Is Doubleday violating Bin Laden’s copyright?
by Brendan I. Koerner
Doubleday, an American publishing house owned by German media conglomerate Bertelsmann AG, is planning to release The Al Qaeda Reader in 2006. The book will consist primarily of translated writings by Osama Bin Laden and Egyptian Jihad founder Ayman al-Zawahiri, along with a smattering of other jihadist statements. Is Doubleday violating Bin Laden’s copyright?
Probably not, as the book’s contents most likely constitute fair use of the materials. For starters, it’s pretty clear that Bin Laden and al-Zawahiri do, indeed, hold copyrights on their writings. The Wall Street Journalreported that the main Bin Laden contribution consists of a book published in Egypt, while al-Zawahiri’s section is taken from a book previously published in Jordan. Both of those nations are parties to the Berne Convention for the Protection of Literary and Artistic Works, so those copyrights are valid in the United States. (If any of the additional material was written or published in a non-Berne country, such as Afghanistan, then copyright might not be an issue.)
The fact that the writings in question were created by wanted criminals really doesn’t enter into the equation. American courts have ruled that even illegal speech, such as, say, an obscene movie, is worthy of copyright protection.
Were Bin Laden or al-Zawahiri to somehow press for royalties, Doubleday’s natural argument would be that their publication of the writings constitutes fair use. The publisher would have one strike against it, in that it will apparently be quoting 100 percent of the source material, rather than mere snippets. Usually, the more of an excerpted work that is reprinted, the less likely the resulting product is to be considered fair use.
But other factors seem to be in Doubleday’s favor. Courts look closely at the nature of the use and whether it benefits the public. In this case, the publisher could effectively argue that it is important to the national debate for the thoughts of the country’s enemies to be widely disseminated. There is also a considerable transformative element to the book—that is, all the work that is being put in by the translator, Raymond Ibrahim, who will own the copyright for The Al Qaeda Reader. The more transformative a work is deemed, the more likely it is to gain fair-use protection.
A court might also consider that it’s unlikely that Bin Laden or al-Zawahiri would choose to make their works available in the United States independently. Since that scenario is so improbable, a judge could rule that Doubleday’s approach was the only way for this valuable information—however abhorrent it is to many—to reach the public.
Lastly, in making fair use decisions, courts consider whether the publication will affect the commercial prospects for the original work. Since there are probably few Americans who would buy the original Arabic books, and Bin Laden and al-Zawahiri presumably have no plans to authorize English translations on their own, that factor tilts in Doubleday’s favor, too.
In the implausible event that Bin Laden or al-Zawahiri sues to stop publication of The Al Qaeda Reader, it’s unlikely that a court would order such an injunction. If anything, it might simply ask that the original copyright holders receive some sort of payment. But this scenario is entirely academic—if Bin Laden showed up in civil court to argue his case, he’d obviously be arrested within milliseconds.
Bonus Explainer: Another bit of unpopular speech, Adolf Hitler’s Mein Kampf, has an interesting copyright history of its own. An English translation of the book, which removed the most inflammatory instances of anti-Semitism, was made available in the United States in the 1930s. Future California Sen. Alan Cranston, then a reporter, read the translation and realized that it had been excised of its most wicked parts. So he made his own annotated translation and was promptly sued by Adolf Hitler for copyright infringement—Hitler was making millions off royalties from the book’s sales worldwide and didn’t want any competitors watering down the market. An American judge sided with the dictator and ordered publication stopped.
Explainer thanks Wendy Gordon of the Boston University School of Law and Thomas G. Field Jr. of the Franklin Pierce Law Center.