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Friday, November 13, 2015

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 And by extension, it would mean that the original work remains unpublished. But under US copyright law, the copyright term in an unpublished work is the life of the author plus 70 years.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)


Posted by Brian Frye on November 13, 2015 at 10:32 PM | Permalink


Holocaust-deniers have been attacking the Diary of Anne Frank as 'a fraud' and they claim it has been written by her father.
Now the Anne Frank Foundation in Switserland, founded by Otto Frank himself is helping them by stating Otto Frank had been co-author (without Anne's knowledge.
David Barnouw, Amsterdam
co-author of 'The Diaries of Anne Frank, The Critical Edition' (Doubleday 1989)

Posted by: David Barnouw | Nov 17, 2015 9:10:23 AM

Joe, I think that's right, although publication is a question of fact that depends on the circumstances, in particular the conditions under which the work was distributed to the public. This copyright circular provides some helpful color:

A further discussion of the definition of “publication” can be found in the legislative history of the 1976 Copyright
Act. The legislative reports define “to the public” as distribution to persons under no explicit or implicit restrictions
with respect to disclosure of the contents. The reports state that the definition makes it clear that the sale of phonorecords constitutes publication of the underlying work, for example, the musical, dramatic, or literary work embodied in a phonorecord. The reports also state that it is clear that any form of dissemination in which the material object does not change hands, for example, performances or displays on television, is not a publication no matter how many people are exposed to the work. However, when copies or phonorecords are offered for sale or lease to a group of wholesalers, broadcasters, or motion picture theaters, publication does take place if the purpose is further distribution, public performance, or public display.


As does this article by Deborah R. Gerhardt: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2016033

Posted by: Brian L. Frye | Nov 15, 2015 2:03:43 PM

Thanks -- my understanding of the term was more broad.

A family biography, for instance, can require some degree of effort to write and so forth but if merely distributed to family members might not count as being "published" under that definition.

Posted by: Joe | Nov 15, 2015 11:51:44 AM

Joe, under the Copyright Act of 1976, "'Publication' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending." So anticipating potential publication or showing the work to others would not constitute publication. Typically, "publication" has been construed narrowly, because "publication" without registration or notice resulted in the loss of copyright protection under the 1909 Act. Of course, European laws surely provide somewhat different definitions of publication, so the question is hard to answer in the abstract.

Posted by: Brian L. Frye | Nov 15, 2015 12:41:50 AM

Regarding your last paragraph, when does "publishing" occur?

If her work was "unpublished" -- though she seems to have believed that it would be in some form (she was familiar with the the queen or whomever interested in writings of regular people to set forth a written record) -- what is required legally for it to be published?

Would simply giving her diary to others to read (I believe she did in respect to short passages as to her sister and/or perhaps someone else) count or something more?

Posted by: Joe | Nov 14, 2015 11:03:22 AM

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