#SaveTheirStories: Preserving Holocaust Diaries & Putting Them Online

Last fall, when we were planning our family trip to Washington, D.C., I asked each of my daughters to pick a museum we had to make sure we visited during our short stay. Samira, then eight-years-old, chose the United States Holocaust Memorial Museum (USHMM).

Samira has wanted to learn as much as she can about the Holocaust ever since she was in Kindergarten, when she and I read Patricia Polaco’s The Butterfly, a children’s book about the Nazi occupation of France (see How Do You Talk To A Child About The Holocaust?). Two years later, in second grade, Samira chose to study Anne Frank for her “famous historical figure” project. She has read Anne Frank’s diary several times.

Anne Frank is one of many people who recorded their experiences during the Holocaust in a diary.  In addition to published first person accounts of the Holocaust, there are also over 200 unpublished diaries in the USHMM’s collection that need to be catalogued, translated, and made available to the public.

To preserve and make these diaries publicly available, the USHMM has started a Kickstarter Campaign to raise $250,000 by July 13, 2017. The USHMM explains: “As the survivor generation passes, it is our responsibility to make sure their voices live on so that their experiences will not be forgotten. You can be a part of preserving history: Back this project and Save Their Stories.”

My family supported this campaign at Samira’s request. We hope you’ll consider supporting it too.

 

Dr. Seuss Enterprises v. ComicMix: The Copyright Infringement Case Continues

Here’s an update to Dr. Seuss Enterprises v. ComicMix, a copyright and trademark infringement case I wrote about in Oh, The People You’ll Sue (When You’re Dr. Seuss Enterprises):

On June 9th, the District Court for the Southern District of California dismissed Dr. Seuss Enterprises’s trademark and state law claims (with leave to amend their complaint), but allowed the copyright infringement claim to continue against ComicMix, albeit with hints that the Court will eventually dismiss the case.

Basically, the company (Enterprise) that owns the rights to Dr. Seuss’s work filed this lawsuit because it does not want ComicMix to publish a work that borrows elements from Dr. Seuss’s children’s books without paying a licensing fee first.

Though the Court did not dismiss Enterprise’s complaint entirely–a typical outcome at this early stage of litigation (merely a 12(b)(6) motion, which assumes all of the facts alleged by the plaintiff are true)–the opinion includes several helpful conclusions for ComicMix.

For example, the Court concludes :

  • ComicMix’s derivative work, Oh, The Places You’ll Boldly Go!, is transformative: “Although Boldly fails to qualify as a parody it is no doubt transformative [as a “mash-up”]. In particular, it combines into a completely unique work the two disparate worlds of Dr. Seuss and Star Trek.”
  • The nature of the copyrighted work weighs in favor of ComicMix; and
  • Boldly does not borrow too much from Seuss: “There is no dispute that Boldly copies many aspects of [Seuss’s] illustrations. However Boldly does not copy them in their entirety; each is infused with new meaning and additional illustrations that reframe the Seuss images from a unique Star Trek viewpoint. Nor does Boldly copy more than is necessary to accomplish its transformative purpose.”

So, ComicMix’s transformative work meets most of the factors of Fair Use–which is a complete defense against copyright infringement claims–without needing any additional evidence. However, what the Court will need more evidence and argument on is the fourth factor of the Fair Use defense: the effect of ComicMix’s transformative work on the potential market for or value of Dr. Seuss’s copyrighted work. The Court writes:

In the current procedural posture [ComicMix is] at a clear disadvantage under this factor’s required analysis… [at this stage] a potential harm to [Enterprises’s] licensing opportunities is presumed. However, this presumed harm is neutralized somewhat by the fact that Boldly does not substitute for the original and serves a different market function than [Suess’s work]… Indeed, Boldly’s market relies on consumers who have already read and greatly appreciated [Suess’s work]…

Well, sure, all copyright cases are based on the fact that the defendant did not pay the licensing fee to borrow elements of a copyrighted work, so all cases would have this presumed harm.

Importantly, though, the Court notes factors that neutralize this harm to Enterprises’s licensing opportunities: (1) Boldy is not a substitute for the original book (Oh, The Places You’ll Go!) and (2) Boldly serves a different market function. In addition to those factors, as I wrote in my previous post on this lawsuit:

[Derivative works] increase the marketability of the original stories because they encourage people to revisit them. In this case, it’s hard to see how Oh, The Places You’ll Boldly Go! harms Dr. Seuss Enterprises. They assert that they’re missing out on a licensing fee opportunity, but a derivative project might not happen at all if the authors have to pay a toll for the privilege of borrowing elements from a previous work for the purpose of parody.

Basically, I see ComicMix’s transformative work as free advertising for Dr. Seuss’s books. You may think Seuss doesn’t need such advertising, but that isn’t necessarily so in a publishing world saturated by new children’s books each year. ComicMix’s work is for adults and could spark nostalgia buying, which is what happens when something reminds us of our childhood and encourages us to share it with our own children (instead of buying them something else from the bookstore).

I hope the Court will finally dispose of Enterprise’s lawsuit at the next stage of this case, which will probably be summary judgement. If this case continues beyond summary judgment and is allowed to go to trial, then the Court risks encouraging literary estate bullies to threaten lawsuits against creators of derivative works, even when those works are transformative and thus quite different from the original. That speech-chilling outcome would not serve the purpose of copyright law, which the Court states is to “promote the progress of science and art by protecting artistic and scientific works while encouraging the development and evolution of new works.” (citing Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 529 (9th Cir. 2008).”

We will see what happens.

____________________________________

*Here’s ComicMix’s Press Release.

**The image above is an excerpt from the Complaint (I added “allegedly”), available here.

***Here’s the District Court’s June 9th order on the Motion to Dismiss: 38 – Order on MTD.

Will The Supreme Court Allow States To Penalize Americans Who Don’t Vote?

About 100 million eligible voters chose not to vote — or were unable to — in the November 2016 presidential election. That’s more individuals than the number of people who cast their ballot for Hillary Clinton, the winner of the popular vote, or for Donald Trump, the winner of the White House.

As Donald Trump reminds us daily (usually through Twitter), we are all punished when such a substantial portion of the population does not participate in voting, the corner-stone of our democracy.

A good portion of these non-voters have never been registered, while others managed to register but have become inactive voters. For those in the latter category living in Ohio (and states with similar laws), the state removes them from the roll entirely if they are inactive for two years, then fail to respond to a letter, and then don’t vote within the next four years.

This purging process is the focus of a voting rights case called Husted v. A. Philip Randolph Institute, et al, which the U.S. Supreme Court has agreed to hear. They will address whether federal law prohibits Ohio from penalizing its citizens for not voting over a six-year-period by removing them from the voter rolls.

The Court of Appeals for the 6th Circuit sided with the voting rights advocates who sued Ohio over this process. Will the Supreme Court come to a different conclusion? I hope not.

I do not see how the federal laws at issue in this case — the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA) — permit states to remove infrequent voters from the voting roll without a better indication that they are ineligible, such as change of address information from the postal service. Section 20507(b)(2) of the NVRA states:

Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll… shall not result in the removal of any person from the official list of voters in an election for Federal office by reason of the person’s failure to vote.

If there’s evidence the person has moved, then the state may send that person a letter, and finally remove them from the rolls if they don’t respond to the letter and don’t vote within the next four years. Section 20507(c)-(d). HAVA did not alter this process, saying, “nothing in [HAVA] may be construed to authorize or require conduct prohibited under [the NVRA], or to supersede, restrict, or limit the application of [the NVRA.].” 52 U.S.C. 21145(a).

So, based on my reading of these laws, the state needs more than the mere fact that someone didn’t take an affirmative step to maintain their right to vote either by responding to a letter (how many letters have you forgotten to reply to?) or voting within a certain period of time (four years after the letter, six years total).

Six years of non-voting may seem like a long time, but not to me, not when I look at my six-year-old daughter and think about how fast she’s growing up. It also doesn’t seem like a long time when I think about how life’s disturbances can be a challenge to voting for many people, especially when they either don’t know much or don’t care for the candidates running in any particular race.

Importantly, the right to vote encompasses the right not to vote. So, then, why would we penalize Americans who didn’t do it by making it harder for them to ever do it? Taking a person off the roll, forcing them to re-register, is a barrier to voting.

Ohio claims that it must have a way of removing infrequent voters from the rolls to maintain the “integrity of the electoral process,” which is often code for rooting out theoretical voter fraud in a way that benefits a particular party. As I wrote in my comments on this blog about Ari Berman’s book, Give Us the Ballot:

Berman notes that when the Bush Administration made voter fraud the focus of a Justice Department initiative, the probe ‘resulted in only eighty-six convictions out of three hundred million votes cast’ between 2002 and 2007.

Meanwhile, to reduce the virtually non-existent problem of voter fraud, the state of Ohio is willing to take away the voting rights of thousands of its citizens. In the 2016 Presidential election alone — a single election — 7,515 people voted (because of a court order in this case) who would not have been permitted to vote at all under Ohio’s purging process.

My state, Pennsylvania, may employ a similar process targeting infrequent voters. In my precinct, where I am the Judge of Elections, it’s my job to tell hopeful voters that their names do not appear on our rolls. On November 8, 2016, based on my phone records, I spent more than three hours of my time trying to track down where people were registered. Sometimes, it’s another precinct, another ward, or another county; other times, they are registered nowhere at all, despite their clear memory of having voted before. They can file a provisional ballot, which may or may not be counted, but they cannot go into the booth. They walk away with a voter registration application (to get the chance to vote in the future) and the feeling that the state took away their right to vote.

Ohio wants as many people as possible to feel that way. The process they are fighting for in the Husted case is a voter suppression scheme.

In Ohio’s brief to the Supreme Court, on pages 5-6, state Attorney General Michael Dewine and his colleagues said:

It is a tragic fact of history that, before 1965, some States enacted registration rules to “deny registration” to African Americans rather than ensure fair elections. Congress passed the Voting Rights Act to remedy this “extraordinary’ problem.”

Those quotes around “deny registration” and “extraordinary” in Ohio’s brief may as well be sneer quotes considering how disingenuous the state’s position is. It is not merely a tragic fact of history that some states enact rules to deny registration to individuals they believe will not vote for the party in control of those rules. Ohio is fighting for the ability to do that right now.

Lillian’s Right to Vote, a children’s book authored by Jonah Winter and illustrated by Shane W. Evans, poignantly displays the history of the voting rights struggle for racial minorities and women in the United States. It ends with a sobering note that discusses the Supreme Court’s evisceration of the Voting Rights Act and leaves readers with a call to action: “The right to vote still needs protection. Will a new generation rise and continue this fight?”

The answer must be yes.

I am thankful for organizations like the ACLU and Demos, which together filed the lawsuit against Ohio. I hope the Supreme Court does not undo their hard work.

____________________

*To read the briefs submitted to the Supreme Court in this case, go to SCOTUSblog.

Separate Is Never Equal

Separate Is Never Equal, a children’s book authored and illustrated by Duncan Tonatiuh, begins:

Sylvia had on her black shoes. They were shiny-new. Her hair was perfectly parted in two long trenzas. It was her first day at the Westminster school. The halls were crowded with students. She was looking for her locker when a young white boy pointed at her and yelled, “Go back to the Mexican school! You don’t belong here!”

Sylvia does not want to return to the Westminster school until her mother reminds her of their family’s struggle to send her there.

Separate Is Never Equal is a retelling of that struggle, based on the real-life lawsuit the Mendez and other families filed against their segregated school districts in California in the 1940s. That case, Mendez v. Westminster School District (1946), affirmed by the 9th Circuit (1947), required four districts in California to admit children of Mexican descent to white schools. Reaching this conclusion, Judge McCormick wrote in the District Court opinion:

A paramount requisite in the American system of public education is social equality.  It must be open to all children by unified school association regardless of lineage… the commingling of the entire student body instills and develops a common cultural attitude among the school children which is imperative for the perpetuation of American institutions and ideals.

64 F. Supp. 544, 549.

This case ultimately led to state legislation, signed by then-governor Earl Warren, that racially desegregated districts across California. Mendez was an important predecessor to Brown v. Board of Education (1954), the U.S. Supreme Court opinion authored by Chief Justice Earl Warren that made it clear that race-based segregation laws and policies violate the United States Constitution.

These court cases were vital to opening up educational opportunities for minority students in the United States, but the book’s opening scene showing Sylvia in tears illustrates a limitation of litigation. The Mendez court changed the official policy of the school district, but not the biased culture that created that policy. Sylvia, however, perseveres in this hostile environment, ultimately forging friendships with children of different backgrounds, relationships I hope contributed to a cultural shift that embraces equality. It’s the happy ending she and all children deserve.

Sadly, though, for far too many of our children today, school remains a racially isolated experience, and majority-minority districts often lack the resources that majority-white districts typically have. As the author’s note explains at the end of the book, citing a 2012 study by the Civil Rights Project at the University of California, “a great deal of inequality–and a kind of unofficial segregation–still exists today.”

More than six decades after Brown and seven after Mendez, the need for equal educational opportunities and intercultural understanding remains. I wish these goals were achievable by court decree, but it clearly takes more than that.

My family lives in a racially diverse area, and my children attend a majority-minority public school in the same district I attended as a child (which was diverse back then but probably not majority-minority). Today, the school district is 53% black, 35% white, under 10% Asian, under 5% Latino, and 1% “other races” (and I have no idea how the district categorizes racially mixed children).

We returned to this community because of its diversity, but, frustratingly, it’s turned out to be far from integrated. Many white families here tout the diversity of our community but send their children to predominantly white private schools.  Meanwhile, the well-funded public schools appear racially segregated in activities and academics, there’s a persistent achievement gap with black students at the bottom, and a handful of incidents since the 2016 election suggest that some faculty and staff need cultural and anti-bias training. The district, led by a diverse group of administrators, recognizes these problems, but we are far from solving them.

I wasn’t expecting my community to be a utopia, but I was hoping for something better than this. Unfortunately, what we have here may be as good as it gets in a country where people lack the personal and political will to do better. At least my district is trying.

What Children’s Books Do You Give?

What gift do you give to the outgoing president of a university? Recently, the seven chairs of Duke’s Academic Council decided to give retiring President Richard Brodhead children’s books, knowing he’s looking forward to spending more time with his young grandchild. Unsurprisingly, the selected books are very old, except for one (see DukeToday to find out which faculty member gave which one and why):

  • Make Way for Ducklings by Robert McCloskey (1941)
  • Alice’s Adventures in Wonderland by Lewis Carroll (1865)
  • Brown Bear, Brown Bear, What Do you See? by Bill Martin Jr. and Eric Carle  (1967)
  • Frederick by Leo Lionni (1967)
  • Freight Train by Donald Crews (1978)
  • The Complete Book of Flower Fairies by Cicely Mary Barker(1920)
  • Jessica’s X-Ray by Pat Zonta (2002)

As is often the case with classics, none of the books noticeably features characters from diverse backgrounds, though at least one is authored/illustrated by a person of color.

In general, I like these books–I’ve read all of them except The Complete Book of Flower Fairies—but none of them are among the books I’ve given to the young children in my life over the years (or their parents and grandparents).

My go-to list of children’s books for gifts includes (among other books):

  • Tea Leaves by Frederick Lipp (2003), a beautifully illustrated story about a girl named Shanti, who lives on the island of Sri Lanka, but has never seen the sea.
  • The Family Book by Todd Parr (2003), which misguided proponents of book banning have challenged in the past for its depiction of families with two moms and two dads;
  • Art & Max by David Wiesner (2010), a beautifully illustrated book that contains enough words to add structure to the story without stifling young imaginations;

 

What books do you give to the children in your life?

 

*I learned about Brodhead’s gifts from Alex @randomlyreading. Thanks, Alex!

Milo’s Malicious Press Release: Will It Matter In Court?

Milo

Milo Yiannopoulos, a professional troll and proud bigot, has announced that he will self-publish the book Simon & Schuster dropped after his comments condoning child abuse surfaced earlier this year. He plans to publish the book as part of a new media venture, MILO, Inc, which he describes in a Facebook post as “a fully tooled-up talent factory and management company dedicated to the destruction of political correctness and the progressive left.”

In this release, he explains the motivation behind his project, saying:

I will spend every waking moment of the rest of my life making the lives of journalists, professors, politicians, feminists, Black Lives Matter activists and other professional victims a living hell.

Charming.

I doubt it was wise to publicly announce the malicious intent behind his company, which I assume will publish controversial statements about individuals belonging to the groups Milo lists. This announcement could make it easier for members of these groups to establish the legal elements of defamation claims against Milo and his company (assuming the company materializes; apparently, his past ventures have not).

Generally speaking, in the United States, a plaintiff bringing a defamation case in court has to prove the following elements (it varies a little by state):

  • 1) the defendant negligently published or communicated to a third party
  • 2) a false statement purporting to be true
  • 3) that resulted in harm to the plaintiff.

However, public figures and celebrities — the people Milo is likely to target, considering his trolling of actress Leslie Jones — have a higher standard to meet to win a defamation lawsuit against someone who publishes untrue statements about them. They have to prove that the defendant made the alleged defamatory statements with “actual malice.” New York Times v. Sullivan, 376 U.S. 254 (1964).

Thanks to Milo’s press release (and probably other statements he’s made), it might be relatively easy for future plaintiffs to prove that statements published by his venture were made with “reckless disregard of whether or not it was false.” After all, the point of his venture isn’t to publish truthful information but rather to make the lives of anyone who disagrees with him “a living hell.”

Meanwhile, Milo has also announced a lawsuit of his own. He plans to sue Simon & Schuster for dropping his book. If he follows through on this threat, I question whether it will be successful.  I would assume Simon & Schuster’s contracts with authors include a “morals clause,” a provision in many entertainment contracts that generally allows a party to withdraw from the agreement when the other party engages in “bad behavior.” Then again, what kind of morals clause could Simon & Schuster have imposed on Milo when the only reason for the contract in the first place was to capitalize off of Milo’s immorality?

____________________

*Similarly, Donald Trump’s words have also been used against his actions in court. See Trump’s Words Were Again Used Against Him in Sanctuary City Ruling & Trump’s Remarks About Muslims Could Be What Ends The Travel Ban, Testimony Suggests.

The Misadventures of the Family Fletcher #MiddleGrade #KidLit

Recently, my family met the Fletchers, the fictional stars of Dana Alison Levy’s middle grade novel, The Misadventures of the Family Fletcher, which I read aloud to my daughters as we waited for the school bus. The Fletcher family consists of two dads, Jason and Tom, and four boys of diverse racial, ethnic, and religious backgrounds named Sam, Jax, Eli, and Frog (short for Bull Frog, AKA Jeremiah). The Fletchers are different from my family in some ways, but we can relate to many of their daily triumphs and tribulations, such as dealing with awkward questions and rude stares.

Here’s an example from Chapter Five:

In the seats, dozens of grown-ups stared blankly at the Fletchers….

Papa stepped forward, smiling. “I’m Jason Fletcher—please call me Jason. And this is my husband, Tom Anderson.”

Dad reached out his hand, also smiling. They had been through this many times, Eli knew… [He] stared at his spotless desk, his face burning. He wasn’t embarrassed about his family—it wasn’t that. It was just… there were so many of them. And so many boys. He knew the questions were coming.

[…]

“Are those guys all your brothers? How old are they?” Griffin said. […] “You guys don’t look anything alike.”

[…]

“We’re all adopted,” Eli said, edging toward Dad, who was reading the compositions taped to the wall. Eli hoped that the questions would stop now. But before he walked away, he heard Mika say, in a loud whisper, “Why do they have two dads? Don’t they have a mom?”

It was apparently loud enough for Frog to hear too, and before Eli could answer, Frog spoke up. “Of course we had moms! Don’t you even know how babies are made? It takes a man and a woman, and the egg meets the—”

Our family’s situation is different, but we know what it feels like to be on the receiving end of insensitive interrogations because some people don’t understand how our mixed-race family “belongs” together, a topic I explored with my twins in our middle grade novel, Anusha of Prospect Corner.

Like 6-year-old Frog Fletcher, who responds to Mika’s question with a reproductive biology lesson, our Sri Lankan-American Anusha Smyth addresses the ignorance she encounters about where her red hair “comes from” with a science-based answer, a similarity my twins noted as we read Chapter Five together.

We spent time discussing the chapter, in part because it provided a piece of evidence that contributed to my kids’ understanding of the time period of the book. They had been confused about the time period because one of the Fletcher boys had considered taking a paper-route, an old-fashioned job my kids know of only from stories about their Granddad’s childhood.

When my girls learned that Tom is Jason’s husband, my daughter said: “Oh, so they’re married. Then it takes place now because same-sex marriage wasn’t legal until recently.”**

“Sort of,” I replied, noting that the story seems to take place in Massachusetts, where marriage equality became the law well over a decade ago as a result of Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (2003). That decision came down from the Massachusetts Supreme Court at the end of my first semester of law school. I was in Massachusetts at the time, and I wondered how long it would take for marriage equality to reach the rest of the country.

Twelve years later, in Obergefell v. Hodges, the U.S. Supreme Court finally declared that United States Constitution protects the right of same-sex couples to marry. 135 S. Ct. 2584 (2015).

There are some people in our country — such as those responsible for the 2016 Republican Party platform — who want to turn the clock back to a time when real families like the fictional Fletchers had little or no legal protection for their love of each other, but judging from my children’s positive reaction to The Misadventures of the Family Fletcher, I think those people are fighting a losing battle. My kids accept the Fletchers for what they really are: a fun family worth reading about. They and other members of their generation are our future, not those people who want to reinstate the past.

_____________

*We read this book after it was recommended by @raincityjane @thelogonauts on the #diversekidlit twitter chat (for a recap, see here: http://www.thelogonauts.com/2017/04/chat.html)

**A later reference to Minecraft helped us narrow the time period to “pretty much now.”