Two pirated dramatizations of The Gilded Age have been identified (see 5 May 74 to Warnerclick to open link, and 6 or 7 Feb 75 to Tilford and Haganclick to open link). The third may have been a proposed work by John H. Hewitt (1801–90), a journalist, musician, and poet, who wrote Clemens on 19 September 1874:

Clemens’s reply, if any, probably was not encouraging. On the envelope of Hewitt’s letter he merely noted: “Letter asking privilege of using language of Gilded Age in a drama.”

Presumably “private” was on the envelope, which has not survived.

The clipping pasted to the top of this letter was from the New York Times of 14 February 1875 (“Mr. Boucicault’s Suit,” 12). Clemens’s concern about a “loophole” was justified, since the case of copyright infringement reported in the Times was somewhat analogous to his own. Spofford’s reply is not known to survive, but it is doubtful whether he could have provided a definitive answer. The Times case involved Dion Boucicault, whose play The Shaughraun (“The Vagabond”) had proved immensely popular since its opening at Wallack’s Theatre in New York in November 1874. Joshua Hart, the proprietor of the Theatre Comique, obtained a copy of Boucicault’s manuscript and incorporated eight of its scenes into his own play, The Skibbeeah (“The Hangman”), which he not only staged, but also printed and published. In February 1875, in the United States Circuit Court in New York, Boucicault sued Hart for copyright infringement. Hart’s attorney, Ambrose H. Purdy, argued that Boucicault had not completed both the steps necessary for a valid copyright, since he had never published his play as a book and filed two copies of it with the librarian of Congress. Boucicault’s attorney, Richard O’Gorman, contended that the deposit of printed copies was not required until after publication, and until that occurred, the work was protected by the deposit of the title page alone. In June 1875, United States Supreme Court Justice Ward Hunt, who presided in the circuit court, agreed that by the letter of the law, Boucicault’s copyright was not valid. Nevertheless, he held that Boucicault’s interest in his own composition was protected by “common law,” which provided that “an author has, until publication, a property in his literary work, capable of being held and transmitted, and in the exclusive possession and enjoyment of which he and his assignees will be protected” (“Boucicault v. Hart,” Davis and Lillis, 13:402–11; Walsh, 124–27, 133–34 n. 1; “The Courts: Provisions of Dramatic Copyrighting,” New York Tribune, 18 May 75, 7). According to this ruling, Clemens—like Boucicault—did not have a statutory copyright on his unpublished play script, but still retained control of it by virtue of common law.