Art and Copyright in Ghettos and Concentration Camps: a Manifesto of Third-generation Holocaust Survivors

Art and Copyright in Ghettos and Concentration

Camps: A Manifesto of Third-Generation Holocaust

Survivors

LIOR ZEMER* & ANAT LIOR**

Copyright ownership in works of art, drama, music, and literature,

created by Jewish prisoners in Nazi concentration camps and ghet-

tos, is one of the few debates omitted from academic legal research

to date. These works expose the untold stories of the f‌inal moments

of those who walked or labored to their deaths. Most of these works

do not have names, but they do have authors.

Theaters, artists, authors, orchestras, and other groups of creative indi-

viduals formed an integral part of the otherwise horrif‌ic environments sur-

rounding prisoners in the ghettos. The absence of a global debate on their

property rights in their works has created an anomaly that permits public

bodies and other repositories of these works, such as libraries in Germany,

the Auschwitz–Birkenau Museum, and other European and international

museums, to claim ownership of these works and patronize the social and

cultural life that they depict. Copyright laws protect and incentivize the use

of creative voices in a manner that is mutually benef‌icial to creators and

communities of listeners. The voices of Jewish prisoners in the concentra-

tion camps and ghettos have been continuously silenced from the moment

those prisoners were deprived of their rights and murdered to today—when

their works have yet to receive rightful protection. Copyright law has failed

its main purpose of freeing knowledge from illegitimate shelters and allow-

ing lessons to be gleaned from history that cannot otherwise be expressed.

Literature dealing with looted works of arts, stolen during the Nazi

occupation from Jewish families forced to leave behind their homes and

* Professor of Law and Vice Dean, Harry Radzyner School of Law, Interdisciplinary Center

Herzliya; Visiting Professor, Faculty of Law and Administration, Jagiellonian University. © 2021, Lior

Zemer & Anat Lior.

** Yale Law School, J.S.D. Candidate and Resident Fellow, Information Society Project. This Article

began over a decade ago and forms part of a larger study offering the f‌irst juridical inquiry into the ownership

of copyrighted works created within the ghettos and concentration camps by Jews who perished during the

Holocaust. The ideas developed in this Article benef‌ited from discussions and comments provided on earlier

drafts. For this we are grateful to Jack Balkin, Aharon Barak, Suzy Frankel, Aviv Gaon, Wendy Gordon,

Aileen Kavanagh, Niva Elkin-Koren, Roberta Rosenthal Kwall, Mark Llemely, Miriam Marcowitz-Bitton,

Ryszard Markiewicz, Andreas Rahmatian, Jerome Reichman, Anna Tischner, David Vaver, Shlomit Yaniski

Ravid, and Peter Yu. In the past decade, a group of researchers have contributed to this project. For this we

are grateful to Mai Arlowski, Reut Dahan, Amit Elazari, Michaela Halpern, Noalee Harel, Yonatan Hezroni,

Sagi Lapid, Jason Rozenberg, Shine Shaman, and Natalie Schneider. Earlier versions of the Article were

presented at conferences and faculty seminars, including at Glasgow Law School, Osgoode Hall Law

School, and the Yale Information Society Project. This Article is dedicated to the memory of our families

and the seventy-f‌ifth anniversary of the liberation of the Nazi Auschwitz–Birkenau concentration and

extermination camp, which took place on January 25, 1945.

813

histories, covers only one subset of what should be a larger discourse on

copyright and the Holocaust. This Article opens new ground by exploring

and answering questions about the ownership of creative expressions

made within the ghettos during the most inhumane and barbaric moment of

human history. We aim to remedy the blind focus given to looted art and the

lack of awareness regarding art in the ghettos. We have the audacity to

open a provocative debate on who should have moral rights in works of art,

music, drama, and authorship that were created within the boundaries of

concentration camps and ghettos across Europe before and during the

Holocaust. This debate has no comparable example in human history. Most

authors and artists of these works were murdered in gas chambers, ghettos,

and labor camps. These works documented Nazi atrocities, but they also

shed light on the cultural life of those who could not change their fate.

Legal scholarship has never debated ownership of these works and the per-

plexing questions implied by such a debate. In this Article, we aim to start

the conversation, not to close it. The Article offers the f‌irst inquiry challeng-

ing the ownership paradigm of copyrighted works created within the ghettos

and concertation camps in Nazi-occupied territories. The uncomfortable

f‌indings of our legal examination are based on sensitive human issues and

legal controversies, which were given insuff‌icient scholarly attention for

over seven decades. This is the most diff‌icult Article we have ever written

and will ever write. This Article is our manifesto—a manifesto written by

third-generation Holocaust survivors.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 815

I. AN UNIMAGINABLE COPYRIGHT SCENE: MUSIC, THEATER, AND ART. . . . 819

II. THE LIMITED MESSAGE OF LOOTED ART . . . . . . . . . . . . . . . . . . . . . . . . . . 825

A. NAZI PLUNDER AND FAILED ATTEMPTS TO RECOVER LOOTED ART

AFTER THE WAR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825

B. EFFORTS TO RETURN LOOTED ART . . . . . . . . . . . . . . . . . . . . . . . . . . . 828

III. THE LIMITLESS MESSAGE OF ART IN GHETTOS. . . . . . . . . . . . . . . . . . . . . . 835

IV. AUTHENTICITY CONSIDERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 839

A. AUTHENTIC DIALOGUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 839

B. AUTHENTICITY IN OWNERSHIP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 844

C. AUTHENTICITY IN ALTERATION: EVA.STORIES ON INSTAGRAM . . . . . . 847

814 THE GEORGETOWN LAW JOURNAL [Vol. 109:813

V. EXISTING DOCTRINAL REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 850

A. FAIR USE............................................... 850

B. ORPHAN WORKS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853

C. PERPETUAL RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 859

VI. HOLOCAUST ART AS PROTECTED JEWISH HERITAGE AND TRADITIONAL

KNOWLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 864

A. CREATING A LAYER OF HERITAGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 864

B. “A LIVING BODY OF KNOWLEDGE”. . . . . . . . . . . . . . . . . . . . . . . . . . . . 866

C. ART CREATED IN THE GHETTO AS CULTURAL PROPERTY . . . . . . . . . . 870

D. THE COLLECTIVE INTENTION EFFECT. . . . . . . . . . . . . . . . . . . . . . . . . . 874

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 876

INTRODUCTION

A walk through Block 27 at the Auschwitz–Birkenau concentration camp tells a

copyright story that has never been told. Traces of Life is a permanent exhibition

that publicly shows the intrinsic power of art as an emotional escape through the cre-

ations of some of the 1.5 million children murdered in the Holocaust, expressing the

atrocities those children experienced in their lives.

1

Artist Michal Rovner, curator of

the exhibition, stated that “[o]ne can almost feel the urgency of the situation in many

of the [children’s] drawings. They are ref‌lections and details of the life they were

forced to leave behind, and the new reality they encountered. These drawings are

their legacy—and our inheritance.”

2

In the exhibit, every visitor enters an empty

space in which nothing is displayed and hears the faint sound of children’s voices in

the background. After the voices fade, the visitor f‌inds drawings displayed on the

walls. The drawings around the room give voice to the children’s Shoah.

3

The feel-

ing of emptiness is inescapable as visitors stand in the middle of the enormous void

left behind by these children. In the words of David Grossman:

1. See Eldad Beck, Auschwitz: Art in Name of Memory, YNETNEWS: JEWISH WORLD (June 13, 2013,

8:05 AM), https://www.ynetnews.com/articles/0,7340,L-4391683,00.html [https://perma.cc/WB3X-

2FBT]; ‘Traces of Life’ Exhibit at Auschwitz-Birkenau Pays Tribute to Children of the Holocaust

(PHOTOS), HUFFINGTON POST (Dec. 6, 2017), https://www.huffpost.com/entry/traces-of-life-exhibit-

children-of-the-holocaust_n_3443074;“Traces of Life”: The World of the Children, YAD VASHEM, https://

www.yadvashem.org/yv/en/exhibitions/pavilion_auschwitz/children.asp#!popup[inline]/0 [https://perma.cc/

WZE9-WSR4] (last visited Jan. 24, 2021).

2. “Traces of Life”: The World of the Children, supra note 1.

3. Shoah is a Hebrew word used for centuries to describe a complete and disastrous destruction.

Today, it commonly refers to the Holocaust and the Nazi decimation of Europe’s Jewish communities.

2021] ART AND COPYRIGHT IN GHETTOS 815