, with his wife, Emma, during which time Hyrum Smith, Oliver Cowdery, and Martin Harris oversaw the printing of the Book of Mormon in Palmyra.63 Egbert B. Grandin handled the publishing of the book at his print shop and gave Hyrum and Oliver access to the shop every day except for Sunday.64 Lucy reports that one Sunday, probably in December,65 “Hyrum became very uneasy” and felt “something was <going> wrong at the printing Office.”66 Oliver at first resisted Hyrum’s suggestion to go to Grandin’s shop on Sunday, but soon the two men were on their way to the office.67 There they found Abner Cole, busily printing a newspaper.68
Hyrum asked Cole why he was working on Sunday. Cole responded by saying that evenings and Sundays were the only times when he was able to use the printing press.69 Hyrum and Oliver soon discovered that Cole was violating more than the religious law of the Sabbath—Cole was copying passages from the Book of Mormon to include in his newspaper, the Reflector.70
In fact, Cole had begun writing about Joseph Smith and his work in the first issue of the Reflector on September 2, 1829: “The Gold Bible, by Joseph Smith Junior, author and proprietor, is now in press and will shortly appear. Priestcraft is short lived!”71 Three months later, on December 9, Cole, who wrote under the pseudonym of Obadiah Dogberry, announced in his paper that he would soon begin to provide his readers with selections from the Book of Mormon.72 Cole likely had no difficulty in procuring printed sheets of the Book of Mormon, discarded or otherwise, conveniently located at Grandin’s shop. The first selection, 1 Nephi 1:1–2:3 in the current edition of the Book of Mormon, appeared in the January 2, 1830, issue of the Reflector.73 It was probably while preparing this January 2 issue that Cole was confronted by Hyrum and Oliver.
Hyrum informed Cole that a copyright had been secured for the book, but Cole indignantly refused to stop his work. After a lengthy debate, Hyrum and Oliver were still unable to dissuade Cole from his course and left the print shop.74
Impressed with the seriousness of the circumstances, Hyrum and Oliver determined that Joseph must be notified of Cole’s actions. Accordingly, Joseph Smith Sr. went to Harmony and returned with Joseph on the following Sunday.75 That night, probably January 3, 1830,76 Joseph Smith went to Grandin’s shop, where he found Cole and examined his paper. Joseph asserted his ownership of the book and the right to publish it and demanded that Cole cease his “meddling.” Instead of refuting Joseph’s publishing right, Cole sought a fight, but Joseph refused. In Lucy’s reconstruction of the events, Joseph declared, “I know my rights and shall maintain them.” Then, “in a low significant tone,” Joseph stated, “there is Law—and you will find that out if you did not know it before.”77 This bold statement by Joseph is all the more remarkable considering that Cole was nearly twice as old as Joseph and was probably much more familiar with the law, having worked as a lawyer and justice of the peace.78 Perhaps recognizing the inferiority of his position, Cole ultimately assented to an arbitration to determine Joseph’s rights to the Book of Mormon. The arbitration was settled in Joseph’s favor, and Cole agreed to stop printing the Book of Mormon passages. After settling the affair with Cole, Joseph returned home to Pennsylvania.79
Arbitration in New York in 1830
Though nothing more is known about the arbitration agreed to by Cole, an examination of general arbitration rules and procedures from the time sheds light on what may have occurred.
Prior to Smith and Cole’s arbitration, the legislature in New York had passed two acts relating specifically to arbitration. First, in 1791, the legislature passed “An act for determining differences by arbitration.”80 Second, an amendment to this act was added in April 1816.81
The three-paragraph 1791 act had the stated purpose of “promoting trade, and rendering the awards of arbitrators the more effectual in all cases.”82 To these ends, the act made it lawful for parties to an arbitration to agree that the outcome of their controversy “be made a rule of any court of record in this State.”83 If a party thereafter refused to abide by the ruling of the arbitrator or umpire, the person would be subject to all penalties that would apply if the person had resisted the order of a court. However, the person could escape penalty if he could show, by oath, “that the arbitrators or umpire misbehaved themselves, and that such award, arbitration or umpirage, was procured by corruption, or other undue means.”84 Any arbitration found to be “procured by corruption or undue means” would be “void and of none effect.”85 In summary, then, an arbitration would be treated as binding as a ruling of the court if the parties so agreed.
The amendment to this law, passed in 1816, allowed “any justice of the peace, residing in any city or county in this state, in which any dispute, controversy or difference whatsoever, may have been submitted to arbitration . . . to swear or affirm the several witnesses required to give testimony before said arbitrator or arbitrators.”86 The law also made witnesses in an arbitration proceeding subject to the perjury laws of the state.87
Besides the two statutes in place, several contemporary New York cases commented on the nature of arbitrations. Arbitration, as defined by a New York court in 1830, was “a submission by parties of matters in controversy to the judgment of two or more individuals.” Those who decided the dispute, the arbitrators, were chosen by the parties.88 Apparently a common practice was for each party to choose his own arbitrator and have those two arbitrators select a third arbitrator, or umpire, for the case.89 The arbitrators were to act as “jurors to determine facts, [and as] judges to adjudicate as to the law; and their award when fairly and legally made, is a judgment conclusive between the parties, from which there is no appeal.”90 As demonstrated by the statutes, arbitrations could be treated as a rule of a court and were binding on the parties. One judge even stated that an arbitration “ought to be of a more binding force between the parties” than a jury verdict.91
A person’s choice to submit to arbitration rather than litigate a case in a courtroom was often money-driven. Arbitration offered an end to dispute “with very little expense to the parties.”92 Still, arbitration did not offer the same prospects for justice as an official courthouse. Arbitrators, though chosen for their impartiality, would “frequently mingle in their decisions their own knowledge of the matters in dispute.”93 “Their ends are mainly honest,” but their decisions, “though intelligible, are not drawn up with technical accuracy.”94
If an arbitrator’s decision was not consistent with the law, it would still be binding on the parties.95 Consistent with the statutes, an arbitration decision could not be appealed to a court except in the case of an arbitrator’s misconduct.96 And while an arbitrator’s decision would be binding on the parties involved, the decision would not be binding on third parties.97 Similar to official judicial proceedings, arbitrations were not allowed to be performed on Sundays.98
The Smith-Cole Arbitration
With all of these legal norms in place, we can imagine what might have occurred between Joseph and Abner Cole. The basic structure of the event can be hypothesized. The date of their arbitration is unknown, but it did not occur on the Sunday of Joseph’s visit, for that would have violated the law, and the two men also needed time to procure witnesses and arbitrators. Further extracts of the Book of Mormon appeared in the Reflector on January 13 and 22, suggesting the arbitration might have concluded several days after Joseph arrived in Palmyra.99
Regardless of the date on which the arbitration occurred, given Cole’s legal experience, the two parties probably first would have agreed on the question to be arbitrated, namely whether Joseph’s claim to property rights or copyright in the book were sufficient to prohibit Cole’s publishing of the text. Joseph may have also wanted to recover monetary damages or to confiscate Cole’s printed pages as granted under the federal copyright statute.
Next, the two would have agreed on arbitrators. Possibly each chose a man to act as an arbitrator and those two men then chose a third. In accordance with the statute, the local justice of the peace may have sworn in any witnesses who would testify before the arbitrators.
The arbitrators ruled against Cole. Their decision, whether legally sound or not, was binding on Cole, and no known claim was ever made that the arbitrators’ decision was corrupt and therefore void. Lucy Mack Smith did not specify the premise of Joseph’s defense—whether he relied on the statutory copyright law or on the common law. If the arbitrators based their decision on the federal statutory copyright law, they must have concluded that Joseph’s actions had been sufficient to acquire that protection. After all, Joseph could not have been expected to have complied yet with the statutory requirement of delivering a copy of the book to the secretary of state, since copies were still not available. But his failure to give public notice of his copyright within two months of receiving his certificate is more problematic. Thus, what is more likely and also more consistent with the law is that the arbitrators’ decision in Joseph’s favor was based on the common law protection of authors’ rights in unpublished manuscripts, not on his unperfected copyright filing.
For legal purposes, one would need to ask: Was the Book of Mormon published or unpublished in January 1830? When Cole was copying portions of the Book of Mormon, many of the work’s pages had been printed. But printing alone did not constitute publishing, for the copyright statute distinguished the two, granting authors the right of “printing, reprinting, publishing and vending” a book covered by the statute.100 Simply because portions of the Book of Mormon had been printed under Joseph’s authorization does not mean they had been published.
The 1828 Webster’s Dictionary defines “publish” as meaning “to send a book into the world; or to sell or offer for sale a book, map or print.”101 As is well known, the Book of Mormon was not available for purchase until March 26, 1830,102 but at least portions of it had been distributed before then. In 1829, Thomas B. Marsh obtained the proof sheet of the first sixteen pages of the book and used it to teach others about the book. Solomon Chamberlain also obtained sixty-four pages of the unbound book from Hyrum Smith and used them in his preaching. Oliver Cowdery gave his brother Warren some pages of the book, which Warren showed to others. Even Joseph Smith apparently used proof sheets to promulgate the work.103
If Cole had been aware of those events, he might have argued that the Book of Mormon (or at least portions of it) had indeed been published, or sent forth to the world. Still, Joseph could have answered that the distributions of a few proof sheets were limited and private in nature. If the arbitrators based their decision on the common law, they believed the Book of Mormon had not been published. This result is consistent with Joseph’s words to Cole where he asserted his ownership of the book and his right to publish it.
Whatever Abner Cole’s and Joseph Smith’s arguments may have been, and whatever the basis was for the arbitrators’ decision, that decision was as binding upon the parties as a judgment in court. Joseph apparently received no damages, and Cole apparently never contested the judgment. Joseph Smith was never again involved in any other legal disputes regarding the copyright to the Book of Mormon.
The episode with Abner Cole is perhaps the first instance where Joseph Smith asserted legal rights that had a direct impact on the religious work to which he devoted his life. Convinced of the justice of his cause, the twenty-four-year-old prophet confidently told Cole that he knew the law and that it would protect him; he did not hesitate to dispute the older and more experienced editor. Even though Joseph may have been somewhat overconfident of his statutory copyrights, he correctly realized the protection of the law. Possibly because of his efforts to secure a copyright for the Book of Mormon, or more likely even without the need to invoke those efforts, Joseph was successful in his first legal defense of the work God had called him to do.