Schindler's list, Costco, and Common-law Copyrights

The Volokh Conspiracy blog recently highlighted a case of interest to anyone who deals with manuscripts.  Rosenberg v Zimet concerned the ownership of a version of "Schindler's List," the list of essential employees used by Oskar Schindler to protect many of them from transportation to death camps.  One copy of the list is physcially housed in the Holocaust Museum Yad Vashem in Israel, though copyright in the document belongs to Marta Rosenberg, the heir to Schindler's widow.  A second copy ended up in the hands of one of Schindler's employees, who eventually gave it to Thomas Keneally, the author of the book on which the Schindler's List movie is based.  That copy was included in the Keneally papers purchased by the State Library of New South Wales.  (It apparently is not, as the lawsuit suggests, the copy that is "the object of this lawsuit.")  A third copy belonged to Schindler's accountant and is now for sale from M.I.T. Memorablia. The lawsuit was an attempt by the copyright owner, Marta Rosenberg, to prevent the sale of the document.

There are two elements in the case that make this of interest to manuscript curators.  First, the court opens with a discussion of the common law copyrights that might be present in the document.  Eugene Volokh points out - correctly, I believe - that the court got this wrong.  I can't think of any common law copyright in the document that was not pre-empted by bringing unpublished items under Federal protection in the 1976 Copyright Act. 

I was interested to see, however, that the Court did cite Pushman and its progeny as far as copyright transfer is concerned.  I thought I might be the only person who still remembered Pushman and think that it may have some relevance.  The Court seemed to suggest that if there had been a bill of sale from the copyright owner for the material, and if there was no reservation of rights, then copyright in manuscript items can transfer with the physical object.  It is possible that some repositories may have unknowingly acquired copyrights when they acquired physical title to unpublished works.

Second, Volokh concludes that in spite of the Court's misunderstanding regarding common law copyrights, "the transfer of the list is indeed permissible."  This would seem like a no-brainer; thanks to the "first sale" doctrine embodied in Section 109, one does not need the permission of the copyright owner to sell a physical copy of the work.  Or so it seemed until the Supreme Court recently split in Omega Watch v. Costco , about which I wrote earlier.  In that case, the Appeals Court concluded that unless a sale in the U.S. is authorized by the copyright owner, first sale rights do not apply.  ("[Section 109] applies to copies made abroad only if the copies have been sold in the United States by the copyright owner or with its authority.”)  In this case, the copyright owner never apparently authorized the sale of copies of the list in the U.S., and so M.I.T. Memorablia's sale of the copy would seem to be no more legal than Costco's attempt to sell gray-market watches. 

Costco may not be a total disaster for libraries.  Kenny Crews has a useful post on how its implications may not be terrible for libraries.  And even in this case, it might be that a court would conclude that because of Section 104(a), unpublished works created abroad are "lawfully made under this title," as required by Section 109 (even though U.S. copyright law is not to supposed to have extraterritorial application).  Alternatively, the Court could conclude that the compilation of a list of names does not have enough originality to warrant copyright protection, and hence Costco would not apply.  But it just highlights for me the uncertainty we now face when dealing with foreign materials.  Let's hope that Congress fixes this soon.

Comments

[Peter Hirtle]

I would agree with Copyfraudhater that copyright is often silly. In this case, I held open the possibility that the court would conclude that there was not enough originality in the list to warrant a compilation copyright. But it was the NY court that claimed that the "plaintiff may be entitled to a Common Law Copyright" in the list. In other words, it is not an open-and-shut case.

As far as awarding copyright protection to items used in crimes, that is a very interesting question. There is nothing in the Copyright Act to prohibit this that I can see. In a famous case involving obscenity (Mitchell Brothers v. Cinema Adult Theater), the court came out strongly that the illegal nature of the content of the work should not prevent it being protected by copyright. I suppose that one could extend the old doctrine of "unclean hands" to suggest that works used in the course of a crime should not receive copyright protection, but I don't know of any recent cases that argue this. And if you look at articles on the Theodore Kaczynski case, you do not find anyone that I know of suggesting that the Unabomber does not own the copyright in his productions. (See, for example, http://lawold.usc.edu/students/orgs/lawreview/M.NormanTheUnabomberStrikesAgain.cfm.)

[copyfraudhater]

But that means that also any list of crime (including holocasut) victims would be subject to a copyright of the murderers. They had to select their victims first, after all. Mass murder as a copyrightable work of, well, art? Sounds silly enough for me.

[Peter Hirtle]

One could argue for a "compilation copyright" in the list. A compilation, the legislative history notes, "results from a process of selecting, bringing together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright" (and in this case, I think that we are all agreed that the individual names themselves could not be copyrighted). The question would then be whether the compilation of the list exhibits the required originality to secure a copyright.

If Schindler merely listed everyone working in his factory, there would be no selection and no copyright would apply. But apparently each of the extent lists has a different number of names on it. That suggests that some selection principles may have been in play, and that the lists are not mere mechanical constructions. It is not automatically apparent, therefore, that there is no copyright in the list - further research and assessment is needed.

[copyfraudhater]

How can a simple list of people's names have a copyright at all? It's not the slightest bit of creative input used (it's real people from the real world, after all, not a list of emperor of the Romulan Empire). What's next? Copyrighting a list of the lower 48, since someone at least had to come up with it first?

[Dr. Klaus Graf]

According to German law I would say that the list doesn't have enough originality for copyright protection.