The Kafkaesque Question Of Who Owns Kafka's Papers

from the the-catlady-has-'em dept

Law professor Peter Friedman has an interesting discussion on his blog about who owns Franz Kafka's papers, based on a recent New York Times piece about a big legal fight over the matter. Yes, Kafka died back in 1924. Apparently, when he died, he left a note to his friend Max Brod, ordering him to burn all of Kafka's papers ("diaries, manuscripts, letters (my own and others'), sketches and so on.") Much to the benefit of modern literature, Brod totally ignored this request, and published a series of posthumous Kafka works, including some of his most famous and respected works, such as "The Trial."

From there, things got weird. Many of the works eventually became the possession of Oxford, but about one-third of the remaining works stayed with Brod until he died in 1968 in Israel (where he had fled just before the Nazis shut down Prague), and then there are conflicting claims about where the works were supposed to go. Where the physical papers did go were to Boyd's secretary (and, many claim, his lover) who kept them and sold some of them, leading to the start of a legal fight. When she died, the papers went to her two daughters -- at least one of whom might be considered... eccentric. And thus there's quite a legal fight. The NY Times piece is long and detailed and a good read all around.

But, as Friedman notes, the key point may be this:
The situation has repeatedly been called Kafkaesque, reflecting, perhaps, the strangeness of the idea that Kafka can be anyone's private property. Isn't that what Brod demonstrated, when he disregarded Kafka's last testament: that Kafka's works weren't even Kafka's private property but, rather, belonged to humanity?
Of course, this also raises separate questions about the ownership of the physical papers vs. the copyright on the works. The two are not the same, though it makes life even more confusing when you start to dig into what the copyright situation might be on some of these works. Considering that Kafka's own desire was to have them burned, only adds to the mess of questions. Though, there is one additional amusing quote, from an Israeli writer, who thinks that Kafka might actually enjoy the incredible absurdity of the current situation:
If Brod could see what was happening now, [Etgar] Keret says, he would be "horrified." Kafka, on the other hand, might be O.K. with it: "The next best thing to having your stuff burned, if you're ambivalent, is giving it to some guy who gives it to some lady who gives it to her daughters who keep it in an apartment full of cats, right?"
But that question of "ownership" is really what's (rightfully) bugging Friedman, and is one of the points that we continually try to raise here at Techdirt, with our concern over how copyright has turned away from its intended purpose (promoting the progress) into this false belief that it is about "ownership." As Friedman notes:
My real point -- and the point that drives a lot of what I write on this blog -- is that we confuse things and act to our cultural detriment when we treat intellectual "property" like we treat real property. And that confusion of course extends to the ways we give dead people continued influence over their intellectual and artistic creations.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    Chris in Utah (profile), Sep 24th, 2010 @ 8:08pm

    Anecdotal question.

    I wonder of doublethink was inspired by stories such as these.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Sep 24th, 2010 @ 8:38pm

    The dead own nothing.

    reply to this | link to this | view in thread ]

  3. identicon
    Anon, Sep 24th, 2010 @ 8:42pm

    While the physical works belong to whoever currently has them (possesion 9/10's is not law, but in this situation, it should apply). However the writings themselves should be public domain. Even if he had burned the originals, they could have been re-written and the words belong to noone.

    reply to this | link to this | view in thread ]

  4. icon
    lfroen (profile), Sep 24th, 2010 @ 11:34pm

    I'm confused - are we talking about papers or content

    In no point Mike doesn't explain what this legal fight is actually about: writings themselves (original papers) or content of said writings.
    Disputes over antiquated documents are neither surprising nor rare. Copyright, on the other hand has expired long ago, no matter who owned it before.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Sep 25th, 2010 @ 1:58am

    So who's this Boyd character?!

    reply to this | link to this | view in thread ]

  6. icon (profile), Sep 25th, 2010 @ 4:16am

    Well, it's clear they belong to SCO.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Sep 25th, 2010 @ 5:14am

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, Sep 25th, 2010 @ 5:42am

    The unintended consequences of the 4chan DDoS, it brought to light very damaging emails, what was that about it was counter productive again?

    Andrey Crossley prank calls

    18.000 letters send to innocent people 120.000
    Having your website come under siege, after that having all your emails dumped on the internet and being harassed day and night by pranksters that hate you PRICELESS.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, Sep 25th, 2010 @ 12:22pm

    I am surprised that nowhere in what little I have read about Kafka and his papers has there been any mention about the laws of inheritance in the country in which he resided at the time of his death in 1924.

    Thus, it seems to me that this is less a matter of law, and more a matter of who can get their grubby little hands on his original papers so that they can be exploited to the hilt.

    reply to this | link to this | view in thread ]

  10. icon
    Karl (profile), Sep 26th, 2010 @ 7:46am

    Re: I'm confused - are we talking about papers or content

    In no point Mike doesn't explain what this legal fight is actually about: writings themselves (original papers) or content of said writings.

    It's in the NY Times piece that Mike linked. The papers in dispute are formerly unpublished - letters, literary sketches, and the like.

    Legally, the debate centers around whether Brod made Hoffe an "executor" or a "beneficiary" of the papers. If the former, the papers revert to Brod's estate after Hoffe's death, and they go to the National Library of Israel. If the latter, Hoffe can pass them on to her daughters, who will then sell some of the papers to the German Literature Archive, and keep the rest locked up in safe deposit boxes, out of the public eye.

    Either way, whatever is published (whether in Israel or Germany) would go into the public domain. At least I believe so.

    reply to this | link to this | view in thread ]

  11. identicon
    NormanB, Sep 26th, 2010 @ 1:24pm


    I've read the long NYT Mag article on Kafka's papers. It has to be admitted that for some reason these papers are considered very valuable by many people and institutions just like great art works are so prized. It seems kind of silly to me because its the artistic output that should be studied not the author's religious or ethnic positions.

    The Univ of Cal at Berkeley has the same thing going for them in that they are the repositry for Mark Twain's papers; they have a whole staff in charge of this memorbilia and writings. I did a back of the envelope caluclation as to the interest achieving present value of the costs associated with this project and it works out to an astounding $100M.

    If there is 'scholarship' associated with Kafka, Twain, etc we have to consider what is the scope of knowledge and to whom would this be valuable. Why, except for a few doctorial books that might be printed the audience is miniscule compared to and past and ongoing cost. Its nothing but a boondoggle for already over paid and under worked academics.

    reply to this | link to this | view in thread ]

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