By Eugene Volokh
This decision grapples with a struggle for the ownership and publication of the contents of “Schindler’s List.” As much of the public knows from the book and the movie, both titled “Schindler’s List’, by use of the List setting forth the names of his Jewish employees, Schindler was able to save hundreds of them from the death camps and ovens of the Holocaust.
The Court, having issued a temporary restraining order barring the sale and publication of the List’s contents, now addresses the instant motion for a preliminary injunction for the same relief. According to plaintiff’s affidavit, in the autumn of 1993, Schindler’s suitcase containing thousands of photos and documents, including the List of employees that Schindler presented to the S.S., stating that they were necessary to assist in his war effort of manufacturing ammunition for the German Army. The List is now at the Holocaust Museum Yad Vashem in Israel.
Another List was found in the boxes of materials collected by an author named Kennaly. This List was given to Kennaly by Leopold Pfefferberg, a worker in Schindler’s factory and depicted in the movie as the person who brought new recruits to Schindler for inclusion in the List. While differing slightly from the List at Yad Vashem, it is considered authentic, and is the object of this lawsuit.
When Schindler died, his wife, Emilie, was declared to be his sole heir. After Schindler died, Emilie met plaintiff Marta Erika Rosenberg, then an author of several books about Schindler. They became good friends, and during their relationship, Emilie assigned the contents of the suitcase, including the List, to Rosenberg. When she died, Emilie left a will nominating Rosenberg as her only heir.
The defendant is Gary Zimet, a principal of co-defendant M.I.T. Memorabilia, a dealer in historical items. It appears that one Nathan Stern was given an original Schindler’s list from his uncle who was Schindler’s accountant. Stern then retained defendants to seek a buyer for the List.
The defendants then tried unsuccessfully to sell the List in the open market. Plaintiff then contacted defendant and demanded that as the heir to Mrs. Schindler, she was the owner of the List. Defendant offered to sell her the list, challenging her claim to ownership.
Defendant claims that he does not intend to publish the contents of the List only to sell it, which does not violate plaintiff’s copyright. But he argues, even if the contents were published, no right belonging to of plaintiff would be violated because the contents of Schindler’s List has been made known around the world, which would eviscerate any copyright originally possessed by plaintiff.
... [P]laintiff may be entitled to a Common Law Copyright, which is the right of first publication (Pushman v New York Graphics Society, 281 NY302). A copyright is separate and distinct from ownership, id. This Common Law right ends when a writing is distributed, (i.e., published) to the public (Chamberlain v Feldman, 300 NY135, 89 NE2d 863 ). Ownership of a document does not automatically carry with it the Common Law Copyright (Pushman v New York Graphics Society, supra . Nevertheless, a sale of all rights to an artistic work by the owner will ordinarily include the right not only of ownership, but also the Common Law Copyright, unless the owner reserves the right of ownership to himself or herself (Greenfield v Phillies Records, 98 NY2d 562, 750 NYS2d 565 ).
In this case, the parties’ submissions contain no bill of sale as existed in the cases cited. It is not clear whether the accountant who gave the List possessed the ownership or publication rights to the List. Therefore, it is unclear whether Nathan Stern acquired the publication rights, and, accordingly, whether the right to publication was acquired by the defendants.... Also, the record is wholly conclusory as to what the contents were of the Lists that were purportedly published around the world, as defendants contend. This leads the Court to conclude that it is inconclusive that the contents published in those lists are the same as the contents in this Schindler’s List.
Defendant Zimet has filed a sworn statement with the Court that he does not intend to publish the list, but only to sell it on behalf of his client. Plaintiff’s justification for preventing the sale is her ownership of the copyright. That is the only basis of denying him the right to sell. But if he does not intend to publish the contents, the sale will not violate the copyright.
Accordingly, the sale should be able to go forward, meaning that plaintiff cannot show the likelihood of ultimate success on the merits, depriving her of a preliminary injunction. [I]t is ORDERED that the temporary restraining order is vacated; and it is further ORDERED that this motion for a preliminary injunction is denied.
I think the court’s analysis was incorrect, though its ultimate bottom line was right. State common-law copyright in written items (as opposed to old sound recordings, or works that were not fixed in a tangible medium of expression) has been preempted by the federal Copyright Act of 1976. Therefore even publication of the list would not be subject to common-law copyright, and it wouldn’t be barred by federal copyright, either, since the list consists solely of facts and not Schindler’s original expression (in the copyright sense). But in any case, the transfer of the list is indeed permissible.