Inhuman Copyright Scene: The Forgotten Law of Art in the Holocaust

Artists, authors, musicians, and other creative individuals formed an integral part of the horrific life in the ghettos, concentration camps, and extermination camps during the Holocaust. Through their works, Jewish prisoners documented the atrocities of the Nazis and exposed the untold stories of six million Jews who walked or labored to death. The vast majority of the authors of these works were murdered in gas chambers, labor camps, and ghettos. While much has been written about looted works of art, which were stolen from Jewish families during the Nazi occupation, this material covers only one limited subset of questions relating to ownership of works owned or created by Jews during the Holocaust. Scholarship on art and authorship in the Holocaust has failed to legally and morally explore the works that were created in the most extreme circumstances under which copyrighted works have ever been created. This Article aims to remedy this lack of awareness. The Article opens a debate that has no comparable example in human history. The lack of social and legal discourse on property rights vested in works created within the ghettos and concentration camps has created legal anomalies that perpetuate historical injustice. These anomalies, disguised as copyright rules, prohibit legal owners of these works from claiming their rights and restrict public access to these works, while permitting public bodies (such as European and international museums and archives) to make repositories of these works, to declare ownership of the works, and to patronize their social fate and unprecedented historical value. This Article aims to reconcile the unexplored tension between the authorial rights in these works and the public interest in accessing and learning from them. Copyright laws protect and incentivize access to and use of creative voices vested in cultural commodities in a manner that is mutually beneficial to creators and communities of listeners. The creative voices of Jewish prisoners in the ghettos and concentration camps have been continuously silenced since the end of the Holocaust. From the moment they were stripped of their basic humanity in the ghettos until now, more than seventy years later, authors, artists, musicians, theatrical and opera playwrights, and stage actors have yet to receive legal protection in their works. This Article offers the first inquiry into the fundamental law of ghetto art. The Article focuses on works created by Jewish prisoners in the ghettos, concentration camps, and extermination camps, with the aim to expose the many flaws in the way contemporary copyright laws are used to hold these works captive in institutions where they do not belong, rather than freeing them to the public in order to raise awareness, provide moral respect to their authors, rescue them from illegitimate owners, and deliver historical justice. As the third-generation of Holocaust survivors, we find this Article a moral duty. It is a duty that travels through works of art, music, and authorship and tells the many stories that the creators of the works could not tell. The unsettling findings of our research call for a reassessment of the common standards applied to the use and ownership of copyrighted works created during the Holocaust within the ghettos and concentration and extermination camps—in the most inhuman copyright scene humanity has ever created