Definition
The right of an author, or those claiming through an author, in a literary or intellectual work. The term carries two related but distinct meanings depending on historical context:
1. Common law literary property. The property right an author holds in an unpublished manuscript by virtue of creation alone, independent of any statutory copyright. This right existed at common law prior to publication and did not require registration or any other formal act to vest.
2. General literary property. The broader interest of an author (or successor in interest) in any literary work, whether manuscript or published, whether protected by statutory copyright or not. In this broader sense the term describes the full spectrum of an author's proprietary claim — from the moment of composition through and after publication, with or without formal copyright protection.
The two senses overlap but are not identical. The common law right was understood to be perpetual in duration so long as the work remained unpublished. Upon publication, that common law right was either replaced by, or merged into, whatever statutory copyright regime applied. The general sense of the term simply names the property interest at any stage of its life.
Common Language
Modern common usage (Wiktionary): No standard entry. In ordinary speech "literary property" is rarely used; "intellectual property" or "copyright" has displaced it.
Historical common usage (Webster's 1913): Not separately defined as a term of art; "literary" meant of or pertaining to literature or learning, and "property" carried its ordinary ownership meaning.
Editorial note: The compound phrase "literary property" was a term of legal art long before "intellectual property" entered common use. A modern researcher seeing the phrase in a nineteenth-century source should not read it as a loose synonym for copyright. It carried a precise common-law meaning — a perpetual, pre-publication property right — that copyright law then extinguished or superseded upon publication. The phrases are not interchangeable across eras.
Common Confusion
Literary property is frequently conflated with copyright, but they are not the same thing and were not treated as the same thing historically. Copyright is a creature of statute, limited in duration, and triggered by publication or registration. Literary property at common law was a natural right arising from authorship, unlimited in duration, and attached to the unpublished work. The landmark English case of Donaldson v. Beckett (1774) turned precisely on whether the common law right survived publication or was extinguished by it — the House of Lords holding that publication ended the common law right and substituted the statutory term. American courts worked through the same tension across the nineteenth century. Researchers who treat "literary property" and "copyright" as synonyms in pre-twentieth-century sources will misread the doctrine.
Why It Matters in Research
This term is a research trap for several reasons.
Periodization matters enormously. Before Donaldson v. Beckett (England, 1774) and its American equivalents, "literary property" described an unresolved contest between perpetual common law right and limited statutory right. After those decisions, the term increasingly described only the pre-publication common law right, with the statutory copyright regime governing published works. Nineteenth-century American sources sit in a transitional period and use the term in both senses, sometimes within the same treatise.
The transition to modern IP vocabulary obscures the term. By the mid-twentieth century, "literary property" had largely dropped out of legal usage, replaced first by "copyright" for published works and eventually by "intellectual property" as the master category. Corpus searches for modern intellectual property doctrine will not surface older "literary property" materials without deliberate vocabulary adjustment.
Unpublished works are the core of the common law doctrine. If your research involves unpublished manuscripts, diaries, letters, or private papers — especially in an estate or inheritance context — the common law literary property right is directly relevant and may persist in modified form even in modern law, since many jurisdictions retained common law protection for unpublished works until federal copyright preemption was extended to unpublished works by the Copyright Act of 1976 (U.S.).
Bouvier's broad definition is the more useful research anchor. Bouvier defines literary property as the general interest of an author "whether before or after publication, or before or after a copyright has been secured." This framing is analytically cleaner for research purposes than Rapalje & Lawrence's narrower manuscript-focused entry and better reflects the range of ways courts actually used the term.
Historical Dictionary Support
Bouvier and Rapalje & Lawrence capture different slices of the doctrine. Bouvier takes the broader view — literary property as the general authorial interest at any stage — and cites a range of sources including Kent's Commentaries and Blackstone's Commentaries (2 Bl. Com. 405), grounding the concept in both English and American authority. Rapalje & Lawrence focus on the common law manuscript right, treating literary property as the author's right in an unpublished work.
Neither historical dictionary entry engages with the Donaldson v. Beckett rupture in detail, which is the most important structural event in the doctrine's history. Researchers should not rely on these entries alone to understand how the common law right related to statutory copyright — treatise sources such as Curtis on Copyright and the secondary literature cited in Bouvier are more useful for that analysis.
Both dictionaries predate the significant American statutory consolidation that occurred with the Copyright Act of 1909 and, more importantly, the Copyright Act of 1976. Their definitions reflect a legal landscape in which the common law / statutory copyright boundary was still actively litigated and doctrinally unsettled.
Jurisdictional Note
In the United States, federal copyright preemption of common law literary property for unpublished works was not completed until the Copyright Act of 1976, which brought unpublished works within the federal statutory scheme. Before that date, state common law literary property doctrine governed unpublished works, and the rules varied by state. Researchers working with pre-1978 unpublished materials should account for applicable state law, not federal copyright, as the governing framework.
Encyclopedia Cross-Reference
Personal Property — Intellectual Property as Personal Property (Overview), The Law Mind Property Law Encyclopedia