The Latest Kafka Papers Controversy

The New York Times has an interesting story on the fate of some of Franz Kafka’s papers.  The broad outline of the story is well-known: Kafka directed his friend, editor, and executor, Max Brod to destroy Kafka’s unpublished works, which included the manuscripts of Kafka’s two great unfinished novels, his diaries, and a number of his short stories.  Brod could not bring himself to destroy the work because he regarded it as too precious, so Brod edited and published the work instead, earning the deceased Kafka a place among the great writers of the twentieth century.  The Times reports that there evidently remains a collection of never-seen work by Kafka that Brod took with him when he fled Prague for Israel as the Nazis invaded the Czech Republic.  Brod willed the papers to his secretary, Esther Hoffe, who refused to let anyone outside her family see them.  Upon her death, the papers went to Hava Hoffe, a destitute Israeli senior citizen who the Times describes – to put it politely – as highly eccentric and erratic. For several decades, no Kafka scholars have had access to the papers.  The Times notes that Hava Hoffe has announced that she will make a decision about what to do with the papers in the next few months, leaving literary scholars hanging on her word and whim.

What can be done about the papers? What if Hoffe decides to suppress them for another generation? There is an obvious legal solution.

Israel could exercise eminent domain over the papers, and compensate Hoffe with their fair market value.  Although takings of chattel property are rare, they are not without precedent, at least under U.S. law, with the federal government’s taking of President Nixon’s presidential papers being the best known example.  Upon taking the property, the government can make it accessible to scholars, duplicate it for dissemination on the Internet and ensure that the property is put to its highest value use, not locked away in an eccentric’s apartment or safe deposit box.  Ordinarily, we would expect that a private owner is best positioned to maximize the value of a resource, but there are good reasons to doubt whether the Hoffes will do so any time soon, and eminent domain can function as a useful backstop to deal with irrational owners who seem insistent on wasting a useful asset.

A final wrinkle: I have written, and continue to believe, that Brod should have destroyed Kafka’s unpublished works, as per Kafka’s instructions, notwithstanding the immense literary value of the work.  Kafka had legitimate privacy and artistic integrity interests in the works that should have been respected, and as their creator he was in the best position to decide upon their fate.  Perhaps the Hoffes have not published Kafka’s works because they disagree with Brod’s decision to violate Kafka’s wishes.  This seems unlikely – Hoffe does not seem to have had much connection to Kafka, and she tells a New York Times reporter that she is considering selling the work.  But I am not completely confident in my own conclusions about the appropriate fate of Kafka’s unpublished work so many years after his death, and I am considerably less confident in Hava Hoffe’s conclusions on that score.  It does seem as though the state where the property is situated may be well positioned to decide upon the answer to the wrenching moral, artistic, and economic questions that have arisen.

Comments

[Bruce Boyden]

Interesting -- I've argued the opposite, that Brod had an obligation to publish, although he also had an obligation to respect his friend's wishes, and our balancing of these inconsistent obligations is tainted by hindsight. But what's wrong with that?

http://www.concurringopinions.com/archives/2008/01/is_there_a_mora.html

[slevmore]

We are usually nervous about takings that do not seem to fit the requirement of "public purpose," as conventionally understood. Think of the government browsing through private art collections to take, with compensation, those pieces it thought fit for major and minor museums. Another possibility, perhaps more appropriate, is to revisit the question of how these papers were valued when they were willed to Esther Hoffe. A government could now assert a substantial tax liability and then require the papers to be sold in order to finance the tax bill.

[Ariel]

I think that the owner of any property has his right to deem whatever he sees fit to it, no matter what the consequences (as long as not affecting others negativly).
I fully agree with Lior on that point.

However, I don't understand why and how the government allowed Brod to edit and publish Kafka's works (unless it wasn't known at that time that Kafka didn't want it published).

[Ernie brill]

As a fiction writer of many years, I can fairly say that a writer may NOT always be the best judge of her or his best work. Kafka in particular was so fastidious and selfjudgemental ( to his emotional detriment most would agree) that sometimes he couldnt see the insightful splendor of his own work ( he could see the terror easily enough). Therefore, I would say, in this case, that Kafka's work should be published, but only completed works. If someone wants to publish unfinished work, that's a whole other question.
Unfortunately, if we flip the coin, too many allegedy living writers continue to publish or try to publish their flaccid, tepid, mediocre typing and deign to call it "writing"(op. cit. Flannery O'Conner's essays and talksk about writing and MFA programs). I call such writers the "living dead". Some of them do quite well, especially in the US where we are famed for having high school Engish departments that dumb down curriculum as Francine Prose and others have previously discussed in Atlantic Monthly and other venues. What is even more sad ( despicable?) is the almost complete lack of international literataure at both the high school and, in many cases in many college English departments because too many teachers dont read anything other than Americn, British, and NY Review of Books suggested handfuls of favorites from other countries, depending on fads.
Then there are the vultures who peck and scratch over unfinished manuscripts by dead writers. Case in point is Ralph Ellison's unfinished novel which came out five or six years ago. But one could also argue that unfinished Ralph Ellison is better than ninety percent of the finished books by most "living" writers ( I put this in quote because while their bodies may be breathing, their prose is in cardiac arrest.
But dont to take it to heart. You can always join one of the thousands of writers workshops where everyone smiles and says, "Nice" and no one gives any real critique.
Or, if you have the money, you can join an MFA program, write soppish poetry, or cutsy clever poo poetry like Billy Collins, or the adventures of grass and owls like Mary Oliver, and do just fine.

But when you read poets like Pablo Neruda, or Emily Dickinson, or Mahmoud Darwish, or when you read novelists like Charles Johnson, or Gabriel Garcia Marquez, or Pat Barker, or the stories of a Hawthorne or a Zakaria Tamer, or Chekov, or return to Virginia Woolf or Emily Bronte, or Jorge Amado, or William Blake, or Muriel Rukeyser,

then you know what deeper writing involves.

[Uzair Kayani]

It is unclear how the government would draw the line once it started buying up people's intellectual property at market value for public use. In an extreme case, artists and inventors could face a disincentive in producing or preserving their works in the first place if they felt that anything they wrote could be taken away from them immediately at market price.

This is because property theory, as I understand it, does not draw a line between the use of eminent domain against *caretakers* of property and *inventors* of property: the market would value a farm equally whether the current owner planted it or merely bought it pre-planted. Similarly, the market would value a work of art the same whether it was to be bought from the artist himself or from a caretaker that the artist left his work to.

Still, I am sympathetic to a more aggressive use of eminent domain in "intellectual property" matters in general- copyrights, patents, trademarks and such. Copyrights and patents, especially, have become too unwieldy in their current state and may be bestowing more monopoly power than they should. There have been several opinions recently that suggest as much.

I think the eBay v. MercExchange decision is on point here. More, controversially, Kelo v. New London also helps, insofar as it extends "public use" to encompass the use to private entities (in the Kafka case, all readers) of property owned by other private parties. Indeed, over time, Kelo might make more sense as a means of dealing with intellectual property than with real property.

[Rechtsanwalt]

I think that Brod had an obligation to publish, although he also had an obligation to respect his friend's wishes, and our balancing of these inconsistent obligations is tainted by hindsight. But I think it's not wrong so.

[Roach]

Just to be all Coasian and all, but shouldn't they be bid up in this circumstance? There is no known market in these papers and just because you really really want to see them doesn't give the government a right to see them. It's not like the cure for Polio we're talking about.

[Dwight Dunkley]

I think the great irony is how much like a Kafka novel the facts in this problem read. There is no difference in outcome to date between the access to the papers in this current scenario and the access to the papers if Brod had destroyed them per Kafka's wishes.