Common Law Copyright on Schindler’s Actual List?
Joel Hecker at the New York State Bar Association Entertainment & Sports Law Section writes about a decision issued by the New York County Supreme Court on December 21, 2010 involving the lists prepared by Oskar Schindler on which Steven Spielberg’s motion picture Schindler’s List was based. As Hecker describes:
Apparently there are three original versions of this list of “essential” workers, created by Schindler, which contain the names of the more than 1,100 Jews he saved. One list, discovered in his suitcase, is at the Yad Vashem Museum in Israel. A second one was left to the plaintiff by Schindler’s widow, with the plaintiff claiming common law copyright in it. The third one was kept by his accountant, and then given to the accountant’s nephew, who wants to sell it. This copy is nearly identical to the one owned by the plaintiff.
The plaintiff sought an injunction under common law copyright theory in an effort to prohibit the sale of the third list. The court denied the motion on the grounds that the “right to sell” is not a copyright right. True, but the exclusive “right to distribute” is a copyright right, and the sale of copyrighted material would likely constitute a distribution.
But this is really putting the cart before the horse. The threshold question–apparently not addressed by the court–is whether the plaintiff owns any copyright interest in the first place. That is a highly dubious proposition. First, the list was created in Germany in the 1940s. No rights would have come into existence under US copyright laws. Second, assuming application of US law, could the list be considered “original” such that it would be protectable under copyright law? That, too, is doubtful. The list was not a creative work, but a list of Schindler’s Jewish employees. And, third, at least two of the three copies of the list have been publicly-owned and exhibited (one in an Israeli museum and another in the State Library of New South Wales, Australia). The list is also available online. These circumstances would almost certainly constitute “publication” and, therefore, have injected the lists into the public domain.