Franz Kafka's literary works
Franz Kafka The Trial
Franz Kafka’s “The Trial” is playing out in real life in a court battle over ownership of his literary works.

The concept of complete and total ownership can be a tricky one at times. Simply put, ownership involves exclusive rights and control over property, whether it’s an object, real estate or something far more conceptual like intellectual property.

The concept has generated colossal amounts of loud controversy over the years, most recently with debates over whether someone is the sole owner of a home once they’ve purchased it, or whether a municipality can take it over using Eminent Domain if government leaders feel a different use of the property serves a larger public interest.

And it can get even more complex and sticky when ownership involves multiple owners, and multiple rights, and multiple parties with different interests.

Issues of intellectual property get wrapped up in the concept of the Copyright — creative and artistic works, including books, movies, music, paintings, and software among them.

If they involve multiple creators and participants, the question lingers: who has the exclusive right to control reproduction or adaptation of such works? The debate continues.

If this all sounds like lawyerly jabber, there are certainly plenty of instances where the concept of ownership has a much broader range of interest, and the general public has an absolute right to be concerned about the precedent being set.

And I thought about all this scholarly stuff while following the ongoing court battle over the literary works of one of the greatest writers of our times, the Czech author Franz Kafka.

Because I truly hope that out of this lengthy court battle, finally decided in 2016, that all world courts ultimately reach one clear conclusion: that an author’s writing — including Kafka’s writing — whether it was a short story, unfinished novel, letter or even a grocery list, belong to all of us, unrestricted, uncensored.

This is one instance where if members of the legal estate with ownership of Kafka’s works want full control, we should all say: Tough. Take a number.


What Is the Fight Over Franz Kafka’s Writing?

Between 1914 and 1915, Kafka wrote an unfinished novel called “Der Process,” better known simply as “The Trial,” about a man named Joseph K. who gets arrested by two unidentified law enforcement agents — for an unidentified crime. He never does learn what crime he’s being charged with, only that the likelihood that he’ll ever be found innocent is highly remote.

Kafka wouldn’t live to see the book’s publication; it was only after his death in 1924 while being treated for tuberculosis that his friend and literary executor Max Brod edited the text for publication by Verlag Die Schmiede.

The first English language translation was published in 1937, and today continues to be among the most influential books ever written, a stunningly complex story that helped create the enduring term “Kafkaesque,” meant to reflect the author’s often absurdist view of modern life, of a man prosecuted by a faceless, uncaring bureaucratic authority.

The term Kafkaesque has come to mean a situation that is oppressive and nightmarish, but it can also mean a situation that’s absurd and ridiculous.

As Claire Fallon wrote in The Huff Post:

“Sure, you might be shouting at your computer or smartphone screen, we know what ‘Kafkaesque’ is. Obviously, it means reminiscent of the themes and events found in the work of Franz Kafka, the Prague-born author whose famous stories (such as The Trial and The Metamorphosis) drew upon the soul-crushing bureaucratic machinery of the aging Austro-Hungarian empire.We can even get more specific, though. ‘Kafkaesque’ describes, as the Oxford Dictionaries would put it, ‘oppressive or nightmarish qualities,’ or as Merriam-Webster suggests, ‘having a nightmarishly complex, bizarre, or illogical quality.’ “

The illogical nature of Kafka’s dreamlike situations in works like “The Trial,” The Metamorphosis” ( where Gregor Samsa infamously awakes one morning to discover he’s transformed into a giant vermin) and other works seemed to be playing out in real time in recent years with the prolonged trial over who controls his unpublished writings.

Fortunately, we now have a resolution to this case, which involved battles between German and Israeli courts — and it’s a happy one.

How Did Kafka’s Literary Trial End?

In 2016, Franz Kafka literary legal battle ended as Israel’s high court ruled in favor of …. well, liberty, and ironically enough, a library. The court required that an estate controlled his unpublished works must hand over all documents for public consumption.

Brod had taken all of Kafka’s manuscripts with him when he fled the Nazi invasion of Czechoslovakia in 1939 and relocated to Israel. On his death in 1968, Brod bequeathed the papers to his secretary, Esther Hoffe, with instructions to give them to the Hebrew University of Jerusalem or the municipal library in Tel Aviv.

However, Hoffe – who died in 2007 — kept the papers and shared them between her two daughters. In 2009, a real trial started against Hoffe’s heirs, after the state of Israel ordered they hand over all the documents, including unpublished writings, while arguing that it was Brod’s last will that they do so.

The Hoffe daughters refused, saying Brod had given those papers to their mother, and thus they belonged to the Hoffe family.

But the Israeli Supreme Court finally decided otherwise and wrote, “Max Brod did not want his property to be sold at the best price, but for them to find an appropriate place in a literary and cultural institution.”

The Hoffe family had kept most of the papers locked away in bank safety deposit boxes in Israel and Switzerland, while occasionally selling some papers to collectors.

Israel’s top court, mercifully, reached the smart conclusion that Franz Kafka’s manuscripts should become the property of the National Library of Israel. In essence, that means they belong to all of us — not simply the chosen few or the highest bidders.

And interestingly that ruling could be interpreted as being the exact opposite of Kafkaesque — not illogical, nightmarish, or ridiculous at all, but marvelously common sense.



It’s fascinating to note that in 1924, just before his death, Kafka had instructed Brod to burn all his manuscripts. Brod wisely ignored that request and took them with him when he emigrated to Palestine. We all owe both Kafka (for his literary genius) and Brod (for his belief in Kafka’s works) a lot of gratitude for the Kafka works we enjoy today.

In his lifetime, Kafka never achieved literary famous of success. Like Vincent Van Gogh, Kafka never experienced the great acclaim and honors that would arrive later.

Joseph K. fared even worse, getting arrested, marked throughout his city as an indicted criminal suspect, until finally he met a grisly fate at the book’s end.

Fortunately, though, Kafka’s own literary trial had a much happier ending, one we should all celebrate. The works of all great writers, no matter how short or incomplete they seem, should be freely open to the public.

The collectors are free to scour eBay and other sites for those rare editions of his works. But don’t expect to keep it all for yourself.

Michael Freeman is an Orlando journalist, playwright and author of the book “Of Cats And Wolves.” Contact him at

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