From: Kevin Smith <[log in to unmask]>
Date: Wed, 25 Nov 2015 12:37:25 +0000

Absolutely.  The argument the Foundation is making is absurd.  I just
wanted us to understand what that argument is -- they are claiming
that Otto was a co-author, not merely an editor.  If that dubious
claim were accepted, it would have very bad consequences because it
would extend the term in the entire work, including what Anne wrote in
her attic hiding place.  This is a "Hail Mary" attempt to protect the
Foundation's financial interest by preventing even a Web version of a
facsimile or transcription.  We need to remember that copyright
protects content, not versions.  If Otto is found to have had an equal
copyright interest in the entire work -- as a coauthor -- the
exclusive rights in all of that content would be extended.  As the
blog post points out, this is a real long-shot that no court should
accept.  But it is what the Foundation is arguing, in a desperate
effort to keep Anne Frank's work -- all of it -- out of the public
domain.

Kevin

Kevin L. Smith
Director, Copyright & Scholarly Communication
Duke University Libraries

-----Original Message-----
From: Sandy Thatcher <[log in to unmask]>
Date: Mon, 23 Nov 2015 22:58:18 -0600

Thanks for the link to the "excellent analysis," with which I agree
100% and which actually makes the same argument I was trying to make:

> But the Fonds also takes things one step farther and argues that Otto Frank's contributions to his adaptation also make him a co-author of the original work, the diaries famously written by his daughter. Can this possibly be right?
>
> Of course not. Headlines and legal machinations notwithstanding, you remain the sole author of your work regardless of whether someone else compiles it for publication.


Sandy Thatcher


> From: Kevin Smith <[log in to unmask]>
> Date: Mon, 23 Nov 2015 10:45:37 +0000
>
> Sorry.  I hit reply too soon and did not finish my message.
>
> The citation for the case about restoring copyright in works of
> foreign origin, which I meant to include, is Golan v. Holder from
> 2012.
>
> As for the issue of handwriting, it is really not relevant.  Suppose
> three people are writing an article together and one of them hand
> writes her sections.  That content is later combined with the
> contributions of the other two authors in to a single, unified whole.
> Under our law, the copyright in the entire work, because it was
> intentionally a single entity, would be unified, shared equally buy
> the three authors, and would reach back to encompass the content of
> the handwritten sections.  Thus one of the coauthors could elect to
> publish the whole article without the permission of the others (as
> happened in Weinstein v. University of Illinois).  The existence of a
> handwritten manuscript of part of the work would not change that.
>
> The issue, of course, in the Anne Frank case, is intent and whether a
> court should accept the claim that the Diary is a joint work.  An
> excellent analysis, which details the real reasons this claim should
> be rejected, can be found at:
>
> http://www.authorsalliance.org/2015/11/17/anne-frank-and-the-lasting-l
> egacy-of-the-public-domain/
>
> Kevin
>
> Kevin L. Smith, M.L.S., J.D.
> Director of Copyright and Scholarly Communications Duke University
> Libraries Durham, NC 27708 [log in to unmask]