“In previous years he had let the festival which for centuries had illuminated the marvel of the Maccabees with the glow of candles pass by unobserved. Now, however, he used it as an occasion to provide his children with a beautiful memory for the future.”

That’s a (translated) quote from “The Menorah”, a short story by Theodor Herzl originally published in Die Welt in 1897.  It seems an apt story both for Hanukkah, which ends at sundown tomorrow, and for illustrating Herzl’s own character.  Hanukkah, commemorating the rededication of the Second Temple, has themes of light and self-determination for Jews.  Herzl, too, envisioned a brighter, self-determined future for the Jewish people.  He was an advocate of Zionism so influential that he was mentioned by name, decades after his death, in the 1948 Declaration of the Establishment of the State of Israel as “the spiritual father of the Jewish State”.

Herzl died in 1904, so most of his writings, including “The Menorah”, have been in the public domain for a while. (This page links to online copies of many of his writings.)  But US copyright law treats unpublished works differently from published ones.  For instance, unpublished works have been the only ones entering the public domain here for the last 20 Public Domain Days– specifically, works that had not been published before 2003 or registered for copyright before 1978, by authors who died more than 70 years ago.  Back in 1923, though, unpublished works were under indefinite “common-law” copyright.  The limited-time statutory copyright terms of federal copyright law started once a work was published or registered for copyright.

Thus, the US copyright clock for Herzl’s diaries (or “Tagebücher” in German) would not start until their first publication, well after his death, in 1922 and 1923.  The first volume of a three-volume edition was published and copyrighted in 1922, and is in the public domain now.  Copyrights for the other two volumes were registered effective January 1, 1923, and renewed in 1950.  Those volumes, then, are still in copyright in the US for another 23 days, but at the new year, the complete edition will be in the public domain here.

The first published edition of a revered figure’s private papers is not always the best.  In “Theodor Herzl’s Diaries as a Bildungsroman”, published in the Spring-Summer 1999 issue of Jewish Social Studies, Shlomo Avineri writes that the compilers of the first edition “chose to erect an heroic monument, not provide a full text”.  Passages unflattering to Herzl or his contemporaries in the Zionist movement were cut, with no notice of the omissions.  “Such defensive strategies”, Avineri writes, “tend to diminish the stature of the person they aim to protect.”

A more complete version did not appear in print until the 1960s, says Avineri, and that was an American English translation.  The Complete Diaries of Theodor Herzl, edited by Raphael Patai, was a 5-volume set translated from manuscripts in the Central Zionist Archives in Jerusalem, and published in New York by the Theodor Herzl Foundation.  It was registered for copyright in 1961, with a 1960 copyright notice.  Unlike the 1922-1923 edition, though, copyright for this version was not renewed, as was required for US publications of the time.

So is this better version in the public domain now?  Probably not, in my view, since the work includes translations of previously published German diary entries that are still under copyright– namely, those portions first published in the 1923 volumes.  But come January 1, the copyright for those 1923 volumes will expire in the US, and if there were no other earlier publications for what was first published in Patai’s edition, then we may have this edition, as well as the 1922-1923 first edition, joining the public domain in the US then.

I’m not an expert in the publishing history of Herzl’s papers, or in all the ins and outs of copyrights of unpublished and partly-published works.  Comments who know more about either are welcome.

Happy Hanukkah to all my readers who celebrate it!

2019 update: Link to full texts of Theodor Herzls Tagebücher, 1895-1904, now in the US public domain, at HathiTrust and the Internet Archive.