Department of Literary Litigation


As Franz Kafka's unpublished papers awoke one morning from uneasy dreams, they found themselves transformed into a gigantic legal battle. The Associated Press reports:

Illustration from Robert Sikoryak's "Good ol' Gregor Brown," first published in RAW.

The case boils down to the interpretation of the will of Max Brod, Kafka's longtime friend and publisher. Kafka bequeathed his writings to Brod shortly before his own death from tuberculosis in 1924, instructing his friend to burn everything unread.

Brod ignored Kafka's wishes and published most of what was in his possession, including the novels "The Trial," "The Castle" and "Amerika."

But Brod, who smuggled some of the manuscripts to pre-state Israel when he fled the Nazis in 1938, didn't publish everything. Upon his death in 1968, Brod left his personal secretary, Esther Hoffe, in charge of his literary estate and instructed her to transfer the Kafka papers to an academic institution.

Instead, for the next four decades, Hoffe kept the papers in her Tel Aviv apartment and in safety deposit boxes in Tel Aviv and Zurich banks.

She sold some of the items for hefty sums. In 1988, for instance, Hoffe auctioned off the original manuscript of "The Trial" at Sotheby's in London. It went for $1.8 million to the German Literature Archive in Marbach, north of Stuttgart.

When Hoffe died three years ago at age 101, she left the collection to her two daughters, Eva Hoffe and Ruth Wiesler, both Holocaust survivors like herself.

But the Israeli National Library has long claimed the papers, saying Brod intended for the collection to end up in its hands. It filed an injunction against the execution of Hoffe's will.

If the AP article is accurate, it's clear that Brod's wishes were not honored. Then again, Kafka's wishes weren't honored either, a fact that casts an air of absurdity over everything else—even more so since most of us are glad his instructions were ignored.

Some options for the court:

1. Take an originalist approach and burn the whole stash.

2. Declare that the law of finder's keepers has been in effect for 86 years, and award the papers to the judge.

3. Strap everyone involved onto a bed, where a torture device will inscribe Brod's will onto their bodies.

4. Give it to WikiLeaks.

Further suggestions are welcome in the comments.

Bonus link #1: Kafka's politics.

Bonus link #2: My favorite Kafka story.


NEXT: Copy Fight

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  1. Where’s the Castle?

    1. Aargh! Please pay attention.

  2. A legal battle with paddles against a beetle in a bottle?

    1. Only if that legal beetle battle is in a bottle on a noodle eating poodle.

  3. most of us are glad his instructions were ignored

    Do you have a mouse in your pocket?

    1. No, I’m just glad to see you.

  4. Interesting case. Too late undo anything that has happened so far, of course. I am no trusts & estates attorney, much less one conversant in Israeli law, but I wonder if the court couldn’t rule:

    (1) Hoffe’s authority over the remaining papers was limited to transferring them to an academic institution.

    (2) Hoffe can’t will more than she has, so her will can’t give her daughters unlimited authority over the papers.

    (3) Her daughters have only the authority to transfer them to an academic institution.

    The court could, of course, rule that Brod did not have the authority do anything except burn the papers, etc.

  5. 3. Strap everyone involved onto a bed, where a torture device will inscribe Brod’s will onto their bodies.

    I vote for this one.

    1. Who’s surprised? Hands?

      1. No, I saw it coming.

  6. 3. Chain the Israeli National Library to an oversized printer plate, where a bug will turn into its literary executor.

    “ooh burn”

  7. I wonder if anything like this will ever happen with Rod McKuen’s papers.

  8. Burn, then publish.

  9. This is a good time to mention Paul Di Filippo’s excellent short story collection Lost Pages. It’s all alternate history stories about authors. In “The Jackdaw’s Last Case” Kafka avoids TB and becomes a costumed crime fighter in NYC.

    1. This is as good an opportunity as any to admonish SugarFree’s literary executor to burn his archives unread, regardless of what the will says, for the good of the world.

      1. If I go, I’m taking all you fuckers with me.

        1. Did Charlton Heston intentionally destroy the Earth in Beneath the Planet of the Apes? Discuss.

          1. Nova was already dead. Who wants to live in a world without Nova?

            1. Well, Chuck was dying anyway, so I think the question is whether he wanted the world to exist without him and Nova.

              1. I think a case can be made that it was not a deliberate act to push the button, just the savage irony that in death he brings about what he was struggling to stop.

                1. Reaching with his dying breath for some scrap of reason from the apes, then collapsing, his hand falling on the control-rod.

                  I’ll buy that argument.

                  1. Well, I always thought it was the ironic hand of the ape called man finishing the job he started. But it could have been intentional.

                    1. I think the important point is that this was by far the worst of the original Apes movies.

                2. I thought they were just trying to be chest-beating dramatic.

          2. I’m just pissed he didn’t get around to it until after Marky Mark showed up.

  10. Email it to journolist at . In a few days, the Daily Caller will have an exclusive about Kafka’s secret support for Obama.

  11. Not a lawyer at all, but Im pretty sure if you will something to someone, you get no say on what they do with it afterword, as it becomes their property.

    If, on the other hand, they are merely executing policy for the estate, that is different.

    So, the 3 wills in question:

    1. Did Kafka leave the docs to Brod or merely assign him the role of fire marshall. If the former, the fact that he didnt burn them is “okay” (legally).

    2. Brod -> Hoffe, see above.

    3. Hoffe -> daughters. This one seems more clear cut. If the two above were property transfers, then this is too.

    So, results should be either:

    A. burn them
    B. transfer them to academic institution
    C. They belong to daughters.

    If B, I would think it would be up to the daughters to choose the institution and if I them, I wouldnt be giving them to the National Library, just on principle.

    1. Not a lawyer at all, but Im pretty sure if you will something to someone, you get no say on what they do with it afterword, as it becomes their property.

      One word for you, which disproves your statement: trust.

      1. That falls under the “merely executing policy for the estate”, which is what the trustees do.

        If Kafka/Brod put the docs into a trust to be burned/institutionalized then that is my result A/B above.

        1. That falls under the “merely executing policy for the estate”, which is what the trustees do.

          Actually, not necessarily so.

          The executor of an estate is not necessarily the same as the trustee for a particular item in the estate.

          All of this is, of course, speculation, as we’re not looking at the will and we don’t really know all, if any, of the actual facts.

          If Kafka left them to Brod with instructions that they be burned, Brod arguably was in the position of trustee. He had legal title only for the purposes of carrying out his obligation under the trust – i.e., to burn them. This is no different than saying, “I’m giving you my car; please see that my daughter Suzy gets it.”

          Even if not expressly put into a trust in writing, courts can and sometimes will imply a trust. In this case, it would be known as a “resulting trust.”

          Anyhow, there’s a lot going on here, and this is all pretty much an academic exercise. But it makes for a nice distraction from what I’m supposed to be doing, which is kinda boring.

          1. I think we are saying the same thing, you just have fancy words for it, like “implied trust”.

            1. Im saying, doesnt matter whether the trust is implied or explicit, if there isnt a trust, its up to the recipient to decide, regardless of whatever else the dead guy wants.

    2. It appears to me that this involves the laws of several countries, at least one of which didn’t exist when Kafka died & one or two others that had 2 or 3 different forms of government since then (pre-WWII, communist, democratic).

      I say send the manuscripts to Salt Lake City, they’re good at storing documents there.

  12. Further suggestions are welcome in the comments.

    Trial by combat.

    1. Preferably in The Octagon

    2. Trial by wombat.

      1. Trial by womby vaultages.

        1. Excellent.


      Sorry. Dark Crystal moment. Won’t happen again.

      1. muppets

  13. both Holocaust survivors like herself.

    Is this in any way relevant?

    1. Tons.

    2. they’re not zombies?

  14. But the Israeli National Library has long claimed the papers, saying Brod intended for the collection to end up in its hands.

    If that had been the case, wouldn’t Brod have left the papers to them directly?

    1. The article doesn’t seem too clear on that point. Were the instructions to donate in the will? Were they just verbal?

      It’s rare that an archive has a lawyer or representative in court to receive that material. Usually it is a directive in the will to the executor to handle the actual donation.

      1. Oral wills are harder to prove than written wills.

    2. Actually, if the Court decides to give them to the Israelis, won’t the Palestinians then demand their own piece?

      1. I doubt Kafka is one of the three authors Hamas allows Palestinians to read.

      2. Technically, the papers would be destroyed by immersion once Hamas pushes Israel into the sea.

        1. Are you one who Oliver Stone is trying to warn the world about?

  15. Lots of implied intentions asserted by the Israeli National Library…wouldn’t an actual written will mentioning them clear this up?

  16. What they should do is threaten to tear the manuscripts in half, and if one of the parties to the suit agrees to give up the manuscripts rather than have them destroyed, …

    Or, they could exhume Kafka’s corpse, strap it to a wheel like the one on Wheel of Fortune, and each party gets a chance to spin, including the judge.

    Whoever Kafka’s corpse points toward two out of three times is the winner.

    1. THIS!

    2. Or, they could exhume Kafka’s corpse, strap it to a wheel like the one on Wheel of Fortune, and each party gets a chance to spin, including the judge.

      so surreal and messed up it has to be done, for Kafka!

  17. Nothing to do with the legality of anything here, but Brod had long theorized that Kafka never actually expected Brod to burn the works. Brod had been very verbal about his support for Kafka’s writing throughout the author’s life, and Brod thinks Kafka turned the writing over to him knowing that he would never actually burn everything.

    We’ll never know if this interpretation is correct, of course. But if if is, I wonder what the purpose of Kafka’s instructions would have been…sarcasm? Humility?

    1. Maybe he had betrayed Kafka’s friendship in some way, and this is Kafka’s revenge: to force him to betray the friendship again, only in a way so that everyone would know about it.

    2. Maybe Kafka was just a little bit nuts.

  18. [edit] EtymologyFrom Kafka +? -esque, after writer Franz Kafka.

    [edit] AdjectiveKafkaesque (comparative more Kafkaesque, superlative most Kafkaesque)

    Marked by a senseless, disorienting, often menacing complexity.
    Kafkaesque bureaucracies
    Marked by surreal distortion and often a sense of impending danger.
    In the manner of something written by Kafka.

  19. Brod had long theorized that Kafka never actually expected Brod to burn the works.

    Why would he say that?

  20. I want all my unpublished papers to be glued to an atomic bomb, and the bomb to be detonated on the Washington Mall.

  21. I think we should release Kafka’s papers into the wind and set them free.

  22. Give some sort of prize to anybody who can find a link to libertarianism in this story.

    1. Libertarians are often interested in contract and intellectual property issues, you fuckwad.

      What’s my prize?

      1. I don’t think that’s enough of a link to merit a prize. Just because libertarians are often dogmatic assholes doesn’t mean that any article on dogmatism would apply to libertairanism. But maybe I’m splitting hairs.

        1. How is this story about dogmatism?

        2. Never mind that I’m a) a dogmatic asshole myself, and b) I’m a fucking liar who said I’d never post here again.

          Oh, and I suck Paul Krugman’s cock.

    2. Max complains when a story affirms libertarian ideas.

      Max complains when a story doesn’t affirm libertarian ideas.

      Max is a fuckwit.

      1. If Max is going to take time off from raping his mother’s corpse to comment here, maybe you should pay him the respect of reading his posts thoughtfully. It’s really hard for him to drag himself away from the sweet recesses of her rotting cunt for even a minute.

      2. Max is a fuckwit.

        So why enable him? The problem, it is you.

        1. So I enabled him to comment on this?

          No I did not. He will comment whether I’m here or not.

          1. I’m not dead yet.

            1. Well, she will be soon, she’s very ill.

              1. I’m getting better.

                1. No you’re not, you’ll be stone dead in a moment.

    3. It was written by a libertarian, on a libertarian magazine’s blog.

      What do I win?

  23. The only reasonable solution is to burn the originals, burn all the copies, and finally burn everyone who has read them,

    1. I knew there was a reason I never read Kafka.

  24. The only reason this is a case at all is due to a pack of conniving bro(a)ds.

    1. Brood of bro(a)ds?

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