Arguing Over The Copyright In Schindler's List -- The Actual List, Not The Movie

from the copyright-gone-mad dept

Tue, Jan 4th 2011 10:32am — Mike Masnick

The movie Schindler's List famously covers the story of Oskar Schindler, who saved over 1,000 Jews during the Holocaust by creating his "list" of essential workers, which kept them from being sent to their deaths. Now that the list itself is famous, apparently there's a bit of a legal fight over the copyright on the actual list (found via THREsq). The details are somewhat ridiculous. Basically, Schindler made three separate copies of the actual list. One copy of the list is at the Holocaust Museum Yad Vashem in Israel. Another list, which is slightly different, but considered equally authentic, ended up in the possession of Marta Erika Rosenberg, an author who had written about Schindler, and was left the list in the will after it got passed around a bit. Finally, the third list is held by a guy named Gary Zimet, who buys and sells historical memorabilia. That list came from Nathan Stern, who is the nephew of Schindler's accountant, who was in charge of keeping the list.

Stern hired Zimet to sell the list, which seems straightforward enough... except that Rosenberg claimed that she has full ownership of the list, via her copy, including a copyright on the list. The court, in its decision basically punted on the question of copyright, because Zimet isn't looking to publish the list, but merely sell the physical copy of the list -- which has nothing to do with copyright. However, the court still does suggest that there may be a (state) common law copyright claim here. However, I have to agree with Eugene Volokh, who suggests the court got this wrong. While (as we've discussed) there are state common law copyrights, they're very limited, and are mostly preempted by federal copyright law. So, as a written work, this should fall under federal copyright law. And since it's just a list of names, there's no copyright to be had at all. On top of that, even if there were a copyright, it's not at all clear that Rosenberg received the copyright to the document at all when she received her copy. All in all, it's yet another example of how people have been trained to believe that such things can be "owned."

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Filed Under: copyright, schindler's list

38 Comments

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Bob V (profile), 4 Jan 2011 @ 10:46am

Isn't a list of names (no matter how significant)just factual data?
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:Lobo Santo (profile), 4 Jan 2011 @ 10:47am

Errr, ummm....
Isn't it a list of names, ergo factual information?

I thought facts couldn't be copyrighted...
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Anonymous Coward, 4 Jan 2011 @ 10:48am

It's despicable that people can be so petty over items of such overwhelming historical significance. (Not surprising, mind you, just despicable.)
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weneedhelp (profile), 4 Jan 2011 @ 10:50am

intended purpose
So, as a written work, this should fall under federal copyright law.

That is if its intention was to be published as a written work. I dont believe that Oskar Schindler had that intention. Nor do I believe he would have approved of these actions by misguided individuals.

it's yet another example of how people have been trained... indeed.
Sit Ubu sit. Thats a good dog.
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Overcast (profile), 4 Jan 2011 @ 10:56am

Historical items should be exempt from any copyright claims, really.
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Free Capitalist (profile), 4 Jan 2011 @ 11:00am

Re:
In this case it turns out Rosenberg tried to make a "I got a copy, right?" case. Which, of course, will be allowed under COICA for those whose annual campaign contributions exceed $1M.
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Anonymous Coward, 4 Jan 2011 @ 11:10am

Weird
For some reason, Nazi Memorabilia always seems to play by counter-intuitive rules.

It looks like it was authenticated, so in my mind all three list should reside in a museum and not tying up the court system and used to leverage ownership of the other list/s.

But again, it' Nazi Memorabilia so these types of items often play by their own rules.
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Anonymous Coward, 4 Jan 2011 @ 11:11am

Re: Errr, ummm....
Then I guess Oskar Schindler won't be making any more lists! Are you people happy? Another artist is denied protection thanks to the lax enforcement of copyright laws. Pathetic.
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Not an electronic Rodent, 4 Jan 2011 @ 11:16am

Er? Duh? What???
Like others I'm left wondering how a list of names has any copyright claim in it at all. It does remind me of the article a while ago where the Ministry of Sound sued people and it turned out to be basically over the track listing rather than the tunes themselves.

Maybe I'm missing something and someone can enlighten me?

Surely the "value" here lies, like almost any historical object, not in the list itself (which I would guess though I'm not interested enough to find out, might even be a matter of public record by now), but in the actual historical piece of paper itself? And by that measure each of the 3 copies has a separate valid providence and potentially separate value. Under what circumstances would this list of names quoted instead of being on the "historical" paper have any actual value that ought to be protected?
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Mike Masnick (profile), 4 Jan 2011 @ 11:25am

Re:
Isn't a list of names (no matter how significant)just factual data?

Hence: "since it's just a list of names, there's no copyright to be had at all"

That's why the judge appears to be mistaken. That said, I think the judge is suggesting that a list of names might be covered by common law copyright -- and that could be the case if federal copyright law didn't preempt written works from common law copyright. State common law copyright did not follow the same rules about what was coverable, and depending on the state, that might have included things like factual data or lists (I'm not familiar with each specific state common law copyright, so not sure if that's definitely the case in NY where this took place -- but either way, it's meaningless given federal copyright law rendering most state common law copyright moot).
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The Infamous Joe (profile), 4 Jan 2011 @ 11:29am

Re: Re:
Maybe it's a simple database? :)
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Jack Repenning (profile), 4 Jan 2011 @ 11:35am

"The" list?
As I read the opinion, I think the question put to the court is whether someone owns copyright to "the" list--a right that would extend over arbitrarily many copies, even if they differ. Am I getting that claim right? But in fact, these three documents are separate "lists." They're all "authentic," in one sense or another, but they're completely different documents, not copies one of another but rather all are (basically) independent chronicles of the same underlying historical events. Even if copyright counted for the sort of documents they are, if the various possessors of the physical documents had legal claim to that right, and the use proposed was controlled by copyright (all of which which seem in doubt), the fact that these are three distinct documents would seem to me to mean that their possession, ownership, and use were independent, one document from another. Right?

But then, IANAL. I'm just an engineer. I think that "Law is to Language, as Ballistics is to F=ma."
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:Lobo Santo (profile), 4 Jan 2011 @ 11:35am

Re: Re:
I must disagree.

Despite public ignorance on the subject, states have a degree of sovereignty on their local laws.

To be more specific, state laws trump federal laws. (Though the federal government would prefer nobody knew that and believed the opposite to be true.)
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Greevar (profile), 4 Jan 2011 @ 11:56am

If a list of names can be copyrighted...
Tom Anderson
Ned Larsen
Brady Johnson
Victor Von Loh
Tony DeGrassi
Leonard Hoffstadder
Sheldon Cooper
Howard Wolowitz

I hereby copyright this list of names. Anyone who receives a copy must pay me $100.00 U.S.
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RikuoAmero (profile), 4 Jan 2011 @ 12:03pm

Re: Re: Re:
"State laws trump federal laws"

No they don't. I forget which state it is, but a while back, there was this state official who had gotten elected into office, but was an atheist. His opponents tried to use that against him, saying the STATE constitution required a religious oath. However, Article Six of the Federal Constitituon states "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
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Dark Helmet (profile), 4 Jan 2011 @ 12:13pm

Re: Re: Re: Re:
I believe that was one of the Carolinas, if memory serves. But, actually, you're both wrong and you're both right. The way it's SUPPOSED to work is that the Constitution trumps EVERYTHING, but state law is enumerated in any area not specifically covered by the Constitution, unless they willingly cede power to the Federal government.

Sadly, the states don't seem to practice this power any longer....
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Anonymous Coward, 4 Jan 2011 @ 12:26pm

Was not Schindler's List written at what was at that time Natz Germany, now Poland?

If so why would US law be applicable at all?
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Dark Helmet (profile), 4 Jan 2011 @ 12:44pm

Re:
"If so why would US law be applicable at all?"

Uh, maybe because the US are the masters of the universe by the power of Grayskull?

I thought everyone knew that....
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harbingerofdoom (profile), 4 Jan 2011 @ 12:45pm

Re: "The" list?
i didnt get that at all from reading that ruling.
what i did get is:
plaintiff claims copyright violation by sale of document
defendant says by not publishing and only selling, its not a copyright violation
court says yup, if you are only selling the document there is no copyright violation, but here is the only applicable copyright issue that may extend to plantiff

while they didnt rule on the copyright issue itself, inclusion of the issue that common copyright is gone once the list is published to the public, which it has been, unless the owner reserves rights, which the court found no records of, in the ruling pretty much would indicate that even if they had actually ruled on the copyright issue, plaintiff would have lost anyway.

but hey, IANAL
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harbingerofdoom (profile), 4 Jan 2011 @ 12:46pm

Re: "The" list?
i didnt get that at all from reading that ruling.
what i did get is:
plaintiff claims copyright violation by sale of document
defendant says by not publishing and only selling, its not a copyright violation
court says yup, if you are only selling the document there is no copyright violation, but here is the only applicable copyright issue that may extend to plantiff

while they didnt rule on the copyright issue itself, inclusion of the issue that common copyright is gone once the list is published to the public, which it has been, unless the owner reserves rights, which the court found no records of, in the ruling pretty much would indicate that even if they had actually ruled on the copyright issue, plaintiff would have lost anyway.

but hey, IANAL
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harbingerofdoom (profile), 4 Jan 2011 @ 12:47pm

Re: "The" list?
i didnt get that at all from reading that ruling.
what i did get is:
plaintiff claims copyright violation by sale of document
defendant says by not publishing and only selling, its not a copyright violation
court says yup, if you are only selling the document there is no copyright violation, but here is the only applicable copyright issue that may extend to plantiff

while they didnt rule on the copyright issue itself, inclusion of the issue that common copyright is gone once the list is published to the public, which it has been, unless the owner reserves rights, which the court found no records of, in the ruling pretty much would indicate that even if they had actually ruled on the copyright issue, plaintiff would have lost anyway.

but hey, IANAL either so...
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Mike Masnick (profile), 4 Jan 2011 @ 12:47pm

Re:
Was not Schindler's List written at what was at that time Natz Germany, now Poland? If so why would US law be applicable at all?

US copyright law covers works created elsewhere, when those works are within the US.
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harbingerofdoom (profile), 4 Jan 2011 @ 12:47pm

Re: Re: "The" list?
holy multiple post batman.... what the heck just happened?
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Anonymous Coward, 4 Jan 2011 @ 1:38pm

Re:
Because the U.S. is signatory to a dozen international treaties that state they need to protect the copyright of others if they want protection for their own works.

That is why.

Don't you love backroom deals made in your name without you knowing?
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Anonymous Coward, 4 Jan 2011 @ 1:40pm

Re: Re: Re: "The" list?
Stop hiting "ENTER" like is the end of the world LoL
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Anonymous Coward, 4 Jan 2011 @ 2:06pm

Do not create a grocery list with milk, bread, and cheese on it. Those are on my list. If you choose to create such a list, you will be sued for copyright infringement.
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btr1701 (profile), 4 Jan 2011 @ 2:52pm

Re: Re: Re: Re: Re: Federalism
> The way it's SUPPOSED to work is that the Constitution trumps
> EVERYTHING, but state law is enumerated in any area not
> specifically covered by the Constitution, unless they willingly
> cede power to the Federal government.

More accurately, Article I, Section 8 of the US Constitution lists the powers of the federal government and the federal government has only those powers that are specifically listed. Amendment X says that any power not specifically granted to the federal government belongs to the state and local governments.

In the case of copyright, it *is* one of the powers listed and granted to the federal government in Article I, Section 8, so the federal government's power over copyright is superior to the states' power.
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btr1701 (profile), 4 Jan 2011 @ 2:54pm

Re: History
> Historical items should be exempt from any copyright claims, really.

When does, say, a book or a painting cease being a book or a painting and become an "historical item", such that the owner/author suddenly loses his/her IP rights in it? And who decides this?
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btr1701 (profile), 4 Jan 2011 @ 2:56pm

Re: Weird
> But again, it' Nazi Memorabilia so these types of items often
> play by their own rules.

How does something made by people fighting against the Nazis become Nazi memorabilia? It's actually anti-Nazi memorabilia.
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btr1701 (profile), 4 Jan 2011 @ 2:58pm

Re: "The" list?
> the fact that these are three distinct documents would seem to
> me to mean that their possession, ownership, and use were
> independent, one document from another. Right?

Bingo. Exactly what I was thinking.
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The Mighty Buzzard (profile), 4 Jan 2011 @ 5:25pm

Re: Re: Re: Re: Re: Re: Federalism
To the states or to the people. Otherwise, dead on.
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The Mighty Buzzard (profile), 4 Jan 2011 @ 5:34pm

Re: Re: History
Congress, with the consent of the President or with an overridden veto, decides this, as is spelled out in the Constitution. Apparently Congress thinks it's 70 years after the artist's death.

I tend to heartily disagree but then I'm not a member of Congress, so I have no actual say in the matter.
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G Thompson (NLI), 4 Jan 2011 @ 7:27pm

Re: Re:
Correct. Though the rest of the worlds jurisdictions do laugh at this so called ability since it does not mean squat if the works are then taken outside of the USA

Though due to the Copyright treaty that you are referring to for when "US copyright law covers works created elsewhere, when those works are within the US" is extremely relevant here when the court has stated there might be a STATE based common law query.

There is NO State ability here for exactly the reason that the treaty onl;y covers Federal Copyright usage. NOT State based usage since the work in question was actually created outside of the State of New York and Outside of the USA no matter what the State of NY thinks.
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Not an electronic Rodent, 5 Jan 2011 @ 1:37am

Re: If a list of names can be copyrighted...
Tom Anderson
Ned Larsen
Brady Johnson
Victor Von Loh
Tony DeGrassi
Leonard Hoffstadder
Sheldon Cooper
Howard Wolowitz
So.... who are they?
.....
Dammit! License fee! DOH! (Oh no, there I go again!) :-)
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PeteProdge (profile), 5 Jan 2011 @ 2:43am

Re: Re: Errr, ummm....
The answer to this is simple.

We sue Oskar Schindler. He made three copies of the list. Did those on the list give him permission to do that? That's unauthorised copying! SUE THIS EVIL CRIMINAL!
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PeteProdge (profile), 5 Jan 2011 @ 2:43am

Re: Re: Errr, ummm....
The answer to this is simple.

We sue Oskar Schindler. He made three copies of the list. Did those on the list give him permission to do that? That's unauthorised copying! SUE THIS EVIL CRIMINAL!
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ethorad (profile), 5 Jan 2011 @ 3:21am

Another instance of Cpoyright being good!
I don't know why people are bashing someone trying to enforce copyright on Schindler's List.

After all, if it wasn't for copyright and the ability to collect royalties on his list after the war, Schindler would never have written it and subsequently saved over 1,000 jews. Do you want those jews to have died? Are you a nazi??
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btr1701 (profile), 5 Jan 2011 @ 3:40pm

Re: Re: Re: Re: Re: Re: Re: Federalism
"The people" in this context refers to local county and city governments as opposed to the state government.
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