The Strange Copyright Case of Anne Frank’s Diary

Diary of a Young Girl CoverNote: Though this dispute is playing out in the EU, we will be looking at it through the lens of U.S. copyright law. Though there are many similarities, there may also be differences I am not aware of.

Anne Frank: The Diary of a Young Girl is a book that’s widely considered to be a touchstone of both literature and history.

The book is the diary of a Jewish teenage girl named Anne Frank who, along with her family, hid in an attic in Amsterdam from 1940 to 1944 to evade the nazis. However, after the family was betrayed, they were captured by the Nazis in August 1944 and sent to a German concentration camp where, in 1945, Frank died along with most of her family.

The war ended shortly thereafter and the lone surviving member of the family, Anne’s father Otto, returned to Amsterdam and found the diary. He then pushed to have the diary published, with its first publication taking place in 1947.

The book quickly became a powerful perspective on the Holocaust. Told through the eyes of a teenage girl, it put a human perspective on the horrors of the Holocaust and Anne Frank herself became the Holocaust’s most famous victim.

Still, some 70 years after her death, Anne Frank’s diary has found new controversy, this time around copyright.

In 1963, Otto Frank created Anne Frank Fonds, a non-profit organization that, to this day, administers the copyrights on all of the writings by Anne Frank so that it, according to its mission statement, can promote charitable works in the spirit of Anne Frank.

Ann Frank Fonds, however, was set to lose control in Anne Frank’s diary because, at the end of 2015, the copyright to the work would expire in much of the EU. There tghecopyright expires 70 years after the author’s death and for Anne Frank, that time was now.

However, the organization had something different in mind. Mere months before the copyright was to expire, the organization announced that it was listing Otto Frank, who died in 1980, as a co-author to the work, thus extending the copyright another 35 years, until 2050.

That, in turn, has kicked off a firestorm of controversy with many claiming that it highlights the absurdity of copyright law and is a rights grab that should be challenged.

Still, understanding why and how this situation happened is important. Simply put, the questions it raises digs at the very heart of copyright and, taking the time to understand the legal whys and hows is important, especially as much of the world considers copyright reform.

The Co-Author Conundrum

annefrankfronds-logoThis post that you are reading is a solo creation by myself, Jonathan Bailey. Since it is not a work of corporate authorship, it will remain under copyright for 70 years after my death. Since I don’t know definitely when I’ll die, that could be as little as 70 years from today to, given that I’m a 35 year old man in good health, could be 140 years (or more) into the future.

However, if I’d written this post with someone else, an imaginary co-author I’ll call John Doe, the situation gets more complicated. The copyright lasts the life of the longest-living author plus 70 years. So, if I died tomorrow but John Doe lived another 50 years, the copyright would continue for another 120 years. My death, for the purpose of the copyright, would be irrelevant.

However, determining what is and is not a work of joint authorship can be difficult when it comes to copyright.

Under normal circumstances, a work of joint authorship is created when two ore more individuals (myself and John Doe) prepare the work together with the intention that a single work be created.

As co-authors, John Doe and I would have equal ownership of this work and we would each be able to grant non-exclusive rights to third parties. For example, I could grant permission for a magazine to reprint this article so long as it was not an exclusive arrangement. However, any profits I generated from the licensing or other exploitation of the work would have to be split with John Doe, who could do the same with the work as I could.

In short, the more authors you have, the more ways the right become divided. Though you could enter into a non-exclusive agreement with any of the authors, you would need all of them to enter into an exclusive one, one of the reason that multiple authors can be a real headache for publishers.

However, applying this to Anne Frank’s diary becomes much more complex, especially considering that one of the authors was not alive at the time the collaboration took place.

Collaboration and Anne Frank’s Diary

Anne Frank, during her time in hiding, had written not one but two versions of her famous diary. The first was just a journal of her thoughts and feelings but the second was an attempt to create a book more worthy of publication after the war.

After the war, Otto Frank discovered both versions and then merged and edited them, creating a new version that would eventually be published.

As the heir to Anne Frank’s estate, including her copyrights, Otto Frank had control over the rights to the book and was able to do this without any legal issues.

However, the new theory being presented by Anne Frank Fonds is that Otto Frank did more than simply prepare the diary for publication, that he also contributed to it in a way that was meaningful enough to make him a co-author.

Normally, this wouldn’t be possible without the other author’s permission. Anyone creating a work of “coauthorship” without permission of the original author would basically be producing an infringing derivative work.

However, since Otto Frank held the rights to the book, he, theoretically at least, could have added enough to the book to make himself a joint author with his daughter. Whether that’s true or not remains to be seen.

Requirements for Joint Authorship

The problem is that determining what level of contribution is needed to form a joint authorship is not always straightforward. Editors, for example, rarely are given joint author status.

However, there are times where it’s at least debated. For example, Laura Ingals Wilder, the author of the Little House books, is alleged to have gotten so much help from her “editor”, her daughter, that many believe the daughter effectively wrote them.

Still, like many areas of copyright law, the amount of contribution each party has to make to a work for it to be considered a joint authorship is a gray issue. If an illustrator and an author team up to make a book, they can come out as joint authors even if the illustrations make up a significantly larger percentage of the book (or vice versa).

But there’s another requirements in the law that’s even thornier, the issue of intent. Under the law all of the parties have to intend to create a new work. In this case, one of the alleged joint authors was dead before final book was created. However, since her alleged co-author, her father, represented her, the argument goes that he, representing both authors, intended to create the new work of joint authorship.

It’s a novel theory and I’m not familiar with a similar case, especially one where the joint author was claimed nearly 70 years after publication (and more than 30 years after the passing of the last author).

Still, this is the theory being presented, for better or worse.

Where Do We Go Now?

The big question is simple: What happens now?

The claim of joint authorship will almost certainly be contested, most likely under the notion that Otto Frank didn’t add or change enough to the work to be considered a joint author. This argument is bolstered by a forward he wrote where he said he changed as little as possible in the work.

Still, the role of Otto Frank in publishing his daughter’s diaries will be getting a lot more scrutiny over the next few years, in and out of court.

In the meantime though, that pushes the book into something of a gray area, akin to where we are now with Happy Birthday to You and where we were the character of Sherlock Holmes before recent court rulings.

The charity has made a claim that the book is still copyright protected and, without a relevant court decision, we don’t know if their claim is valid or not. This makes it difficult for others to use for fear of litigation, but doesn’t necessarily mean that it’s truly copyright protected either.

In the end, the courts will have to weigh in on this one before we get anywhere and that could take a long, long time.

Bottom Line

It’s worth noting that, in the United States, the book is in no danger of lapsing into the public domain. Works published during that time were granted 95 years of copyright protection after their publication, regardless of the author. Since the English version was published in 1952, it will remain under copyright in the U.S. until 2047.

It’s also worth repeating that, though this case is being battled in the EU, we were looking at it from the perspective of U.S. copyright law, though there are many similarities.

But, even after it is all said and done, the book may not completely lapse into the public domain in 2050 either. According to the charity, a second editor Mirjam Pressler, revised and edited the diaries top publish a “definitive edition” in 1991. Pressure is still alive and, if she is a coauthor, the copyright in that edition will not lapse for at least 70 more years.

In short, while it’s not the everlasting copyright of Peter Pan, it’s very likely that Anne Frank’s diaries will have a copyright that long outlives what many would have expected.

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