By Joel L. Hecker
There is an interesting decision dated December 21, 2010, and published in the December 30, 2010 New York Law Journal, concerning common law copyright to the list created by Oskar Schindler, which became famous through the 1993 Steven Spielberg film "Schindler's List".. The case is Rosenberg v. Zimet, Index No. 601183/2010, Supreme Court, New York County.
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 court rejected plaintiff's motion for a preliminary injunction to prohibit the sale, on the grounds that the defendant intended only to sell the list, as opposed to publishing it. Since the sale is not a copyright right, held the court, plaintiff's purported copyright rights, which were in any event in dispute, were irrelevant.
The judge did refer to an earlier case (Chamberlain v. Feldman, 300 NY 135) concerning an unpublished Mark Twain manuscript, where that court barred publication under copyright law because of the inability of establishing a right to publish it, but held it did not apply to a sale.
Not addressed in the opinion is whether the exhibition of the list at Yad Vashem, or elsewhere, would constitute publication, and therefore place all of the lists in the public domain.
Thus, common law copyright appears to remain alive and well in the state courts!