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.

Filed Under: franz kafka, ideas, ownership