Anne Frank's Copyright

Anne Frank's diary is iconic and indelible, capturing the horror of the Holocaust and humankind's potential for evil in a uniquely powerful way. It is a fixture on school reading lists and one of the most widely read books ever published. Today, the New York Times reported that Anne Frank Fonds, the Swiss foundation that owns the copyright in the diary, has claimed that Anne Frank's father Otto Frank is not only the editor, but also a co-author of the diary. As the Times observes, "When Otto Frank first published his daughter’s red-checked diary and notebooks, he wrote a prologue assuring readers that the book mostly contained her words, written while hiding from the Nazis in a secret annex of a factory in Amsterdam." But now the foundation claims that "Otto 'created a new work' because of his role of editing, merging and trimming entries from her diary and notebooks and reshaping them into 'kind of a collage' meriting its own copyright." To make matters worse, a "second editor, Mirjam Pressler, revised, edited and added 25 percent more material from Anne Frank’s diary for what was called a 'definitive edition' in 1991," and transferred any copyright she owned to the foundation, potentially extending the copyright term even further.

This new take on the authorship of the diaries is rather ... convenient. Under the copyright laws of most European countries, the copyright term is the life of the author plus 70 years. So if Anne Frank is the sole author, the copyright term will expire on January 1, 2016. But Otto Frank died in 1980, so if he is a co-author, the copyright term will last until 2050. By contrast, under US copyright law, the copyright term in works first published abroad by foreign citizens is 95 years after the date of publication. So, if the foundation's claim is valid the copyright in the diaries will last until at least 2050 in Europe, and until 2047 in the United States.

But I wonder whether their argument might be a little too clever. If it is true that Otto Frank changed Anne Frank's diary enough to make him a co-author, under US law that would make the published work a derivative work of the original work. And by extension, it would mean that the original work remains unpublished. But under US copyright law, the copyright term in an unpublished work is the life of the author plus 70 years. In other words, if the foundation's claim is true, the actual text of Anne Frank's diary may fall into the public domain on January 1 after all, in both the United States and Europe. (H/T Ann Bartow)