Franz Kafka had been diagnosed with tuberculosis. He had only a slim file of work (throughout his life he burned most of what he had written) and now that he was dying, he wanted what remained of his work to be burned as well. So he gave it to his friend.
But Brod did not burn anything. Instead, he published “The Trial” and “The Castle,” and in 1939 he packed up the rest of the now precious writing in suitcases to take to Palestine, after the Nazis invaded Czechoslovakia.
The contents of those suitcases, which passed next to Brod’s secretary and then to her daughters, would become the subject of a legal battle fraught with ideological overtones: The Israeli National Library sued for the rights to all the writing; the daughters say they legally inherited them; and the German Literature Archive, which bought some of the letters from the daughters in auction, said they owned what they paid for. In 2012, a Tel Aviv court ruled in favor of the Israeli library, and the decision is under appeal.
So now many people believe they own Kafka. But before all that – before Kafka belonged to anyone but himself; before Germany reminded us that Kafka wrote in German; before Israel noted that Kafka was Jewish; before “Kafkaesque” was levied as a critique as against various institutions and governments and ideas – should Brod have burned his friend’s writings?
Should we have never known Kafka at all?
“My decision . . . rest[s] . . . solely on the fact that Kafka’s unpublished work contains the most wonderful treasures…I must confess that this one fact of the literary and ethical value of what I am publishing would have been enough to decide me to do so, definitely, finally, and irresistibly, even if I had had no single objection to raise against the validity of Kafka’s last wishes,” wrote Brod.
That has been the usual argument for posthumously publishing an author’s left-behind writing: it would be a public disservice not to.
Vladimir Nabokov had said he wanted his last novel destroyed if he died while writing it – which he did. But in 2009, his son, Dmitri, published 138 notecards from his father’s unfinished novel as "The Original of Laura," ceding to public interest in the author’s last words.
Ernest Hemingway also stipulated that he did not want his letters published; in 1981, two decades after he committed suicide, his wife published some 600 of them.
In both cases, and in many others, the authors’ wishes were clear: Burn. Do not read.
The drama of authorial intent is most tangibly played out in posthumous publication debates, but it is also a broader issue, one that has governed various literary movements: Should a work be subjected to interpretations that rely on theories of which its writer was never aware?
Should literature be deployed in the service of ideas that its writer rejects?
Does the author matter?
Well, in US courts, no – at least not very much.
Few posthumous publishing cases ever arrive in court, since to make it there another heir to the documents would need to have enough of a gripe about the executors’ intents to hire a lawyer (no one brought Brod to court over Kafka). And when courts do see those rare cases, there is no general rule for how to legally handle them.
“We’re in an area where the law is pretty murky and sparse,” said Lior Strahilevitz, professor of law at the University of Chicago.
One considered factor is whether or not publishing the posthumous work will be a financial boon to the inheritors or if it will be just the opposite, sullying the reputation of the deceased artist and devaluing their existing work. Another is a visceral one: how much of a public loss the destruction would seem to be – are we looking at someone of Kafka’s fame? And another is how good the deceased’s reasons for burning are deemed to be – while courts may allow very private diaries to be destroyed, that’s not the usually the case with novels, said Strahilevitz.
“Were Kafka’s case litigated in the US, the court likely have said ‘Brod, you’re right: This has literary and economic value, and no living person would benefit from its destruction,’” said Strahilevitz.
But that might not be the result if the fictional case happened in a French court. In France – which has what are known as moral rights, or rules protected artistic integrity – courts tend to be more concerned with artistic integrity: “in France, rulings in which an artist is unwillingly exposed to the public in a way they didn’t intend don’t tend to arise as frequently,” said Strahilevitz.
So France would probably, but not definitely, have obliged dead Kafka and had his work burned. Which country would be best balancing an obligation to Kafka against one to the executor and the public is unclear. And, in the particular and peculiar case of Kafka, so too is it unclear which country would be best representing the author’s actual intent.
In 2011, Judith Butler argued that perhaps Kafka – who rather than burn his own writings handed them to his friend to do it, like a guilt-riddled test of fealty – might have known that his work would not be burned. Perhaps he knew, like most his characters come to know, that in the end it was hopeless to stop his writings from getting away from him, from being pulled up into the broader human designs, the horrible absurdity of which was always patently clear to his paralyzed protagonists but, terrifyingly, not to the other characters.
After all, Butler notes, this was a man who wrote, in addition to that much agonized over letter, this: “How on earth did anyone get the idea that people can communicate with one another by letter!”