I’m from Billy Joel country, so you will forgive me if, despite living in Los Angeles, I am often in a “New York State of Mind.” But when I travel, I can’t help but notice that I get into an “IP State of Mind.” An example: I was in Buenos Aires a few years ago and in a small street wedged between rows of legal bookstores, I noticed the sign for a hardware store with a prominent blue and grey bull dog image and the word YALE in bold letters. Was the owner trying to imply an association between his stock, presumably from the famous Yale lock company (no relation to the University) and the bulldog mascot of the Yale University football team? It was a small potatoes trademark issue, but I couldn’t help but wonder what message the shop owner was after. A hint of status or prestige? Or do bulldogs spell security for the good inhabitants of Buenos Aires, where dogs seem as numerous as humans? Or was the owner simply confused about a possible link between the Ivy League university and the lock company (founded in the mid-19th century by Linus Yale, Jr. in Connecticut USA). I took a photo and filed it away for future use in a classroom.

More recently, I was in Prague and IP questions galore kept popping into mind.  I will explore some of them in coming posts.

The Kafka family lived next door to Old Town Hall

Brand KAFKA and Some Copyright Questions Too

For starters, this city has now branded itself the birthplace and creative haven of Franz Kafka. Billboards, posters, t-shirts and mugs all beckon with images of the writer from his young adulthood and with sketches of his imaginary demons. The Kafka Memorial statue is a must-see stop on any walking tour of Prague, a point of pilgrimage and selfies. The Franz Kafka museum is likewise a draw for visitors, attempting an explanation of Kafka’s world view and an introduction to his works, and displaying facsimiles of some of his writings. Printed maps of Kafka’s Prague are available in more than 10 languages.

Copyright Quandaries 

But amid the feverish tourism, I couldn’t help but wonder. What law originally protected Kafka’s copyrights in his writings? Some manuscripts (for what became The Trial, for example) were created during a period when Prague was an important but provincial city within the Austro-Hungarian empire. The work we know in English as The Metamorphosis was actually published with the author’s permission in Leipzig in 1916 in the original German. Other works by Kafka were created after a new Czechoslovakia was forged by the Treaty of Versailles following the end of WWI, such as the book we know in English as The Castle, written in 1922.

Kafka met an untimely death due to tuberculosis, just shy of his 41st birthday in 1924.  In a letter to his friend and fellow writer Max Brod found by Brod after Kafka’s death, the author gave clear instructions to destroy his letters, diaries and unpublished manuscripts. Instead, as the world came to learn, Brod “rescued” Kafka’s manuscripts, letters and diaries and set about editing them for publication and arranging for translations. But given the tumultuous historical period in which Kafka lived, which national law or international conventions should have applied to the protection of those unpublished works before Kafka’s death and those published after his death over a course of years? Were Kafka’s moral rights violated by Brod’s well-intentioned, but by some reckonings awkward, editions in German?

Terms of Protection and Validity of Copyright

These questions are not entirely idle when one is in an IP State of Mind. They are pertinent to establish the applicable term of protection of copyright in works that were subsequently published post mortem, as well as the duration of the copyright in The Trial published during Kafka’s lifetime. The question of applicable copyright also has bearing on the validity and duration of the 1934 publishing contract entered into by Kafka’s heir, his mother Julie (née Löwy) Kafka, upon the advice of Max Brod, some ten years after her son’s death. (Presumably, in Prague where she lived.)

According to Benjamin Balint, whose book Kafka’s Last Trial: The Case of a Literary Legacy (W.W. Norton & Company, 2018) is highly recommended for anyone interested in problems of authors’ estates, Kafka’s mother signed an agreement with Schocken Verlag publishers of Berlin, conveying worldwide publishing rights to her son’s works. By July 1935, Schocken Verlag had brought out the first four volumes of a planned multi-volume set of Kafka’s works in the original German. But scrutiny by the Nazis of the Jewish-owned Schocken company prompted the publisher to transfer its publishing rights temporarily (subject to a reversion upon request) for volumes 5 and 6 of Kafka’s collected works in German to Mercy Verlag, a Czech publisher, according to Balint. (German was the language of “high culture” in Prague in that period.)

This arrangement lasted until the German occupation of Prague in 1939 and the forced liquidation in Berlin of the Schocken publishing company. Balint recounts that the warehouse in Prague used by Mercy Verlag to store many editions of Kafka’s work on behalf of Schocken was itself destroyed with all its contents. Meanwhile, the principals of Schocken Verlag fled Berlin for New York. There, they reconstituted their company as Schocken Publishing. The new publisher remained the asserted rights holder for Kafka’s worldwide publishing rights, even as possession and ownership of the original Kafka manuscripts and diaries became the subject over the years of conflicting claims involving individuals and archives in Europe and Israel.

Kafka Comes to America

Schocken Publishing brought out the first English-language versions of Kafka’s novels beginning in 1946. By the early 1960’s, it was commonplace for American high school students to be assigned The Trial and The Metamorphosis in English versions translated from the German editions, perhaps even some prepared by Max Brod.

But how does an IP lawyer look at the changing legal regimes, forced dislocation, Nazi occupation, Soviet occupation, force majeure events, and shear difficulties in copyright registration formalities in trying to understand the IP aspects of the legacy of Kafka?

The Cambridge Handbook of Intellectual Property in Central and Eastern Europe

Fortunately for me, the recent publication of The Cambridge Handbook of Intellectual Property in Central and Eastern Europe, edited by scholar and professor Mira T. Sundara Rajan (© Cambridge University Press, 2019), has brought together the insights of fine legal minds from this region. Among the nuggets is “The Development of Hungarian Copyright Law until the Creation of the First Copyright Act (1793-1884) by Professor Peter Mezei of Szeged University, Hungary. He painstakingly explains the terms and reach of Austrian copyright law that applied to lands within the Austro-Hungarian empire, such as Bohemia (Prague) and Hungary. With the help of these scholars, including several contributors from today’s Czech Republic, an EU member, I hope to make some progress on the Kafka questions and share my thoughts in a future blog.

L Fishman

Lois R. Fishman is founder of the Law Office of Lois R. Fishman, a transactional law practice in Los Angeles, CA focusing on copyright, publishing, technology, entertainment, trademark and non-profit law. She was previously Assistant General Counsel with The Walt Disney Company handling…

Lois R. Fishman is founder of the Law Office of Lois R. Fishman, a transactional law practice in Los Angeles, CA focusing on copyright, publishing, technology, entertainment, trademark and non-profit law. She was previously Assistant General Counsel with The Walt Disney Company handling a variety of matters involving digital content. She graduated from Yale College and Georgetown University Law Center and currently teaches at Chapman University’s Fowler School of Law. She has familiarity with international intellectual policy matters as well as administrative proceedings before the Trademark Trial and Appeal Board, the Federal Trade Commission, and the Federal Communications Commission.