From The Huffington Post comes this interesting story about the Kardashian siblings, who are suing their former stepmother, Ellen Pearson, over control of their late father’s diary. Pearson has possession of the diary and has been releasing embarrassing snippets of it to the media.

What makes the story interesting is that the Kardashians are alleging that the late Robert Kardashian’s will bequeathed them not just his physical belongings, but his intellectual property as well. Therefore, they are alleging that Pearson is violating their ‘copyright’ by releasing the contents to the press.

I suspect a case like this will, given the character of the people involved, settle for money before it actually goes to court. But the academic in me would love to see a judge actually rule on this. On the one hand, you could argue that the diary is an object, and if Pearson turns it over to the heirs, she’s made good. But then, that would not stop her from releasing the damaging content, either by making copies or by simply telling what she remembers. The only way to prevent that from happening would be to exert ownership over the content, too.

I have seen at least one commentary on the story—from Mike Masnick, who knows his stuff—alleging that Pearson’s statements to the media might well qualify as a fair use claim. But my gut feeling is that it’s all immaterial. Given what I have seen so far in the media about both sides, I think this is less about the diary and more about money. Pearson will be quiet if they offer her enough money to do so, and the Kardashians are not interested in testing the boundaries of copyright law.

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  1. If the snippets being released are factual assertions (a did x to b) then I doubt that copyright would apply. Facts and factual assertions are not copyrightable. On the other hand, if the snippet is a direct quote of a unique expression of an idea, it might be copyrightable. For example, the issue that arose from Woody Allen’s movie “Midnight in Paris” when actor Owen Wilson utters the slightly mangled or misquoted line from Faulkner’s “Requiem for a Nun”: “The past is not dead. Actually, it’s not even past.” The Faulkner estate is claiming copyright infringement and is suing (trial scheduled for April 7. 3014). Even so, we have to wonder about diaries because they are so different from a deliberate publication. Are diaries as protected as published novels?

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