Tuesday, August 18, 2009

Are the Nuremberg Trial Transcripts in the Public Domain?

Dear Rich: My organization is interested in reprinting excerpts from speeches of the court justices and witnesses from the Nuremberg Trials held in Germany, 1945-46. Are these trial transcripts in the public domain? The good news is that you can use the transcripts. The bad news is that we're not 100% sure why. 
Is there a copyright?
The transcriptions and translations of the testimony were likely accomplished by U.S. government personnel and are preserved by the National Archives (NARA). Even though U.S. government works are in the public domain, we cannot assume that rule applies in this case. Copyright does not protect spoken testimony, only fixed versions of that testimony. The 'author,' for copyright purposes is typically 'the fixer,' -- in this case the U.S. government employees who transcribed the testimony. However, at least one case has held that court reporters are not authors of courtroom testimony; there's insufficient originality. Another argument might be made that translators of the testimony also acquired copyright (in which case the U.S. government translations would be public domain). Our conclusion: most likely the transcriptions of spoken testimony at the trials are not subject to copyright protection. 
Can anyone object to reproduction of the testimony?
The people who prosecuted or testified at the trials are unlikely to have any proprietary claims as to their statements. Although laws currently exist providing common law rights to spoken statements, it's unlikely that anything said in such a public forum over 50 years ago is proprietary. It's possible that subsequent versions of the original transcriptions may be protected under copyright. The Nuremberg trials lasted from 1945 through 1949 and the transcripts and some of the proceedings have been separately re-transcribed -- for example, the transcription for the 1946-47 trials of doctors and administrators (the "doctor's trial" transcript) has been posted at the Harvard Law School Nuremberg Trials Project. To the extent that such re-transcriptions contain additional material such as commentary, notes, etc., you would not be able to copy that material.
What about the evidence at trial?
It's not clear whether evidence from the trials is in the public domain. Simply introducing the material into the trial does not make it so, at least under U.S. case law. Photos and films of the war-crimes proceedings taken by U.S. personnel are definitely in the public domain material. In summary, we believe that your organization is free to use the transcripts based on its public domain status and -- if we're wrong about the public domain --  a powerful fair use argument that can be made for these historic documents.