Tewarson v. Simon

Michael Simon (defendant) was born in Theresienstadt concentration camp, the “model” ghetto the Nazis used to falsely convey that Jews in the camps were well treated. Simon inherited the diaries his parents kept of their time in Theresienstadt. Simon’s mother’s diaries required transcription from archaic German shorthand into modern German. Simon gave the diaries to Heidi Tewarson (plaintiff) to translate into English. Two years later, Tewarson sent Simon a contract regarding the rights to and publication of the diaries’ contents. Simon refused to sign the contract and demanded return of the originals. Tewarson brought an action seeking a judgment declaring the parties’ rights to the originals and transcriptions/translations. Tewarson maintained that under her agreement with Simon, she was to return the originals with copies of the transcriptions/translations after completing her work, her work included writing a book, and she had the right to publish the translated diaries in her book. Simon filed for copyright registration, answered, and counterclaimed for replevin of the originals and to enjoin Tewarson from publishing anything resulting from entrusting the materials to her. The court found there was no agreement as to publication and therefore Tewarson had no right to publish the transcriptions/translations or retain the originals. The court entered judgment for Simon, granted Simon replevin of the diaries, and ordered that Tewarson give Simon copies of all transcriptions/translations and not publish any works that included the diaries or use the diaries or transcriptions/translations without Simon’s consent. Tewarson appealed, arguing that the court lacked subject-matter jurisdiction because the action sounded in copyright, the judgment relied on state contract law preempted by federal law, and the evidence did not support granting replevin.