HOUSTON LAW REVIEW

ADDRESS

COPYRIGHT IN
THE DEAD SEA SCROLLS
AUTHORSHIP AND ORIGINALITY
David Nimmer*

TABLE OF CONTENTS

PART ONE
DOCTRINE.................................................................................5

I. FOREWORD: FIRST SPEECH.........................................................5

II. IN PURSUIT OF THE ORIGINATOR ................................................7

III. EXTREME COPYRIGHT ...............................................................14

A. Minimal Requirements.....................................................14
B. Six Case Studies in Search of an Author........................16

* © 2001 by David Nimmer, Of Counsel, Irell & Manella, Los Angeles, California;
Distinguished Scholar, Berkeley Center of Law and Technology. This work was delivered
as the Fifth Annual Houston Law Review Lecture Series Frankel Lecture. A number of
people were kind enough to react to portions of this work. I thank especially those who
offered comments on the whole presentation: Craig Joyce, Dick Lanham, James Oakes,
Tim Lim, Michael Birnhack, Mark Rose, Talia Einhorn, Craig Joyce, Peter Jaszi, Ariel
Goldstein, Bob Rotstein, Yoni Hoffman, Craig Joyce (his third reading, this time) and
Gloria Nimmer (a/k/a “Mom”). Sharon Ben-Shachar and Russell Chorush provided
wonderful research assistance.
Unless otherwise noted, all translations from ancient and medieval Hebrew are
mine. Yonina Hoffman and Sharon Ben-Shachar translated the modern Hebrew from the
Israeli judicial opinions. In general, I transliterate the letter qof herein with a “q”—except
where a “k” is generally used, such as “Akiva.”
The citation form used in this address conforms to the author’s preferences.

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2 HOUSTON LAW REVIEW [38:1

C. Le Chanson de Roland .....................................................23

D. More Works Lacking Authorship.....................................23
E. Special Cases.....................................................................37

IV. TO THE M IDDLE EAST FROM WEST..........................................44

V. QUMRAN AND QIMRON ’S COPYRIGHT CASE .............................50

A. The Scrolls.........................................................................51
1. Discovery ...................................................................51
2. MMT ..........................................................................56
3. The End of Secrecy....................................................62
B. Qimron v. Shanks.............................................................69
1. The Cases...................................................................69
2. The District Court Opinion......................................70
3. The Supreme Court Opinion....................................72
C. The Larger Picture............................................................74
1. Qimron v. Shanks in Context...................................75
2. The Released Scrolls in Context...............................77

VI. COPYRIGHT USAGE ....................................................................83

A. Public Access and Unclean Hands ..................................86
1. The Israeli Opinions.................................................86
2. Misuse........................................................................88
3. Scattered Cases .........................................................91
B. Unauthorized Adaptation ................................................94
1. Underlying and Derivative Works...........................94
2. No Protection for Unlawful Utilizations.................95

VII. MIND BENDER ...........................................................................97

A. Fact/Expression Dichotomy.............................................97
1. Originality .................................................................98
a. Quantum of Originality ...........................................98
b. “Distinctive” Does Not Translate to “Original”.......98
2. Literary Work vs. Material Object.........................100
B. Merger of Expression with Nonprotected Material.......102
1. Building Blocks of Understanding........................103
2. Wedding of Idea and Expression...........................104
3. No Other Way to Express Unprotected Ideas........105
C. Enemy of the True...........................................................107
1. Copyright Estoppel .................................................108
2. Subjective Expression.............................................111
a. The Esthetic Impulse ..............................................111
b. Scholar or Artist?....................................................111
3. Intermingled Material............................................113
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a. West..........................................................................114
b. Qimron.....................................................................115
4. Of Authors and Authorities....................................116

VIII. SIN ORIGINAL........................................................................118

A. Evaluating the Quantum of Originality .......................118
1. The Opinions...........................................................118
2. Qimron’s Own Explanation ...................................122
B. Manuscript Reconstruction............................................124
1. In General................................................................124
2. “Read Rather Thus”................................................128
3. Qimron’s Reading...................................................131

IX. INCENTIVES TO CREATE ..........................................................135

A. Incentives and Access .....................................................135
B. Should Copyright Provide an Incentive
to Secretly Alter Judicial Opinions?..............................139
C. Should Copyright Provide an Incentive
for Bad Scholarship?......................................................140
1. Scholarly Convention .............................................140
2. Copyright Law ........................................................143

X. MORAL .....................................................................................146
A. Chronology ......................................................................146
B. Moral Rights Claims ......................................................148
1. Droit à la paternité.................................................149
2. Droit de divulgation...............................................154

XI. AFTERWORD.............................................................................158

PART TWO
THEORY .................................................................................160

XII. AUTHORSHIP AND LITERARY THEORY ....................................162

A. Myth of the Romantic Genius ........................................162
B. Apotheosis of the Text.....................................................164
C. Birth of the Reader .........................................................166

XIII. BIBLICAL EXCURSUS.............................................................170

A. God is Strong ..................................................................170
B. Unheard Melodies...........................................................173

XIV. AUTHORSHIP UNDER THE COPYRIGHT ACT .........................178

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A. Release of “Works of Authorship”

From Physical Constraints ............................................178
B. On the Incommensurate Vastness
of “Works of Authorship” Under the Statute.................180
C. “Authorship” Solitary and Joint....................................191
D. Evaluation of Changes...................................................193

XV. THE INSTABILITY OF TERMS ...................................................198

XVI. INTENTIONAL S TEP TOWARDS THE “AUTHOR ” ....................202

A. First Step Towards Harmonization ..............................202
B. Perils of Grand Theories of Unification........................203
C. High Culture and Low ...................................................205
D. The Legal Enterprise......................................................207
E. On the Intent to Author ..................................................209
F. G-rounding the Extremes...............................................213

CODA
CODEX AND OTHER LAWS OF CYBERTIME .................218
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PART ONE

DOCTRINE

I.
FOREWORD: FIRST SPEECH
You think this is trouble? I was four months into
production on The Song of Solomon and found out I
didn’t have the rights!
Producer Stanley Motss in Wag the Dog

The first speech of my copyright career came at the invitation

of the assembled lawyers of Columbia Pictures in 1987. In the
segment devoted to exceptional cases of U.S. copyright duration,
Jared Jussim asked a question about an actual case confronting the
studio (this was at the time that Jared practiced copyright law
exclusively, before he lent his acting talents to portray the
legendary Dickey Fox in Jerry Maguire)—is it possible to have
copyright protection in the United States for a fairy tale by the
Brothers Grimm, allegedly written in the 1850s and never
published.1
I explained the statutory rule then extant—protection would
last for 50 years past the death of the last Grimm brother.2 But
even if the grim reaper took the Grimm brother over a century

1. The Grimm Brothers actually had a role to play in early literary theory. See
WALTER J. ONG, ORALITY AND LITERACY: THE TECHNOLOGIZING OF THE WORD 16–17
(1982).
2. 17 U.S.C. § 302(a) (1982). Subsequently, the term was extended another
20 years. See 3 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT
§ 9.10[A][1] [hereinafter NIMMER ON COPYRIGHT].
6 HOUSTON LAW REVIEW [38:1

ago, copyright would still subsist at least until December 31,

2002.3
Against that statutory provision, I maintained that a rule o f
reason had to be juxtaposed. Summoning up the most extreme
situation that I could imagine, I posited that even if a shepherd
in the Judean desert were to discover today a hitherto unknown
manuscript of Biblical provenance—say, the third chapter to the
Book of Obadiah—and even if the shepherd could prove himself
to the court’s satisfaction to be Obadiah’s lineal descendent and
hence inheritor of any copyright interest, still no court would
ever recognize copyright protection for such a work. The reason, I
brazenly concluded,4 is that copyright protection must co-exist in
our constitutional system with First Amendment rights of
expression, and it would be inconceivable that a monopoly over
expressive content of any text of Biblical import could be subject
to private ownership.5
Fate evidently abhors such categorical pronouncements; it
found a way to disprove them in relatively short order. The
certitude that I expressed in 1987 reflected simply absence of
imagination, a constricted breadth of vision.
The chapters that follow pursue the question: What
quantum of creativity suffices to secure copyright protection?
Can one who reconstructs an ancient text out of manuscript
fragments secure copyright in the assemblage? Can a publisher
of judicial opinions that emends miscellaneous textual matters
and paginates the result lay claim to copyright in its work
product? Whether the exercise proves dexterous or sinister,
gauche or adroit, is left to that ultimate arbiter of all literary
efforts, the reader.

3. 17 U.S.C. § 303(a) (Supp. IV 1999). See 3 NIMMER ON COPYRIGHT § 9.09[A].

4. My awareness, even as I spoke, that no case law validated that supremacy of
First Amendment values over copyright protection—indeed, that the authorities were in
fact almost uniformly to the contrary—did not disturb my certitude that, in the extreme
circumstances posited, copyright protection would surely lose. Moreover, I had little fear
of ever being proven wrong; for even if a judge were to be so unmoored from sound
principles as to want to reach an opposite result, the factual circumstances of such a case
were surely a physical impossibility, I quickly calculated.
5. See generally Melville B. Nimmer, Does Copyright Abridge the First Amendment
Guarantees of Free Speech and Press?, 17 UCLA L. REV . 1180 (1970); Neil Weinstock
Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283 (1996); Yochai
Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of
the Public Domain, 74 N.Y.U. L. REV . 354 (1999).
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II.
IN PURSUIT OF THE ORIGINATOR
Personality always contains something unique. It
expresses its singularity even in handwriting, and
a very modest grade of art has in it something
irreducible, which is one man’s alone. That
something he may copyright unless there is a
restriction in the words of the act.
Justice Oliver Wendell Holmes, Jr.6

The succeeding chapters explore in elaborate detail how

scholars were assigned and reconstructed the archaeological
remains of various pieces of multiple copies of an ancient Hebrew
manuscript; how their failure to publish that reconstruction for
decades sparked resentment, leading to an unauthorized
publication; and how copyright litigation ensued.
To frame the inquiry, we need to inquire into the copyright
status under U.S. law of the reconstruction of an ancient text.
Because this fact pattern falls so far afield of any reported case, it is
helpful to let the mind roam free and posit other hypotheticals.
Therefore, before the chapters below directly explore the facts and
analysis o f Qimron v. Shanks, the next chapter propounds different
fact patterns to probe the outer limits of copyright protection. Each
pattern is designed to shed light on a different aspect of the curious
conundrums underlying the reconstruction of the text at issue in
that case, which goes by the name MMT.
But before reaching that matter, the instant chapter offers a
few words about authorship. The United States Constitution
authorizes Congress “To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries . . . .”7 What is meant by the reference to “authors”?
Western civilization has had a good deal to say on the subject;
the goal here is emphatically not to rehearse that history.
??Reaching back to the fountainhead brings us to the
original blind bard, who stitched together songs to make
the world’s first rhapsody. But Homer was a singer, not a
commentator.8

6. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903).

7. U.S. CONST. art. I, § 8, cl. 8 (emphasis added).
8. On Homer, see generally O RALITY AND LITERACY, supra note 1.
8 HOUSTON LAW REVIEW [38:1

??Aristotle, of course, qualifies as “the principal

theoretician of classic narrative.”9 His Poetics, as its
name implies, concentrates on the production of poetry,
not on what a poet must do to qualify for that title. For
that reason, its exceptions are all the more striking:
[I]t is not the function of the poet to relate what
has happened, but what may happen—what is
possible according to the law of probability or
necessity. The poet and the historian differ not by
writing in verse or in prose. The work of Herodotus
might be put into verse, and it would still be a
species of history, with meter no less than without
it. The true difference is that one relates what has
happened, the other what may happen.10
??In general, ancient Greece articulated no category of
“fiction,” fountainhead of modern conceptions of
authorship.11 Instead, it gave us the concept of sophos–
the sophoi (plural) encompass
a range of practitioners from the poet through the
politician to the pot-maker. There is, otherwise, no
regular term that corresponds to ‘author’ in the sense
of a discrete category of those who produce literature,
who write. The product of the sophos is sophia,
“authoritative knowledge,” or “wisdom,” which is
constantly and inevitably associated with the
production of poetry in ancient Greece. Indeed,
sophia is the normal term for what poets offer to the
public. It is precisely because of this claim of
authoritative knowledge for poetry and for other
spheres of action that Plato coins his new term
philosophia . . . .12
??In ancient Israel, the “genius” to be praised was one who
obliterated his own will in favor of exactly carrying out the
divine ordinance. The individual whom the Torah invokes
as the epitome of artistry is Betzalel, builder of the
Tabernacle in the wilderness. 13 The Talmud relates that
God commanded Moses to direct Betzalel to build the

9. ROLAND BARTHES, The Struggle with the Angel, in IMAGE ____MUSIC____TEXT,

125, 129 (1977) (analyzing Genesis 32:22–32).
10. ARISTOTLE ’S POETICS 68 (S.H. Butcher trans., 1999). “And even if he chances to
take an historical subject, he is none the less a poet . . . .” Id. at 69.
11. Simon Goldhill, The Sirens’ song: authorship, authority and citation, in WHAT IS
AN AUTHOR? 137, 138–39 (Maurice Biriotti & Nicola Miller eds., 1993).
12. Id. at 138.
13. See Exodus 38:22.
2001] DEAD SEA SCROLLS 9

tabernacle in a specified way. When Moses relayed the

commandment to Betzalel, he changed the order. Betzalel,
however, remained true to the original order that God had
given.14 In response, Moses exclaimed in wonder how
Betzalel knew—perhaps he was lurking “in the shadow of
God.”15
??Not only was Homer a collector of past traditions as
opposed to an innovator, but the same sensibility
continued long into the future. The troubadours and
trouvères of medieval lore, along with Il Trovatore of
Verdi fame, derive their name from the verb meaning
“to find.”16 Like Homer before them, those minstrels
can claim celebrity not by the originality of their
compositions, but by virtue of the fact that they have
“found” ancient truth and transmitted it faithfully.17
??Writing a half century before the first copyright statute,
Thomas Hobbes makes reference to those who originate
books as “Writers.”18 But insofar as he refers to an
“author,”19 it is to the wholly different category derived
from its cognate: one who has “authority” to act:
“Likewise Children, Fooles, and Mad-men that have no
use of Reason, may be Personated by Guardians, or
Curators; but can be no Authors (during that time) of any

14. Although Betzalel is the archetype of genius-through-avoiding-originality, he is

far from alone. Another example comes in God’s detailed command to Aaron to light the
menorah in a certain fashion, after which the Torah duly records, “And he did thus.”
Numbers 8:3. What is the point of that fillip? The preeminent commentator explains that
it shows the praise of Aaron, by highlighting that he changed none of the divine order.
Rashi ad loc., quoting Sifri.
15. BABYLONIAN TALMUD TRACTATE BRACHOT 55a. The name Betzalel can be
divided into two and revocalized as “betzel el,” which translates as “in the shadow of God.”
This sort of Hebrew wordplay underlies much of what follows. Refer to Chapter VIII infra.
16. In French it is trouver, THE CONCISE O XFORD FRENCH DICTIONARY 97 (1942), in
Italian trovare, CASSELL’S ITALIAN DICTIONARY 730 (1978).
17. “[T]he terms plagiarism and copyright did not exist for the minstrel. It was only
after the invention of printing . . . that these terms began to hold significance for the
author.” ELIZABETH L. EISENSTEIN, THE PRINTING PRESS AS AN AGENT OF CHANGE 121
(1979), quoting 4 MICHAEL B. K LINE , RABELAIS AND THE AGE OF PRINTING 54–55 (1963).
18. THOMAS HOBBES, LEVIATHAN 91 (Richard Tuck ed., Cambridge Univ. Press
1996) (1651). Refer to note 841 infra.
19. By contrast, two years earlier John Milton had invoked the natural-law right
that “every author should have the property of his own work,” in the context of
condemning King Charles I for appropriating a prayer from Arcadia “as his personal
meditation on the eve of his execution.” Mark Rose, The Author as Proprietor: Donaldson
v. Becket and the Genealogy of Modern Authorship, in O F AUTHORS AND ORIGINS: ESSAYS
ON COPYRIGHT LAW 23, 28–29 (Brad Sherman & Alain Strowel eds., 1994). Milton’s
concern was rooted both in religion and copyright. Id.
10 HOUSTON LAW REVIEW [38:1

action done by them. . . .”20

??Somewhere between the Renaissance and the Romantic
era, humanist ideas gave birth to a “notion of the modern
artist—the creative genius, the free and autonomous
human being who creates unique works of art unhindered
by external influences.”21
??When England passed the first Copyright Act in 1709,22
many claim that it was part of a process that also
produced a new conception of “author” as Romantic
genius, creating in the proto-Wordsworthian sense23
something wholly new under the sun. In this way, the
claim goes, Parliament conferred rights on a class
(authors) put forward as a stalking horse on behalf of the
true beneficiaries—booksellers24 and other masters of the
printing press. 25
The Constitution, with its attendant Copyright Clause
quoted above, was adopted in 1789. In contrast to the lofty
lineage of the scattered sources cited above, U.S. copyright
doctrine has led a life remarkably free of their influence—indeed,

20. LEVIATHAN, supra note 18, at 85.

21. Marjut Salokannel, Film Authorship in the Changing Audio-visual
Environment, in O F AUTHORS AND O RIGINS , supra note 19, at 57. Under this scheme,
Betzalel would be a mere artisan, as opposed to a true artist. Id. at 57–58.
22. Statute of Anne, 1709, 8 Ann., c. 19 (Eng.). By contrast, Eisenstein traces early
copyright back to Venice in 1464. THE PRINTING PRESS AS AN AGENT OF CHANGE , supra
note 17, at 240. See also id. at 231 n.193 (Venice in 1567).
23. See Elton Fukumoto, Comment, The Author Effect After the “Death of the
Author”: Copyright in a PostModern Age, 72 WASH. L. REV . 903, 907 (1997).
24. Id. at 906–07. For a comprehensive catalog of the changes effectuated by the
advent of printing, see generally THE PRINTING PRESS AS AN AGENT OF CHANGE , supra
note 17. For a dissent from Eisenstein, claiming that stationers and cartolai of
Renaissance Italy anticipated almost all the printers’ innovations, see Anthony Grafton,
The Humanist as Reader, in A HISTORY OF READING IN THE WEST 179, 189–90 (Guglielmo
Cavallo & Roger Chartier eds., Lydia G. Cochrane trans., Univ. of Mass. Press 1999)
(1995). A much lengthier refutation of Eisenstein is set forth in ADRIAN JOHNS , THE
NATURE OF THE BOOK (1998). Another scholar notes with amusement that the same
revolutionary changes that Eisenstein ascribes to printing are attributed by others to the
advent of writing over two millennia earlier. See ROSALIND THOMAS , LITERACY AND
O RALITY IN ANCIENT G REECE 19 (1992).
25. See Martha Woodmansee, The Genius and the Copyright: Economic and Legal
Conditions of the Emergence of the “Author,” 17 EIGHTEENTH-CENTURY STUD. 425, 437
(1984); Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of “Authorship,”
1991 DUKE L.J. 455, 468–69 (1991); The Author as Proprietor, supra note 19, at 25, 30–31.
See also David Saunders, Dropping the Subject: An Argument for a Positive History of
Authorship and the Law of Copyright, in O F AUTHORS AND O RIGINS , supra note 19, at 93,
96 (“[S]ubject-centred history . . . can be identified as Romantic historicism.”). For an
earlier instantiation of the same phenomenon, see Robert Bonfil, Reading in the Jewish
Communities of Western Europe in the Middle Ages, in A HISTORY OF READING, supra note
24, at 149, 158.
2001] DEAD SEA SCROLLS 11

of any theory whatsoever. Far from moving the courts to invoke

Aristotle26 or the Poetics,27 prophets of God or troubadours,
Romantic poets or stalking horses, the constitutional reference to
“authors” went wholly unconstrued for over a century. When the
moment came, the Court simply recited from the dictionary. The
case involved a pensive pose of Oscar Wilde photographed by
Napoleon Sarony. Can a photographer28 qualify as a
constitutional “author”?29 The Court’s treatment, in full, is as
follows:
An author in that sense is “he to whom anything owes its
origin; originator; maker; one who completes a work of
science or literature.” Worcester.30

26. It was not until 1898 that the United States Supreme Court first invoked the
Master. Beley v. Naphtaly, 169 U.S. 353, 360 (1898) (quoting Aristotle in the context of
determining the effect of the Act of 1866 to Quiet Land Titles in California on the patent
for land there in suit). Scattered references appear before then in state courts. Bryan v.
Walton, 14 Ga. 185, 200 (1853) (citing Aristotle, “the prince of logicians and philosophers,”
to justify the institution of slavery as “indispensable in any well-ordered State”); Lemmon
v. People, 20 N.Y. 562, 585 (1860) (citing Aristotle for the proposition that slavery is
contrary to nature).
27. The first reference in any reported U.S. case came only a few years ago, when
Judge Zagel cited “the tragedy of an attorney who could not keep a confidence” as
fulfilling the “perfect tragic figure” described in Poetics. Grove Fresh Distribs., Inc. v.
John Labatt Ltd., 888 F. Supp. 1427, 1430 (N.D. Ill. 1995). The next year, the same judge
cited the same work in a copyright dispute. American Dental Ass’n v. Delta Dental Plans
Ass’n, 39 U.S.P.Q.2d 1715 (N.D. Ill. 1996), points out that it was a fact that Marilyn
Monroe had blonde hair, but queries whether that “information take[s] on some creative
dimension if a critic refers to Monroe’s hair as ‘platinum cotton candy’?” He then goes on
to note: “But while all metaphors are descriptive, all descriptions are not metaphors; the
literal is not metaphoric, since there is no imaginative deviation from the ordinary, and
hence no creativity. See POETICS , supra note 10, at 254. “And no creativity means no
copyright protection.” Id. at 1724.
28. What about Oscar Wilde himself, who plainly had to pose in order to permit the
photographer to snap the shutter—does he, too, qualify as an “author?” See
Aalmuhammed v. Lee, 202 F.3d 1227, 1233 (9th Cir. 2000). The Supreme Court focused
on the “master mind” rather than on the poser. Id. at 1234. Refer to Chapter XIV, section
C infra.
29. For an extended treatment of the background of this case, see JANE M. GAINES,
CONTESTED CULTURE : THE IMAGE , THE VOICE AND THE LAW (1991), a work whose opening
line promises, “In this book, Melville Nimmer meets Bernard Edelman.” Id. at 1. For
myself, I thought the book’s portrait of the former underdeveloped, but I am prejudiced.
Turning to the latter, his book on the subject of how the droit d’auteur system reacted to
the advent of photography, Le droit saisi par le photographie, would have been loved by
the former, as its punning title, Gaines notes, conveys flavors as various as Ownership of
the Image, Perceptions of the Law Through the Medium of Photography, Law Captured
by Photography, New Technology Catching the Law Off Balance, or Photography Issues a
Writ of Attachment on the Law. Id. at 45–46.
30. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57–58 (1884). Worcester
knew his Latin. Auctor means “originator, founder, creator.” The Genius and the
Copyright, supra note 25, at 429.
12 HOUSTON LAW REVIEW [38:1

Having quoted that definition from Worcester’s wordbook,31 the

Court felt the need for no further inquiry.32
Two decades later, the question reached the Supreme Court
whether a poster advertising a circus performance qualified for
copyright protection. Justice Holmes thereupon enunciated the
epigraph which opens this chapter. Again, the efforts to trace
authorship to its roots were nil. Instead, the philosophy at work
here was market-driven:
It would be a dangerous undertaking for persons trained
only to the law to constitute themselves final judges of the
worth of pictorial illustrations, outside of the narrowest and
most obvious limits. At the one extreme some works of
genius would be sure to miss appreciation. Their very
novelty would make them repulsive until the public had
learned the new language in which their author spoke. It
may be more than doubted, for instance, whether the
etchings of Goya or the paintings of Manet would have been
sure of protection when seen for the first time. At the other
end, copyright would be denied to pictures which appealed
to a public less educated than the judge. Yet if they
command the interest of any public, they have a commercial
value—it would be bold to say that they have not an
aesthetic and educational value—and the taste of any
public is not to be treated with contempt. It is an ultimate
fact for the moment, whatever may be our hopes for a
change. That these pictures had their worth and their
success is sufficiently shown by the desire to reproduce
them without regard to the plaintiffs’ rights. 33
Much more recently, in the context of sound recordings, the
Court noted that the terms “Writings” and “Authors” have “not

31. See Scott v. Sandford, 60 U.S. 393, 541 (1857) (McLean, J., dissenting) (“The
word ‘territory,’ according to Worcester, ‘means land, country, a district of country under a
temporary Government.’”).
32. A further question remained whether a photograph itself could qualify for
protection as a work of authorship. Without pretending to rule with respect to all photos,
the Court noted evidence as to Sarony’s
mental conception, to which he gave visible form by posing the said Oscar Wilde
in front of the camera, selecting and arranging the costume, draperies, and other
various accessories in said photograph, arranging the subject so as to present
graceful outlines, arranging and disposing the light and shade, suggesting and
evoking the desired expression, and from such disposition, arrangement, or
representation, made entirely by plaintiff, he produced the picture in suit.
Burrow-Giles, 111 U.S. at 60. “These findings, we think, show this photograph to be an
original work of art, the product of plaintiff’s intellectual invention, of which plaintiff is
the author . . . .” Id.
33. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251–52 (1903).
Returning to these considerations, refer to note 1012 infra.
2001] DEAD SEA SCROLLS 13

been construed in their narrow literal sense but, rather, with the
reach necessary to reflect the broad scope of constitutional
principles. While an ‘author’ may be viewed as an individual who
writes an original composition, the term, in its constitutional
sense, has been construed to mean an ‘originator,’ ‘he to whom
anything owes its origin.’”34
All the old cases above share the attribute that they upheld
the claim to authorship—whether the subject matter at hand was
a photo, a poster, or a recording. By contrast, within the past
decade, the Court ruled the intellectual contribution of
alphabetizing names too minimal to qualify for authorship. That
Feist case, involving the white pages of the telephone book, will
be discussed at length below.35
For present purposes, therefore, the lesson is that U.S.
copyright law adopts a concept of authorship that is remarkably
broad, albeit not completely unbounded. Its roots lie not in
theory, but in an uncritical inquiry into whether the work in
question owes its origin to the putative author.
The chapters that follow track the progression of “authors,”
who create works that the Constitution treats as advancing
“science.” It remains to note that in contrast to its contemporary
meaning in 1789,36 “science” today refers not to literature and the
like but rather to the domain of inventions, which is regulated by
patent law. Thus, the very terminology underlying copyright
doctrine has shifted over the course of the past two centuries. As
we shall see, this switch is no isolated phenomenon.37

34. Goldstein v. California, 412 U.S. 546, 561 (1973), quoting Burrow-Giles, 111
U.S. at 58.
35. Refer to Chapters III, VII infra.
36. “That noun is used presciently and conscientiously in its eighteenth century
sense, as opposed to today’s usage in contrast to the humanities.” David Nimmer, A Riff
on Fair Use in the Digital Millennium Copyright Act, 148 U. PA. L. REV . 673, 680 n.34
(2000).
37. Refer to Chapter XV infra.
14 HOUSTON LAW REVIEW [38:1

III.
EXTREME COPYRIGHT
Borrowed the work must indeed not be, for a
plagiarist is not himself pro tanto an “author”; but
if by some magic a man who had never known it
were to compose anew Keats’s Ode on a Grecian
Urn, he would be an “author,” and, if he
copyrighted it, others might not copy that poem,
though they might of course copy Keats’s.
Judge Learned Hand38

A copyright case alleging infringement of an ancient text

seems extreme, indeed. But within the theoretical space of all
copyright cases, it does not necessarily occupy the omega point.39
To explore the terrain, it is useful to posit a series of
hypotheticals, designed to highlight different aspects of copyright
doctrine.

A. Minimal Requirements
It has been said repeatedly that the threshold for copyright
protection is low.40 Pedestrian works routinely qualify for
copyright, so long as animated by a spark of creativity.41 To
illustrate, consider some examples of works that plainly qualify
for statutory copyright.42
The succeeding discussion assumes that all formal
prerequisites for U.S. protection have been satisfied.43 It thereby
focuses on the core issues of originality and creativity. In brief,
“originality” means that the work derives from the copyright

38. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936), aff’d,
309 U.S. 390 (1940).
39. Cf. Jorge Luis Borges, The Library of Babel, in THE MIRROR OF INFINITY: A
CRITIC’S ANTHOLOGY OF SCIENCE FICTION 309, 318 (Robert Silverberg ed., 1970).
40. Feist Publ’ns Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 362 (1991).
41. See Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 908 (3d Cir. 1975)
(“[A] modicum of creativity may suffice for a work to be protected.”).
42. It should be emphasized at the outset that the inquiry is limited to federal
statutory protection under Title 17 of the United States Code. The present work does not
venture into the territory of copyright laws of other nations, or (with the exception of
Chapter XIV, section A infra) of the individual states of the United States. See generally
1 NIMMER ON COPYRIGHT § 2.02; 4 NIMMER ON COPYRIGHT § 17.01.
43. At various times in the past, works published without a valid copyright notice
forfeited copyright protection. See 2 NIMMER ON COPYRIGHT § 7.01[A]. Published works by
nationals of countries with which the U.S. lacks copyright protection likewise fall outside
of protection. See 1 NIMMER ON COPYRIGHT § 5.05[2].
2001] DEAD SEA SCROLLS 15

owner, as opposed to that individual having copied it from a

previous source, while “creativity” refers to a spark above the
level of the banal.44 Thus, a complex geometrical drawing, if
copied from an e xisting work, lacks originality, whereas a simple
circle, even if drawn without reference to prior forms, lacks
creativity.45
Consider the following three situations:

CASE 1: The Inspiration

Even though Karen Hai-Sod dropped out of archaeology
grad school, she could not stay away from digs. When the
shards of an ancient document called MMT were pulled out
from cave 4 at Qumran, she thought that they were the
most beautiful thing that she had ever seen. Without
pausing a beat, she went to her tent and started to compose
the story that they had inspired in her head: “Her hair was
dark as night. The wine she brought from Damascus was
stronger than any he had ever tasted. Limbs intertwined,
they realized together that their destiny was to . . . .”

CASE 2: Psalm of the Tunnel Builder46

James Michener wrote an epic novel centered on life in
the land of Israel. Included in his book is a new psalm, of
which an excerpt reads:
Jabaal of Makor built this David Tunnel. Using six
flags he found the secret. Using white cords he probed
the earth. Using iron from Accho he cut the rock. But
without Meshab the Moabite nothing.47

CASE 3: The Translation

Poet Ted Hughes48 takes an interest in Dead Sea Scrolls
studies. He finds the extant translation of MMT almost
impenetrable. Going back to the original Hebrew sources,

44. Warren Publ’g, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1523 n.2 (11th Cir.
1997) (en banc) (Godbold, Hatchett, & Barkett, JJ., dissenting).
45. See 1 NIMMER ON COPYRIGHT § 2.01[B].
46. See JAMES A. MICHENER, THE SOURCE 273 (1965).
47. Id.
48. A time for confession: The inspiration for David Nimmer, Elliot Brown & Gary
Frischling, The Metamorphosis of Contract Into Expand, 87 CAL. L. REV . 17 (1999), came
not from Ovid’s original Latin; instead, it was from the Ted Hughes translation. See also
BEOWULF v (Seamus Heaney trans., 2000).
16 HOUSTON LAW REVIEW [38:1

he derives his own, much more lyrical rendition.

It is clear that Karen’s short story, Michener’s psalm, and
Hughes’s translations all fall within the scope of copyright.49
Each is a literary work, fixed in a tangible medium of e xpression,
originally composed by Karen, Michener, and Hughes
respectively.50 Assuming satisfaction of appropriate national and
formal requirements, these works achieve the full term of
copyright.51

B. Six Case Studies in Search of an Author

Of the uncounted myriads of literary, musical, audiovisual,
and graphic works created every year, all but a tiny fraction
resemble the foregoing three cases in terms of falling without
question into the subject matter of copyright protection. There is
no point in multiplying those straight-forward applications.
Instead, we learn about the ingredients of authorship by positing
cases at or past the borderline of protection. Let us start with six.

CASE 4: The Fountain 52

In 1492, King Ferdinand and Queen Isabella sent from
Spain not only the Admiral whose name eventually became
eponymous with Columbia Pictures, but also all Moslem
and Jewish subjects of al-Andalus. Following the
reconquista, Christian troops overran the Hall of the
Caliphs outside Almodóvar del Rio, and confronted its
wondrous waters. The warlord commanded his engineers to
disassemble the incredible machinery, in order to learn its
secrets. They succeeded on the first count, but not on the
second. In fact, they could not even restore the fountain to
operation. For centuries, it languishes dry.
Along comes legendary hydrologist M.C.A. Wassermann
in 2010 and, puttering with some of the ancient remains
still in situ, succeeds where no one else has before. The
fountain now flows smoothly. A steady stream of tourists

49. For different considerations in the context of an interlinear translation, refer to

Case 20 (The Pedant) infra.
50. Lurking here is a question as to whether the circumstance of the creation of
Hughes’s translation divests it of copyright protection. Refer to Chapter XI infra.
51. At present, that term runs until 70 years past the death of Karen, Michener,
and Hughes respectively. 17 U.S.C. § 302(a) (Supp. IV 1999).
52. I once read something resembling this story. See RICHARD FLETCHER, THE
Q UEST FOR EL CID (1989). But when I searched for it, I came up blank—a common
affliction of The Reader. See JAMES J. O’DONNELL, AVATARS OF THE WORD: FROM PAPYRUS
TO CYBERSPACE 62 (1998).
2001] DEAD SEA SCROLLS 17

comes to admire the fountain’s steady stream.

Does Wassermann have a copyright in the flowing
fountain?

CASE 5: The Phone Book

A local phone company executive decides to put together
the finest white-pages directory that his company has ever
produced. After elaborate surveys, he demarcates the
communities to be included within the service areas of the
five white-page directories produced by his company in a
new and innovative way. He also devotes a great deal of
study to the alphabetization of surnames — including
patronymics, hyphenated names, and other unorthodox
combinations that his predecessors had never confronted.
The resulting phone book is, in his own estimation, “a work
of art.”
Does this telephone book deserve copyright protection?

CASE 6: The Atom

Sir Ernest Rutherford developed the model of an atom as
a solid nucleus around which circle electrons in fixed orbits
(one for hydrogen, two for helium, etc.). The theory was
revolutionary.53 Not only did it overturn the works of prior
theorists from Democritus and Epicurus to Dalton and
Geiger, but it also changed the very notion of what an atom
(from the Greek atomos, meaning “not capable of being
broken down”) means.
The depiction of an atom as a “miniature solar system,”54
familiar to every schoolchild, is Rutherford’s handiwork.55

53. By 1911, Ernest Rutherford’s experiments with ? particles (helium nuclei)

allowed him to posit that the atom consisted largely of empty space with a dense, heavy
nucleus. See THEODORE L. BROWN & H. EUGENE LE MAY, JR., CHEMISTRY: THE CENTRAL
SCIENCE 41–43 (1977).
54. There was actually an elaboration a few years later. “[I]n 1913, Niels Bohr
proposed that an atom resembled a small scale model of the solar system, in which even
smaller, negatively charged particles called electrons orbited the nucleus at high speeds
in the same way that the planets revolve around the sun.” JOHN E. BETTS, ELEMENTS OF
APPLIED PHYSICS 394 (1983).
55. It also happens to be displaced. Bohr later developed a theory of
“complementarity,” whereby the electron is seen not only as an orbiting particle but as a
wave as well. For that contribution (as well as for a mysterious encounter between the
Jewish Bohr and chief Nazi physicist Werner Heisenberg in occupied Denmark), he is the
subject of the hit London play, Copenhagen.
18 HOUSTON LAW REVIEW [38:1

Does Rutherford have copyright over every depiction of

the atom?

CASE 7: The Skeleton56

Dina Sauer, an eccentric but gifted paleontologist, has
had the good fortune to excavate the most complete
skeleton ever found of an apatosaurus. She assembles the
skeleton into an innovative and new configuration.
A cast had been made of each bone. Sauer’s bitter rival,
Terry Ductile, in turn mounts a rival exhibition, in which
he has assembled the bones slightly differently.
Can Sauer prevail for copyright infringement against
Ductile for having created a derivative work infringing the
copyright in her sculptural creation?

CASE 8: The Veer Option

The Houston Cougars football team was performing
poorly and Coach Bill Yeoman was in danger of losing his
job.57 As a desperation measure, he implemented the “veer
option.” “We knew we were on our way out, and I wanted a
chance to see if the darned thing worked.”58 By the next
year, the veer and its triple option attack led the Houston
Cougars to an 8-2 record and the first of three straight
college offensive titles. 59
Taking note, other coaches instructed their players to
emulate the play. Coach Yeoman claims a violation of his
original contribution to football. 60
Is the veer option copyrightable?

56. See Cindy Alberts Carson, Laser Bones: Copyright Issues Raised by the Use of
Information Technology in Archaeology, 10 HARV . J. L. & TECH. 281 (1997).
57. See JERRY WIZIG, Bill Yeoman, Father of the Year, in EAT ‘EM UP, COUGARS :
HOUSTON FOOTBALL 235 (1977).
58. Id. at 237. See also HOMER RICE , HOMER RICE ON TRIPLE O PTION FOOTBALL 17
(1973).
59. See Bill Yeoman, supra note 57, at 237. By 1983, Bill Yeoman had achieved an
exceptional 148-86-8 record that included ten bowl teams and three conference titles.
ROBERT M. O URS , COLLEGE FOOTBALL ALMANAC 71 (1984).
60. This paragraph, unlike the previous one, is fictitious.
2001] DEAD SEA SCROLLS 19

CASE 9: The Shivviti61

Reb Chaim briskly toured Czechoslovakia, in the
company of his wife, Doreen. The pair visited the Jewish
Museum in Prague, repository of Jewish artifacts
ransacked from throughout Bohemia and beyond by the
Nazis, to serve as a shrine to “the extinct race.” In a
forgotten corner, the pair’s eyes alighted upon a crumbling
shivviti.62 Doreen made a mental note to herself that
perhaps she should “liberate” that artifact before it
crumbled further. However, when she came back after the
perfunctory tour with their guide, she noted that it had
already mysteriously disappeared. Back at her hotel room,
the mystery cleared up—her husband had taken it upon
himself to lay hold of the document. “It just didn’t belong in
a museum founded by the Nazis, where it was languishing,
untended, under Communist control. I returned it to the
use of the Jewish people.”
Does Reb Chaim have a copyright in the text of the
shivviti?
The distinctive feature of each of the six cases set forth
above is that copyright protection is lacking in each. Indeed, that
proposition strikes me as so self-evident that I would be
surprised to see any commentator argue to the contrary under
current U.S. copyright doctrine.63
***
Case 4 posits fixing a fountain. No doubt Wassermann had
to exert considerable ingenuity in the fields of hydrology, Islamic
architecture, history, and archaeology in order to perform his feat
of legerdemain. He is unique in that regard, having succeeded
where all others failed before him. The result of his handiwork is
a great boon to the advancement of knowledge.64 Nonetheless,

61. The rabbi who officiated at my wedding consented to my inclusion of this bit of
his autobiography. (He says that I have mangled the details, though I claim to have
improved them.)
62. A shivviti is an ornamental scroll to be placed on the eastern wall, towards
which direction observant Jews focus concentration in prayer (assuming that one is
located to the west of Jerusalem). It derives from Psalms 16:8, shivviti Hashem lenegdi
tamid (“I have placed the LORD before me always.”).
63. Of course, the losing parties in Feist felt differently about Case 5. Nonetheless, a
unanimous Supreme Court has spoken. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499
U.S. 340, 341 (1991). By the same token, U.S. law could have developed differently in
many particulars that might have given rise to arguments under the other cases. The
point is that under current U.S. copyright doctrine, an argument in favor of copyright
protection in these six cases strikes me as bordering on the frivolous.
64. See generally FRANCES & JOSEPH G IES , CATHEDRAL, FORGE , AND WATERWHEEL:
TECHNOLOGY AND INVENTION IN THE MIDDLE AGES (1994).
20 HOUSTON LAW REVIEW [38:1

those circumstances hardly afford Wassermann copyright

protection. To repair a machine is not the writing of an author in
which copyright could conceivably inhere.65
***
Case 5 represents the facts of Feist Publications, Inc. v.
Rural Telephone Service Co.66 Justice O’Connor, writing for a
unanimous Supreme Court, held there that although a telephone
book could contain copyrightable material (in its preface and
yellow pages, for example), insofar as the alphabetized white
pages are concerned, no copyright protection lies. Accordingly,
Case 5 represents the one case among the half-dozen currently
under consideration that was litigated to completion and subject
to binding precedent.
***
Case 6 illuminates another aspect of the matter. Clearly,
Rutherford made original, creative, and valuable contributions to
science.67 But that alone cannot secure him copyright
protection.68
Also clear is that Rutherford can claim copyright protection
in the precise drawing he has made of, say, a barium atom with
fifty-six rotating electrons. He could even secure copyright
protection over a drawing of a simple hydrogen atom with but
one revolving electron, insofar as the precise shading of the
nucleus, angle of the orbit, and other incidents of graphic art are
presented. But the further question arises whether anyone who
produces her own rival drawing of the type of atom that
Rutherford discovered thereby incurs infringement liability.
The answer to that question must be “no.” Those who take a
photograph or make a drawing are entitled to protection of their
handiwork—but only of the artistic features, not of the

65. Cf. Gemel Precision Tool Co. v. Pharma Tool Corp., 35 U.S.P.Q.2d 1019, 1022
(E.D. Pa. 1995). Moreover, Wasserman fails to qualify as a sculptor, given that he left the
external configuration of the fountain unaffected.
66. 499 U.S. 340 (1991).
67. See Dennis S. Karjala, Copyright and Misappropriation, 17 U. DAYTON L. REV.
885, 897 (1992) (“Einstein’s theory of relativity represents one of the high points in the
history of human intellectual creativity, but neither patent nor copyright would protect
it.”). See also Am. Dental Ass’n v. Delta Dental Plans Ass’n, 126 F.3d 977, 979 (7th Cir.
1997) (“Einstein’s articles laying out the special and general theories of relativity were
original works even though many of the core equations, such as the famous E = mc2,
express ‘facts’ and therefore are not copyrightable.”).
68. Though scientists surely employ creativity and originality to develop ideas and
obtain facts and thereafter to convey the ideas and facts in scholarly articles, it is
primarily the ideas and facts themselves that are of value to other scientists in their
research. Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 925 n.11 (2d Cir. 1994).
2001] DEAD SEA SCROLLS 21

underlying work itself. Thus, the copyright in a plush poodle

(more colloquially known as a “stuffed animal doll”)69 cannot
prevent anyone else from merchandising his own poodle;70 a
drawing of a haystack conveys no rights whatsoever to prevent
others from drawing the same haystack;71 and a photograph of
Oscar Wilde prevents no one else from taking a different shot of
the celebrated dramatist.72
To the extent that copyright protection were recognized in
Rutherford’s atom, an entirely different dynamic would unfold.
Instead of protection lying for the particular angle, scale, shape,
perspective, or shading chosen by the artist, the copyright
monopoly would ratchet up to protect the item itself. No sensible
interpretation of copyright law could abide such a result. Physics
would stop dead in its tracks as even attempts to disprove the
validity of the Rutherford model would be deemed infringing to
the extent that they were illustrated with graphic
representations. The atom stands outside copyright protection.
***
In Case 7, similar considerations doom Sauer’s attempt to
vindicate copyright protection. Although sculptural works plainly
fall within the scope of copyright protection,73 and although the
sculptor might choose whatever material she likes for her
handiwork, including bones,74 a paleontologist’s three-
dimensional depiction of prehistoric articulation plainly fails to
qualify for copyright protection.
At this point, a question rises to the fore: Why is it that
drawings (such as Rutherford’s) and sculptures (such as Sauer’s)
are categories that lie within copyright, and yet protection is
denied to the particular drawing and sculpture in Cases 3 and 4?

69. See, e.g., Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 505
(7th Cir. 1994).
70. See Herbert Rosenthal Jewelry Corp. v. Honora Jewelry Co., 378 F. Supp. 485,
490 (S.D.N.Y. 1974), aff’d, 509 F.2d 64 (2d Cir. 1974) (where only similarity was physical
likeness of a turtle, “each designer was merely representing nature”).
71. See Brown v. McCormick, 23 F. Supp. 2d 594, 604 (D. Md. 1998) (quilt design of
black bird flying over man and woman holding hands does not prevent others from
producing rival quilts with that image); Leigh v. Warner Bros., 10 F. Supp. 2d 1371, 1376
n.3 (S.D. Ga. 1998) (copyright in plaintiff’s photograph of sculpture in Savannah’s
Bonaventure Cemetery, used on the cover of the book Midnight in the Garden of Good and
Evil, accorded no rights to prevent defendants from commissioning an original, rival
photo of the same subject matter, to use in advertising the movie based on that book),
aff’d in part, 212 F.3d 1210 (11th Cir. 2000).
72. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60 (1884).
73. 17 U.S.C. § 102(a)(5) (1994).
74. See Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., 74 F.3d
488, 491 (4th Cir. 1996).
22 HOUSTON LAW REVIEW [38:1

The answer, it would seem, lies in the fundamental enterprise in

which the putative author is engaging. If Rutherford were an
artist attempting to give vent to his Blakean vision, no less than
if Sauer were a sculptor trying to make an aesthetic point, each
would obtain copyright. But Rutherford is a physicist attempting
to portray the underlying substance of matter, and Sauer a
paleontologist attempting to show the way an apatosaurus
actually walked. Their contributions, in short, lie along the
objective, rather than the aesthetic, plane. Copyright protection
requires the subjective choice of an author in order for protection
to lie.75 Cases 6 and 7 fail that test.
***
Copyright extends to dances and other choreographic
works.76 Turning to Case 8, the players on a sports field, no less
than the performers on a stage, move their bodies for the
entertainment and delight of the audience.77 In Baltimore
Orioles, Inc. v. Major League Baseball Players Ass’n,78 the court
held a baseball game to be a work of authorship subject to
copyright protection.79 But review of the court’s opinion shows
that it conflated the creativity that went into filming the activity
of the players on the field with the game itself.80 Accordingly,
subsequent cases have uniformly rejected the theory that
sporting events can obtain copyright protection.81
Were the situation otherwise, monstrous results would
follow. Monday-morning quarterbacking would be converted into
post hoc litigating as the losing team filed suit against the
winners for purloining a copyrighted play. It takes little
imagination to conjure up a parade of horribles here such that
copyright protection for sporting events should not even be

75. This point is the key that unlocks much of the discussion that follows. Refer to
Chapter VII infra.
76. 17 U.S.C. § 102(a)(4) (1994).
77. If remuneration were the key here, then professional football players would be
much more dear to the copyright core than is the ballet corps.
78. 805 F.2d 663 (7th Cir. 1986).
79. Id. at 668.
80. See the criticism of this case in 1 NIMMER ON COPYRIGHT § 2.09[F].
81. “In fact, Nimmer on Copyright, the oft-cited treatise which the Supreme Court
recently characterized as the work of a ‘[l]eading scholar[ ],’ specifically and resoundingly
rejects the analysis and conclusion of the Court in Baltimore Orioles regarding the
protectibility of an athletic event.” Nat’l Basketball Ass’n v. Sports Team Analysis &
Tracking Sys., Inc., 939 F. Supp. 1071, 1091 (S.D.N.Y. 1996) (citation omitted). Although
the Second Circuit reversed the holding of that case on other grounds, it agreed with the
quoted language by also citing Nimmer on Copyright for the proposition that Baltimore
Orioles is to be disapproved. Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 846–
47 (2d Cir. 1997).
2001] DEAD SEA SCROLLS 23

considered.
***
Very little needs to be said about Case 9. By converting the
ancient document to his control, Reb Chaim either committed an
act of petty theft or of cultural liberation, depending upon one’s
perspective.82 Opinions can differ on that score.83 But there can
be no claim that Reb Chaim thereby achieves copyright
protection for words that he did not even colorably author.

C. Le Chanson de Roland

CASE 10: The Reader84

You are reading this article. Do you have a copyright in
it?
This case is, if possible, even more straightforward than its
predecessor. You cannot possibly claim to have authored the
piece that I wrote. Accordingly, any claim that you advance to
copyright protection over it is baseless.

D. More Works Lacking Authorship

CASE 11: The Doppelgänger85

A stranger comes to Green Town, Illinois. He checks into
the local hotel as “Charlie Dickens.” Taking a yellow
Ticonderoga No. 2 pencil out of his knapsack, he starts to
write out in longhand A Tale of Two Cities. He is smitten

82. “We cannot resolve cultural policy questions on rational grounds alone.” John
Henry Merryman, The Public Interest in Cultural Property, 77 CAL. L. REV . 339, 340–41
(1989). Who would not applaud Dutch art forger Han Van Meegeren when he sold a
forged Vermeer to Nazi overlord Hermann Goering? See id. at 360. Refer to note 783
infra. On the other hand, when Michelangelo himself forged a sculpture to look like a
Roman antique, a different dynamic operates. DAVID Q UINT, O RIGIN AND O RIGINALITY IN
RENAISSANCE LITERATURE 1–4 (1983). Refer to note 959 infra.
83. See Cindy Alberts Carson, Raiders of the Lost Scrolls: The Right of Scholarly
Access to the Content of Historic Documents, 16 MICH. J. INT’L L. 299, 309–14 (1995).
84. See BERNHARD SCHLINK, THE READER (Carol Brown Janeway trans., Pantheon
Books 1997) (1995). As George Ste iner comments, “The reviewer’s sole and privileged
function is to say as loudly as he is able, ‘Read this’ and ‘Read it again.’” Id. at back cover.
85. This case derives from RAY BRADBURY, Any Friend of Nicholas Nickleby’s Is a
Friend of Mine, in I SING THE BODY ELECTRIC! 200 (1987). A different vector shoots out
from François Truffaut’s filming of Ray Bradbury’s Fahrenheit 451: “Each exile from the
book-burning state adopts the name of a text he has learnt by heart and which he
represents: one person is now called David Copperfield, another Emil, or even Paradise
Lost.” G EOFFREY H. HARTMAN, THE FATE OF READING 255 (1975), quoted by Thomas
Docherty, Authority, history and the question of p ostmodernism, in WHAT IS AN AUTHOR?,
supra note 11, at 53, 56.
24 HOUSTON LAW REVIEW [38:1

with the local librarian who calls herself “Emily Dickinson.”

The lovebirds run off, where Charlie sharpens his pencil to
write Bleak House.
Does Charlie have copyright protection for the works that
he copies?
This case is just about as patent as the two that have come
before. It is Charles Dickens who wrote the great classic, not the
man who calls himself “Charlie.” Dickens alone can claim
copyright protection over his handiwork; Charlie is a mere
interloper. There is therefore no possibility of copyright
protection here.

CASE 12: The Forgery 86

Marklund, the picture framer, invested all his life savings
(and then some!) into buying The Madonna with the
Dagger, a triptych executed by Sweden’s most famous
painter, Nils Dardel. After a series of escapades in which,
inter alia, thieves amputated his hand (that at the time
happened to be manacled to a “tamper-proof” briefcase
containing the painting), Marklund realized that the only
effective way to retain the painting was to copy it. Because
he had spent most of his adult life gazing at it, he was able
to produce an exact copy.
The copy was in fact identical right down to the most
minute brush stroke. As Marklund explained to the
insurance adjusters, “There are two copies of her. . . . She’s
unique in that respect too. She’s two and yet only one. A bit
like the Trinity.”87
Does Marklund own a copyright in his rendition of The
Madonna with the Dagger?
Marklund is in some respects similar to Charlie, and in some
respects different. Insofar as artistic technique is concerned,
Marklund is a genius. For whereas any schmo can take out a
pencil and copy words in longhand, fewer than one in a million
could paint The Madonna with the Dagger indistinguishably from

86. This example derives from TORGNY LINDGREN, IN PRAISE OF TRUTH (Tom
Geddes trans., Harper Collins Publishers 1994) (1991).
87. Id. at 141.
2001] DEAD SEA SCROLLS 25

Dardel’s original.88 To that extent, Marklund markedly differs

from Charlie.89
Yet there is still a physical difference between the original
and the copy. Looking at Marklund’s reproduction instead of the
Dardel original, no matter how close the two may be, is simply
unsatisfying.
In part we resent having been fooled, but there is more: The
magic that only the authentic object can work is dissipated.
There seems to be something paradoxical about a
reproduction of a genuine, unique artifact, whether it is a
painting, a manuscript, or a funerary figure. The truth, the
certainty, the authenticity, seem to inhere in the original. 90
Notwithstanding any differences from the standpoint of
artifacts, insofar as copyrightable authorship is concerned,
Marklund stands in the same category with Charlie. For
whatever artistic originality went into The Madonna with the
Dagger was imbued by Nils Dardel, no less than Charles Dickens
imbued artistry into A Tale of Two Cities. Marklund is simply a
copier, no less than Charlie.91 As a matter of authorship,

88. What about photographing a piece of art? Is the product independently

copyrightable? The labor involved seems, if anything, even less than writing out a literary
text in longhand, albeit more significant than photocopying the same text. In any event,
the earlier statute applicable in the United States explicitly extended protection to
“Reproductions of a work of art.” Act of Mar. 4, 1909, ch. 320, § 5(h), 35 Stat. 1075 (1909).
But the most recent decision on point denies protection under the current Act. Bridgeman
Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421, 430 (S.D.N.Y. 1998), amended by, 36
F. Supp. 2d 191, 200 (S.D.N.Y. 1999) (reaching the same conclusion under British
copyright law). See Kathleen Connolly Butler, Keeping the World Safe From Naked-
Chicks-in-Art Refrigerator Magnets: The Plot to Control Images in the Public Domain
through Copyrights in Photographic and Digital Reproductions, 21 HASTINGS COMM. &
ENT. L.J. 55, 107–26 (1998).
89. “The best readings of art are art. This is, most literally, the case where painters
and sculptors copy previous masters.” G EORGE STEINER, REAL PRESENCES 17 (1989).
90. The Public Interest in Cultural Property, supra note 82, at 346. The same
sensibility would animate us if Bill Gates acted like a “Robber Baron” by buying a unique
Da Vinci manuscript, placing it on the Internet and then inviting party guests to “puff
away on cigarettes rolled [from the original].” Sarah Harding, Value, Obligation and
Cultural Heritage, 31 ARIZ. ST. L.J. 291, 291–92 (1999). For the original contains
something ineffable, the loss of which is felt even if widescale access to a copy is
guaranteed. Hence the legitimate mourning currently underway over the Taliban’s
destruction of ancient Buddhas.
91. One case would rule to the contrary, at least where “through the use of special
techniques, skills and judgment” the claimant is able to produce a complex three-
dimensional sculpture in a smaller scale. Alva Studios, Inc. v. Winninger, 177 F. Supp.
265, 266 (S.D.N.Y. 1959) (involving Rodin’s Hand of God, “one of the most intricate pieces
of sculpture ever created,” and embodying “[i]nnumerable planes, lines and geometric
patterns”). But in that case, the court also “relied on substantial differences in the
appearance between the reproduction and the original,” insofar as the plaintiff’s base
differed from Rodin’s public domain original. Hearn v. Meyer, 664 F. Supp. 832, 839
26 HOUSTON LAW REVIEW [38:1

therefore, there is none here.92 Accordingly, any claim of

copyright protection fails.93

CASE 13: The Dirigible

A. A. Hoehling published Who Destroyed the
Hindenburg?94 That book “tapped Hoehling’s investigation,
including personal interviews and historical research, into
the luxury zeppelin, which punctually floated its wealthy
passengers from the Third Reich to the United States [and]
exploded into flames and disintegrated in 35 seconds as it
hovered above the Lakehurst, New Jersey Naval Air
Station at 7:25 p.m. on May 6, 1937.”95 Hoehling’s book “is
presented as a factual account, written in an objective,
reportorial style.”96 Based on his detailed investigations,
Hoehling rejected all previously proffered explanations for
the explosion. He concluded that Eric Spehl, a rigger on the
Hindenburg’s crew, planted an explosive device on the
dirigible, “constructed of dry-cell batteries and a
flashbulb.”97
A later author capitalizes on the endless fascination with
Nazis and disasters to write his own book on the great
explosion. He lifts Hoehling’s “Spehl as saboteur” theory. Of
course, an epic Hollywood “disaster” movie follows.
Has Hoehling suffered infringement of his copyright?
This “hypothetical” is not. Instead, when the Second Circuit
ruled on the matter, it denied Hoehling any copyright in facts,
even those presented in the work that he admittedly authored.98
But the riposte could immediately arise that the “facts” were

(S.D.N.Y. 1987).
92. See Peker v. Masters Collection, 96 F. Supp. 2d 216, 218, 221 (E.D.N.Y. 2000)
(creating works of “fine art” out of a poster by “attempting to match the color and style of
the original painting” as much as possible, “though their creation may require special
skills, they do not possess any originality that would warrant an independent copyright”).
93. One must distinguish here between the artifact and the conceptual category of
the artwork. Traditional copyright law protects art in general (whether literature, fine
art, music, etc.). By contrast, the Visual Artists Rights Act of 1990, an amendment to the
Copyright Act, protects artifacts. See 3 NIMMER ON COPYRIGHT § 8D.06[A][2]. Refer to
note 922 infra.
94. The facts here are drawn from Hoehling v. Universal City Studios, Inc., 618 F.2d
972, 974 (2d Cir. 1980).
95. Id.
96. Id. at 975.
97. Id.
98. Id. at 980.
2001] DEAD SEA SCROLLS 27

wrong—in other words, Hoehling could have been laughably

mistaken in blaming Eric Spehl; subsequent investigation might
cause his theory regarding the dry-cell batteries in the flashbulb
to go up in smoke.
Those circumstances did not detain the Second Circuit. All
facts are in some sense provisional. Tomorrow’s truth might (and
very likely will) displace today’s. Nonetheless, having presented
the fruits of his research as factual, Hoehling cannot succeed to
copyright protection over them. For that reason, his claim fails.

CASE 14: Fermat99

In 1637, Pierre de Fermat annotated his copy of
Diophantus’ Arithmetika with a statement relating to the
Pythagorean theorem. 100 He then wrote “I’ve found a
remarkable proof of this fact, but there is not enough space
in the margin to write it.”101
Over hundreds of years, some of the greatest minds in
mathematics turned to the solution. None could find it.
Some even concluded that there was no solution, and the
world had been victimized by Fermat’s Practical Joke.
Prof. Andrew Wiles had a lifelong fascination with this
problem. For seven years, he worked on it in secrecy.
“Perhaps I could best describe my experience of doing
mathematics in terms of entering a dark mansion. One goes
into the first room, and it’s dark, completely dark. One
stumbles around bumping into the furniture, and then
gradually, you learn where each piece of furniture is, and
finally, after six months or so, you find the light switch. You
turn it on and suddenly it’s all illuminated. You can see
exactly where you were.”102
On October 25, 1994, Wiles published papers solving this
conundrum. 103 His solution electrified the mathematical
world. What had baffled theorists for three centuries was

99. See generally PAUL HOFFMAN, THE MAN WHO LOVED O NLY NUMBERS 183–201
(1998).
100. Although there are solutions for x n + y n = zn when n = 2, Fermat theorized that
there would be no solutions when n > 2. See TOM STOPPARD, ARCADIA, act 1, sc. 1 (1993).
101. http://www.cs.unb.ca/profs/alopez-o/math-faq/mathtext/node9.html.
102. http://personal.att.bellsouth.net/att/s/p/spud52/andrewwilesbio.htm. Strange
sequelae followed. See THE MAN WHO LOVED O NLY NUMBERS , supra note 99, at 184
(noting that The Gap offered to pay Wiles to model jeans).
103. Andrew Wiles, Modular Elliptic Curves and Fermat’s Last Theorem and Ring
Theoretic Properties of Certain Hecke Algebras, cited in http://www.cs.unb.ca/profs/alopez-
o/math-faq/mathtext/node9.html.
28 HOUSTON LAW REVIEW [38:1

now no longer an unsolved mystery.

Does Wiles have a copyright to his solution to Fermat’s
Last Theorem?
Wiles would seem to have as weak a case as Hoehling’s.
What he has laboriously come up with is simply a series of
mathematical equations.104 Individually and collectively, they
stand unambiguously outside of copyright protection.105
Careful distinctions must be drawn here. Insofar as Wiles
wishes to protect the copyright in his article analyzing the problem,
Modular Elliptic Curves and Fermat’s Last Theorem, he is on solid
ground. Yet that article may consist largely of the mathematical
equations by which Wiles proved Fermat’s Last Theorem. In that
regard, it seems that Wiles’ essay, like Marklund’s painting, lies
both within and without copyright protection.
The answer to this riddle is to approach the matter
sequentially. In the first analysis, Wiles has no protection in the
proof of Fermat’s Last Theorem. If that proof occupies 90% of his
article, so be it—the result is that 90% of the article lies outside
copyright protection and can be freely copied. (At the limiting
case in which it occupies 100%, the whole article is in the public
domain.) Whatever original expression (matters apart from
equations and the like) Wiles composed is subject to copyright.106
Copyright is not an all-or-nothing proposition. Many works
are partially protected, and partially not. For instance, consider a
movie dramatizing The Odyssey. Those elements of the film are
protected that owe their origin to the filmmakers, whereas other
elements—notably, the underlying story—simultaneously lie in
the public domain.

CASE 15: The Cosmetologist107

Jane Plane’s acting career is in the toilet and heading
south. After sitting through a performance of A Chorus
Line, the T&A number emboldens her to forsake thespian
exercises in favor of plastic surgery.

104. Wiles’ equations presumably do not match those that Fermat lacked room to
scribble in the margin. But “distinctive” does not translate to copyrightable. Refer to
Chapter VII, section (A)(1)(b) infra.
105. See Edwards & Deutsch Lithographing Co. v. Boorman, 15 F.2d 35 (7th Cir.
1926).
106. In fact, the initial solution contained minor holes, which Wiles later plugged.
See THE MAN WHO LOVED O NLY NUMBERS , supra note 99, at 198–99. We thus revert to
“provisional truths,” such as encountered above in Case 13 (The Dirigible).
107. These facts draw inspiration again from IN PRAISE OF TRUTH, supra note 86.
2001] DEAD SEA SCROLLS 29

Entrusting her fate—not to mention her body—to the

Cosmetic Surgeon to the Stars, she emerges at the end as a
new person (on the physical plane). Her doctor even
bestows upon her a new name: Tzili Coen. Soon, Tzili’s
photograph adorns the covers of Cosmopolitan, Elle, and
Vanity Fair. Having been burned in previous cases, each
publication is punctilious to secure full permission from
Coen and from the photographers in question. But they are
blindsided by the Surgeon’s claim of copyright
infringement.
Can the Surgeon claim a copyright in Tzili’s body?
I earnestly pray that such a case never comes to pass. For
the “sculptor in the medium of flesh and bone” is He Who
fashioned Eve, not some wannabe with a medical degree.108 Yet
in an era epitomized by Who Wants to Marry a
Multimillionaire?,109 one must be prepared.110 Hopefully, any
court presented with such an obscene claim would dismiss it
summarily, if on no other basis than the constitutional
prohibition on involuntary servitude and other badges of
slavery.111
Nonetheless, the doctrinal question remains: What aspect of
copyright law prevents the Surgeon from prevailing?
It is not enough simply to point out that bodies are not
enumerated among the works of authorship contained in the
Copyright Act, notwithstanding that they hardly constitute new
forms of expression not extant as of its passage in 1976. For the
same consideration applies to clothing—it too is not enumerated
among the works of authorship, notwithstanding that clothes,
like bodies, have been around for a long time. Nonetheless, the
Ninth Circuit has held that an article of clothing developed for
other than utilitarian purposes, such as for purposes of display,
could obtain copyright protection.112 The same argument, so the
Surgeon asserts, vouchsafes his copyright protection for Tzili’s
body.

108. ROBERT ALTER, THE ART OF BIBLICAL NARRATIVE 29 (1981) (explicating Genesis
2:21). Perhaps some of the same considerations weigh against protection for the
apatosaurus bone “sculpture.” Refer to Case 7 (The Skeleton) supra.
109. As a counterweight, perhaps one can take hope from the record-breaking
publication of the latest Harry Potter book, on July 8, 2000.
110. The recent decoding of the human genome may bring these problems to the fore
sooner rather than later. Refer to note 757 infra.
111. U.S. CONST. amend. XIII.
112. See Poe v. Missing Persons, 745 F.2d 1238, 1243 (9th Cir. 1984) (holding that
the district court erred by not determining whether a swimsuit displayed in a museum
was a work of art subject to copyright protection).
30 HOUSTON LAW REVIEW [38:1

It is difficult to do much better than to state apodictically

that a body, even as augmented,113 simply is not subject to
copyright protection.114 The Surgeon should be denied copyright
protection on that basis.

CASE 16: The Shrink

Although Dr. Kefalos is a brilliant analyst, his skills are
taxed to the utmost by the curious case of Sy Kadique. After
many years of five-day-a-week therapy with the patient and
countless hours spent ruminating, Kefalos finally comes up
with the grand unified theory explaining the strange
deformations in Kadique’s personality: The patient is
simultaneously afflicted with Multiple Personality Disorder
and three other maladies never before combined in one
individual.
Kefalos’ commentary on this strange case becomes a
runaway bestseller.115 A reader of the book decides to write
a play whose protagonist is modeled on Kadique. Absolutely
no dialogue, plot, perspective, or unfolding of events is
taken from the Kefalos book. Nonetheless, the main
character in the play is unmistakably the Sy whose
personality Kefalos has painstakingly unmasked. The
playwright successfully rebuffs a right of publicity suit
brought by the court-appointed guardian of Kadique’s
affairs. 116

113. Deriving “author” from augere (to augment), one commentator moves to “the
female body: one can either adorn it with make-up, tattoos, or scarification, ‘which aim at
transforming the woman into a walking work of art’ . . . .” Bernard Edelman, The Law’s
Eye: Nature and Copyright, in O F AUTHORS AND O RIGINS , supra note 19, at 79, 85.
114. See KNB Enters. v. Matthews, 92 Cal. Rptr. 2d 713, 715 (Cal. Dist. Ct. App.
2000) (“We conclude that . . . a human likeness is not copyrightable, even if captured in a
copyrighted photograph . . . .”). But cf. Carell v. Shubert Org., Inc., 104 F. Supp. 2d 236
(S.D.N.Y. 2000) (parties both agree that seven layers of makeup for Cats is copyrightable).
115. Cf. O LIVER W. SACKS, THE MAN WHO MISTOOK HIS WIFE FOR A HAT (1987)
(studying individuals afflicted with psychological disorders by examining patient studies,
case histories, and illustrative stories); FLORA RHETA SCHREIBER, SYBIL (1973) (detailing
the true-life story of a woman possessing sixteen separate personalities as a result of a
severe psychological disorder); IRVIN D. YALOM , LOVE ’S EXECUTIONER (1990) (recounting
stories of a psychotherapist’s interactions and subsequent therapeutic treatment of his
patients).
116. Cf. Hampton v. Guare, 195 A.D.2d 366, 366 (N.Y. App. Div. 1993) (denying relief
to plaintiff against producers of Six Degrees of Separation, a play “inspired in part by a
widely reported criminal scam in which the plaintiff had convinced several affluent New
Yorkers to allow him into their homes and to give him money and other things of value by
pretending that he knew their children from college, and that he was the son of the actor
Sidney Poitier”).
2001] DEAD SEA SCROLLS 31

Does Dr. Kefalos have a copyright in the character of

Kadique?
Many a mystery novel obtains its vitality (not to mention its
readership) based on a keen psychological profile of a deviant
personality. Those novels plainly fall within copyright
protection.117 Does parallel logic provide protection for
Dr. Kefalos?
The answer is “no.” For Kefalos, like Hoehling, is not
attempting to engage in an aesthetic exercise. Instead, he is
attempting to ascertain a fact. That fact happens to concern the
psychology of his analysand. But Kefalos no more owns Kadique
than does the Surgeon Tzili’s body. For these reasons, copyright
protection should be deemed lacking here, as well.118
Moreover, this conclusion does not change to the extent that
Kefalos turns out to be in error. In other words, if Kadique
subsequently displays behavior that proves his pathology to be
other than what Kefalos had diagnosed, the result is not to yank
the psychological profile contained in the bestseller out of the
public domain and clothe it anew with copyright protection.
Instead, the result is the same as if further historical research
debunks Hoehling’s thesis as to the end of The Hindenburg. In
both cases, the work might now stand discredited—but it does
not thereby secure copyright protection. Were the matter
otherwise, one would have to subscribe to the latest issue of
historical (and psychological) journals to learn if the works of
Hoehling (and Kefalos) are protected by copyright this month, or
not.

CASE 17: Bingo Cards 119

David Wilbur, a computer scientist, designed a computer
program to fill in numbers on bingo cards. Pursuant to the
rules of bingo, each of the five columns on such a card must
contain five numbers, except that the center number is
blank. In addition, tradition mandates that the numbers
under “B” run from 1 through 15, under “I,” from 16

117. See 1 NIMMER ON COPYRIGHT § 2.04.

118. See The Law’s Eye, supra note 113, at 81 (“human nature cannot be
appropriated”).
119. This case telescopes Stuart Entertainment Inc. v. American Games Inc., Civil
Action No. 1-96-CV-70036 (S.D. Iowa Mar. 19, 1998). I submitted an expert report on
behalf of the defendant in that case. In my report, I cited, inter alia, Ralph D. Clifford,
Intellectual Property in the Era o f the Creative Computer Program: Will the True Creator
Please Stand Up?, 71 TUL. L. REV . 1675 (1997). The other side retained Clifford as its
expert witness.
32 HOUSTON LAW REVIEW [38:1

through 30, under “N,” from 31 through 45, under “G,”

from 46 through 60, and under “O,” from 61 through 75.
Wilbur’s program generated 9000 cards meeting the
above criteria. Each card in the series was different, so as to
avoid multiple winners of any particular round of bingo.
The key to the computer programming was that number
sequences were random. According to a statistician, there
are “roughly 111 quadrillion” potentially compliant bingo
cards. 120 Thus, the 9000 cards generated by Wilbur’s
computer program scarcely threatened to monopolize the
field.
Are Wilbur’s bingo cards subject to copyright protection?
Bingo cards furnish a useful contrast with the white pages of
the phone book—they o ccupy opposite extremes of the spectrum,
one being absolutely determined and the other not determined at
all.
Something will be considered “creative” only when it
appears to come from neither a purely mechanical process,
nor a purely random one. We identify this process that
navigates between determinism and randomness—this
process that produces the “non-mechanical new”—as
something that goes on inside the individual person.121
Note that an elephant at the Phoenix Zoo paints canvases
“with a striking combination of colors and forms.”122 Nonetheless,
copyright does not inhere in such a work, either because “we do
not believe a non-human is capable of making choices, or . . . we
have made a policy decision that only human-generated work is
protectable.”123 Instead, copyright protection exists to protect
subjective human choices.124 It is not there to protect random
numbers generated by a computer.125 For that reason, when this
actual case arose, the court properly denied copyright protection
to Wilbur’s bingo cards.126

120. See Stuart Entm’t, Aff. of Stuart Klugman ¶ 8, Nov. 6, 1996.

121. Justin Hughes, The Personality Interest of Artists and Inventors in Intellectual
Property, 16 CARDOZO ARTS & ENT. L.J. 81, 114 (1998).
122. Laser Bones, supra note 56, at 300. In fact, without being told who the “artist”
was, Willem De Kooning gave one of the paintings a favorable review! Id. at 300 n.111.
123. Id. at 300.
124. Refer to Chapter VII infra.
125. “In order to be entitled to copyright registration, a work must be the product of
human authorship. Works produced by mechanical processes or random selection without
any contribution by a human author are not registrable.” COMPENDIUM II OF COPYRIGHT
O FFICE PRACTICES § 503.03(a) (1984).
126. Citing both the Nimmer and Clifford reports, refer to note 119 supra, the judge
2001] DEAD SEA SCROLLS 33

CASE 18: The Sistine Chapel127

The vaulted interior of the Sistine Chapel is widely
recognized as one of the greatest artworks of civilization.
Crowning its ceiling is The Last Judgment, unveiled on
October 31, 1541.
Smoke, oils, and glue have conspired in the intervening
centuries to obscure the Master’s rich colors. 128 Even worse,
when Counter-Reformation modesty gained sway, later
censors added loincloths to several of the naked figures. 129
Nippon Television Network (NTN) put up $4.2 million to
restore the masterpiece, and another $7 million in return
for exclusive reproduction and film rights for three years. 130
The result, laboriously undertaken, is a newly restored
capolavoro, with a brightness of hue that has not been
experienced for the better part of a millennium.
Even after its three-year exclusive window expires, does
NTN have copyright protection over the Sistine Chapel?
Painters deserve copyright for their product. The NTN crew
indisputably painted.131 Does it follow that they fall inside
copyright protection?
Restorers of the Sistine Chapel do not engage in
copyrightable authorship. Instead, their brush strokes are

ultimately granted summary judgment to the defendant. Stuart Entm’t v. Am. Games,
Inc., No. 1-96-CV-70036, Memorandum and Ruling on Both Parties’ Motions for Summary
Judgment (S.D. Iowa Mar. 19, 1998).
127. This example was inspired by oral argument on behalf of Shanks before the
district court. See Raiders of the Lost Scrolls, supra note 83, at 328.
128. See Loren Partridge, Michelangelo’s Last Judgment: An Interpretation, in
MICHELANGELO THE LAST JUDGMENT: A G LORIOUS RESTORATION 10 (Elaine B. Stainton
ed., 1997).
129. In fact, calls for censoring the work began before Michelangelo even completed
it. See Fabrizio Mancinelli, Michelangelo’s Last Judgment: Technique and Restoration, in
MICHELANGELO THE LAST JUDGMENT, supra note 128, at 172. In 1564, the Council of
Trent ordered that obscene parts of the work be censored. See id. Daniele da Volterra, a
longtime friend of Michelangelo’s, undertook the project in 1565, the year after
Michelangelo died. See id. Subsequent centuries witnessed additional modifications. See
id. at 172–80.
130. William D. Montalbano, Judgment Day for Michelangelo’s Sistine Chapel
Ceiling: Most Critics Applaud the Restoration of His Vatican Masterpiece, But a Minority
Terms It a Rewriting of Art History That Is Nothing Less Than a Monumental Disaster,
L.A. TIMES , Apr. 2, 1990, at F1; Gerald Renner, Expert Extols Sistine Chapel Restoration,
THE HARTFORD COURANT, Oct. 18, 1994, at A4.
131. For current purposes, it is assumed that all concerned worked as employees for
hire of Nippon Television Network, and that U.S. law governs all aspects of restoration of
the ceiling. Refer to note 42 supra.
34 HOUSTON LAW REVIEW [38:1

constrained by the exercise of attempting to determine what

authorship Michelangelo undertook and to replicate it in plaster
and pigment.
The activity of those restorers in some measure resembles
that of Marklund (The Forgery). Like him, the restorers are
trying to duplicate as exactly as possible the artistic genius of
their predecessor.132
In other respects, however, the restorers are acting like
Dr. Kefalos (The Shrink). For they are attempting, based on
historical evidence and the best of their ability, to enter into the
psyche of another and to replicate the strokes that Michelangelo
himself actually undertook. That activity cannot constitute
original authorship. As such, it stands outside copyright
protection.
This case might give pause for the following reasons: (1) the
NTN crew seems to have created a copyrightable work, that is, a
painting, unlike the cases above regarding fountains, human
bodies, football plays, and other works which do not fall under
the copyright umbrella, and (2) they did so not simply by
mechanically copying, unlike the cases of Charlie (The
Dopelgänger), Marklund, (The Forgery) and others above who
also were dealing with copyrightable works. Yet upon
consideration, this case is not materially different from the
Charlie and Marklund examples.
Admittedly, restoration of the Sistine Chapel required
extensive laboratory testing, complex experiments, and computer
simulations and calculations.133 (For instance, removal of foreign
materials from the ceiling was accomplished through application
of a gelatinous substance called AB-57 to the frescoes, which was
wiped off using distilled water after three minutes,134 the whole
process being repeated twenty-four hours later.135) The entire

132. Such technologies as x-ray photography, strobes and polarizing filter can
recover faded and obscured images. Laser Bones, supra note 56, at 288.
133. See Michelangelo’s Last Judgment: Technique and Restoration, supra note 129,
at 180–83. For example, laboratory techniques included high performance liquid
chromatography, infrared spectroscopy, Fourier transform infrared spectroscopy, atomic
absorption spectroscopy, and a battery of microbiological tests for fungi, bacteria and
yeast. See id. at 183.
134. See Suzanne Muchnic, Crying in the Chapel: Is the Cleaning of the Sistine
Chapel a Glorious Restoration or a Monumental Sacrilege?, L.A. TIMES , Apr. 5, 1987, at
89.
135. Id. Then, the surface was sealed with a resin named B-72. Id. The restorers also
removed seventeen of the loincloths that later popes had ordered but left others that
might damage the frescoes if removed. See Expert Extols Sistine Chapel Restoration,
supra note 130, at A4.
2001] DEAD SEA SCROLLS 35

process required creativity of a sort, and was not without

controversy.136 But what difference do these distinctions import?
Only that the NTN crew had to exercise its ingenuity to recreate
Michaelangelo’s works, in contrast to Charlie, who had the
template immediately available to him. But Marklund too had to
exercise technical skills, yet those did not suffice to make him an
author. Kefalos, Wiles, and others encountered above had to
exercise great creativity to reach their results, yet they too were
denied copyright protection.
In sum, it is merely adventitious that the resulting product
of NTN’s work happens to be a painting, which is a category
defined as copyrightable. The type of creativity that NTN exerted
was in the goal of a scientific project, as was the labor of Kefalos
(The Shrink), Wiles (Fermat), and Wassermann (The Fountain).
Copyright protection should be denied for the wizardry of
restoring someone else’s work. The next scenario reinforces that
conclusion.

CASE 19: Chicken Little

“Deciphering ancient inscriptions and manuscripts would
be easy if archaeologists found them completely whole and
intact. All that would have to be done then would be to
figure out the language and the script. Unfortunately, most
inscriptions are found in fragmentary condition. When that
happens, an epigrapher has to not only figure out what the
surviving pieces say, but also what the missing pieces
might have said. Scholars call this process ‘reconstruction.’
We invite you to try the process yourself with the story of
Chicken Little.
“Below is part of the story of Chicken Little. Part of it has
been torn off. It is your job to fill in the rest of the story, one
letter per square. Download the image onto your own
computer, print it out, and go to work. Send your solution to
West Semitic Research, 12 Empty Saddle Road, Rolling
Hills Estates, CA 90274, and we’ll send you the access code
to the real solution (include your email address). By the
way, no one has ever gotten it 100% right!”137

136. Critics of the project argued that although the Last Judgment was painted a
fresco—in wet plaster—Michelangelo made several subsequent a secco additions after the
plaster dried, which would be removed by the cleaning process. See Crying in the Chapel,
supra note 134. Proponents of the project asserted that the work was done almost entirely
a fresco and that most subsequent paint, glue, varnish and dirt are the product of later
times. Id.
137. WEST SEMITIC RESEARCH PROJECT, DO IT YOURSELF EPIGRAPHY: CHICKEN
36 HOUSTON LAW REVIEW [38:1

Hugh Rica solves the mystery! Does he have a copyright

in “his” text of Chicken Little?
It should be plain that Rica does not obtain copyright
ownership over his solution. For his solution simply represents
the authorship that Web site designers have imbued into Chicken
Little. In fact, to the extent that copyright ownership lies here, it
is only in those who, unlike Rica, have failed to meet the test.138

CASE 20: The Pedant

Lex Icahn decides that by the time kids reach the Great
Books Program at St. John’s University, it is too late. He
therefore produces, for the elementary-school market, an
interlineal edition of The Bible, with English translation
inserted directly beneath every Hebrew word. Thus, in his
version, the opening line of the 23rd Psalm appears in
Hebrew, Hashem ro’i lo echzar, underneath which is the
corresponding translation for each word taken from the
standard dictionary:139 “LORD, shepherd (mine), not, I will
lack.” Of course, given that the Hebrew is printed right to
left, the translation looks to the casual eye like “I will lack
not shepherd (mine) LORD.” (No one has accused Icahn of
replicating the lyricism of the King James version.)
Can Icahn copyright his interlineal translation?
This case study demonstrates that the lessons from the Feist
case regarding phonebook white pages are not altogether
pellucid. On the one hand, Icahn can justly maintain that his
preparation required more than passing knowledge of Hebrew
grammatical constructs, pointing to such facts as that the final
verb in that verse begins with the letter aleph but must be looked
up in the dictionary under the letter cheth.140 In addition, he had
to choose between many English meanings for Hebrew words
that are spelled identically.141
As we will see below, compiling a phonebook also entails a good

LITTLE , at http://www.usc.edu/dept/LAS/wsrp/educational_site/yourself/chicken.shtml
(last visited Jan. 7, 2001). I did not make this up (notwithstanding that my wife
admittedly grew up on Empty Saddle in Rolling Hills; life’s coincidences exceed those of
fiction).
138. Those individuals could conceivably gain copyright in their mistakes. As we will
see below, Qimron, in effect, is claiming copyright protection for his own mistakes.
139. See, e.g., WILLIAM L. HOLLADAY, A CONCISE HEBREW AND ARAMAIC LEXICON OF
THE O LD TESTAMENT (1971).
140. Id. at 112.
141. Examples are legion; one occurs later on the same page: The verb chafetz can
mean desire or let tail hang (some posit: hold stiff). Id.
2001] DEAD SEA SCROLLS 37

deal of “subjective” judgment.142 Although reasonable minds could

differ, I tend to view Icahn’s contribution as being just as
“mechanical” as those who compiled the white pages of the
telephone book.143 Inasmuch as the resulting product more closely
resembles a phone book’s sweat of the brow than a subjective
exercise in interlingual communication, I would locate it outside
copyright protection.

E. Special Cases

The various exceptional cases posited above all lack

copyrightable authorship. Thus far, we see a Procrustean bed
between the vast majority of works that easily qualify for
copyright protection144 and those exceptional ones laboriously
plotted above.145 But the matter is not, of course, as simple as
that. Other cases exist at intermediate points along the
spectrum. Those cases afford a more rounded understanding of
authorship.

CASE 21: The Channel Surfer

Batata Divã sits all day glued to the television, remote
control in hand, zapping between the channels. One day, his
VCR running, he switches perfunctorily between The Young
and the Restless, Headline News, and Ascanio in Lo Frate
´nnamorato, with Malcolm in the middle. He decides to offer
the product for sale, to prove that there is indeed a market for
a product that has no “meaning” but is instead “transverse,
desultory, interrupted” and, in general, “deculturated.”146

142. Refer to Chapter VII, section (A)(1)(b) infra.

143. The Feist Court ruled that for copyright to subsist, “the selection and
arrangement of facts cannot be so mechanical or routine as to require no creativity
whatsoever.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 362 (1991).
144. Refer to Cases 1–3 supra.
145. Refer to Cases 4–19 supra. Case 20, as just noted, is less clear.
146. Armando Petrucci, Reading to Read: A Future for Reading, in A HISTORY OF
READING, supra note 24, at 345, 362. Critics lament the fact that viewers can no longer
meaningfully distinguish between their own lives and what they see on television. See
JERRY MANDER, IN THE ABSENCE OF THE SACRED: THE FAILURE OF TECHNOLOGY AND THE
SURVIVAL OF THE INDIAN NATIONS 25–36 (1991). But a history of reading shows that books
too have functioned as a “narcotic” (J.G. Fichte’s term!), “a derangement of the
imagination and the senses.” Guglielmo Cavallo & Roger Chartier, Introduction, in A
HISTORY OF READING, supra note 24, at 1, 26. Indeed, Mander’s critique is mild compared
to the 1796 denunciation by a German cleric. Reinhard Wittmann, Was There a Reading
Revolution at the End of the Eighteenth Century?, in A HISTORY OF READING, supra note
24, at 284, 285. The fact that a wave of suicides followed publication of Goethe’s The
Sorrows of Young Werther places the tribulations of today’s teenage rock listeners in
perspective. Id. at 297. See also Guglielmo Cavallo, Between Volumen and Codex: Reading
38 HOUSTON LAW REVIEW [38:1

Does Divã enjoy copyright protection for his tape?

In principle, Divã has engaged in a minimal act of
authorship. For that reason, his pastiche might acquire copyright
protection, all other things being equal.
However, all other things are not equal. The work that Divã
prepared is strictly d erivative. Moreover, it was prepared without
the authorization of the underlying authors whose works were
incorporated into it. A special provision of the Copyright Act
denies protection to derivative works created by unlawful use of
underlying material.147 That provision dooms Divã.148

CASE 22: The Surf Channeler

At rosy-fingered dawn, Thal Lahsa goes down to the
wine-dark sea, which is her Muse. After listening to wave
upon crashing wave, her mind empties until finally the
disembodied spirit of the Teacher of Righteousness speaks
through her mouth into the voice-activated Dictaphone that
she has strapped on for such occasions.
Does Lahsa own a copyright in the literary work recorded
on the tape?
Lahsa can copyright her inspirations no less than can Karen
(The Inspiration).149 But copyright does not extend to works
authored by another. If Lahsa is credited in the method of
composition, then it is not she, but the Muse, who qualifies as
that author. On that basis, her copyright claim fails.150

CASE 23: The Magician151

“Why is my best student resorting to plagiarism?”
demanded the Professor, holding the poem submitted in
response to yesterday’s homework assignment.
“Wh-what do you mean?” stammered Shelly.

in the Roman World, in A HISTORY OF READING, supra note 24, at 64, 80 (recounting
ancient booksellers who peddled rolls of pornography); Paul Saenger, Reading in the Later
Middle Ages, in A HISTORY OF READING, supra note 24, at 120, 146 (occurrence of the
same in fifteenth century France).
147. 17 U.S.C. § 103(a) (1994).
148. Note that it likewise consigns Hughes’s translation of MMT to perdition, to the
extent that the underlying work that was translated is deemed to be subject to a
subsisting copyright. Refer to Chapter XI infra.
149. Refer to Case 1 (The Inspiration) supra.
150. Refer to Chapter VII, section C infra.
151. Refer to the epigraph to this chapter.
2001] DEAD SEA SCROLLS 39

“Look at this!” the professor showed her a copy of Keats’s

“Ode on a Grecian Urn.” Upon inspection, Shelly had to
concede that it was word-for-word identical to “her” poem.
“I never saw that poem before,” swore Shelly firmly.
Slowly, “I believe you,” came the reply.
Does Shelly have a copyright in the poem that she
submitted yesterday?
Judge Hand’s chestnut, quoted in the epigraph, reveals a
valuable lesson about copyright subsistence—protection lies in
words that are original, even if they are not novel. In other
words, one who reaches into the subjective range of interiority,
thereby producing words (or music, images, etc.) fixed in a
tangible medium of expression, gains copyright protection over
the product—even if that product happens adventitiously to
match something that another has previously produced through
a similar process of interiority.
By clothing Hand’s aphorism in the garb of concrete
characters, an interesting realization follows: There is no possible
way to believe that Shelly deserves a copyright in “her” poem.
Indeed, the professor in the above tale was a besotted fool to
credit her claim.152
But Hand realized as much. His labeling the repetition process
as “magic” betokens his awareness that, sorcery aside, people do not
adventitiously come up with original works mimicking the full text
of great Romantic poems. Outside the realm of make-believe,
therefore, Shelly can claim no copyright in her work product.
***
One can, however, imagine a somewhat less far-fetched
example to vindicate Hand’s principle. Consider that copyright
protection subsists in a list that is prepared not by rote application
of a banal principle (such as the white pages at issue in Feist), but
instead through subjective considerations. Thus, if someone were to
draw up a list of her fifty favorite restaurants in Southern

152. It should have been obvious, if not from the first line, then from the opening
quatrain:
Thou still unravish’d bride of quietness,
Thou foster-child of silence and slow time,
Sylvan historian, who canst thus express
A flowery tale more sweetly than our rhyme . . . .
JOHN K EATS, Ode on a Grecian Urn, in THE O DES OF JOHN K EATS 111, 114 (Helen Vendler
ed., 1983). Anyone who believes that those words could have been create d
independently—without reference to Keats—is in need of a conservator (or, as Hobbes
would say, to be “Personated by Guardians”).
40 HOUSTON LAW REVIEW [38:1

California, that list would be subject to copyright protection. By

contrast, lists produced through objective means stand outside
copyright.
Let us imagine an objective list of the fifty service stations
that sell the most gasoline in Southern California. A compiler
could derive that list through the clever insight that tax revenue
is a surrogate for the number of gallons sold. Thus, one need
merely apply to the South Coast Air Quality Management
District for a list of all gasoline tax revenues in order to compile
the desired list.
There is no such district-wide agency that monitors
restaurants. Therefore, determining the establishments that sell
the most food would require a lot of gumshoe work—separate
trips to Arcadia, Bellflower, Cucamonga, Dana Point, Eagle Rock,
and all the other communities in Southern California to gather
the relevant data. Moreover, even that exercise would be far from
straightforward. In one city, the application would need to be to
the controller; in another, to the mayor’s office; in a third, to the
City Clerk; etc. In other words, obtaining the relevant
restaurant-taxation records would require a great deal of
legwork, mixed with not a little ingenuity.
Nonetheless, copyright protection does not lie for the sweat
of the brow and shoe leather expended in compiling such a list,
regardless of how valuable it may be. It does not apply even if
one had to be innovative and creative to compile the subject
list.153 No matter how difficult it may be to compile a list of the
fifty restaurants that sell the most food in Southern California,
being based on objective circumstances, the list simply lies
outside of copyright protection.
We now reach our conundrum.

CASE 24: The Gourmand

Connie Sewer convinces herself that quantity is the best
indicium of quality and that she “should” prefer
restaurants that operate on the highest volume. On that

153. Suppose a scholar were to painstakingly explore the stacks of the British
Museum for a number of years, and finally, after much effort, find that
which he was seeking, i.e., a forgotten Shakespeare manuscript. The
scholar may well have exercised much skill, training, knowledge and
judgment, but should this entitle him to a copyright in the manuscript?
Clearly not, because he did not engage in any act of authorship.
1 NIMMER ON COPYRIGHT § 2.01[A]. That scenario distinguishes creativity in the process
from creativity in the product. Refer to notes 456, 566 infra. The latter alone warrants
copyright protection.
2001] DEAD SEA SCROLLS 41

basis, she convinces herself that her 50 favorite restaurants

happen to correspond exactly to the list just compiled.
At this juncture, her subjective list is exactly equivalent
to the objective list previously compiled. Is it protected by
copyright?
The distinctions here are sometimes elusive. It would seem
that one may simultaneously maintain that Sewer can protect
the copyright in “her” list, notwithstanding that the original list,
identical to hers,154 may be freely copied by all.155
Putting aside his dictum explored above, Judge Hand even
earlier commented that the selection of facts is not subject to
copyright protection, notwithstanding that “into that selection
may go the highest genius of authorship, for indeed, history
depends wholly upon a selection from the undifferentiated mass
of recorded facts.”156 Although Judge Hand’s formulation would
seem to point towards copyright protection—“the highest genius
of authorship”—in the end he reaches the opposite conclusion. As
will be explored below, copyright theory does not cohere
perfectly.157
***
The contrast between the subjective and objective lists offers
a valuable lesson: The subjective list cannot be copied without
infringing Sewer’s copyright, whereas the objective list is free for
all to copy.158 What underlying rationale is at work here?

154. One is placed in mind here of the famous fable in which a person relives
episodes out of Don Quixote. The passages therefore constitute fiction (from Cervantes’
perspective) and, simultaneously, factual biography (from that individual’s perspective).
See Jorge L. Borges, Pierre Menard, Author of the Quixote, in LABYRINTHS : SELECTED
STORIES & O THER WRITINGS 36–44 (Donald Yates & James E. Irby eds., 1964). See The
Author as Proprietor, supra note 19, at 54.
155. Another example would be as follows: It is doubtful in the extreme that a dry
cleaning shop could obtain copyright in a list of garments brought in from 11:00 a.m. to
noon on a given day. On the other hand, a novelist could insert a laundry list into a
narrative that would reveal a good deal about the protagonist(s)—he is a transvestite, she
is a slob, they are tango aficionadoes, etc. That product of the novelist’s invention should
obtain copyright. Yet the unprotected and the copyrighted laundry lists might be
identical. See Michel Foucault, What Is an Author?, in TEXTUAL STRATEGIES:
PERSPECTIVES IN POST-STRUCTURALIST CRITICISM 141, 143–44 (Josué V. Harari ed., 1979)
(even after someone “has been accepted as an author, we must still ask whether
everything that he wrote . . . is part of his work. . . . a laundry list: is it a work, or not?”);
ROBERT ALTER, THE WORLD OF BIBLICAL LITERATURE 56 (1992) (“[T]he coldest catalog and
the driest etiology may be an effective subsidiary instrument of literary expression.”).
156. Myers v. Mail & Express Co., 36 C.O. Bull. 478, 479 (S.D.N.Y. 1919).
157. Refer to Part Two infra.
158. A subjective compilation of data can be copyrightable. See Fin. Info., Inc. v.
Moody’s Investors Serv., Inc., 751 F.2d 501, 509 (2d Cir. 1984) (recognizing protection, but
giving greater latitude to “a songwriter or playwright to copy from a compilation of
42 HOUSTON LAW REVIEW [38:1

Copyright vindicates an important rationale by making

subjective works the exclusive property of their originators
(subject to applicable defenses) and objective works free to all. To
the extent that a third party wishes to copy Sewer’s preferences,
she may not do so absent permission. On the other hand, to the
extent that the same third party wishes to apprise the world of
the volume of food served by Southern California restaurants,
she may do so without compensation to those who gathered the
underlying data. The result is that the progress of “science”
marches on. Those who are engaged in dissemination of
knowledge may act unrestrained by copyright laws. Those who
wish to build on a predecessor’s subjective expression may not do
so.
This lesson emerges organically from the two dozen cases
confronted above. To give a few examples, it explains why the
insights that Kefalos brings to bear in sketching Sy Kadique’s
character stand outside copyright protection, whereas the
depravities that Thomas Harris created in Hannibal Lecter159 are
protected by copyright.160 It explains why Hoehling’s speculations
about Eric Spehl can be freely copied by others, whereas
historical romances lie within the scope of copyright protection.161
As will be seen below, this principle undergirds the essential
feature of copyrightable authorship.162
The chapters that follow derive that lesson from multiple
perspectives. The next one departs the realm of the hypothetical
to trace the development of Bender v. West, an actual copyright
case decided by a prestigious court of appeals. With that dose of
realism in hand, the chapter after it sets forth the facts
underlying Qimron v. Shanks. The succeeding chapters proceed
to analyze the copyright issues presented by that case, both in
light of Bender v. West and other aspects of copyright doctrine.
From there, the enterprise takes a different tack. Copyright

information regarding municipal bond redemptions in order to, say, enhance the
verisimilitude of his art”).
159. On the one hand, “we read murder stories with a strong sense of the unreality of
the villainy involved.” NORTHROP FRYE , ANATOMY OF CRITICISM 47 (1957). On the other
hand, there is an identification with the fictional character; after all, every Reader is a
Lector!
160. To the extent that it develops that Lecter is based on a true-life individual, then
author Harris’s protection would be, to that extent, circumscribed. See RICHARD G LYN
JONES, LAMBS TO THE SLAUGHTER: THE REAL-LIFE K ILLERS WHO INSPIRED PSYCHO,
HENRY, AND THE SILENCE OF THE LAMBS (1994).
161. See, e.g., Burgess v. Chase-Riboud, 765 F. Supp. 233 (E.D. Pa. 1991) (noting that
the novel Sally Hemmings was based on Thomas Jefferson’s slave and concubine).
162. Refer to Chapter XVI infra.
2001] DEAD SEA SCROLLS 43

theory in general is juxtaposed against literary theory, to see

what conclusions emerge. As developed below, the overlap is
tenuous, perhaps deliberately so. The lessons to be drawn are
therefore minimal. But there is one lesson that applies to
archaeologists—works presented to the public as factual enjoy no
protection as to the elements presented as facts therein, even if
those “facts” in fact emerge from the author’s creativity.
44 HOUSTON LAW REVIEW [38:1

IV.
TO THE MIDDLE EAST FROM WEST
[F]aithfulness to the public-domain original is the
dominant editorial value, so that the creative is the
enemy of the true.
Judge Dennis Jacobs163

The Dead Sea Scrolls, although frequently invoked as an

emblem for ancient revelation,164 actually show up in only one
U.S. copyright case. The case is Bender v. West.165 Although it
treats copyright in the context of CD-ROMs containing judicial
opinions, this opinion actually evinces a good deal of overlap with
the case of the Dead Sea Scrolls, Qimron v. Shanks.166
For over a century, West has been the premier reporter of
judicial decisions within the United States. Though it serves as
official reporter of only a few jurisdictions, for most of the twentieth
century it constituted the de facto reporter for all federal court
decisions, and those of many states as well.167 In a common law
system, the law of the land is contained in judicial systems. Those
judicial opinions themselves, according to ancient authority, are not
subject to copyright,168 no matter how creative the judges might

163. Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 674, 688 (2d Cir. 1998), cert.
denied, 526 U.S. 1154 (1999).
164. Previous references in U.S. case law to the scrolls used them as an archetype for
a blockbuster revelation:
Since 1983, no new information has come to light that would make this
court better informed about the intent of the 1871 Congress than the Supreme
Court was informed in 1983. The legislative-history equivalent of the Dead Sea
Scrolls has not been discovered or called to our attention.
Lyes v. City of Riviera Beach, 166 F.3d 1332, 1352–53 (11th Cir. 1999) (footnote omitted)
(en banc) (Edmondson, J., concurring in part and dissenting in part). See also Joel D.
Berg, The Troubled Constitutionality of Anti Gang Loitering Laws, 69 CHI.-KENT L. REV.
461, 469 n.61 (1993) (“[M]any laws are incomprehensible to many lawyers; laypersons
may just as well try and translate the Dead Sea Scrolls rather than waste their time
trying to figure out what the law either commands or forbids.”).
165. 158 F.3d 693 (1998), cert. denied, 526 U.S. 1154 (1999). Along with my
colleagues Morgan Chu, Elliot Brown, and Perry Goldberg, I represented Matthew Bender
against West Publishing Company at all three court levels.
166. Refer to Chapter V infra.
167. See L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of
Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. REV. 719,
727 n.21 (1989). See also 1 F. Cas. iii (1894) (West refers to itself as “the official reporter
of the federal courts”); Garfield v. Palmieri, 193 F. Supp. 137, 143 (S.D.N.Y. 1961), aff’d,
297 F.2d 526, 527–28 (2d Cir. 1962) (holding a judge’s forwarding of the court’s opinion to
West for publication immune from liability as part of the judge’s official duties).
168. Callaghan v. Myers, 128 U.S. 617, 661–62 (1888); Banks Law Publ’g Co. v.
2001] DEAD SEA SCROLLS 45

have been in crafting their words.169 Thus, a researcher in, say,

1985, although free under copyright law to access judicial opinions
anywhere, as a practical matter could do so only through the
instrumentality of West’s reporters. West’s product as of that date
was not only nonpareil but also effectively unchallenged by any
competitor.
West successfully excluded competitors from the field via an
early skirmish held in 1986.170 Despite the harsh criticism that that
decision attracted,171 it provided West with a litigation juggernaut
that lasted for over a decade. Then, legal publisher Matthew Bender
& Company decided to take on West by publishing on CD-ROM its
own rival compilation of cases, some indirectly derived from West’s
reporters. Bender included references to West pagination in its CD-
ROM, inasmuch as that pagination is required to cite cases to
courts and in legal scholarship. In addition, Bender included what
can be termed “the textus r eceptus of judicial opinions,” which is the
manner in which West publishes them in its quasi-official reporters.
Bender filed for declaratory relief that it did not violate West’s
copyright in the process.172
At base, Bender v. West presented two copyright issues for
resolution. First, conceding that the judges’ opinions themselves
were not subject to protection, West claimed copyright in the
pagination of its case reporters.173 Second, West claimed
copyright in emendations to the opinions themselves.174 If

Lawyers’ Coop. Publ’g Co., 169 F. 386, 390–91 (2d Cir. 1909), appeal dismissed, 223 U.S.
738 (1911). Cf. Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 613 (1834) (finding law reports
“objects of literary property”). See also West Publ’g Co. v. Mead Data Cent., Inc., 799 F.2d
1219, 1239 (8th Cir. 1986) (Oliver, J., dissenting in part). On the early practices in the
United States of judicial reporting, leading up to Wheaton v. Peters, see Craig Joyce, The
Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court
Ascendancy, 83 MICH. L. REV . 1291 (1985).
169. From the beginning, judges have expended tremendous creativity in the task of
judicial interpretation. See generally Susanna L. Blumenthal, Law and the Creative Mind,
74 CHI .-K ENT L. REV . 151 (1998). Nonetheless, that type of creativity, like the creativity
that goes into a scientific breakthrough, has never warranted copyright protection. Refer
to Case 6 (The Atom) supra; Case 14 (Fermat) supra.
170. West Publ’g Co., 799 F.2d at 1222.
171. See, e.g., Monopolizing the Law , supra note 167, upon which the Supreme Court
repeatedly relies in Feist.
172. Another legal publisher, HyperLaw, intervened as a party plaintiff to vindicate
a similar claim. The companion cases discussed below arose from West’s losses to Bender
and HyperLaw, respectively.
173. Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 674, 695 (2d Cir. 1988), cert.
denied, 526 U.S. 1154 (1999). Note that the custom of pagination goes back to antiquity.
Between Volumen and Codex, supra note 146, at 88. Use of Arabic numerals for this
purpose dates back to 1516. THE PRINTING PRESS AS AN AGENT OF CHANGE , supra note 17,
at 106 n.202.
174. Bender, 158 F.3d at 677.
46 HOUSTON LAW REVIEW [38:1

accepted, West’s copyright claim would prevent Bender and

others from producing usable case compilations on CD-ROM.
Before explicating the legal issues, it is necessary to exclude
from consideration the uncontroversial aspects of West’s
copyright. All parties admitted for purposes of the litigation that
West enjoyed copyright protection over its case reporters as a
whole, insofar as those volumes include syllabi authored by West,
summarizing the holdings of each case; key numbers, by which
West categorized individual components of those cases;
headnotes that West generated, encapsulating each holding
represented by a key number; and other ancillary material, such
as tributes and prefaces at the beginning of individual volumes
and indices at the end of those volumes. The nub of the
disagreement between the parties concerned the following:
??Pagination. Except for very short opinions, the text of any
given case begins on one page and then continues, from
page to page, across the reporter. Citations to opinions,
by practice and individual court order,175 must be to the
particular page in which the cited proposition occurs; for
example: 171 F.2d 318, 320. West contended that
reprinting public domain judicial opinions, along with a
notation as to where the subject break occurred in the
West reporters—in the foregoing example, of the form
“*320”—violated West’s pagination copyright.
??Emendations. Before publishing opinions, West
“massages” those opinions in various ways. Thus, the
final text of an opinion as it appears might contain
numerous differences from the way that the judge
authored it. For instance, the judge might refer to “Feist
Pub. v. Rural Tele. Co., 499 U.S. 340 (1990).” When the
reference appears in a West case reporter, it could be
printed in the following format: “Feist Publications, Inc.
v. Rural Telephone Service Co., 499 U.S. 340, 113 L. Ed.
2d 358, 111 S. Ct. 1282 (1990).” Again, by practice and
individual court order, quotations to opinions must be in
the latter formulation.176
In addition, courts do not collect names of attorneys. West
includes information as to attorney names. Of necessity, West
chooses, among various options, how to present the names of

175. See, e.g., 3D CIR. R. 28.3(a). For a catalog of many such local rules, see
Monopolizing the Law , supra note 167, at 727 n.21.
176. It is for that reason that West’s emendations effectively constitute the “textus
receptus of judicial opinions,” as claimed above.
2001] DEAD SEA SCROLLS 47

counsel. In terms of subsequent history of cases and in other

allied respects, West also adds features to its reporters.177
The Second Circuit denied West’s claims in two companion
opinions.178 Those opinions explicate copyright’s standard for
“originality” as requiring “that the work result from ‘independent
creation’ and that the author demonstrate that such creation
entails a ‘modicum of creativity.’”179 The former simply means
that the work was not copied from a prior source.180 The latter
means that certain works, notwithstanding the absence of
copying, are too banal to warrant copyright protection.181
As to star page numbers corresponding to the breaks in
pagination in West’s reporters, the Second Circuit relied on
West’s concession that the page breaks in its reporters were
inserted by computer, applying rote methodology, rather than
through the exercise of any human creativity. The court also
cited an alternative rationale, discussed below.182
As to the various alterations that West imbued into the
judicial opinions, the court conceded that the threshold for
creativity is low in order to achieve copyright protection, “even in
works involving selection from among facts.”183 Nonetheless, even

177. The emendations are slightly more complicated than the foregoing summary. As
summarized by the Second Circuit, West claims originality in the following
enhancements:
??The format of the party names—the “caption”—is standardized by capitalizing
the first named plaintiff and defendant to derive a “West digest title,” and
sometimes the party names are shortened (for example, when one of the
parties is a union, with its local and national affiliations, West might give
only the local chapter number, and then insert “etc.”).
??The name of the deciding court is restyled. For example, West changes the slip
opinion title of “United States Court of Appeals for the Second Circuit” to
“United States Court of Appeals, Second Circuit.”
??The dates the case was argued and decided are restyled. For example, when
the slip opinion gives the date on which the opinion was “filed,” West
changes the word “filed” to “decided.”
??The caption, court, docket number, and date are presented in a particular
order, and other information provided at the beginning of some slip opinions
is deleted (such as the lower court information, which appears in the West
case syllabus).
Bender, 158 F.3d at 683 (footnote omitted).
178. Id. at 674, 693.
179. Id. at 681 (emphasis in original).
180. Key Publ’ns, Inc. v. Chinatown Today Publ’g Enters., 945 F.2d 509, 512–13 (2d
Cir. 1991). Illustrative here would be Marklund’s forgery and Charlie’s copying of A Tale
of Two Cities. Refer to Cases 11–12 (Doppelgänger, Forgery) supra.
181. Feist itself exemplifies that phenomenon. Note that these two ingredients are
labeled originality and creativity in Chapter II in fine supra.
182. Refer to Chapter VII, section (A)(2) infra.
183. Bender, 158 F.3d at 689.
48 HOUSTON LAW REVIEW [38:1

in those cases, the Second Circuit limited copyright protection to

“evaluative and creative” works, in which the compiler exercises
“subjective judgments relating to taste and value that were not
obvious and that were not dictated by industry convention.”184
These considerations neither deny the value of West’s case
reporters nor the praise due their compilers. The court concluded
as follows:
West’s editorial work entails considerable scholarly labor
and care, and is of distinct usefulness to legal practitioners.
Unfortunately for West, however, creativity in the task of
creating a useful case report can only proceed in a narrow
groove. Doubtless, that is because for West or any other
editor of judicial opinions for legal research, faithfulness to
the public-domain original is the dominant editorial value,
so that the creative is the enemy of the true.185
The Second Circuit drops a footnote at this point containing
two citations. The first is to a case that counsel for Bender cited
both to the district court and Second Circuit.186 The second did
not come from any brief submitted by the parties;187 instead,
Judge Jacobs alighted on it independently:
On the other hand, preparing an edition from multiple
prior editions, or creating an accurate version of the
missing parts of an ancient document by using conjecture to
determine the probable content of the document may take a
high amount of creativity. See, e.g., Abraham Rabinovich,
Scholar: Reconstruction of Dead Sea Scroll Pirated, Wash.
Times: Nat’l Wkly. Edition, Apr. 12, 1998, at 26 (discussing
scholar’s copyright infringement claim in Israeli Supreme
Court relating to his reconstruction of the missing parts of a
“Dead Sea Scroll” through the use of “educated guesswork”
based on knowledge of the sect that authored work).188
Of course, the remark constitutes obiter dictum. Nonetheless, it
is interesting that the sole reference in any reported decision in
the United States to Qimron v. Shanks occurs in this context.

184. Id.
185. Id. at 688. The quotation should be recalled in the context of Qimron’s claim to
protection by virtue of the extent of scholarly labor that he expended on 4QMMT. Refer to
Chapter VIII infra.
186. Bender, 158 F.3d at 688 n.13, citing Grove Press, Inc. v. Collectors Publication,
Inc., 264 F. Supp. 603 (C.D. Cal. 1967) (holding that even 40,000 changes made to a work,
in the form of correcting punctuation and typographical errors and the like, stand outside
copyright protection).
187. As noted above, this writer represented Bender. Refer to note 165 supra.
188. Bender, 158 F.3d at 688 n.13.
2001] DEAD SEA SCROLLS 49

In any event, West applied to the Supreme Court for a writ

of certiorari.189 The denial of that petition means that Bender v.
West now stands as res judicata.

189. West filed its petition for certiorari while I was living in Jerusalem. Elliot
Brown finished drafts of our opposition every night, which was morning my time when he
e-mailed it to me, where I worked on the draft while he slept, only to continue the process
the next day.
While we were preparing the opposition, our client made a surprising decision—
to join in the certiorari petition, asking the Supreme Court to affirm summarily and
thereby end once and for all West’s “scarecrow copyright” by which it had chased
competitors out of the field. Thus, the “opposition” that we ultimately filed with the
Supreme Court actually joined in West’s request for review.
Completing the surrealism, West vitriolically attacked our non-opposition. But
the matter ended when the Supreme Court refused to hear the matter.
50 HOUSTON LAW REVIEW [38:1

V.
QUMRAN AND QIMRON ’S COPYRIGHT CASE
Biblical manuscripts dating back to at least 200
BC are for sale. This would be an ideal gift to an
educational or religious institution . . . . Box F
206
Ad placed by Archbishop Samuel, in The
Wall Street Journal, June 1, 1954.190

The time arrives once again to tell the oft’-told tale191 of

the Dead Sea Scrolls.192 Not only is this matter one of “high
drama—rife with mystery, international intrigue, professional
jealousy, political tension, conspiracy, and deceit,”193 but it led
to a copyright case of biblical proportions,194 Qimron v. Shanks,
et al.195

190. NEIL ASHER SILBERMAN, THE HIDDEN SCROLLS: CHRISTIANITY, JUDAISM & THE
WAR FOR THE DEAD SEA SCROLLS 50 (1994).
191. Even within the realm of law reviews, other articles have plowed this field.
See Raiders of the Lost Scrolls, supra note 83, at 301; Lisa Michelle Weinstein,
Comment, Ancient Works, Modern Dilemmas: The Dead Sea Scrolls Copyright Case,
43 AM . U. L. REV . 1637 (1994); Jeffrey M. Dine, Note, Authors’ Moral Rights in Non-
European Nations: International Agreements, Economics, Mannu Bhandari, and the
Dead Sea Scrolls, 16 MICH. J. INT’L L. 545, 549, 566–69 (1995). The number of books
on the subject is legion. For a highly readable account of the Scrolls from their
discovery through the trial of Qimron v. Shanks, see generally THE HIDDEN SCROLLS,
supra note 190.
192. One of the more idiosyncratic versions recounts, “Inside the jars were
discovered six parchment scrolls with ancient incomprehensible writings which the
shepherd, in his ignorance, sold to the museum for $750,000 apiece.” WOODY ALLEN,
WITHOUT FEATHERS 21 (1975). Though those figures are invented, it remains true
that the Arabs who found the scroll fragments “nine times out of ten outwitted their
professional rivals . . . .” G EZA VERMES, THE DEAD SEA SCROLLS IN ENGLISH xvi. (4th
ed. 1995). There would appear, however, to be little substance to the further claim,
“The authenticity of the scrolls is currently in great doubt, particularly since the
word ‘Oldsmobile’ appears several times in the text . . . .” WITHOUT FEATHERS , supra,
at 21.
193. Raiders of the Lost Scrolls, supra note 83, at 301.
194. The pages that follow engage in much analysis of copyright issues from
their religious context, a project that I continue from previous writings. See, e.g.,
David Nimmer, Adams and Bits: Of Jewish Kings and Copyrights, 71 S. CAL. L. REV .
219 (1998). But I am not the only individual haunted by the cross-over between
religion and copyright. Judge Posner was moved in a recent copyright case to
characterize “Jesus Christ [as] a heterodox Jew.” Seshadri v. Kasraian, 130 F.3d 798,
800 (7th Cir. 1997). Another case alleged that defendant’s projection of the Golden
Mean Spiral onto a torus infringed plaintiff’s sculpture that generates “flame letters”
comprising the entire sacred Hebrew alphabet by shadowgrams of a single object
placed inside a tetrahedron. Tenen v. Winter, 15 F. Supp. 2d 270 (W.D.N.Y. 1998).
More fundamentally, if the printing press engendered copyright as its
2001] DEAD SEA SCROLLS 51

With such a plethora of secondary literature extant, the

question becomes how to present this matter anew. A wise
litigator once commented that cases are won not based on the
facts, but based on the evidence.196 In other words, it matters less
what actually happened in real life than what version is
recounted to the trier of fact, whether jury or judge. In that
spirit, the discussion that follows draws liberally from the
testimony of John Strugnell, whom we shall meet anon.197

A. The Scrolls

1. Discovery
Muhammad edh-Dhib’s stone hit something.198 In 1947, the
young Ta’amireh shepherd was tending his flock in the unusually
arid area near the Dead Sea.199 But instead of finding the errant
goat, he had found a cave, into which he threw the stone.200 He

bastard child, then religion is its heir apparent. See generally THE PRINTING PRESS AS
AN AGENT OF CHANGE , supra note 17. The early notion, “Every word of the LORD
written by the scribe is a wound inflicted on Satan,” id. at 373, only multiplied with
the advent of print. From the Gutenberg bible to Martin Luther’s encomium,
“Printing is the ultimate gift of God and the greatest one,” Jean-François Gilmont,
Protestant Reformations and Reading, in A HISTORY OF READING, supra note 24, at
213, to the Index of Prohibited Books in reaction to the excesses of the press,
Dominique Julia, Reading and the Counter-Reformation, in A HISTORY OF READING,
supra note 24, at 238, 239, the history of printing and of religious writings have been
inseparable. See Roger Chartier, Figures of the Author, in O F AUTHORS AND O RIGINS ,
supra note 19, at 7, 19 (“The author-function thus constituted an essential weapon in
the struggle waged against the spread and distribution of texts which were thought
to be heterodox.”).
195. Elisha Qimron v. Hershel Shanks and 3 others (1993) 69 (iii) P.M. 10 (District
Court of Jerusalem) [hereinafter “Trial Opin.”]. Note that there is no official English
translation of this opinion.
196. See CBS Broad. Inc. v. PrimeTime 24 Joint Venture, 48 F. Supp. 2d 1342, 1347
(S.D. Fla. 1998) (“As in all issues before the judiciary, the Court must resolve the action
before it in light of what has been presented by the parties.”).
197. Transcript of Recorded Testimony of John Strugnell, taken at Boston,
Massachusetts, January 21, 1993, made by order of Jerusalem District Court [hereinafter
“Strugnell Testimony”]. Note that, alone among the primary material in Qimron v.
Shanks, this material is quoted herein in its English original, rather than in an English
translation of a Hebrew original.
As is perennially the danger in relying on a deposition transcript, sometimes the
full meaning does not come through, as in the following answer: “Oh, yes, no, that’s for
certain.” Strugnell Testimony at 129. See also id. at 208 (“I was the governor of
Arkansas.”). But in most instances quoted below, the meaning shines through. I have
smoothed over the oral language in the interest of readability where indicated below.
198. G EZA VERMES, THE DEAD SEA SCROLLS: Q UMRAN IN PERSPECTIVE xiii (1994).
199. LIBRARY OF CONGRESS, SCROLLS FROM THE DEAD SEA 23 (1993). Note that
aridity is “favorable for the preservation of materials like the Dead Sea Scrolls.” See
http://lcweb.loc.gov/exhibits/scrolls/dsmap.gif.
200. One commentator dismisses this whole story as just so much “Arabian nights”
52 HOUSTON LAW REVIEW [38:1

returned later with some rope. Entering the cave, he discovered

large sealed pots. The first two were empty. But the third
contained scrolls wrapped in linen. Disappointed not to have
found treasure, he went back to his tent. Children played with
the tattered fragments, many of which broke into pieces. “[W]e
threw it in the garbage pile. Later, we found that the wind had
blown all the pieces away.”201 But a number of the scrolls were
saved.202
The first discoveries came to the attention of scholars in
1948, when seven of the scrolls were sold by the Bedouin to
a cobbler and antiquities dealer called Kando. He in turn
sold three of the scrolls to Eleazar L. Sukenik of Hebrew
University, and four to Metropolitan Mar Athanasius
Yeshue Samuel of the Syrian Orthodox monastery of
St. Mark.203 Mar Athanasius in turn brought his four to the
American School of Oriental Research, where they came to
the attention of American and European scholars.
It was not until 1949 that the site of the find was
identified as the cave now known as Qumran Cave 1. It was
that identification that led to further explorations and
excavations of the area of Khirbet Qumran. Further search
of Cave 1 revealed archaeological finds of pottery, cloth and
wood, as well as a number of additional manuscript
fragments. It was these discoveries that proved decisively
that the scrolls were indeed ancient and authentic.
Between 1949 and 1956, in what became a race between
the Bedouin and the archaeologists, ten additional caves
were found in the hills around Qumran, caves that yielded
several more scrolls, as well as thousands of fragments of
scrolls: the remnants of approximately 800 manuscripts
dating from approximately 200 B.C.E. to 68 C.E.

myth accreted onto the scrolls. Noting that “edh-Dhib” means “the wolf,” he describes the
Bedouin mission as having been all along seeking the discovery of artifacts to sell to
archaeologists. See THE HIDDEN SCROLLS, supra note 190, at 30–32.
201. This version of the story comes from LDS Perspective on the Dead Sea Scrolls, at
http://www.kbyu.byu.edu/deadsea/where_janmagstory.asp. (last visited Jan. 13, 2001).
202. Through the translator, Mohammed was asked if he knew the contents of
the scrolls. ‘The story of the trouble between the Jews and the Arabs?’ he
offered. The translator corrected him as he shared that the scrolls
contained the oldest copy of the Hebrew Bible. ‘Hurmph . . . If I had known
that, I would have let them all blow away.’
Id.
203. The Archbishop’s gift of the scrolls, following his relocation to New York,
generated a decision before the Tax Court. See Samuel v. Comm’r, 306 F.2d 682, 687–89
(1st Cir. 1962) (rejecting Samuel’s argument that the payments to him should be regarded
as “annuity” payments on his “sale” of the scrolls to the trust).
2001] DEAD SEA SCROLLS 53

The manuscripts of the Qumran caves include early

copies of biblical books in Hebrew and Aramaic, hymns,
prayers, Jewish writings known as pseudepigrapha
(because they are attributed to ancient biblical characters
such as Enoch or the patriarchs), and texts that seem to
represent the beliefs of a particular Jewish group that may
have lived at the site of Qumran. Most scholars believe that
the Qumran community was very similar to the Essenes,
one of four Jewish “philosophies” described by Josephus, a
first century C.E. Jewish historian. Some have pointed to
similarities with other Jewish groups mentioned by
Josephus: the Sadducees, Pharisees, and Zealots. 204
As the Librarian of Congress has noted, almost “from the
moment of their discovery in 1947, these manuscripts have
ignited the imagination of specialists and non-specialists alike.
Hidden for almost two thousand years in remote caves, the Dead
Sea Scrolls are r egarded by many as the greatest manuscript find
of the twentieth century.”205 Based on historical, paleographic,
and linguistic evidence, as well as carbon-14 dating, the scrolls
and surrounding Qumran ruin date from the third
century B.C.E. to 68 C.E., shortly before the fall of Jerusalem to
the Romans.206 Of course, that time span includes the period
when Jesus of Nazareth lived.
We do not know precisely who wrote those sectarian
scrolls, but we can say that the authors seemed to be
connected to the priesthood, were led by priests,
disapproved of the Jerusalem priesthood, encouraged a
strict and pious way of life, and expected an imminent
confrontation between the forces of good and evil. 207
“For scholars they represent an invaluable source for
exploring the nature of post-biblical times and probing the
sources of two of the world’s great religions. For the public, they
are artifacts of great significance, mystery, and drama.”208

204. WEST SEMITIC RESEARCH PROJECT, THE DISCOVERY OF THE DEAD SEA SCROLLS,
at http://www.usc.edu/dept/LAS/wsrp/educational_site/dead_sea_scrolls/discovery.shtml
(last visited Mar. 1, 2001).
205. Remarks of James H. Billington, SCROLLS FROM THE DEAD SEA, supra note 199,
at 6.
206. THE WORLD OF THE SCROLLS, in SCROLLS FROM THE DEAD SEA: THE ANCIENT
LIBRARY OF Q UMRAN AND MODERN SCHOLARSHIP, at http://lcweb.loc.gov/exhibits/scrolls/
intr.html (last visited Dec. 26, 2000).
207. DISCOVERY OF THE DEAD SEA SCROLLS, supra note 204.
208. TWO THOUSAND YEARS LATER, in SCROLLS FROM THE DEAD SEA, supra note 199,
at http://lcweb.loc.gov/exhibits/scrolls/today.html (last visited Mar. 4, 2001).
Interest in the scrolls has, if anything, intensified in recent years. Media
coverage has given prominence to scholarly debates over the meaning of the scrolls,
54 HOUSTON LAW REVIEW [38:1

It is important to realize not only that portions of every

book of The Bible209 (apart from Esther)210 were found among
the scrolls, but that those represent versions almost one
thousand years older than any manuscript previously known.
“Today’s standard Biblia Hebraica is based largely on the so-
called St. Petersburg codex which can be dated AD 1009.211
The Biblia Hebraica Stuttgarttensia of 1977 notes the variants
to the canonic version found at Qumran.”212
***
By 1949, the Scrolls came under the jurisdiction of the
Department of Antiquities for Transjordan and Arab
Palestine.213 The Hashemite Kingdom, in turn, passed day-to-
day concern over the Scrolls to the École Biblique et
Archéologique Française, located in East Jerusalem.214
Eventually, custody for the Scrolls passed to the Palestine
Archaeological Museum administered by the École Biblique.215
Jordan nationalized that museum and its collection in 1966.216

the Qumran ruin, as well as particular scroll fragments, raising questions destined to
increase attention and heighten the Dead Sea Scrolls mystery. Did the scrolls come
from the library of the Second Temple or other libraries and were they hidden to
prevent their destruction by the Romans? Was the Qumran site a winter villa for a
wealthy Jerusalem family or was it a Roman fortress? Was it a monastery not for
Essenes but for a Sadducean sect? Does this mean we need to revise our view of
Jewish religious beliefs during the last centuries of the Second Temple? Do the Dead
Sea Scrolls provide clues to hidden treasures? Does the “War Rule Scroll” refer to a
pierced or piercing messiah?
Id.
209. As used herein, all references to the “Bible” are to the Hebrew Bible. In this
regard, I follow the usage and rationale of THE ART OF BIBLICAL NARRATIVE, supra note
108, at ix.
210. Hartmut Stegemann, How to Connect Dead Sea Scroll Fragments, in
UNDERSTANDING THE DEAD SEA SCROLLS 245, 248 (Hershel Shanks ed., 1992). But as
Vermes points out, it is possible that some of the tiny fragments from Qumran might
indeed represent portions of the book of Esther, so its exclusion should not be viewed as
absolute. Q UMRAN IN PERSPECTIVE, supra note 198, at 177–78.
211. See THE WORLD OF BIBLICAL LITERATURE , supra note 155, at 133. For general
background on manuscripts of the Hebrew Bible, see HERSHEL SHANKS, THE MYSTERY
AND MEANING OF THE DEAD SEA SCROLLS 147 (1998).
212. G EORGE STEINER, A Preface to the Hebrew Bible, in NO PASSION SPENT 40, 46–
47 (1996). Refer to note 638 infra.
213. Raiders of the Lost Scrolls, supra note 83, at 302.
214. Q UMRAN IN PERSPECTIVE, supra note 198, at xiv.
215. Raiders of the Lost Scrolls, supra note 83, at 303. In this abbreviated account, I
omit the role played by Vendyl Jones, evangelist, bible scholar, and seeker of the Ark of
the Covenant, who evidently formed the real-life model for Indiana Jones. Id.
216. Id.
2001] DEAD SEA SCROLLS 55

The next year, Israel captured East Jerusalem in the Six-

Day War.217 The museum passed into Israeli control, resuming
its former name as the Rockefeller Museum.218
Notwithstanding the war that changed everything else in
the Middle East, the status of the Scrolls remained static.
While under Jordanian rule, the international team consisted
only of Christian scholars, many of whom were clerics, and
whose leader, Roland de Vaux, was publicly anti-Semitic.219
Nonetheless, Père de Vaux not only remained at the helm
during the transition but successfully lobbied the Israel
government to retain his team’s original composition and
mandate.220 “Most of these same individuals made up the
international team under Israeli rule, although the team
eventually became slightly more ethnically and religiously
diverse.”221
Meanwhile, the initial flurry of Scrolls publication dried to a
trickle. An insider describes how the early optimism faded:
[T]hey were all going to be published by ‘62 or ‘63, well,
you can look at the series of promises, it shows how
virtuous and optimistic we were, but, you know, the
trouble was we really didn’t have much idea of how long
it would take virtually on publishing, so the first two or
three volumes were quite easy to get out, but after that it
got much more difficult, and also we ran out of money, so
we couldn’t get our editors to come out to work.222
***

217. In the 1956 war, Jordan removed the scrolls to Amman for safekeeping. While
in storage there, they suffered great damage from mildew. MYSTERY AND MEANING, supra
note 211, at 44–45. In 1967, Jordan again made contingency plans to transfer the scrolls
to Amman in the event of hostilities. But due to a miscommunication, the truck driver
never arrived. THE HIDDEN SCROLLS, supra note 190, at 152.
218. See Strugnell Testimony at 33.
219. De Vaux was a member of the fascist Action Française during his youth. Robert
Alter, How Important Are the Dead Sea Scrolls?, COMMENTARY, Feb. 1992, at 34, 35.
220. Melissa Leventon, The Access Controversy, in THE MYSTERY OF THE DEAD SEA
SCROLLS (Fine Arts Museums of San Francisco 1994) (unpaginated).
221. Raiders of the Lost Scrolls, supra note 83, at 304. Strugnell explains how the
game worked: “For all of that period until the retirement of Benoit, the role of the Israeli
department was very much like that of the Jordanian government, not doing much. We
were left to do our work, but at the one point when we needed a signature to get our
volumes to the printer, we took the signature that was offered to us.” Strugnell Testimony
at 65. “One hardly saw the Israeli Department of Antiquities from one end of the year to
the other.” Id. at 63. “Benoit went to see the Israeli director of antiquities and said, I want
to resign now, and I want to get the nomination of my group for a successor ratified in the
same way that I was ratified.” Id. at 45.
222. Strugnell Testimony at 46.
56 HOUSTON LAW REVIEW [38:1

The international team early on established a policy under

which no outsiders would be allowed access to the scroll
materials.223 Problems arose early in that the scholars in control
hoarded the documents that had been entrusted to their
possession. Thus, anyone wishing to consult one of the fragments
had to secure permission from the approved scholar to whom it
had been assigned.224 “Some such requests were certainly
granted, but many were denied.”225
Excluded scholars became increasingly resentful as the
decades passed, fearing that information germane to their
work was being withheld. Several of the authorized
scholars, perhaps hoping to speed things up, parceled out
fragments to their graduate students. Unfortunately, this
further infuriated many established scholars, who resented
that fledgling scholars had been granted privileges they had
been denied. At least two of the original team members
bequeathed their scroll assignments to specific colleagues,
who continued to keep the scrolls under wraps. 226
So great was the secrecy in which de Vaux and his
successors shrouded the Qumran finds that even a list of
unpublished texts was withheld. “‘Outsiders’ were not only
denied access to them but were not even allowed to know what
exactly they were not permitted to see!” 227 Geza Vermes of Oxford
University was moved as far back as 1977 to call the (non)
publication schedule for Qumran manuscripts the “Academic
Scandal Par Excellence” of the twentieth century.228
Thus built pressure until something inevitably had to
happen. But before reviewing how the caldron boiled over, it is
necessary to focus on one particular scroll.

2. MMT
Out of Cave 4 of Khirbet Qumran emerged six copies (none
complete) of a unique document: miqsat ma’ase ha-Torah,

223. Vermes condemns them as “reactionaries opposed to free inquiry and to quick
exchange of information.” Q UMRAN IN PERSPECTIVE, supra note 198, at ix.
224. The Access Controversy, supra note 220.
225. Id.
226. Id. Geza Vermes elaborates on that subject. See Q UMRAN IN PERSPECTIVE, supra
note 198, at 7–8. Strugnell cites the case of dying Scrolls scholars who “passed their
manuscripts to their students as a whole block, you know, all seventy manuscripts.”
Strugnell Testimony at 207.
227. Q UMRAN IN PERSPECTIVE, supra note 198, at xxxvi.
228. JOSEPH L. SAX, PLAYING DARTS WITH A REMBRANDT: PUBLIC AND PRIVATE
RIGHTS IN CULTURAL TREASURES 153–64 (1999).
2001] DEAD SEA SCROLLS 57

meaning “Some Precepts of the Torah,”229 and abbreviated as

“MMT.”230 (Given its provenance from Cave 4231 at Qumran, its
full appellation is 4QMMT.232) The editor assigned to it frankly
admits its difficulties: “This work is written in a peculiar form
of Hebrew, and in the early days when we didn’t have all of
this together, some of my reconstructions were completely
wrong because I didn’t know about this.”233
In MMT, the Teacher of Righteousness234 (TR) addresses
the Wicked Priest.235 As Prof. Ya’akov Sussmann, one of the
doyens of Dead Sea Scroll studies, notes, the scroll itself is only
about 150 lines, of which approximately 120 have been
reconstructed “from countless minute bits and pieces belonging

229. ELISHA Q IMRON & JOHN STRUGNELL, DISCOVERIES IN JUDEAN DESERT X:

Q UMRAN CAVE 4 V (MIQSAT MA’ASE HA-TORAH) 1 (1994) [hereinafter DJD X]. It has been
variously translated as “some legal rulings pertaining to the Torah,” LAWRENCE H.
SCHIFFMAN, RECLAIMING THE DEAD SEA SCROLLS: THEIR TRUE MEANING FOR JUDAISM
AND CHRISTIANITY 83 (1994), “Some of the Acts of Torah,” NORMAN G OLB, WHO WROTE
THE DEAD SEA SCROLLS? 178 (1995), “Some Torah Precepts,” SCROLLS FROM THE DEAD
SEA, supra note 199, at 64, “Some Precepts of the Law,” JONATHAN G. CAMPBELL, DEAD
SEA SCROLLS: THE COMPLETE STORY 79 (1998), “Some Observances of the Law,” QUMRAN
IN PERSPECTIVE, supra note 198, at 181, “Some Works of the Torah,” THE HIDDEN
SCROLLS, supra note 190, at 174, “Some of our words concerning the Torah of God,”
ROBERT EISENMAN & MICHAEL WISE , THE DEAD SEA SCROLLS UNCOVERED 182 (1992),
and “some of the works of the Torah,” James C. VanderKam, The People of the Dead Sea
Scrolls: Essenes or Sadducees?, in UNDERSTANDING THE DEAD SEA SCROLLS, supra note
210, at 50, 51 n.*.
230. Originally, this document was an anonymous part of the horde, called
“Strugnell 32.” Strugnell Testimony at 88, 131. Later, Strugnell’s collaborator, Elisha
Qimron, gave the scroll its name. Trial Opin., supra note 195, at 15, § 3, referring to the
Transcribed Protocol of the Trial in the Jerusalem District Court, February 1–2, 1993
[hereinafter “Protocol”] at 174–75.
231. Cave 4 contained the “motherlode” of Qumran documents. MYSTERY AND
MEANING, supra note 211, at 31. See Raphael Levy, “First Dead Sea Scroll” Found in
Egypt Fifty Years Before Qumran Discoveries, in UNDERSTANDING THE DEAD SEA
SCROLLS, supra note 210, at 63, 65 (15,000 scroll fragments, from 500 manuscripts).
232. The People of the Dead Sea Scrolls, supra note 229, at 51.
233. Strugnell Testimony at 98.
234. The Teacher “was the early leader and revered teacher of the Qumran
group . . . .” The People of the Dead Sea Scrolls, supra note 229, at 58 n.*. The Damascus
document of the Dead Sea Scrolls characterizes the Teacher of Righteousness as follows:
And God appraised their deeds, because they sought him with a perfect heart
and raised up for them a Teacher of Righteousness, in order to direct them in the
path of his heart. And he made known to the last generations what he had done
for the last generation, the congregation of traitors.
THE SCROLLS ON THE TEACHER OF RIGHTEOUSNESS, at http://www.geocities.com/Paris/
LeftBank/5210/tr.htm (last visited Mar. 4, 2001). His mortal enemy is sometimes called
the “Man of Scoffing.” “First Dead Sea Scroll,” supra note 231, at 65.
235. Vermes reserves final judgment as to whether the author of MMT is the
Teacher of Righteousness and whether its addressee is indeed the Wicked Priest. QUMRAN
IN PERSPECTIVE, supra note 198, at 181–82. DJD X identifies the recipient as Jonathan
Maccabeus, then High Priest in Jerusalem.
58 HOUSTON LAW REVIEW [38:1

to six different copies of the work, some on parchment and

others on papyrus.”236
John Strugnell, who eventually became Professor of
Christian Origins at Harvard University,237 places MMT among
the “top five” of all the Dead Sea Scrolls.238 It
is unique in language, style, and content. Using linguistic
and theological analysis, the original text has been dated as
one of the earliest works of the Qumran sect. . . . Together
the six fragments [of this sectarian polemical document]
provide a composite text of about 130 lines, which probably
cover about two-thirds of the original. The initial part of the
text is completely missing.239
Apparently it consisted of four sections: (1) the opening
formula, now lost; (2) a calendar of 364 days; (3) a list of
more than twenty rulings in religious law (Halakhot), most
of which are peculiar to the sect; and (4) an epilogue that
deals with the separation of the sect from the multitude of
the people and attempts to persuade the addressee to adopt
the sect’s legal views. The “halakhot,” or religious laws,
form the core of the letter; the remainder of the text is
merely the framework. The calendar, although a separate
section, was probably also related to the sphere of
“halakhah.” These “halakhot” deal chiefly with the Temple
and its ritual. The author states that disagreement on these
matters caused the sect to secede from Israel. 240
Strugnell was assigned to work on MMT the very first day
that he entered the scrollery241 in August 1954.242 Already by
1959, “the six manuscripts of MMT had been identified,
transcribed, materially reconstructed and partly combined into a

236. Ya’akov Sussmann, Forty Years of Qumran Research, TARBIZ 59 (1989). Note
that Prof. Sussmann testified on behalf of Qimron at the trial.
237. Strugnell started as the epigraphist of the Palestine Archaeological Museum,
supported by donations from Mr. Rockefeller. Strugnell Testimony at 41–42.
238. Id. at 202.
239. SOME TORAH PRECEPTS, at http://www.ibiblio.org/expo/deadsea.scrolls.exhibit/
Library/torah.html (last visited Mar. 4, 2001). Apparently, a full text of MMT would
include some many more lines at the beginning, in addition to the 130 lines that have
come to us.
240. Id.
241. In mock tribute to Winnie the Pooh, the team coined this neologism for the place
where they stowed their scrolls. See THE HIDDEN SCROLLS, supra note 190, at 83.
242. When asked about the time it was assigned to him, Strugnell replied, “I was
never formally assigned. I took it into my hands the first day I got there, and never have
let it go.” Strugnell Testimony at 86. See id. at 81–82 (“It was part of this group of texts
that Milik had set aside for me to try my hand at, but not very many of them had yet been
identified.”).
2001] DEAD SEA SCROLLS 59

common text.”243 Over the next few decades, despite intermittent

work by other scrolls scholars,244 very little public discussion of
MMT took place.245
***
In 1979, Strugnell found his efforts reinvigorated by Elisha
Qimron,246 a professor of linguistics at Ben Gurion University.247
Strugnell gives the history.
Fragments of [MMT] began to be discovered in 1953, . . .
we were piecing things together up until 1958, when the
last fragment came into the museum. It was not . . .
immediately clear that it was the sort of document that we
now see it to be, it seemed to us to be of another character,
this was especially a thesis of Milik, but we worked on it
from ‘54 till 1959 when a complete copy of our transcript is
left in the records, and then from ‘59 we made, we entered
it into our concordance. From that time onwards I
continued working on it to 1990. The main point in that
intervening period was when Mr. Qimron came along and
volunteered to help initially with certain parts of the work,
but later on with the whole.248
As Strugnell describes it, the two collaborated by 1981 “in
renewed earnest.”249 They finished the material descriptions of the
manuscripts “and also came to an agreement on the outlines of the
historical understanding of the work.”250 As early as 1987,
Sussmann commented that MMT, despite its secrecy, had already
become recognized as a scroll that “will undoubtedly stand in the
centre of all future discussion of the halakha [Jewish law] and
identity of the sect and history of the halakha in general.”251

243. Foreword to DJD X, supra note 229, at vii (by Strugnell).

244. Frank Cross used MMT in the context of his famous article on the history of the
Hebrew alphabets at Qumran. Strugnell Testimony at 85. Josef Milik also discussed it.
Id. at 80–90.
245. Strugnell references a paragraph in 1956 and another passing reference in M.
BAILLET, J. T. MILIK & R. DE VAUX, LES “PETITES G ROTTES” DE Q UMRAN (1962). See DJD
X, supra note 229, at viii.
246. Strugnell comments on “the seemingly predestined name of Qimron.” DJD X,
supra note 229, at viii.
247. Id. at flyleaf.
248. Strugnell Testimony at 79–80. Strugnell is unstinting in his praise of Qimron:
“He was growing, as it were, from being the linguistic expert, writing the appendix on
language, to being the equal partner, and then to be the larger partner in the whole.” Id.
at 120.
249. DJD X, supra note 229, at vii.
250. Id.
251. Forty Years of Qumran Research, supra note 236, pp. 11–76, reproduced in DJD
X, supra note 229, at 185.
60 HOUSTON LAW REVIEW [38:1

Significantly for current purposes, Sussmann was able to state

in 1987—many years before the lawsuit that will be discussed
presently—that, MMT “has been skillfully reconstructed by
Profs. J. Strugnell and E. Qimron” from its highly fragmentary
form.252 Even more telling is that as early as 1982, when Sussmann
first viewed MMT at Strugnell’s request, he “was astonished by its
similarity to an affinity with Rabbinic literature.”253 That
chronology bears recollection—insiders had been viewing the
reconstruction of MMT for a decade before Shanks’s publication in
1991 that led to the lawsuit that will be discussed below, and were
already able to characterize many of its features.
The world first learned of the existence of MMT at a public
lecture in 1984.254 It is worth quoting at length from Lawrence
Schiffman, an NYU professor who records being among the 1200
Dead Sea Scrolls scholars in attendance:255
It is hard to describe the audience’s shock. We now
realized that for forty years, this text, holding the key to
many mysteries of the Dead Sea scrolls, had been hidden
from us in the recesses of the Rockefeller Museum’s
scrollery. As Qimron continued his presentation, we took

252. To give an idea as to the content of some portion of MMT, Strugnell and Qimron
translate a portion of it as follows:
until sunset on the eighth day. And concerning [the impurity] of the [dead] person we
are of the opinion that every bone, whether it has its flesh on it or not— should be
(treated) according to the law of the dead or the slain. And concerning the mixed
marriages that are being performed among the people, and they are sons of holy
[seed], as is written, Israel is holy. And concerning his (Israel’s) [clean] animal it is
written that one must not let it mate with another species, and concerning his clothes
[it is written that they should not] be of mixed stuff; and one must not sow his field
and vineyard with mixed species. Because they (Israel) are holy, and the sons of
Aaron are [most holy.] But you know that some of the priests and [the laity
intermingle.] [And they] adhere to each other and pollute the holy seed as well as
their (i.e. the priests’) own [seed] with corrupt women. Since [the sons of Aaron
should . . . .]
SCROLLS FROM THE DEAD SEA, supra note 199, at 65.
253. Id. On that basis, it may be wondered just how subjective was the task that
Qimron performed or the material that he added. Refer to Chapter VII infra.
254. Elisha Qimron, The Nature of the Reconstructed Composite Text of 4QMMT, in
READING 4QMMT: NEW PERSPECTIVES ON Q UMRAN LAW AND HISTORY 9, 10–11 (John
Kampen & Moshe J. Bernstein eds., 1996). Strugnell explains the background:
[W]e were asked to come to a, give a paper in Jerusalem at the Congress of the
Israeli Archaeological Society, and my reaction was no, it’s not yet ready for the
public announcement, and I got an eager or pressing telephone call from Yadin
saying, please, we must have it, and I said, well, you know, if we put this out at
this stage of the game, we’ll be surrounded by all of the fools and nitwits in the
world, and he said, don’t worry, I’ll take care of that, and, well, unfortunately he
died and he was unable to maintain his promise.
Strugnell Testimony at 110–11.
255. RECLAIMING THE DEAD SEA SCROLLS, supra note 229, at xvii–xviii.
2001] DEAD SEA SCROLLS 61

frantic notes on the passages he quoted, so that we could

bring home at least a fragment of this scroll to study even
before publication of the full text.
What was so extraordinary about Qimron’s revelation?
Certainly not the fact that this text had been kept from us—
we all knew that much of what was in the cave 4 lot was still
unpublished by the official editorial team. No, what
galvanized us was the unexpected significance of this
particular scroll. For years we in scrolls research had
grudgingly accepted the status quo of withheld information
and limited access for those outside the editorial team. Our
hands tied, we had contented ourselves with studying the
available corpus of Dead Sea Scroll texts — admittedly
impressive — published in the initial years after the
discovery.
But Qimron’s revelation of this extraordinary scroll
shattered our customary complacency. When we realized
that a document so central to the history of the Qumran
sect and, indeed, of Second Temple Judaism, had been
withheld from the academic community for so long, we were
outraged. Qimron’s disclosure made us acutely aware of the
unfair distribution of texts, of the existence of haves and
have-nots among Dead Sea Scrolls scholars.
For the rest of the conference, all we could talk about was
this amazing document. On our bus tours of archaeological
sites and in the halls of the conference, those of us for
whom the scrolls were our major subject of research found
it impossible to talk about anything else.
Yet even we insiders did not appreciate how much this
revelation would change the field of Qumran studies. 256

256. Id. (emphasis in original). Schiffman, who writes about the scrolls from a Jewish
perspective unlike the Christian focus of many of his colleagues, continues:
I now realize that the disclosure of even this small part of the Halakhic
Letter [his name for MMT] played a major role in triggering the release of the
entire scrolls corpus to scholars and to the public. But its greatest effect on me
was to recast in a radical manner the work I had already been doing for years on
the Dead Sea Scrolls and, in particular, on their relevance to the history of
Jewish law. In many ways, the book that follows is strongly influenced by this
text. The recent release of the entire corpus, spurred in large part by this text’s
disclosure, has made possible the publication of this volume. Indeed, now that
the entire Qumran corpus has become available to us, we can appreciate how
much the scrolls tell us about the history of ancient Judaism. Here for the first
time is this vital chapter of the scrolls’ story.
Id.
62 HOUSTON LAW REVIEW [38:1

The year after that blockbuster revelation, a second paper

followed.257 But delay after delay e nsued.258 Thus, apart from the
tantalizing hints offered in 1984, MMT remained unavailable to
the scholarly community. Although it was rumored, even at that
time, that Strugnell and Qimron had authored a 500-page
commentary on MMT, they continued to refuse to generally
release its 120-line text.259 But Qimron simultaneously shared
his reconstruction with favored colleagues.260

3. The End of Secrecy

As previously mentioned, the pressure to release the long-
secret scrolls had been building for decades. The blow-up, when it
came, centered on MMT.261 The key player here was Hershel
Shanks, editor of Biblical Archaeology Review. Shanks used his
position at the Biblical Archaeology Society (BAS, the publisher
of BAR) to rail against “the charmed circle” of Qumran scholars
in countless editorials, making the question of public access to
the Dead Sea Scrolls in general, and to MMT in particular, one of
“intense public scrutiny.”262
“In the late 1980s Shanks began a crusade to make the
scrolls universally accessible at once. BAR’s provocative articles
portrayed the editors as excluding scholars and general public
from access to the precious documents that rightfully belong to
all. Framed in this way, the issue attracted the attention and
support of the American news media.”263
Indeed, the New York Times ran an editorial in favor of

257. DJD X, supra note 229, at viii–ix.

258. Id. at viii.
259. 1 FACSIMILE EDITION OF THE DEAD SEA SCROLLS xvi (Biblical Archaeology
Society 1991).
260. Strugnell Testimony at 112–13 (“[T]he sending of the copies fell into Qimron’s
area, and these were being sent to scholars in the States and in Israel and Germany.”).
261. See THE HIDDEN SCROLLS, supra note 190, at 82.
262. The Access Controversy, supra note 220. Shanks’s efforts to dislodge the cartel
have turned him into a fixture in books and articles about the Dead Sea Scrolls. See, e.g.,
THE COMPLETE STORY, supra note 229, at 20 (“Goaded by ongoing pressure from Hershel
Shanks, editor of the widely read Biblical Archaeology Review, this alone would probably
have speeded up the process of publication to an acceptable rate.”); John Kampen &
Moshe J. Bernstein, Introduction to READING 4QMMT, supra note 254, at 1 (calling
Shanks “one of the key . . . players in the controversy concerning access to the
unpublished material from Qumran in general and MMT in particular”); How Important
Are the Dead Sea Scrolls?, supra note 219, at 35 (“The leather-lunged cheerleader of the
outcry is Hershel Shanks . . . .”); THE HIDDEN SCROLLS, supra note 190, at 14 (“Crusading
publisher . . . hailed in the press and on television as a champion of intellectual
freedom.”); id. at 213 (calling Shanks “a force to be reckoned with”).
263. The Access Controversy, supra note 220.
2001] DEAD SEA SCROLLS 63

“breaking the scroll cartel.”264 The editorial condemned the

“clannish”265 team in charge of the scrolls for “rebuffing inquiries
from scholars who feared they would finish their careers without
seeing the most important biblical discovery of their lifetime —
and what it might reveal about the origins of Christianity and
Rabbinic Judaism.”266
On the same day, the Washington Post joined with a similar
editorial of its own.267 The editorial quoted Hershel Shanks’s
condemnation: “If you’re a graduate student at Harvard, you can
publish a Dead Sea Scroll for your dissertation. But not if you go
to Yale or Princeton or Columbia.”268
***
Despite his academic credentials, Strugnell’s main claim to
fame during this whole interval seemed to be that, in 33 years,
he “failed to produce a single volume of text.”269 But he managed
to shed that obscurity in 1990.270 While still being the Israel
Antiquities Authority’s editor-in-chief for the entire Dead Sea
Scrolls repository, Strugnell took it upon himself to grant an
interview with a leading Israeli newspaper, in which he
proclaimed himself an “anti-Judaist,” meanwhile describing
Judaism as “a horrible religion.”271
I think Judaism is a racist religion. Something very
primitive. What bothers me about Judaism is the very

264. Breaking the Scroll Cartel, N.Y. TIMES , Sept. 7, 1991, at 22L.
265. Id. (“The arrogance of team members toward scholars with whom they chose not
to share the treasure that had been entrusted to them is almost incomprehensible.”);
PLAYING DARTS WITH A REMBRANDT, supra note 228, at 160.
266. Breaking the Scroll Cartel, supra note 264. “Not only was the public deprived of
important information for a very long time, but scholars who had been denied access to
material literally spent their entire lives and died without having an opportunity to study
the documents in question.” PLAYING DARTS WITH A REMBRANDT, supra note 228, at 164.
267. The Dead Sea Printouts, WASH. POST, Sept. 7, 1991, at A20.
268. Id. The pro-Qimron editors of a later book on the subject of 4QMMT likewise
concede, “In the meantime a photocopy of the editors’ handwritten reconstruction of the text
began to circulate, so that it became known to many Qumran scholars prior to its official
publication.” Introduction in READING 4QMMT, supra note 262, at 3. Those scholars in
possession of “unofficial copies” were reluctant to publish material concerning it. Id. at 3.
269. Q UMRAN IN PERSPECTIVE, supra note 198, at xx. Strugnell blamed “a ten-year
slowdown . . . in my studies” on “the 1967 war, . . . its consequences for the work of editing
the documents that had been entrusted to the DJD X team, and . . . the most critical lack
of funds to support their study.” DJD X, supra note 229, at viii. Sometime later, Strugnell
did seem to do partial repentance. See John Strugnell, MMT: Second Thoughts on a
Forthcoming Edition, in THE COMMUNITY OF THE RENEWED COVENANT: THE NOTRE DAME
SYMPOSIUM ON THE DEAD SEA SCROLLS 56–60 (1994).
270. Strugnell had become the official general editor of the Scroll Research Group in
Israel only in 1988. Ancient Works, Modern Dilemmas, supra note 191, at 1644.
271. See “Anti-Judaist” Editor o f Dead Sea Scrolls Ousted, L.A. TIMES, Dec. 22, 1990, at
52.
64 HOUSTON LAW REVIEW [38:1

existence of Jews as a group,272 as members of the Jewish

religion . . . . When I look at details in the Halakha,
including sex, I think — that’s amusing. It’s not religion.
These people act according to what I call folklore.273
Strugnell maintained that his opinions regarding Judaism did
not affect his work on the Scrolls.274 Nonetheless, a three-member
international editorial team recommended his removal from the
project.275 About one month later, the Israel Antiquities Authority
dismissed the Harvard276 professor for “health reasons.”277
***
Both the newspaper editorials quoted above pay tribute to the
efforts of two scholars at Hebrew Union College in Cincinnati. In
particular, Ben-Zion Wacholder, Professor of Talmudic Studies, and
his graduate student, Martin Abegg,278 were able to take an old
concordance of the Dead Sea Scrolls prepared by Strugnell on index
cards279 and “reverse engineer”280 it into a semblance of the full text

272. Cf. DALE CARNEGIE, HOW TO WIN FRIENDS AND INFLUENCE PEOPLE (rev. ed.
1981).
273. See William Tuohy, Israel Fires Controversial Editor of Dead Sea Scrolls, L.A.
TIMES , Jan. 1, 1991, at A1.
274. Id. Stranger things are possible. During the entire brouhaha over liberating the
scrolls, “Strugnell took increasing delight in ridiculing Shanks and his friends.” THE
HIDDEN SCROLLS, supra note 190, at 221. On Good Morning America, he called them “a
bunch of fleas.” Id. Shanks reciprocated the feeling: “John was the chief devil. It was he
who was withholding MMT.” Hershel Shanks, Intellectual Property Law and the
Scholar—Cases I Have Known, in O N SCROLLS, ARTEFACTS AND INTELLE CTUAL PROPERTY
(Timothy H. Lim, Hector L. MacQueen, Calum M. Carmichael, eds.) (Sheffield Academic
Press forthcoming 2001). Yet today, the two are friends, a fact that the Jewish Shanks
attributes to the fact that, although an anti-Semite, Strugnell is “the consummate
gentleman.” Id.
That experience is not unique. Notwithstanding Strugnell’s infamous anti-
Semitic outburst, Shank’s lawyer—who is ordained as an Orthodox rabbi—finished his
examination with no little praise:
MR. FRIMER: Professor Strugnell, I have to say that it was truly an honor
to meet you, and to have found your testimony fascinating and informative way
beyond the legal implications of what you had to say, and I would like to once
again encourage you to publish your memoirs.
Strugnell Testimony at 124.
275. See Tuohy, supra note 273, at A1.
276. Strugnell’s sensibilities seem a throw-back to an earlier era. See John D. Lamb,
The Real Affirmative Action Babies: Legacy Preferences at Harvard and Yale, 26 COLUM.
J.L. & SOC. PROBS . 491, 494 (1993) (In 1922, Harvard University President A. Lawrence
Lowell proposed a quota to limit the number of Jews admitted each year.).
277. He was soon institutionalized for manic-depression and alcoholism, and wound
up on “indefinite sabbatical.” See THE HIDDEN SCROLLS, supra note 190, at 14, 68, 171.
278. Abegg, though collaborating with Wacholder at HUC, was then serving as a
professor of Old Testament Studies at Grace Theological Seminary; he is now at Trinity
Western University in British Columbia. On his interpretations of MMT from a Christian
perspective, refer to note 368 infra.
279. Q UMRAN IN PERSPECTIVE, supra note 198, at xvii.
2001] DEAD SEA SCROLLS 65

which had been denied to the public.281 That concordance, Strugnell

testified, was “a huge card file in which every word in the Dead Sea
Scrolls is entered separately in alphabetical order together with its
context, the word beforehand, the word afterward, sometimes
enough words to make up a sentence.”282
Thanks to the efforts of that pair,283 abetted by “Rabbi
Computer,”284 the cartel’s wall of secrecy seemed to be
crumbling.285 The New York Times, for one, applauded that turn
of affairs.
Some on the committee might be tempted to charge the
Cincinnati scholars with piracy. On the contrary,
Mr. Wacholder and Mr. Abegg are to be applauded for their
work—and for sifting through layer upon layer of
obfuscation. The committee, with its obsessive secrecy and
cloak and dagger scholarship, long ago exhausted its
credibility with scholars and laymen alike.
The two Cincinnatians seem to know what the scroll
committee forgot: that the scrolls and what they say about
the common roots of Christianity and Rabbinic Judaism
belong to civilization, not to a few sequestered professors.286
It remains only to add that the Wacholder/Abegg volume, A
Preliminary Edition of the Unpublished Dead Sea Scrolls,
emerged under the imprint of Hershel Shanks’s BAS.287 Thus did
the hermetic barrier protecting the scrolls begin to buckle.288

280. Cf. 4 NIMMER ON COPYRIGHT § 13.05[D][4].

281. The concordance cites “not merely single words but the complete clause in which
they appear.” How Important Are the Dead Sea Scrolls?, supra note 219, at 36.
282. Strugnell Testimony at 81.
283. For background, see ANNE WELLS BRANSCOMB, WHO O WNS INFORMATION?:
FROM PRIVACY TO PUBLIC ACCESS 130–32 (1994). For instance, given the state of
computer art then extant, Abegg had to enter all the Hebrew text backwards! Id. at 131.
284. See MYSTERY AND MEANING, supra note 211, at 56.
285. As Robert Alter observes, “[T]he barn door had been kicked open, and
everything that had been locked inside rapidly galloped out.” How Important Are the Dead
Sea Scrolls?, supra note 219, at 36.
286. Breaking the Scroll Cartel, supra note 264.
287. THE HIDDEN SCROLLS, supra note 190, at 236.
288. In the opinion of Vermes,
the protective dam erected around the fragments by the international team
collapsed in the autumn of 1991 under the growing pressure of public opinion,
mobilized in particular by Hershel Shanks, in the columns of the widely read
Biblical Archaeology Review (‘BAR’). The first landmark event leaning towards
full freedom was the publication in early September by BAR’s parent body, the
Biblical Archaeology Society, of seventeen Cave 4 manuscripts reconstructed
with the help of a computer by Ben Zion Wacholder and Martin Abegg . . . .
Q UMRAN IN PERSPECTIVE, supra note 198, at xx.
66 HOUSTON LAW REVIEW [38:1

***
Simultaneously, pressure from other sources caused the
walls of secrecy to come tumbling down. Some decades earlier, as
a safeguard against the Six-Day War and concomitant damage
that bombing could cause to the Scrolls, philanthropist Elizabeth
Hay Bechtel had persuaded the Israeli government to allow her
to have the scrolls photographed and the photographs safely
stored.289 Mrs. Bechtel proved so obstreperous that her own
trustees kicked her off the board of directors of her foundation.
They did not reckon on the fury of a philanthropist scorned.
She kept her own separate copy on two small spools, which
museum officials refer to informally as her “scroll in the hole.”
In 1980, she slipped them to the Huntington [Library in San
Marino, California], with a hundred G’s to build an air-
conditioned vault. When that indomitable old lady died in
1987, title to her private set passed to the library.290
The rest is history. While the Wacholder/Abegg volume was
nearing publication and Shanks’s campaign for openness had
reached its crescendo, the Huntington Library offered scholars
free access to the Bechtel set of scroll photographs.291 The Israel
Antiquities Authority, although raising strenuous objection and
threatening to sue, ultimately retreated.292
At around the same time that the Israel Antiquities
Authorities’ policy of secrecy was crumbling, Shanks published a
two-volume Facsimile Edition of the Dead Sea Scrolls consisting

289. WHO O WNS INFORMATION?, supra note 283, at 128–29. See William Safire,
Breaking the Cartel, N.Y. TIMES , Sept. 26, 1991, at A27.
290. Id.
291. “Later in the same month came the announcement by William A. Moffat that the
Huntington Library of San Marino, California, renowned research institution, would bring to
an end the 40-year-old close shop by opening its complete photographic archive with the
Qumran scrolls to all qualified scholars.” Q UMRAN IN PERSPECTIVE, supra note 198, at xxi.
292. Raiders of the Lost Scrolls, supra note 83, at 306–07.
Since the late 1980s, no controversy has been more heated than that
surrounding access to the scrolls and the movement to accelerate their publication.
The push by scholars to gain what the “Biblical Archaeology Review” characterized
as “intellectual freedom and the right to scholarly access” has had significant results.
In 1988, the administration for scroll research, the Israel Antiquities Authority,
began to expand the number of scroll assignments. By 1992, they included more than
fifty scholars. In 1991, a computer-generated version as well as a two-volume edition
of the scroll photographs were published by the Biblical Archaeology Society. Late in
the same year, the Huntington Library of California made available to all scholars
the photographic security copies of the scrolls on deposit in its vault. Closing the
circle, the Israel Antiquities Authority announced that it too would be issuing an
authorized microfiche edition, complete with detailed indices.
Two Thousand Years Later, at http://www.lcweb.loc.gov/exhibits/scrolls/today.html (last
visited Mar. 4, 2001).
2001] DEAD SEA SCROLLS 67

of 1785 photographic plates of the Dead Sea Scrolls.293 The

provenance of those photographs has never been revealed.294
The Facsimile Edition begins with a brief introduction by
Professors Robert Eisenman295 and James Robinson, followed by a
longer foreword by Shanks. Recounting at length his efforts to
break the cartel, Shanks there expresses admiration for “the
dedicated people who devoted their professional lives to arranging
and deciphering the seemingly impenetrable pieces of our common
past.”296 But Shanks’s peroration, at base, is hardly laudatory: “for
their pride and greed — their unbending determination to keep
exclusive control of these treasures for themselves, their heirs and
their students — they must bear the shame.”297
The two-volume Facsimile Edition is a weighty scholarly
tome, of interest only to the most dedicated specialists in the
field. Nonetheless, it contains 22 excerpts following the Foreword
detailing efforts by the Israel Antiquities Authority to placate,
muzzle, or deflect Shanks (along with the Huntington Library),
as well as the editorials from the Washington Post and the New
York Times quoted above.
But the Facsimile Edition also contains something else—the
120-line reconstruction of MMT, produced in ancient Hebrew
without commentary or explanation. Shanks’s own e xplanation of
his decision to reproduce that excerpt as Figure 8 deserves
quotation in full:
Eventually the cartel descended to what can only be
described as bullying.
The effort to prevent disclosure of the important text known
as MMT (miqsat ma’aseh ha-torah) is illustrative. The text
was assigned to John Strugnell for publication nearly 40 years
ago. However, he did not even disclose its existence until 1984.

293. Funding for publication of the Facsimile Edition came from the Moskowitz
Family Foundation, which is funded by Irving Moskowitz, a Florida dentist and California
land developer who has bankrolled numerous settlements in Judea. See 1 FACSIMILE
EDITION, supra note 259, at v.
294. Q UMRAN IN PERSPECTIVE, supra note 198, at xxi.
295. It was Eisenman who brought the project to Shanks. See THE HIDDEN SCROLLS,
supra note 190, at 230–34. In a 1993 interview, Eisenman refused to divulge the source,
but promised to reveal it in four or five years. Id. at 230. I called Eisenman on February
18, 2000, and asked him to finally spill the beans. Laughing, he replied that he is still
“not ready” to make that particular revelation. To get ahead of the story, I doubt that
either Eisenman or anyone else could have imagined in 1993 that the case would still be
pending before the Israel Supreme Court in 2000. But it still was, until resolved later that
year. Refer to se ction (B)(2) infra.
296. 1 FACSIMILE EDITION, supra note 259, at xii.
297. Id.
68 HOUSTON LAW REVIEW [38:1

Then, with a colleague, Strugnell proceeded to write a 500-

page commentary on this 120-line text. The commentary is
still not published and no one knows when it will be. But
Strugnell won’t release the 120-line text until the commentary
is published. He has, however, given copies of his
transcription to friends and colleagues. 298 Many of them teach
classes on it. Several have written important articles on it (as
of this writing, over 30 articles about MMT have appeared;
that is how we know of its importance). It will, we are told,
revolutionize Qumran studies. But no one outside the
charmed circle can see it.
In mid-1990 a Polish scholar named Zdzislaw J. Kapera
received an anonymous copy of Strugnell’s transcription of
MMT (Figure 8). Kapera is editor of a journal called The
Qumran Chronicle; he decided to print the transcription in his
journal. BAR announced that scholars could obtain a copy of
MMT by subscribing to The Qumran Chronicle. Kapera was
swamped with orders. But before he could fulfill them, he was
cornered by the cartel at a scholarly conference in Madrid; one
outside scholar (Philip R. Davies of Sheffield University,
England) has described what ensued in Madrid as a 20th-
century version of the Spanish Inquisition. Antiquities
director General Amir Drori then wrote Kapera a letter,
pointedly sending a copy to the president of the Polish
Academy of Sciences (Cracow Section).299 In the letter Drori
accused Kapera of “a violation of all legal, moral and ethical
conventions and an infringement on the rights and efforts of
your colleagues. I am very dismayed . . . . We are awaiting
your immediate reply prior to further action.” Kapera
promptly decided to discontinue distributing MMT and to
destroy all copies. Outsiders must still await publication of the
commentary if they want to see the text (unless they look at
Figure 8). Kapera wrote his would-be subscribers that
“unfortunately, after the Madrid congress I am no longer able
to supply people with a copy. I am very sorry because of that.”
He described his publication of MMT as “a desperate act” for
which he apologized.300

298. See Moshe J. Bernstein, The Employment and Interpretation of Scripture in

4QMMT: Preliminary Observations, in READING 4QMMT, supra note 254, at 29, 32
(recalling a time when copies of 4QMMT “circulated only in samizdat copies”). By 1990,
“the samizdat version of the manuscript fragments had come to be widely circulated
among scholars.” WHO WROTE THE DEAD SEA SCROLLS?, supra note 229, at 207. For
instance, Schiffman thanked Strugnell and Qimron “for graciously making available” to
him their “soon to be published edition and commentary of this text.” Id. at 208.
299. Kapera is a professor at Jagiellonian University in Cracow. WHO WROTE THE
DEAD SEA SCROLLS?, supra note 229, at 320.
300. 1 FACSIMILE EDITION, supra note 259, at xv–xvi.
2001] DEAD SEA SCROLLS 69

B. Qimron v. Shanks

1. The Cases
The next chapter unfolded in the courts of law. Qimron fired
the first salvo, by filing suit. As defendants, he targeted not only
Shanks, but everyone else associated with the Facsimile Edition,
including BAS, Eisenman and Robinson.301 Qimron filed in the
Jerusalem district court. But the gravamen of his claim was for
violation of U.S. copyright law,302 notwithstanding the Israeli
forum.303 In fact, copies of the book were not sold in Israel.304
Shanks responded by filing his own declaratory relief
lawsuit in the Eastern District of Pennsylvania against Qimron,
who was then serving as scholar-in-residence at the Annenberg
Research Institute in Philadelphia.305 The judge refused to
dismiss that suit on the ground of forum non conveniens.306
More litigation ensued in that district. Qimron retained
Philadelphia counsel to send a demand to Wacholder:
It has come to our attention that you might be in possession of
Professor Qimron’s composite text of MMT. Moreover, we have
been informed that you might be using portions of Professor
Qimron’s reconstruction in a publication planned by you and
Professor Abegg. [¶ ] On behalf of Professor Qimron, please
accept this letter as notification that any use of Professor
Qimron’s reconstructed text is a violation of his copyright and

301. Professors Robert Eisenman and James Robinson wrote the brief introduction to
the Facsimile Edition. To get ahead of the story, in order to dispose of the claim against
them, Judge Dorner essentially held them liable because their names appear on the
book’s title page. But, in addition, she evidently construed the trial testimony as
establishing that the pair knew of and approved MMT’s inclusion in the Facsimile
Edition. Trial Opin., supra note 195, at 34.
302. Notwithstanding an allegation of infringement under Israeli law as well,
Complaint filed by Plaintiff on January 14, 1992, Civil Case No. 41/92, para. 13, Judge
Dorner did not find evidence of infringement in Israel. See Trial Opin., supra note 195,
at 21, § 19 (“All agree that the suit is governed by the law of the place of infringement,
that is, the laws of the USA.”).
303. This case therefore represents the Israeli analogue to London Film Productions
Ltd. v. Intercontinental Communications Inc., 580 F. Supp. 47 (S.D.N.Y. 1984), in which
the court exercised jurisdiction to adjudicate claims of violation of Chilean copyright
through performances undertaken in Chile. See David Nimmer, An Odyssey Through
Copyright’s Vicarious D efenses, 73 N.Y.U. L. REV . 162, 164 (1998). The present study does
not tackle the interesting issues of international comity and choice of law that thereby
arise. Refer to note 419 infra.
304. Biblical Archaeology Soc’y v. Qimron, Copyright L. Dec. (CCH) ¶ 27,065 (E.D.
Pa. Feb. 10, 1993).
305. Id.
306. Id.
70 HOUSTON LAW REVIEW [38:1

Professor Qimron will take all steps available to him under

both American and Israeli law to protect that copyright. 307
Wacholder and Abegg responded by filing their own suit for
declaratory relief against Qimron, before the same judge in the
Eastern District of Pennsylvania.308
The results of the two pieces of Philadelphia litigation
proved inconclusive. Shanks could not use the Pennsylvania
action to forestall responding to the Israeli case;309 he therefore
dropped his own prosecution to focus his attention on preparing
his Jerusalem defense. Wacholder and Abegg soon tired of the
litigation process and similarly dropped their case.310

2. The District Court Opinion

Qimron filed his suit against Shanks on January 14, 1992.311
A more colorful cast of characters would be hard for any novelist
to conjure up. Qimron retained Isaac Molcho, whose spirit of
accommodation can be gauged by the fact that Binyamin
Netanyahu later appointed him as chief negotiator with the
Palestinians.312 Shanks retained Dov Frimer, an American-born
lawyer who is also an ordained rabbi.313 Meanwhile, Amos
Hausner (son of famed Adolf Eichmann-prosecutor Gideon
Hausner) represented Eisenman.

307. Letter dated Feb. 16, 1993, from Zachary L. Grayson of Wolf, Block, Schorr and
Solis-Cohen to B.Z. Wacholder, attached as Exhibit 1 to Complaint in Case No. 93-CV-
4097 (filed July 29, 1993) (on file with the Houston Law Review).
308. Id. My name appears on the pleadings as an advisor to Wacholder and Abegg. I
served in that role without compensation.
309. Shanks attempted to cancel the Jerusalem District Court order given ex parte
on January 21, 1992, Motion 139/92, granting permission for service of the Complaint
outside of Israel, in accordance with Israeli civil procedure rules. Motion 238/92. The
motion was denied and Shanks appealed. In the end, the appeal was withdrawn. See Trial
Opin., supra note 195, at 19, § 15.
310. See Offer of Judgment, filed Sept. 2, 1993. According to Shanks, the pair
“withdrew their lawsuit because they became confident that Qimron would not sue them.”
Intellectual Property Law and the Scholar, supra note 274.
311. Authors’ Moral Rights in Non-European Nations, supra note 191, at 568.
312. During Strugnell’s testimony, Shanks was amused by the tales of the eminent
Harvard professor as a young pup at Cambridge University. The following colloquy
ensued:
MR. MOLCHO: I ask you please, do not laugh when I cross-examine, it
disturbs me very much.
MR. SHANKS: I’m sorry if it disturbs you. If something’s funny, it’s hard
not to laugh.
Strugnell Testimony at 146.
313. See Aryeh A Frimer & Dov I. Frimer, Women’s Prayer Services—Theory and
Practice, TRADITION, Winter 1998, at 5, 5.
2001] DEAD SEA SCROLLS 71

The case went to trial before Judge Dalia Dorner on

February 1, and 2, 1993.314 Judge Dorner held that American
copyright law should be applied in this case, as the alleged
infringement took place in the U.S.315 However, in light of the
fact that the American law had not been proved to her
satisfaction,316 in order to determine its contours, she invoked the
“presumption of identity of laws”317 and consulted Israeli
copyright law.318 After dealing with the normative framework of
the case, Judge Dorner proceeded to discuss the substance of
Israeli copyright law, beginning with the originality standard
and its application to reconstructed texts.
As more fully set forth below, Judge Dorner cited as
examples of Qimron’s creativity (1) the fact that he read a given
word with the letter ayin instead of the letter aleph, so that it
referred to leather hides rather than to lights; and (2) that he put
some fragments together widthwise rather than, as Strugnell
had urged, lengthwise.319 In her ruling, the judge credited
Qimron’s claims that he had spent eleven years working on
reconstruction of the MMT manuscript.320 She accepted his
crestfallen conclusion that publication of the Facsimile Edition
meant that Qimron’s “dream to be the first editor of the scroll
vanished.”321 “Judge Dorner determined that Qimron’s loss of ‘his
right of priority in publishing’ the MMT text had caused him
tremendous ‘economic damage and moral distress.’”322 As a

314. Authors’ Moral Rights in Non-European Nations, supra note 191, at 568.
Subsequently, Judge Dorner was elevated to the Supreme Court. Id. n.165. Because that
body hears cases in panels instead of en banc, she played no overt role on the appeal. One
should avoid the suspicion that her fellow Supreme Court jurists subconsciously
considered the author of the decision below when deliberating the case—in the celebrated
case against accused Nazi war criminal Ivan Demjanjuk, the Supreme Court reversed the
conviction, despite then-District Judge Dorner’s vote to sentence him to death.
315. Not all commentators have been sensitive to the distinction. See Ancient Works,
Modern Dilemmas, supra note 191, at 1647 n.83.
316. It was open to defendants to prove that the content of U.S. copyright law
differed from applicable Israeli law. Evidently, Judge Dorner considered their evidence in
that regard deficient. Authors’ Moral Rights in Non-European Nations, supra note 191,
at 574.
317. Nonetheless, the discussion below focuses on U.S. copyright law and
investigates its balance between competing interests in this sphere.
318. Once she made the decision to apply the presumption, Judge Dorner tried the
case as if it were a purely local, Israeli matter, with no foreign elements or laws involved.
See Trial Opin., supra note 195, at 22, end of § 20.
319. Refer to Chapter VIII, section (A)(1) infra (discussing Trial Opin., supra note
195, at 24).
320. Ancient Works, Modern Dilemmas, supra note 191, at 1646.
321. Id. at 1647.
322. Id. at 1648.
72 HOUSTON LAW REVIEW [38:1

result,323 she awarded statutory damages of 20,000 New Israeli

Shekels (NIS), damages for mental distress in the amount of
80,000 NIS, and attorney’s fees in the amount of 50,000 NIS.324
“This was the largest amount ever awarded for mental distress
and costs in a copyright case in an Israeli court.”325

3. The Supreme Court Opinion

The case was presented on appeal to the Supreme Court of
Israel in March 1998. I happened to be resident in Israel during
1998–99. Israeli counsel filed a petition with the Supreme Court
on my behalf, seeking to have me appear as amicus curiae.326 The
application was, to our knowledge, unprecedented,327 inasmuch
as that Court does not allow individuals not admitted to the
Israeli bar to appear before it. Nonetheless, given that Judge
Dorner in some sense treated the case as one arising under Title
17 of the United States Code,328 we hoped to break new ground
here.329
Nonetheless, the Supreme Court denied my request after it
had been pending for some twenty months.330 It stated at the
time that the reasons for denial would be included in the Court’s
resolution of the appeal itself.

323. In a bit of result-oriented logic, Judge Dorner noted that Shanks was an
attorney, that he knew that the Israel Antiquities Authority had blocked the attempted
Polish publication of MMT, that he should have been aware of the copyright implications
of his actions, and, therefore, that his activities were not undertaken in “good faith.” See
Trial Opin., supra note 195, at 29, § 35. By the same token, she concluded that Shanks
exhibited a blatant disregard for Qimron’s “rights” in his zeal to “free the scrolls” and that
therefore a large award against him was indicated. Id. at 39, § 51. The flaw in that logic is
that, even with all that knowledge, Shanks could have concluded in good faith that his
action in publishing the reconstructed manuscript violated no copyright belonging to
Qimron or anyone else. Indeed, such is the considered conclusion herein.
324. Authors’ Moral Rights in Non-European Nations, supra note 191, at 568. The
exchange rate at the time was approximately 3 NIS to the dollar.
325. Id. That statement, albeit true, may have little more substance than referring to
“the largest copyright award in the history of South Dakota.” See Dakotah, Inc. v.
Tomelleri, 21 F. Supp. 2d 1066, 1072 (D.S.D. 1998) (“There are few, if any, lawyers
practicing in South Dakota with any significant experience in intellectual property law.”).
326. See Abraham Rabinovich, The Case of the 2,000-Year-Old Copyright,
JERUSALEM POST, Mar. 20, 1998, at 16. That petition had been filed on December 10,
1997, in the name of the “Committee of Concerned Intellectual Property Educators.”
Counsel represented me without compensation.
327. The motion to file an amicus brief mentions references by the Israeli courts to
the procedure of amicus curiae briefs and even obiter dicta by justices regarding their
authority to accept such briefs, such as A.B v. A.B, 3 P.M. 263, at 287.
328. Refer to note 302 supra.
329. Making further disclosure, I received no compensation in connection with this
matter.
330. Order dated August 24, 1999.
2001] DEAD SEA SCROLLS 73

That day arrived on August 30, 2000. Some seven years after
trial, a panel of the Supreme Court, sitting as the Court of Appeals
for Civil Matters, affirmed the opinion below.331 In doing so, Justice
Türkel’s opinion332 took the case on several interesting turns. First,
the Court’s opinion begins by disclaiming a desire to draw principles
on a large canvass: “A decision on the issue before us is based on the
specific circumstances of the case, rather than general
principles.”333 Accordingly, the self-conscious intent appears to limit
the force of the Court’s pronouncement, rather than establishing it
as the general scheme to govern copyright in scholarly works, or
even in archaeological reconstructions.
Second, although the Supreme Court begins by quoting Judge
Dorner’s finding that “everyone agrees that the law of the place of
infringement applies to the complaint, in other words the laws of
the United States,”334 it nonetheless takes the case out of its U.S.
framework and introduces a new governing law into the mix:
I am unable to accept the Appellants’ argument and I agree
with Qimron’s claim that Israeli law applies to this matter
without resorting to the presumption of the equality of laws.
In this matter he relies upon the fact that copies of the Book
were sent to readers in Israel and on the fact that a portion of
the marketing efforts of the Book were done in Israel. In fact,
from Shanks’ testimony (pp. 271–272 of the Protocol) and the
order forms that were submitted as evidence it appears that
three copies of the Book were sent by BAS to readers in Israel.
These copies were, it is true, ordered in the United States, and
the consideration for them was paid there, but the fact that
BAS sent them directly to readers in Israel is enough to find
that it publicized the Deciphered Text in Israel. Since
Qimron’s cause of action is based upon the fact that his right
to be the first to publish the Deciphered Text was denied, the
copies distributed in Israel until the issuance of the injunction
that brought about the cessation of the distribution — even if
they were few — are sufficient for the application of Israeli
law to this matter.335
Given that determination, the rationale for my petition
evaporated—though I might have something useful to tell an

331. Eisenman v. Qimron, C.A. 2790/93, 2811/93, 54(3) P.D. 817 [hereinafter “App.
Opin.”] There is no official English translation of the opinion.
332. The panel consisted of Associate Justices Ya’akov Türkel and Dorit Beinisch and
Chief Justice Aharon Barak. The latter two simply appended “I agree” to the former’s
opinion. Id. following para. 36.
333. Id. at para. 14.
334. Id. at para. 8.
335. Id. at para. 8.
74 HOUSTON LAW REVIEW [38:1

Israeli court about Title 17 of the United States Code, I certainly

cannot offer unique assistance about application of Israeli
copyright law. In any event, citing both procedural 336 and
substantive bases, including the expansive briefing already
furnished by the parties,337 the Court denied my amicus
application.338
In one other respect, however, Justice Türkel broke no new
ground—the sole concrete exemplars of Qimron’s creativity that
he cites are the same two that figure in Judge Dorner’s
opinion,339 viz. the horizontal vs. vertical joins and the aleph vs.
ayin.340
In sum, the Court affirmed the full award of damages and
other recovery against Shanks. Not only that—it added an
additional award of 60,000 NIS in attorney’s fees to Qimron,341 and
granted Qimron’s cross-appeal by entering relief that Judge Dorner
had not ordered: a “return order”342 instructing the defendants “to
deliver to Qimron all copies of the Book in which the Deciphered
Text is included and all printing blocks and stencils in their hands
used, or intended to be used, for the creation of copies.”343

C. The Larger Picture

What has happened since the Israel Antiquities Authority lost
its stranglehold on scroll publication in 1991? Has the market been
“inundated with third- and fourth- and fifth-rate productions,” as

336. Although I did submit a notarized power of attorney to the Court, it evidently
was not enough. For the opinion comments that Petitioner, Committee of Concerned
Intellectual Property Educators, “did not support its petition with an affidavit. As a result
of this the existence of the Petitioner and its nature were not proven. Likewise it was not
proven that Mr. David Nimmer is authorized to represent the Petitioner.” Id. at para. 34.
337. “It should be further said that the attorneys for the litigants spread a wide list
of arguments before us and it seems that the submission of additional briefs by the
Petitioner would not be able to contribute to the decision.” Id. at para. 34.
338. Notably missing from the Court’s rationale was the obvious proposition that,
although I offered to address U.S. law, which all parties at the time conceded to govern,
the Supreme Court took the case outside that body of law, and hence outside my
competence. Hausner (Eisenman’s counsel) told me that as soon as the Court declined to
hear from me in August 1999, he knew that affirmance was a foregone conclusion.
339. Refer to section (B)(2) supra.
340. App. Opin., supra note 331, at para. 14.
341. Id. at para. 36.
342. Id. at para. 29. This relief stems from Section 7 of the Copyright Act, 1911 from
the United Kingdom, which was applicable in Israel from the period of the British
Mandate. See E.P. SKONE JAMES ET AL., COPINGER AND SKONE JAMES ON COPYRIGHT 1139
(13th ed. 1991). In U.S. terminology, the parallel terms would be impoundment and
forfeiture. See NIMMER ON COPYRIGHT §§ 14.07–14.08.
343. App. Opin., supra note 331, at para. 36.
2001] DEAD SEA SCROLLS 75

one insider predicted at the time?344 To the contrary. Oxford’s Geza

Vermes affirms, “This new policy has had an essentially beneficial
effect on Qumran studies. Since vested interests are no longer
protected, the rate of publication has noticeably accelerated and
learned periodicals are flooded with short papers by scholars
claiming fresh discoveries. Free competition is likely to expedite the
official edition itself. . . . Scholarship and the general public are the
beneficiaries of the new era of liberty. Only the selfish and the
procrastinators stand to lose.”345 Vermes himself exemplifies the
phenomenon that he cites: Given the 1991 “revolution,”346 with its
“consequent ‘liberation’ of the previously inaccessible material”
Vermes had to compile another substantial revision of his
perennially popular work bringing the scrolls in translation to the
English-speaking world.347 NYU’s Schiffman adds, “The publication
of the Scrolls has been a complete success . . . scholarship is at a
level never seen before.”348

1. Qimron v. Shanks in Context

Regardless of how the various court in fact ruled, Shanks
would appear to be the winner in the grand sense.349 His attack
on the cartel has succeeded. By 1992—the year after the
Huntington Library granted access to the photographs to
interested scholars and Shanks published both the Facsimile
Edition and the Wacholder/Abegg reverse engineered text—the
Israel Antiquities Authority finally capitulated.350 Initially, “the
IAA granted access to their scroll photographs to interested
scholars.”351 By the next year, the IAA, through the
instrumentality of a Dutch publisher, issued an authorized
complete edition of the photographs on microfiche.352 Almost
immediately, Oxford opened up its previously restricted scroll

344. WHO WROTE THE DEAD SEA SCROLLS?, supra note 229, at 229–30 (quoting
Magen Broshi).
345. Q UMRAN IN PERSPECTIVE, supra note 198, at xxi.
346. Id. at ix.
347. Id.
348. PLAYING DARTS WITH A REMBRANDT, supra note 228, at 164.
349. Although the case was fought “meanly and bitterly”—even to the extent of
barring Shanks from leaving the country until posting a bond equal to the judgment,
Intellectual Property Law and the Scholar, supra note 274; MYSTERY AND MEANING, supra
note 211, at 60—the litigation as a whole was always part of a larger battle. See THE
HIDDEN SCROLLS, supra note 190, at 246–53.
350. The Access Controversy, supra note 220; Q UMRAN IN PERSPECTIVE, supra note
198, at xxi.
351. The Access Controversy, supra note 220.
352. Id.
76 HOUSTON LAW REVIEW [38:1

photographic archives to all competent research scholars.353

“Of course, far from clearing up mysteries attendant to the
Scrolls, their authors, and their meaning, contention in those
realms has only proliferated.”354 One does not need to look far
in Dead Sea Scrolls studies to discover that contention.355 For
instance, Magen Broshi,356 then serving as director of the
Shrine of the Book,357 declared in an interview that Norman
Golb, a professor at the University of Chicago’s Oriental
Institute and author of numerous Dead Sea Scroll
commentaries, is “‘a revolting argumentalist, a polemist, an
opinionated trouble-maker [who had] filled the world with his
filth . . . . When will we be free of [him]? When he dies.’”358
When Eisenman, a professor at California State University,
Long Beach,359 previously complained about exclusion from the
Scrolls and asked when he would get access to them, Broshi
reportedly responded, “You will not see these things in your
lifetime.”360 And so it goes.361 Not even the Supreme Court’s
ultimate resolution of the case could end the invective.362

353. Q UMRAN IN PERSPECTIVE, supra note 198, at xxi.

354. Id.
355. For a catalogue of invective bandied among Dead Sea Scrolls scholars, see
PLAYING DARTS WITH A REMBRANDT, supra note 228, at 161 (quoting Magen Broshi
describing “non-scroll-team scholars who wanted access to the material as ‘slime,’ ‘fleas,’
‘gang-snatchers,’ and ‘manure’”).
356. Strugnell describes Broshi as “pragmatic, he was the man who was going to find
money, photography and things like that.” Strugnell Testimony at 63.
357. Note that that institution, which houses the scrolls purchased by the nascent
country on the very day of its founding, figures prominently in the “secular religion” of the
rebirth of the State of Israel. See THE HIDDEN SCROLLS, supra note 190, at 43, (“as much
political symbol as Rome’s Colosseum or Philadelphia’s Liberty Bell”). For dark
ruminations on the Shrine of the Book, see id. at 52, 160. For even darker ruminations on
it, see Our Homeland, the Text, in NO PASSION SPENT, supra note 212, at 304, 326–27.
358. WHO WROTE THE DEAD SEA SCROLLS?, supra note 229, at 230. Cf. HOW TO WIN
FRIENDS, supra note 272.
359. It is not only Broshi who has stiff-armed Eisenman. One outsider notes that in
scholarly circles, “bringing up [Eisenman’s] name without the requisite disavowal was
usually regarded as . . . a symptom of emotional distress.” THE HIDDEN SCROLLS, supra
note 190, at 21. Yet after canvassing the literature, that outsider largely adopts
Eisenman’s interpretation, and presents it in convincing fashion. See id.
360. MICHAEL BAIGENT & RICHARD LEIGH, THE DEAD SEA SCROLLS DECEPTION 77
(1991). The comment was also directed at Prof. Philip Davies of Sheffield University. Id.
at 76–77. Note that Eisenman was, of course, a co-defendant in Qimron v. Shanks. Broshi
testified in favor of the plaintiff, Golb for the defendants. See THE HIDDEN SCROLLS, supra
note 190, at 246.
361. I myself met Broshi once at the UCLA Faculty Center. When I told him that I
was providing occasional pro bono advice to the defense team in Jerusalem, he had one
sentence for me: “You should be ashamed from yourself!”
362. Commenting on the appellate resolution, Eisenman concluded that “After the
way we were treated, young scholars now will not stand against the establishment.” Ron
2001] DEAD SEA SCROLLS 77

At the time that the Jerusalem district court ruled, Qimron’s

long-secret manuscript commenting on MMT remained
unpublished. In the interim, it has finally seen the light of day.
Qimron and Strugnell have published their commentary as volume
10 in Oxford’s series on Discoveries in the Judean Desert.363 This
1994 publication of DJD X by the Clarendon Press contains 235
oversize pages. Its copyright notice is in Qimron’s name alone, with
no mention of Strugnell, but “without derogating from any rights
vested in the Israel Antiquities Authority with regard to the Scrolls’
fragments.”364

2. The Released Scrolls in Context

The publication of DJD X has produced an efflorescence of
MMT studies. In fact, it has led not only to a wealth of articles
but a full-length book: Reading 4QMMT.365 In that book, eight
scholars—Elisha Qimron among them—share their
perspectives on how MMT sheds light on the Old Testament,
the New Testament, Rabbinic tradition, the Hasmonean
period, and the remainder of the Dead Sea Scrolls. From the
“scholarly hullabaloo which accompanied both its
nonpublication and its subsequent release to the public,” the
editors rank 4QMMT as “one of the most significant documents
to be reconstructed from the thousands of fragments found in

Kampeas, In Latest Dead Sea Scroll Battle, Scholar’s Copyright is Upheld, Aug. 1, 2000,
available at 2000 WL 24508410. The Israel Antiquities Authority “dismissed the claim as
‘outrageous’ and not worthy of further comment.” Id. Even after winning before the
Supreme Court, Qimron continued to label Shanks’s use of his work “theft,” and went on
to proclaim, “This is a gang of international thieves who decided that the easiest way to
wage a political struggle is through publishing the works of others.” Moshe Reinfeld,
Scholar Wins Battle Over Dead Sea Scrolls, HA’ARETZ, Aug. 31, 2000, at
http//:www.3haaretz.co.il/eng/scripts/print.asp?id=91222. Only Shanks took the high road:
He said that “he ‘respectfully’ disagreed with the decision but would abide by it.”
Kampeas, supra.
363. Early works in the series are entitled Discoveries in the Judean Desert of
Jordan. The only clearcut change made by virtue of the transfer to Israeli control was to
eliminate the indication as to geographical origin. See THE HIDDEN SCROLLS, supra note
190, at 155.
364. DJD X, supra note 229, at iv. After Qimron’s trial victory, Shanks
audaciously asked Oxford University Press for reprint permission for Biblical
Archeological Review. Oxford assented. Qimron’s lawyer thereupon complained to
Oxford about its unethical conduct. See Hershel Shanks, When Scholars Call in the
Lawyers, BAR, Sept./Oct. 1999, at 71. Qimron’s lawyers have subsequently
complained to the organizers of scholarly conferences about the scrolls and the case.
Id.
365. READING 4QMMT, supra note 254. “The impetus for this collection of essays was
the long-awaited appearance of the official edition of 4QMMT by Elisha Qimron and John
Strugnell.” Id. at xi.
78 HOUSTON LAW REVIEW [38:1

Cave 4 at Qumran.”366 To cite but one example, Martin Abegg,

the Christian scholar who co-produced the early reverse
engineered text that Shanks published,367 maintains that
“MMT . . . provides the ‘smoking gun’ for which students have
been searching for generations.”368
One of the contributors to that volume comments, “Scholarship
is just beginning to scratch the surface of this fragmentary
document.”369 Another, characterizing MMT as one of the most
fascinating documents of the Second Temple Period, comments that
“now that it has escaped the custody of both caring fathers [Qimron
and Strugnell, it] will keep us very busy for a long, long time.”370 A
bibliography of scholarly books, articles, and monograms dedicated
to 4QMMT contains well over 100 entries.371
***
Before winding up the tale, it is worthwhile to close on the
impact of the Dead Sea Scrolls in general.372 They have been
cited as the key to our understanding of Judaism,373

366. Introduction to READING 4QMMT, supra note 262, at 1.

367. Refer to note 288 supra.
368. Martin Abegg, Paul, “Works of the Law” and MMT, BAR, Nov.–Dec. 1994, at 52, 55.
369. The Employment and Interpretation of Scripture in 4QMMT , supra note 298,
at 50.
370. Florentino García Martínez, 4QMMT in a Qumran Context, in READING
4QMMT, supra note 254, at 15, 27.
371. READING 4QMMT, supra note 254, at 145–56. Without too much exaggeration, MMT
seems to function as something of a modern Rorschach test reflected back onto the beginnings
of Judeo-Christian civilization. Talmudists see in it echoes to Rabbinic Judaism, Christians to
the Pauline Letters and to the Sermon on the Mount, Mormons to Joseph Smith’s revelations,
etc. See generally id.
372. Ownership of the Dead Sea Scrolls even has the potential for creating a snag in
the Middle East peace talks. David Briggs, Ancient Artifacts Haunt Modern Peace Talks:
Israel, Palestinians Vie for Treasures, HOUS . POST, Mar. 19, 1994, at E4. Indeed, one soon
enters a morass by inquiring into ownership of the original antiquities, discovered in
British mandatory territory, later annexed by Trans-Jordan, and now under Israeli
control. See Wojciech Kowalski, Legal Aspects of Recent History of the Qumran Scrolls:
Access, Ownership, Title and Copyright, in O N SCROLLS, ARTEFACTS AND INTELLECTUAL
PROPERTY, supra note 274.
373. The Dead Sea Scrolls include a range of contemporary documents that
serve as a window on a turbulent and critical period in the history of Judaism. In
addition to the three groups identified by Josephus (Pharisees, Sadducees, and
Essenes), Judaism was further divided into numerous religious sects and
political parties. With the destruction of the Temple and the commonwealth in
70 C.E., all that came to an end. Only the Judaism of the Pharisees — Rabbinic
Judaism — survived. Reflected in Qumran literature is a Judaism in transition:
moving from the religion of Israel as described in the Bible to the Judaism of the
rabbis as expounded in the Mishnah (a third-century compilation of Jewish laws
and customs which forms the basis of modern Jewish practice).
JUDAISM AND CHRISTIANITY AND THE DEAD SEA SCROLLS, in SCROLLS FROM THE DEAD SEA:
THE ANCIENT LIBRARY OF Q IMRON AND MODERN SCHOLARSHIP, at http://lcweb.loc.gov/
2001] DEAD SEA SCROLLS 79

Christianity,374 esoteric, and other375 phenomena.376 No one

concerned with the fields of Jewish studies or New Testament
research “can now traverse safely the paths of the inter-
Testamental world without being well acquainted with the Dead
Sea Scrolls.”377 Books about the Dead Sea Scrolls abound.378

exhibits/scrolls/juda.html.
374. The Dead Sea Scrolls, which date back to the events described in the New
Testament, have added to our understanding of the Jewish background of
Christianity. Scholars have pointed to similarities between beliefs and practices
outlined in the Qumran literature and those of early Christians. These parallels
include comparable rituals of baptism, communal meals, and property.
Id. In one case, pretrial detainees at the Brooklyn House of Detention for Men challenged
the lack of due process in assigning them to “administrative segregation.” Wilson v.
Beame, 380 F. Supp. 1232, 1238–42 (E.D.N.Y. 1974). Judge Weinstein engaged in an
extensive review to determine whether depriving inmates of the ability to participate in
communal religious services abridged the free exercise of their religious rights. In that
context, he investigated Judaism, Christianity, and Islam—“the three major Western
faiths whose adherents constitute almost all the faithful at the” subject institution. Id. at
1239. Interestingly, his analysis treats the Dead Sea Scrolls as part of the Christian
tradition, rather than under the Jewish rubric. Id. at 1240.
375. Harold Bloom characterizes Mormonism as the religion of the Western United
States. See HAROLD BLOOM , THE AMERICAN RELIGION 85–87 (1992). Regardless of
whether it should be categorized with Christianity or separately, it too derives
nourishment from the Dead Sea Scrolls.
It should hardly be surprising to Latter-day Saints that previously
unknown ancient texts, long buried in the ground, were discovered at Qumran in
the middle part of the twentieth century. Joseph Smith’s experience gave us a
pattern of how new things might come forth from the ground, preserved from a
previous age (see Joseph Smith—History 1:51–2). Restoration scripture not only
speaks of God sending forth truth (the Book of Mormon) out of the earth (see
Moses 7:62), but it has primed us to expect additional ancient records—both
biblical and nonbiblical—“springing from the ground,” to quote Psalms 85:11.
New Documents from the Earth, at http://www.kbyu.byu.edu/deadsea/book/chapter1/
sec1.html (last visited Dec. 21, 2000).
376. It has shown up in some fairly unexpected quarters, as well.
Bumgardner and Donna Clifton, the victim, met at Wright State University
where he was an instructor and she was a student, and they began dating. By
several accounts, Bumgardner began to behave bizarrely in the fall of 1993. He
slept very little but was always energized. He had paranoid thoughts related to
the Vatican and the importance of the Dead Sea Scrolls in solving the world’s
problems, and he discussed his plan to receive martial arts training to effectuate
a rescue of the Dead Sea Scrolls and thereby solve these problems. Bumgardner
also had strong paranoid thoughts focused on law enforcement personnel. He
believed that he was being followed, that his phones and vehicles had been
bugged, and that he and Clifton were in danger.
State v. Bumgardner, No. 97 CA 103, 1998 Ohio Ct. App. LEXIS 3856, at *2 (Aug. 21,
1998).
377. Q UMRAN IN PERSPECTIVE, supra note 198, at xi.
378. When word spread that I had taken an interest in these issues, five of the authors
whose works are cited in this chapter made contact with me. An interesting disconnect
developed: My interest was from the copyright angle to vindicate questions of authorship and
ownership. My interlocutors, on the other hand, were interested in pursuing their own
scholarly agendas (e.g., forcing a public museum to alter its putatively erroneous displays in a
80 HOUSTON LAW REVIEW [38:1

Among the wide variety of theses379 they advance are the

following:
??Qumran represented an Essene splinter group battling
six wicked priests. 380
??Qumran represented a bastion of zealots. 381
??The Qumran cache simply represents a library
transplanted from Jerusalem for safekeeping; Qumran
is totally unrelated to the Essenes. 382
??The Dead Sea Scrolls prove that a hallucinogenic mushroom
lies at the foundation of the Christian church.383
??The Teacher of Righteousness is John the Baptist,
whereas Jesus fathered four children, divorced,
remarried, and is cast in a role of the Wicked Priest. 384
??Jesus’ brother, James, was TR, whereas Paul was the
Wicked Priest; Jesus himself, meanwhile, was shuffled
off into the Roman Empire’s precursor to today’s
“witness protection program.”385

Dead Sea Scrolls exhibition). As a result, nothing substantive eventuated.

379. For those of us in the legal profession, the image arises of “the dry rustle of the
Dead Sea scrolls.” William Van Alstyne, Notes on a Bicentennial Constitution: Part II,
Antinomial Choices and the Role of the Supreme Court, 72 IOWA L. REV . 1281, 1298 n.45
(1987). But to those initiated in Scroll studies, the image is more akin to the hot breath of
animated debate. Refer to section (C)(1) supra.
380. F. Garcia Martinez & A. S. van der Woude, A “Groningen” Hypothesis of
Qumran Origins and Early History, REVUE DE Q UMRÂN 521, 538–41 (1989–1990), cited in
THE DEAD SEA SCROLLS IN ENGLISH, supra note 192, at xxix–xx. Though the consensus of
opinion identifies Qumran with the Essenes described by the writers of antiquity, debate
rages endlessly. See Abraham Rabinovich, Dead Sea Scrolls’ Authorship Debated, WASH.
TIMES , Jan. 30, 1998, at A15 (arguing that the new discovery of the Essene site at Ein
Gedi, matching the Latin description by Pliny the Elder, knocks Qumran out as the place
he was describing).
381. G. R. DRIVER, THE JUDEAN SCROLLS: THE PROBLEM AND A SOLUTION 587 (1965);
CECIL ROTH, THE DEAD SEA SCROLLS: A NEW HISTORICAL APPROACH xiv–xv (W.W. Norton
& Co. 1965) (1958).
382. Norman Golb, The Problem of Origin and Identification of the Dead Sea Scrolls,
PROC. AM . PHIL. SOC’Y, Feb. 1980, at 1, 1, 11.
383. JOHN M. ALLEGRO, THE SACRED MUSHROOM AND THE CROSS (1970). Basically,
Allegro “destroyed his academic credibility with the publication of [t]his infamous book.”
THE COMPLETE STORY, supra note 229, at 181. He was not the last scholar in this field to
commit “scholarly suicide.” THE HIDDEN SCROLLS, supra note 190, at 227. Refer to note
277 supra.
384. BARBARA THIERING, JESUS THE MAN: A NEW INTERPRETATION FROM THE DEAD
SEA SCROLLS (1992); BARBARA THIERING, JESUS AND THE RIDDLE OF THE DEAD SEA
SCROLLS 19, 146, 148 (1992).
385. THE DEAD SEA SCROLLS DECEPTION, supra note 360. That thesis, remarkable
though it might seem on the surface, is positively tame compared to the same authors’
tracing of a 2000-year-old conspiracy underlying most of western history. See MICHAEL
2001] DEAD SEA SCROLLS 81

??The theory espoused by the previous book is utter

bunk.386
??Qumran was an apocalyptic community awaiting the end
of days, in the spirit of Daniel, Enoch, and Crypto-
Zoroastrian influences. 387
??The sectarians at Qumran were political revolutionaries,
giving vent to “the rage-filled voice calling for resistance
to the innovations and to the influence of the Great
Satan from the West.”388
??Perhaps most shocking of all: 389 the Dead Sea Scrolls
contain no deathless message to the modern age.390
One publishing house, aiming to offer fresh insights into “the
importance of the scrolls for emerging forms of Judaism and for
nascent Christianity,”391 has launched a six-volume series as an
outgrowth of the revelation of the unpublished manuscripts in
1991.392 An exhibition at the Library of Congress in 1993 noted
that the Dead Sea Scrolls have been translated into scores of

BAIGENT, RICHARD LEIGH & HENRY LINCOLN, HOLY BLOOD, HOLY G RAIL (1982), cited in
David Nimmer, Time and Space, 38 IDEA 501, 503 n.9 (1998).
386. K LAUS BERGER, THE TRUTH UNDER LOCK AND K EY? JESUS AND THE DEAD SEA
SCROLLS (James S. Currie trans., 1995) (1993). Berger is particularly unamused by
Baigent and Leigh’s anti-Vatican rantings and their conclusion that the Scrolls are “the
spiritual and religious equivalent of dynamite — something that might just conceivably
demolish the entire edifice of Christian teaching and belief.” Id. at 43. For more
debunking of Baigent and Leigh, see THE COMPLETE STORY, supra note 229, at 167–70.
Though it may be bunk as history, the Baigent and Leigh book was a rollicking good read,
at least in this observer’s estimation. (Note, however, that I do not claim any copyright in
the book by virtue of having read it.) Refer to Case 10 (The Reader) supra.
387. JOHN J. COLLINS , APOCALYPTICISM IN THE DEAD SEA SCROLLS 29, 41, 61 (1997).
In this capacity, 4QMMT plays a significant role as it is the only text from the Qumran
corpus to explicitly state that the End of Days has already begun. Id. at 61.
388. THE HIDDEN SCROLLS, supra note 190, at 4. See generally THE DEAD SEA
SCROLLS UNCOVERED, supra note 229.
389. As to the theory that the Dead Sea Scrolls emanate from “bulb headed”
extraterrestrials in UFOs who “landed on the earth 2,500 years ago,” the less said the
better. See WHO O WNS INFORMATION?, supra note 283, at 134.
390. How Important Are the Dead Sea Scrolls?, supra note 219, at 37. Yet the same
writer himself adduces the scrolls in the context of other philological advances that make
the text of the Bible “more accessible to understanding than it has been for the past two
thousand years.” THE WORLD OF BIBLICAL LITERATURE , supra note 155, at 71.
391. In recent years there has been a growing appreciation of the common
interests shared by the Dead Sea sect and the rabbis in issues of purity and
halakah. Since the document 4QMMT was made public in 1984, it has been
clear that matters of religious law were at the root of the quarrel between
this sect and its Jewish contemporaries.
APOCALYPTICISM IN THE DEAD SEA SCROLLS, supra note 387, at 164.
392. Series Editor’s Preface, in APOCALYPTICISM IN THE DEAD SEA SCROLLS, supra
note 387, at vi.
82 HOUSTON LAW REVIEW [38:1

languages; the exhibition included translations into Yiddish,

Russian, Serbo-Croatian, Arabic, Japanese, and Indonesian.393
The aftershocks of unlocking the scrolls in 1991 seem destined to
roil well into the future.

393. LC COLLECTIONS ENRICH DEAD SEA SCROLLS EXHIBIT, in SCROLLS FROM THE
DEAD SEA: THE ANCIENT LIBRARY OF Q IMRON AND MODERN SCHOLARSHIP, at
http://www.lcweb.loc.gov/exhibits/scrolls/article.html.
2001] DEAD SEA SCROLLS 83

VI.
COPYRIGHT USAGE
Dramatically, the discovery of the Qumran scrolls
or of the library of inscribed tablets at Ebla, have
led to a reconsideration of biblical languages,
chronology and imagery.
George Steiner394

Now that the case has been sketched, the first step is to
weigh Qimron’s claim to copyright protection over his
reconstruction of 4QMMT based on the various doctrines that
copyright law has developed to mediate between the interest of
those who assert copyright and those who defend against a
charge of its infringement. When examined in the precise
contours in which Qimron v. Shanks arose, there are several
reasons that the claim of copyright infringement cannot succeed.
This chapter addresses those considerations. In addition, from a
deeper perspective, there is reason to posit that sound copyright
doctrine should always doom the claim of any scholar to
copyright over the reconstruction of an antecedent manuscript.
The succeeding chapters turn to those aspects of the matter.395
It bears emphasis at the outset that this examination takes
place under the copyright law of the United States—the goal here is
not to explicate halacha, Israeli law or the régimes of any other
nation. For that reason, the focus throughout remains on Judge
Dorner’s application of U.S. law,396 rather than on the Supreme
Court’s affirmance, which evaluated the matter under Israeli law.397
Before entering the copyright thicket, it is useful to address
one perennial question. In any case arising under U.S. copyright
law, it is always possible to interpose a defense of fair use.

394. A Preface to the Hebrew Bible, supra note 212, at 43.

395. From an even deeper point of view, one may well conclude that, putting aside
doctrinal points, the activity of manuscript reconstruction does not even qualify as an act
of authorship so as to trigger copyright protection. Part Two below takes up that question.
396. As previously set forth, the matter is more complicated: Judge Dorner wanted to
apply the law of the situs of infringement, i.e., the United States; but to determine the
content of U.S. law, she consulted Israeli law, under the presumption of identify of laws.
Refer to note 302 supra.
397. Refer to section (A)(1) infra. Among the many strange turns of Qimron v.
Shanks, another bears mention. The Supreme Court’s opinion recounts the analysis from
an earlier case, explaining that the originality requirement for copyright subsistence “was
deleted for some reason from the official Hebrew translation of The Laws of Israel, but it
appears in Section 1 of the English version of the law, which is the determinative
version”! App. Opin., supra note 331, at para. 11.
84 HOUSTON LAW REVIEW [38:1

Qimron v. Shanks is no exception. Application of the fair use

doctrine calls for a case-by-case analysis.398 Accordingly, though
it may be of inestimable interest to the parties, it is of limited
interest to the future of copyright doctrine how those factors
apply to the facts of Qimron v. Shanks.399 Previous commentators
have set forth the view that that defense should have
prevailed.400 There is reason, however, to be less than sanguine
about that conclusion. The exercise here is to apply the four
statutory fair use factors,401 based on the assumption that
Shanks appropriated copyrighted material belonging to
Qimron.402
??Purpose of use. The facts that the Facsimile Edition is a
work for sale on the open marketplace,403 and that it
copies Qimron’s efforts verbatim instead of using them
as a springboard for further analysis, 404 weigh the first
factor against Shanks.
??Nature of copyrighted work. The fact that Qimron had not
previously published his work offers more fodder to him
on the second factor.405
??Amount of use. The fact that the Facsimile Edition
incorporates the full text of Qimron’s work,406 rather

398. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).
399. “Decisions are not governed by consistent principles, but seem rather to result
from intuitive reactions to individual fact patterns.” Pierre N. Leval, Toward a Fair Use
Standard, 103 HARV . L. REV . 1105, 1106–07 (1990). Judge Leval should know, having
made as much fair-use law as any other jurist. See Pierre N. Leval, Fair Use or Foul, 36
J. COPYRIGHT SOC’Y 167, 168 (1989) (“It has been exhilarating to find myself present at
the cutting edge of the law, even though in the role of the salami.”). See also Pierre N.
Leval, Nimmer Lecture: Fair Use Rescued, 44 UCLA L. REV . 1449, 1457 (1997).
400. Raiders of the Lost Scrolls, supra note 83, at 335; Ancient Works, Modern
Dilemmas, supra note 191, at 1666–70.
401. 17 U.S.C. § 107 (1994). Fair use cases sometimes proceed independently of those
factors. As set forth below, there are cases denominated “fair use” that support Shanks.
Those are discussed below. Refer to notes 444–60 infra.
402. That assumption is essential to even reach the fair use defense; for in the
absence of a subsisting copyright that has been the subject of a prima facie infringement,
the affirmative defense does not even rise to the fore. Because the discussion below
concludes that Qimron does not have copyright in his reconstruction of MMT, it is
necessary for current purposes of the fair use issue to treat the case as if the Facsimile
Edition had reprinted something other than an uncopyrightable reconstruction.
403. See 4 NIMMER ON COPYRIGHT § 13.05[A][1][c].
404. See 4 NIMMER ON COPYRIGHT § 13.05[A][1][b].
405. See 4 NIMMER ON COPYRIGHT § 13.05[A][2][b]. In this context, though, the fact
that Qimron did not hold the materials confidentially may overbear that inclination of
this second factor. Refer to Chapter X, section (B)(2) infra.
406. A definitional issue lurks here—what is the “full” work? Is it the 120 lines that
Shanks reproduced? Or all of MMT itself, including the now-lost lines? Or the full volume
of DJD X analyzing MMT? Refer to Chapter V, section (A)(2) supra.
2001] DEAD SEA SCROLLS 85

than excerpting it, 407 weighs the third factor against

Shanks. 408
??Effect of use. As to the fourth factor, it is difficult indeed
to imagine an appreciable impact on the market for
4QMMT.409 Accordingly, this factor would seem to favor
Shanks. 410
In sum, though the issue is open to infinite debate, the
thumbnail sketch set forth above offers reason to suspect that
fair use does not constitute the silver bullet against a claim of
copyright infringement.
***
The discussion below ventilates two fatal flaws in Qimron’s
copyright infringement claim. The succeeding chapter adduces
additional reasons why, putting aside the specific facts of Qimron
v. Shanks, those who reconstruct manuscripts should always be
denied copyright protection in the fruit of their labors.

407. See 4 NIMMER ON COPYRIGHT § 13.05[A][3].

408. The contrary argument would be that the Facsimile Edition reproduced no more
of 4QMMT than was necessary to obtain its laudable object of securing public access to
the work. It did not, for instance, reproduce, either exactly or in paraphrase, so much as
one sentence from the original work of analysis that Strugnell and Qimron composed
about 4QMMT. Instead, the world had to wait until the publication of DJD X to see that
expression in print. Viewed from this perspective, the third factor does not disfavor
Shanks.
Moreover, perhaps one can analogize here from the aspect of fair use concerned
with parodies:
Although normally the third factor disfavors a defendant who copies the “heart”
of plaintiff’s work, “the heart is also what most readily conjures up the song for
parody, and it is the heart at which parody takes aim.”
4 NIMMER ON COPYRIGHT § 13.05[C][2], quoting Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569, 588 (1994) (footnotes omitted).
409. Those interested in reviewing the full reconstruction of the text in its ancient
Hebrew idiom can scarcely number more than some dozens throughout the entire world.
As to that class of scholars, it is impossible to believe that their purchase of the Facsimile
Edition would satiate their curiosity and that, on that basis, they would decline to
purchase DJD X.
In the light of hindsight, that argument becomes only stronger. If one peruses the
text of 4QMMT in DJD X, one sees that there are numerous differences in the way Qimron
presents his work as compared to the Kapera recension that occupies the Facsimile Edition.
More fundamentally, scholars in the field, whether followers or detractors of Qimron, must of
necessity familiarize themselves with his hundreds of pages of analysis. On that basis, of
course, they will all need access to DJD X. The effect on the market, in short, appears to be nil.
This conclusion is only strengthened when one realizes that the list price for the
Facsimile Edition was $200. Amateurs and dabblers would scarcely pay that freight for
1,785 photographic plates of the Dead Sea Scrolls, merely to get Qimron’s reconstruction.
410. Although a former view treated this factor as the most important one, see
4 NIMMER ON COPYRIGHT § 13.05[A][4], the Supreme Court has directed that this factor
not be deemed decisive, standing alone. Campbell, 510 U.S. at 590–94.
86 HOUSTON LAW REVIEW [38:1

A. Public Access and Unclean Hands

As we have seen, the constitutional authorization for copyright

protection is to “promote the Progress of Science and useful Arts.”411
Though it is not necessary to decide every litigated case in the
manner that best serves that preamble,412 surely it may inform the
analysis.413 (In the Digital Millennium Copyright Act,414 Congress
recognized the danger that copyright protection could be twisted
away from serving its constitutional end into a means of removing
vital areas of public discourse from popular access. Accordingly, it
crafted an elaborate structure aimed at safeguarding public access
when copyrights are abused.415 Admittedly, Qimron v. Shanks falls
outside the structure of that particular e nactment.416 Nonetheless,
any just resolution of its legal issues requires a court to recognize a
profound need to reconcile the claim of copyright protection with the
public’s inextinguishable right of access to materials of great public
and scholarly value.)417

1. The Israeli Opinions

U.S. copyright law is the one that all parties before the trial
court acknowledged to furnish the governing law.418 Accordingly,
the strange turn taken by the Supreme Court of Israel—using
the three copies sent to Israel as the basis for applying Israeli

411. U.S. CONST. art. 1, § 8, cl. 8.

412. See Pacific & S. Co. v. Duncan, 744 F.2d 1490, 1498–99 (11th Cir. 1984) (holding
that Congress must pass laws that in general serve the constitutional purpose of
copyright, but need not guarantee that result in every instance).
413. See 1 NIMMER ON COPYRIGHT § 1.03[B].
414. Act of Oct. 28, 1998, Pub. L. No. 105–304, 112 Stat. 2860, § 1 (short title).
Perhaps no one in Congress deliberately aggregated digits, millenarianism, and
legislative enactments by consciously modeling the law’s short title on Exodus 31:18
(“After he finished speaking God gave to Moses on Mount Sinai two tablets of testimony,
tablets of stone written with the digit of God”). But unconsciously? Refer to note 439 infra.
415. See generally A Riff on Fair Use in the Digital Millennium Copyright Act, supra
note 36.
416. Nonetheless, Qimron’s counsel, Isaac Molcho, used the occasion of his victory
before the Israeli Supreme Court to meditate on the Napster case, one of the most
celebrated early suits brought under the Digital Millennium Copyright Act. See Abraham
Rabinovich, Scholar to Share Copyright With 2,000-Year-Old Author, JERUSALEM POST,
Aug. 31, 2000, at 1.
417. See generally PLAYING DARTS WITH A REMBRANDT, supra note 228.
418. Refer to note 302 supra.
2001] DEAD SEA SCROLLS 87

law to the case419—renders its decision askew from the matter

here under examination.420
Nonetheless, one aspect of the Supreme Court’s rationale
bears mention. As previously noted, its opinion begins by noting:
“A decision on the issue before us is based on the specific
circumstances of the case, rather than general principles.”421
Moreover, in the course of his reasoning, Justice Türkel quotes
his own prior solicitude for “the protection of academic
freedom.”422 Yet, oddly, the Court concludes as follows:
We have made clear above that Qimron does not have a right
in the “raw material” — the fragments of the scrolls
themselves — and he does not even request this. His copyright
in the Deciphered Text does not prevent anyone from the
possibility of researching the scroll fragments, organizing
them, deciphering the writing upon them and completing the
missing portions between the fragments, in a manner
different from that taken by Qimron, and to publish the
results of his work and even receive copyright protection.423
That language is scarcely consonant with the peculiar
circumstances under which Qimron v. Shanks arose. For before
Hershel Shanks published the Facsimile Edition in an attempt to
wrest control away from the Israel Antiquities Authority’s cartel,
there was no way for any scholar to get ahold of the fragments of
MMT.424 Instead, Strugnell and Qimron, under the IAA’s
authority, enjoyed exclusive access to those physical products, as
Strugnell himself testified:
Q. To what extent is it possible or even probable for other
scholars who had the same knowledge as Professor Qimron
as to the other documents to have produced the same

419. Analytically, two debatable steps occur here (both being beyond the scope of the
current treatment). The first is to use the three copies sent to Israel as a basis for
applying Israeli law to the dispute. See Neil Wilkof, Copyright, Moral Rights, and the
Choice of Law: Where Did the Qimron Court Go Wrong?, 38 HOUS . L. REV . (forthcoming
June 2001). The second, given the application of Israeli law, is to look to the substance of
Israeli copyright doctrine rather than that of the country of origin to determine the scope
of copyright protection. See Paul Torremans, Choice of Law Regarding Copyright and the
Dead Sea Scrolls Controversy, in O N SCROLLS, ARTEFACTS AND INTELLECTUAL PROPERTY,
supra note 274.
420. Refer to Chapter V, section (B)(3) supra.
421. Refer to text accompanying note 333 supra.
422. “[R]esearch, study and instruction in all areas of the human spirit, that do not
have handcuffs on them, raise the individual within society and with him society as a
whole [and are] the exercise of a basic human need.” App. Opin., supra note 331, at
para.15 (quoting Cr.A. 2831/95, Elba v. The State of Israel, 50(5) P.D. 221, 335).
423. Id.
424. See Strugnell Testimony at 219–21, quoted in Chapter XI infra.
88 HOUSTON LAW REVIEW [38:1

reconstructions as Professor Qimron?

A. Up to recently it was impossible because they didn’t
have the photographs, which you also need. Now [that the
materials have been made public] I imagine that certain
good scholars will either be able to support Qimron’s
readings or even suggest occasionally alternatives. 425
Therefore, the freedom that the Court is citing, although in
theory applicable to a large body of circumstances, is chimerical
with respect to the precise facts at bar (which is all that the
Court purported to address).
Yet one could interpret the Court’s conclusion as giving
scholars freedom in the future to review photographs of MMT (to
which the world now has access thanks to Shanks’s juggernaut)
and to posit readings divergent from Qimron’s. The problem is
that even as so limited, that language threatens to choke future
scholars. For to the extent that philologists in years to come
conclude that Qimron was correct in the deliberate conclusions
that he drew over the decades, then copyright law, interpreted as
does the Israeli Supreme Court, prevents them from presenting
those readings systematically.426 Instead, it means that future
scholars can present to the public different readings from the
correct ones.427 That result, which bars dissemination of accurate
readings,428 encourages dissemination of only bad scholarship, a
matter to which we return below.429

2. Misuse
The Dead Sea Scrolls are of incalculable public interest in
recounting the early history of Judaism and Christianity.430 As
such, they form part of the cultural patrimony of all mankind.
Providing access to 4QMMT, viewed from that perspective,

425. Id. at 219–21 (edited).

426. An individual utilization might escape liability as fair use. See App. Opin.,
supra note 331, at para. 15. But it is perilous to rely on that doctrine unless one can be
sure of its bounds in advance, which is notoriously difficult. Refer to section (A)(3) infra.
See also App. Opin., supra note 331, at paras. 19–20.
427. Refer to section (B)(1) infra.
428. Shortly after the Supreme Court ruled, I received a call from an anguished
scholar under contract with an Israeli publisher for a forthcoming scrolls book, which he
felt the recent ruling placed in jeopardy. The problem arose precisely because my
interlocutor intended to agree in large part with Qimron’s interpretation. Thus, the fact
that the Supreme Court held out the prospect for copyright protection had the professor
intended to posit readings diverse from Qimron’s provided only cold comfort.
429. Refer to Chapter IX, section (C)(2) infra.
430. Refer to Chapter V, section (C)(2) supra.
2001] DEAD SEA SCROLLS 89

serves a laudable public function.431

Qimron’s suit constitutes an attempt to use copyright law
not to promote the progress of science, but as an engine of
suppression.432 One doctrine of copyright law applicable here is
unclean hands.433 That amorphous defense comes into play when
a plaintiff has committed a serious transgression relating
directly to the subject matter of the infringement claim, such as
misusing the process of the courts or violating the antitrust
laws.434 Neither is obviously present here. But more reflection is
required before simply dismissing the defense.
Consider the letter that Qimron’s counsel sent to Wacholder.
Objecting that “you might be using portions of Professor
Qimron’s reconstruction in a publication planned by you and
Professor Abegg,” the letter warned “that any use of Professor
Qimron’s reconstructed text is a violation of his copyright and
Professor Qimron will take all steps available to him under both
American and Israeli law to protect that copyright.”435 That
threat could hardly be taken as idle, given Qimron’s history of
suing for copyright infringement.
Careful attention must be paid to the phraseology and
recipient of the demand letter. As noted above, Ben-Zion Wacholder
is Professor of Talmudic Studies at Hebrew Union College, and
Martin Abegg a pastor at Grace Theological Seminary. The letter
admonishes the pair not even to use Qimron’s work in their
scholarship. In the language of the “essential facilities doctrine”436
of antitrust law,437 Qimron “was willing to sacrifice short-run
benefits” that would flow from licensing his work or making it

431. Raiders of the Lost Scrolls, supra note 83, at 347–48.

432. Refer to note 445 infra (quoting Complaint, para. 16(b)(3)).
433. See 4 NIMMER ON COPYRIGHT § 13.09[B].
434. The classic case here is Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th
Cir. 1990). See also 4 NIMMER ON COPYRIGHT § 13.09[A].
435. Refer to Chapter V, section (B)(1) supra (emphasis added).
436. See Telecomm. Technical Servs., Inc. v. Siemens Rolm Communications, Inc., 66
F. Supp. 2d 1306, 1318–19 (N.D. Ga. 1998) (discussing the interplay between the essential
facilities doctrine and intellectual property law in a case charging the copyright owner
with an antitrust violation for refusal to deal).
437. The United States Supreme Court has broadened the “essential facility of
commerce” doctrine to embrace matters not crucial to survival, holding, for example, that
access to a community-wide ski pass can constitute an essential facility. Aspen Skiing Co.
v. Aspen Highlands Skiing Corp., 472 U.S. 585, 608–11 (1985) (owner of three major
skiing facilities violated antitrust law by excluding a competitor from participation in a
community-wide skiing pass). The Court held that the fact that “Ski Co. was not
motivated by efficiency concerns and that it was willing to sacrifice short-run benefits and
consumer goodwill in exchange for a perceived long-run impact on its smaller rival”
placed it in violation of Section 2 of the Sherman Act. Id. at 610–11.
90 HOUSTON LAW REVIEW [38:1

available, even on onerous or expensive terms; he also plainly cared

very little for “consumer goodwill,” which in this circumstance
translates to the collegiality of fellow Dead Sea Scrolls scholars.
Instead, his sole goal was to exert a deadly “impact on [his] smaller
rival[s]” by making it impossible for Wacholder and Abegg to
publish anything whatsoever about 4QMMT.438 For even if the
latter two scholars tried with all their might to exclude knowledge
of Qimron’s text from their product, to the extent that it discussed
4QMMT, Qimron could plausibly maintain that they made “use” of
his work, if only subconsciously,439 in violation of his copyright.440
These considerations point towards Qimron having an intent to
monopolize the entire field of MMT studies.441 Given how closely
those studies lie to the core of the vital enterprise of scroll studies in
general, Qimron has, in a very real way, attempted to exclude
others completely from an essential facility of intellectual
commerce.442 Until that misuse is purged, Qimron’s copyright
becomes unenforceable.443

438. As noted by the dissent in the Sony case, “When the scholar foregoes [sic] the
use of a prior work, not only does his own work suffer, but the public is deprived of his
contribution to knowledge. The scholar’s work, in other words, produces external benefits
from which everyone profits.” Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417,
477–78 (1984) (Blackmun, J., dissenting).
439. Unconscious copying can nonetheless constitute infringement, as Beatle George
Harrison learned to his peril regarding My Sweet Lord. Bright Tunes Music Corp. v.
Harrisongs Music, Ltd., 420 F. Supp. 177, 180–81 (S.D.N.Y. 1976), aff’d sub nom. Abkco
Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 1983). Even more pointedly,
the Ninth Circuit recently upheld a “twenty-five-years-after-the-fact-subconscious copying
claim” against singer Michael Bolton based on an obscure tune by the Isley Brothers.
Three Boys Music Corp. v. Bolton, 212 F.3d 477, 484–85 (9th Cir. 2000).
440. See Raiders of the Lost Scrolls, supra note 83, at 309. “Further, their work is
likely to be similar since it will be driven by the context of the existing fragments.” Id.
441. The point is made later that copyright should not be abused as “a vehicle to
ensure orthodoxy in Scrolls scholarship.” Refer to Chapter XI infra. It should be borne in
mind that a monopoly to ensure public order—that scholar X be assured sufficient time to
study an artifact before it is made available to others—albeit itself problematic, is at least
easier to justify than a monopoly for the sake of thought control.
442. Refer to Chapter V, section (A)(3) supra. Another aspect of copyright misuse
should be considered as well. In the pathbreaking case that established this doctrine, the
court held that misuse occurred when a copyright owner attempted, in its standard
licensing agreement, to forbid the licensee from (1) developing any kind of software
competitive with its own application, (2) for a period past expiration of the copyright.
Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 978 (1990). Qimron’s letter stands on a
similar footing. It likewise (1) purports to bar any competitive activity by fellow scholars.
Moreover, it too goes well beyond the statutory scope of copyright protection, not in terms
of duration, but (2) in terms of barring any “use” whatsoever, notwithstanding that
Congress has declared “fair use” during the term of copyright to be as non-infringing as is
post-expiration utilization. See 17 U.S.C. § 107 (1994). Attempts to bar even fair uses are
suspect. See The Metamorphosis of Contract Into Expand, supra note 48, at 64–68.
443. Another aspect of the matter: The events under examination here are such that
the government entrusted a scholar with a unique artifact, available to no one else. In
2001] DEAD SEA SCROLLS 91

3. Scattered Cases
Moving away from antitrust law and misuse to more general
doctrine, Qimron’s efforts to prevent access to MMT remain
troubling as well under traditional copyright jurisprudence.
Given that Qimron discussed MMT publicly in 1984, refused to
consent to its disclosure as late as 1993 when the trial in Qimron
v. Shanks arose, and wrote a demand letter to other Dead Sea
scholars not even to “use” his reconstructed text, there can be no
conclusion other than that Qimron wanted to stifle discussion of
MMT by others, at least until such time as he chose to present
DJD X to the world.444 Far from trying to prevent irresponsible
and wild popularization of his work, far from trying to preserve
solely the right to publish his entire reconstruction of 4QMMT
intact, Qimron’s actions seemed designed to retard serious
scholarship in the field.445 In short, his conduct constituted an
attempt to squelch the progress of science through invocation of
copyright laws, towards which end he has used the courts.446

that circumstance, the scholar should make the artifact available to the public within a
reasonable time. To the extent that the scholar delays years and decades in even
disclosing the contours of the artifact to the public, while he perfects his analysis, all the
while threatening fellow scholars if they even make any use of his work, then he comes to
court with unclean hands. Moreover, not only did Qimron receive an exclusive
government grant (from the Israel Antiquities Authority) over the physical materials
discovered in Qumran, but he now claims an exclusive governmental monopoly (via
copyright law) over the product of research that he performed based on his exclusive
access to those materials; finally, he is invoking the judiciary (his case before Judge
Dorner), which is but another arm of the government, to clamp down on those whom he
sees as trespassing on his domain. See David Nimmer, The End of Copyright, 48 VAND.
L. REV . 1385, 1414–15 (1995) (recalling the dismissal of a criminal case in which the
Ninth Circuit stated that the judiciary is part of the “government”). (This presentation
sidesteps the intractable issue of the identity of that government—Israeli or American?)
444. That time could be far into the future. Refer to note 715 infra and accompanying
text.
445. Qimron’s Complaint includes the following language:
It should be emphasized that the right of the authors of the reconstruction is,
inter alia, to prevent publication of the reconstruction for so long as they did not
publish their extensive research with respect to the scroll in its entirety — research
which will be credited to them alone in the academic world. In this other researchers
are also prevented from basing themselves on the reconstruction and from
‘competing’ with the copyright owners in supplementary research.
Complaint, para. 16(b)(3).
446. Consider the state of affairs that Qimron engendered. Before the Complaint in
Qimron v. Shanks was filed, a book was published about the scrolls. UNDERSTANDING THE
DEAD SEA SCROLLS, supra note 210. One of the contributors explains that Strugnell and
Qimron “were kind enough to make available to me this text [MMT along with their
unpublished] commentary on it.” Lawrence H. Schiffman, The Sadducean Origins of the
Dead Sea Scroll Sect, in UNDERSTANDING THE DEAD SEA SCROLLS, supra note 210, at 35,
41. He comments that the “as-yet-unpublished MMT” is a key text that “revolutionizes”
our understanding of Qumran origins. Id. at 42. In that context, he dismisses Norman
Golb’s contrary theory. Id. at 45. Yet Golb (a professor at the University of Chicago) “in
92 HOUSTON LAW REVIEW [38:1

That conduct severely overreaches.

Admittedly, there is no case directly on point. In fact,
research has disclosed no case even remotely similar. For
guidance, we need to invoke copyright cases that vindicate allied
concerns:
??The only record of the tragic events in Dallas on
November 22, 1963, was a home movie shot by
Abraham Zapruder.447 Movies are protected by
copyright. 448 Nonetheless, given the “public interest in
having the fullest information available on the murder
of President Kennedy,”449 the court denied that
copyright infringement occurred via unauthorized
reproduction of frames from the Zapruder film. 450
??Howard Hughes detested publicity. When profiled in a
series of articles in Look magazine, the reclusive
billionaire responded by buying the copyright. 451 He
then attempted to wield his copyright to prevent
Random House from publishing an unauthorized
biography of him, based on those articles. 452 The Second
Circuit reversed entry of a preliminary injunction:
By this preliminary injunction, the public is being
deprived of an opportunity to become acquainted
with the life of a person endowed with
extraordinary talents . . . .
‘Everyone will agree that at some point the public
interest in obtaining information becomes
dominant over the individual’s desire for privacy.’
....
Thus, in balancing the equities at this time in our
opinion the public interest should prevail over the

fairness, at best [has been able to view] only a pirated copy of the unpublished texts of
MMT.” Id. at 45. Is that any way for science to progress?
447. Time, Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 131 (S.D.N.Y. 1968).
448. See 17 U.S.C. § 102(a)(6) (1994). The previous law, under which Time, Inc. v.
Bernard Geis arose, was to the same effect. See Act of Mar. 4, 1909, ch. 320, § 5, 35 Stat.
1075.
449. Time, 293 F. Supp. at 146.
450. Id. The court invoked the fair use doctrine for that purpose. Id. Note that, at
that time, the judicially created fair use factors had not yet been codified. See Harper &
Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 549 (1985) (indicating that the 1976
Copyright Act codified the common-law doctrine of fair use).
451. Rosemont Enters., Inc. v. Random House, Inc., 366 F.2d 303, 304–05 (2d Cir.
1966).
452. Id.
2001] DEAD SEA SCROLLS 93

possible damage to the copyright owner.453

??In order to engage in reverse engineering of Sega’s computer
code to examine the underlying public domain materials
incorporated in the Sega game cartridge, a rival first
needed to make a copy of the whole, thereby implicating
the copyright owner’s reproduction right. 454 In sustaining
a fair use defense, the Ninth Circuit noted that “an
attempt to monopolize the market by making it impossible
for others to compete runs counter to the statutory
purpose of promoting creative expression . . . .”455
??One pre-Feist district court ruling upheld protection for a
scale reduction of the famous Hand of God sculpture.456
Its en banc circuit later explained the rationale at work
there: “Rodin’s sculpture is, furthermore, so unique and
rare, and adequate public access to it such a problem that
a significant public benefit accrues from its precise,
artistic reproduction.”457 The same considerations that
inclined in favor of the plaintiff in that case militate
towards defendant in Qimron v. Shanks, in which the
whole battle arose via Shanks’s efforts to wrest control
away from the Scrolls cartel and make it available to the
public.458
These cases do not imply that authors may never hold their
materials confidential. If a scholar of Byzantium, for example,
wishes to spend a whole career polishing her thesis, not
publishing until forty years have elapsed, there is no basis to
allege violation of the antitrust laws and to seek to forfeit her
copyright on that basis.459 Nonetheless, they do imply that

453. Id. at 309.

454. Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1517–20 (9th Cir. 1992).
455. Id. at 1523–24, 1527. See also David Nimmer, Brains and Other Paraphernalia
of the Digital Age, 10 HARV . J.L. & TECH. 1, 21–25 (1996).
456. Alva Studios, Inc. v. Winninger, 177 F. Supp. 265 (S.D.N.Y. 1959). As to
whether that case remains good law, refer to note 91 supra. It can be faulted, inter alia,
for failing to distinguish creativity in the process from creativity in the product. Refer to
note 153 supra.
457. L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 492 (2d Cir. 1976) (en banc).
458. Batlin aimed to neutralize “a weapon for harassment in the hands of
mischievous copiers intent on appropriating and monopolizing public domain work.” Id.
That desideratum also weighs against Qimron.
459. The question arises how far to extend these considerations, for example, to a
scholar who did not create the subject work, but rather owned the physical property in
which it is embodied: “If I am the private owner of valuable historical material, am I
really obliged to set up facilities required to fulfil a public right to access?” Hector
MacQueen, Principles of Intellectual Property Rights and Copyright Laws, in ON SCROLLS,
ARTEFACTS AND INTELLECTUAL PROPERTY, supra note 274. For a consideration of this
theme within the Polish context, see Legal Aspects of Recent History of the Qumran
94 HOUSTON LAW REVIEW [38:1

copyright has its limits. When used to prevent access to the sole
material weighing on a matter of great public interest
(Zapruder), as a vehicle to suppress information (Howard
Hughes), or to prevent even initial access to unprotected material
(Sega), copyright protection collapses in the face of the greater
good of access.460 Those circumstances are present a fortiori with
respect to Qimron’s attempts to prevent any access to 4QMMT.

B. Unauthorized Adaptation

Qimron’s basic argument for copyright protection is that

4QMMT constitutes a literary work. Accepting him at his own
word, his reconstruction must stand outside copyright protection
because of the circumstances of its composition.461

1. Underlying and Derivative Works

Accepting that 4QMMT deserves protection as a literary
work, the first question arises as to who was its initial author.
Here, there can be no doubt but that the long-dead Teacher of
Righteousness qualifies. Qimron does not claim to have composed
some precepts of Torah out of whole cloth. Instead, he claims to
have reassembled them out of tiny bits of flaking parchment.
Accepting the proposition that TR composed 4QMMT in the
Judean desert about two millennia ago, the next question to arise
concerns its copyright subsistence at present. As previously
observed about Grimm’s fairy tales,462 the 1976 Act protects
works extant as of 1978 but not yet then published,463 for the life
of the author and further term of years or until December 31,
2002, whichever expires later. On the assumption that the
Teacher of Righteousness died well before 1923 C.E., protection
for the Scrolls lasts at least through 2002.464

Scrolls, supra note 372.

460. Each of the cases canvassed above in some measure invokes an offshoot of the
fair use doctrine. In that respect, it could be said that a fair use defense lies in Qimron v.
Shanks, notwithstanding that the four statutory factors do not facially favor the defense.
Refer to the beginning of this chapter.
461. Credit for originating this legal argument belongs to Elliot Brown.
462. Refer to Chapter I supra.
463. Do the six copies of MMT found in 4Q mean that it in fact was “published?” It is
difficult to say. Certainly, it was disseminated in the manner that, in antiquity,
corresponded to our current notions of “publication.” See ERIC A. HAVELOCK, THE MUSE
LEARNS TO WRITE : REFLECTIONS ON O RALITY AND LITERACY FROM ANTIQUITY TO THE
PRESENT 77–78 (1986). But proof of the ingredients of “publication” under U.S. copyright
law would seem lacking. See 1 NIMMER ON COPYRIGHT § 4.04.
464. If published with authorization between today and December 31, 2002,
protection can subsist until 2047. 17 U.S.C. § 303(a) (Supp. IV 1999). See 3 NIMMER ON
COPYRIGHT § 9.11[B][2]. But it would seem impossible for TR to convey authorization at
2001] DEAD SEA SCROLLS 95

The curious consequence is that Qimron is actually dealing

with an underlying text subject to U.S. copyright protection. What
has he done to that text? Analytically, there are two possibilities:
?? From the various manuscript shards entrusted to his
custody, Qimron reassembled MMT perfectly.
??He reassembled MMT imperfectly.
On the assumption that Qimron reassembled the text
perfectly, then the authorship that he contributed to it is naught.
Instead, through a heroic scholarly contribution, through his
expertise in fields as diverse as paleography, philology,
archaeology, history, etc., Qimron has achieved a wondrous
feat—the resurrection, phoenix-like, of a hitherto lost text. The
world, in that case, owes him a great debt of gratitude. But it
cannot possibly be said that he can secure copyright protection in
words that he did not author.
Therefore, from the starting gate, only inaccuracy is eligible
for further discussion. If Qimron erred, if he failed to convey the
ancient teachings from the Judean desert, then our debt to him is
that much less. Of course, we may forgive him his mangling of
TR’s words even as we acknowledge our gratitude for the portion
he got right. But the further question arises—does the copyright
monopoly attach to Qimron’s errors? We return to that question
below.465

2. No Protection for Unlawful Utilizations

Given that Qimron’s copyright fails abjectly to the extent
that he achieved 100% accuracy in reconstruction, let us adopt
the supposition in his favor that a small portion, say 14%, of the
material that appears in his “reconstruction” of 4QMMT is in fact
original to Qimron.466 What consequence follows?
A work that incorporates 86% of another work, with 14%
additions, is called a “derivative work.”467 Therefore, the current
assumption is that Qimron prepared a derivative work of MMT, a
work which, it has just been noted, is still subject to copyright
protection. In this regard, an explicit provision of the Copyright
Act applies to Qimron’s conduct: “[P]rotection for a work
employing preexisting material in which copyright subsists does
not extend to any part of the work in which such material has

present, so that circumstance appears moot.

465. Refer to Chapter IX, section (C)(2) infra.
466. The basis for the calculation is set forth below. Refer to Chapter VII, section
(C)(3)(b) infra.
467. See 17 U.S.C. § 101 (Supp. IV 1999).
96 HOUSTON LAW REVIEW [38:1

been used unlawfully.”468

Qimron’s scholarship falls squarely within that provision.
Without any claim of authorization from the Teacher of
Righteousness (or his heirs, successors, or assigns), Qimron has
seized upon the fact of access to manuscripts containing a work
still protected by copyright as a basis for adapting them.469 His
interstitial contributions, moreover, are interwoven throughout
the copyrightable text. As such, Qimron falls squarely within the
statutory provision disallowing protection to derivative works
created through the unauthorized adaptation of a protected work,
in which the new ingredients are inextricably mixed with the
underlying text.470 For these reasons, Qimron is debarred from
asserting any copyright ownership over his reconstructions of
MMT.

468. See 17 U.S.C. § 103(a) (1994).

469. Could Qimron rebuff this analysis by pointing to his authorization from the
State of Israel, successor to ownership of the scroll fragments recovered from the Judean
desert? The Copyright Act explicitly distinguishes ownership of the material in which a
work may be embodied from copyright ownership. 17 U.S.C. § 202 (1994). Accordingly, the
IAA’s ownership of the Qumran scrolls (physical goods) is of no moment to the copyright
analysis (intangible rights).
470. The same conclusion follows here as in Case 21 (The Channel Surfer) supra.
2001] DEAD SEA SCROLLS 97

VII.
MIND BENDER
The study of the Dead Sea Scrolls is and has
always been neither theology nor science but an
exercise in almost pure religious metaphor.
Neil Silberman471

There are many levels on which to confront the copyright

lessons of Qimron v. Shanks. The previous chapter looked at some
of the particulars animating that controversy, leading to case-
specific applications of such doctrines as fair use and unclean
hands. The present chapter, by contrast, proceeds on a more
universal level. As a way of examining authorship and the proper
bounds of copyright protection, this chapter takes lessons from the
Second Circuit’s Bender v. West case, applying them to the general
enterprise of scholars seeking copyright protection in their
reconstruction of ancient scrolls. These considerations thus apply
not only to Elisha Qimron himself, but across the board to all who
seek to reconstruct old texts, regardless of the circumstances.

A. Fact/Expression Dichotomy
West, like the scholars of the Dead Sea Scrolls, labored in a
domain in which “faithfulness to the public-domain original is
the dominant editorial value.”472 The same considerations that
doomed West’s copyright likewise forestall Qimron’s claim. The
Supreme Court’s standard in Feist (the “telephone book white
pages” case) governs here: “[C]opyright assures authors the right
to their original expression, but encourages others to build freely
upon the ideas and information conveyed by a work. This
principle, known as the idea/expression or fact/expression
dichotomy, applies to all works of authorship.”473
In Bender v. West, the Second Circuit invoked the
fact/expression dichotomy to find such copying as occurred on the

471. THE HIDDEN SCROLLS, supra note 190, at 50.

472. Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 674, 688 (2d Cir. 1998).
473. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–50 (1991).
As applied to a factual compilation, assuming the absence of original
written expression, only the compiler’s selection and arrangement may be
protected; the raw facts may be copied at will. This result is neither unfair nor
unfortunate. It is the means by which copyright advances the progress of science
and art.
Id.
98 HOUSTON LAW REVIEW [38:1

safe side of the line.474 Star pagination merely conveys

unprotected information.475 By the same token, any copying of
Qimron’s manuscript reconstruction, as opposed to his
translation of MMT or his commentary thereon, is similarly
nonactionable. For it represents, pure and simple, the facts as to
how TR expressed himself 2,000 years ago, reproduced as
faithfully as Qimron was capable of achieving.

1. Originality

a. Quantum of Originality
At the outset, a distinction must be acknowledged. Bender v.
West held that the page numbers at issue there contained no
copyrightable expression whatsoever, having been rotely inserted
by a computer.476 Qimron, by contrast, labored for eleven years to
reproduce 4QMMT. Thus, the factors that animated the court in
Bender v. West could be argued to actually safeguard Qimron’s
protection.
Moreover, it may be conceded that Qimron reconstructed
4QMMT differently than any other would have done. What
greater proof of originality could there be than the
distinctiveness of his contribution?
We turn first to that last consideration. Then, the discussion
winds back to whether, in the ultimate analysis, Bender v. West
favors Qimron’s position.

b. “Distinctive” Does Not Translate to “Original”

Does copyrightable originality follow from the fact that
Qimron’s reconstruction was unique to him—that no other
human being on earth would have put the bits and pieces of
manuscript together in exactly the same way (assuming that to
be the case)? Properly construed, distinctiveness does not equate
to copyrightable expression.
Both Bender v. West and Feist bear out that proposition. In
the former case, there is no doubt that the particular case

474. In a profound sense, there is a subjective element even in the most “objective”
fact. “Nature states no ‘facts’: these come only within statements devised by human
beings to refer to the seamless web of actuality around them.” O RALITY AND LITERACY,
supra note 1, at 68. Facts themselves “have no necessary stable existence, but are
themselves texts.” Robert H. Rotstein, Beyond Metaphor: Copyright Infringement and the
Fiction of the Work, 68 CHI .-K ENT L. REV . 725, 769 (1993). However true in the noumenal
realm, these considerations are too metaphysical for the pragmatic concerns animating
the law. Refer to Part Two infra.
475. Bender, 158 F.3d at 701.
476. Refer to Case 17 (The Bingo Cards) supra.
2001] DEAD SEA SCROLLS 99

reporters produced by West were unique to it. No other

competitor, left to its own devices, would ever develop a single
volume, let alone a whole series, identical to any book of the
Federal Reporter (i.e., containing the same page number
divisions, the same citation methodology, the same attorney
names presented in the same format, etc.). Yet the Second
Circuit ruled that those factors, despite their distinctiveness, lie
outside copyright protection.
An even stronger application of this principle emerges from the
Supreme Court’s ruling that copyright protection is lacking in the
white pages of a telephone book.477 In the first place, a telephone
company must assign a unique phone number to e ach user (just as
West must assign a unique page number to each page). That
process itself can be complex.478 Moreover, that phone number, like
West’s page numbers, is not an “antecedent fact”; it springs into
existence only by virtue of the putative property owner’s labor.479
Yet those circumstances by themselves do not confer copyright
status.
Moreover, each phone book directory containing
alphabetized white pages itself represents a profoundly unique
compilation, reflecting innumerable choices by its creator.
Consider a simple thought experiment.
??In a town live 1,000 individuals whose names have been
collected from time immemorial in standard alphabetical
order. To the town now move ten strangers—Axel
aus der Mühlen,480 Sharon Ben Shachar,481 Chou En
Lai, 482 the artist formerly known as Prince,483 and diverse

477. Refer to Case 5 (The Phonebook) supra.

478. See WHO O WNS INFORMATION?, supra note 283, at 39.
479. “A telephone number is not like a mathematical algorithm or law of nature that
lies waiting to be discovered . . . .” Id.
480. Which name should be treated as his surname? Should it go by capitalization?
Or by order?
481. As an initial matter, should the letter chet in her name be transliterated as
“Shachar” or “Shahar.” Next, should this entry come after surnames such as Benshein? Or
does the space mean that it should come before?
482. Axel, the German’s first name, is also his given name; but Chou, the Chinese’s
first name, is his family name, not his given name. (Using the appellation “Christian
name” instead of “given name” even more starkly highlights the value judgments at play
here.)
483. That individual has been no stranger to copyright litigation. See Paisley Park
Enters., Inc. v. Uptown Prods., 54 F. Supp. 2d 347, 348–49 (S.D.N.Y. 1999) (issuing an
order preventing Prince’s videotaped deposition from being exploited on defendants’ Web
site). In Pickett v. Prince, 52 F. Supp. 2d 893, 896 (N.D. Ill. 1999), aff’d, 207 F.3d 402 (7th
Cir. 2000), a fan created a guitar in the shape of Prince’s symbol/name. Because the fan
appropriated that copyrighted image without authorization, he was denied copyright in
his product, by application of the rule confronted above that is relevant to Qimron as well.
100 HOUSTON LAW REVIEW [38:1

members of the same Irish clan (who were split up upon

entry to Ellis Island and who therefore spell their names
differently): McCormick, MacCormick, M’Cormick,
McOrmick, MacOrmick, Maccormick, and Mac Cormick. A
hundred employees of the telephone company produce a
hundred distinctive lists when attempting to integrate just
those ten names. 484
??Of course, the chore of compiling a phone book does not
end there. In addition to deciding how to alphabetize
“nonstandard” names, a value judgment also must be
made as to where to draw the boundaries. One could
chose the municipality of Beverly Hills; or the entire
region of West Los Angeles, including Beverly Hills (or
excluding it!); or South Beverly Hills alone; or South
Beverly Hills together with Beverlywood; or South
Beverly Hills, Beverlywood, and the Pico-Robertson
neighborhood; or South Beverly Hills, extending all the
way to Century City; or South Beverly Hills extending
to Century City, but stopping at Century Park East; etc.
From these considerations, it should be evident that almost
limitless patterns are available. Indeed, one could imagine the
possibility of producing as many different white-pages directories
for communities of the United States as there are theoretically
permutations for bingo cards.485 The fact that any phone
directory produced by a given individual is unique and distinctive
to her and would match the phone directory produced by no other
individual does not by itself vouchsafe the existence of copyright
protection. For Justice O’Connor, speaking on behalf of a
unanimous Supreme Court, has told us that all alphabetized
white-page directories stand outside copyright protection.

2. Literary Work vs. Material Object

We return to the argument that Bender v. West, by excluding
from protection the page breaks rotely inserted by computer,
favors copyright for 4QMMT, which required eleven years of
Qimron’s painstaking labor to produce. For this purpose, it is

Refer to Chapter VI, section (B)(2) supra. The district court’s discussion of the doctrine of
unauthorized exploitation is one of the most elaborate of any case. Pickett, 52 F. Supp. 2d
at 901–09 & n.17 (relying on NIMMER ON COPYRIGHT, the “treatise[] cited ubiquitously as
authority in copyright cases”).
484. Humans quite obviously work according to different criteria than the
mechanistic ones programmed into a computer, as anyone trying to access a ponderously
named Web site can attest. See David Nimmer, Puzzles of the Digital Millennium
Copyright Act, 46 J. COPYRIGHT SOC’Y 401, 450 n.236 (1999).
485. Refer to Case 17 (Bingo Cards) supra.
2001] DEAD SEA SCROLLS 101

necessary to advert to a more evanescent facet of Bender v. West.

This particular aspect did not even occur to me throughout
preparing and replying to the cross-motions for summary judgment
in the district court. In fact, we had already prevailed in a final
judgment below and were brain-storming about the appellate brief
before becoming aware that we had been ignoring the fact that
West’s whole claim to pagination copyright rested on conflating a
“fundamental distinction” of copyright law. We therefore argued
this new basis to the Second Circuit, which adopted it as an
alternative basis.486 (West, meanwhile, did not even try to address
our new theory, directly or obliquely, in its reply brief—from which
we inferred that no answer was possible.)
Turning to that “fundamental distinction,” the legislative
history tells us that it pertains between a copyright and the
material object in which it is embodied.487 Thus, a “literary work”
can consist of the letters488 and words that form it, whereas a
“book” is the tangible object that contains that literary work.489
Page numbers are an incident solely of a book, not of a literary
work. To appreciate this phenomenon, imagine that West kept
the same paper size and margins in alternative volumes designed
for the visually impaired. In these large-type editions, the cases
would manifestly occupy more pages, therefore producing
different page breaks. Accordingly, the pagination would be
wholly different, notwithstanding that the implicated literary
work would be identical.490 By claiming a copyright in pagination,

486. Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 693, 699 n.9 (1998).
487. As the House Report expresses it, there is
a fundamental distinction between the “original work” which is the product of
“authorship” and the multitude of material objects in which it can be embodied.
Thus, in the sense of the bill, a “book” is not a work of authorship, but is a
particular kind of “copy.” Instead, the author may write a “literary work,” which
in turn can be embodied in a wide range of “copies” and “phonorecords,”
including books, periodicals, computer punch cards, microfilm, tape recordings,
and so forth.
H.R. REP. NO. 94-1476, at 53 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5666.
488. The distinction here is ancient, and provides the basis for a joke that is older
than the United States. See The Author as Proprietor, supra note 19, at 24 (“Having been
reprimanded for stealing an old woman’s gingerbread cakes baked in the form of letters, a
cheeky schoolboy . . . defended himself by explaining that ‘the supreme Judicature of
Great Britain had lately determined that lettered Property was common.’”).
489. The Torah is a literary work that, besides being made into a book, could equally
be embodied on papyri; on parchment scrolls in a cave at Qumran; on a CD-ROM; on a
server attached to the Internet; or, as the Torah itself commands, on stone monuments set
up atop Mt. Eival. See Deuteronomy 27:8.
490. To the extent that West attempted to file a separate registration certificate for
its large-type edition, the Copyright Office would deny separate registration for the
identical “literary work.” See 37 C.F.R. § 202.1 (2000) (listing “mere variations of
102 HOUSTON LAW REVIEW [38:1

West was trying to import copyright protection into a domain

where it plays no role, namely to protect the manner in which a
material object is formatted.
In a sense, Judge Dorner’s finding of copyright protection for
Qimron massively replicates West’s error. For Qimron was
attempting to put together the physical pieces that he found in
the Judean desert, and then to fill in the gaps. How he fit those
pieces together reflects a material object.491 Consider, most
obviously, the finding that Qimron decided to r eassemble various
manuscript segments horizontally rather than vertically.492
Without doubting that Qimron might have cogitated long and
hard on the problem and essayed numerous variants, this type of
sleuth work relates not to matters subject to copyright protection
(a literary work), but instead to arrangement of the parchment
scraps on which it chanced to be written (a material object). To
the extent that Qimron engaged in creativity in this domain, it
related to MMT’s material embodiment. It conflates legal
categories to grant that type of activity copyright protection.
But, of course, even after arranging the fragments
horizontally or vertically, lacunae remained, which Qimron filled
in. Do those matters represent protected expression? To evaluate
this aspect of the matter, we must turn to the merger doctrine.

B. Merger of Expression with Nonprotected Material

In Bender v. West, another argument advanced to bar
copyright protection for West’s alteration to judicial opinions
came in the merger doctrine.
The fundamental copyright principle that only the
expression of an idea and not the idea itself is protectable has
produced a corollary maxim that even expression is not
protected in those instances where there is only one or so few
ways of expressing an idea that protection of the expression
would effectively accord protection to the idea itself.493

typographic ornamentation” among examples of “Material not subject to copyright”).

491. As a scholar in the field notes, one strategy to employ in text reconstruction is to
reconstruct “the text of a scroll”; but an alternative strategy that is often efficacious is to
“reconstruct the scroll itself, the patterned shapes of the holes and breaks [that] are a reliable
aid in arriving at the original order of what remains of the scroll fragments.” How to Connect
Dead Sea Scroll Fragments, supra note 210, at 250 (emphasis in original). See Laser Bones,
supra note 56, at 287 n.40 (discussing how DNA analysis is used on the Dead Sea Scrolls to
analyze fragments according to animal skin used; sometimes even by individual animal).
492. Refer to Chapter V, section (B)(2) supra.
493. Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 674, 688 n.12 (quoting
Kregos v. Associated Press, 937 F.2d 700, 704 (2d Cir. 1991)). The next sentence from the
2001] DEAD SEA SCROLLS 103

The Second Circuit declined to invoke the merger doctrine,

based on its antecedent holding that copyright protection was
unavailable for West’s case reporters.494 In addition, the Second
Circuit noted that the emendations that West made to judicial
opinions do not constitute “building blocks of understanding,” for
which application of the merger doctrine would have been ripe.495

1. Building Blocks of Understanding

West’s emendations to judicial opinions—such matters as
inserting an escort citation or italicizing a case name—are plainly
not “building blocks of understanding.” Turning to manuscript
reconstruction, by contrast, the opposite dynamic pertains.
The reconstruction of TR’s words do not represent
“approximative statements of opinion”496 by Qimron. Instead,
they represent, to the best of Qimron’s ability, what the Teacher
of Righteousness actually said. Insofar as Qimron’s philological,
historical, archaeological and other skills permit, they represent
an attempt at objectivity,497 not simply an “expression of
subjective opinion” as to what TR might have said.498 Strugnell
captures the matter metaphorically:
A. [I]n the case here of MMT and Qimron, having then
done our joint work, we have squeezed the orange as hard
as we can, we have got as much as we can out of it, and
what we have got is, we’re pretty sure is reliable, it’s not
lemon juice.
Q. It’s reliably what?
A. It’s reliably good orange juice.499
“The vitality of the scholarly life depends upon a scholar’s
ability to freely state his agreements and disagreements with

quoted opinion states, “Our Circuit has considered this so-called ‘merger’ doctrine in
determining whether actionable infringement has occurred, rather than whether a
copyright is valid, an approach the Nimmer treatise regards as the ‘better view.’” 937 F.2d
at 705 (citations omitted). Plainly, although the current thoughts approach the matter
generally, it would be best to evaluate the merger doctrine in the context of a particular
infringement claim—an enterprise distinct from that of the present chapter.
494. Bender, 158 F.3d at 688 n.12.
495. Id. (citing CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d
61, 71 (2d Cir. 1994)).
496. CCC Info. Servs., Inc., 44 F.3d at 72.
497. See Strugnell Testimony at 101.
498. “This dichotomy between types of ideas is supported by the wording of various
legislative pronouncements, which seem uniformly to contemplate denying protection to
building-block ideas explaining processes or discoveries, and do not refer to expressions of
subjective opinion.” CCC Info. Servs., Inc., 44 F.3d at 71 n.22.
499. Strugnell Testimony at 102–03.
104 HOUSTON LAW REVIEW [38:1

those who came before him. That’s how the life of the mind and
the human condition improves.”500 For Dead Sea Scroll studies to
progress, it is essential to deny Qimron a copyright in the text
that he has posited as the reconstruction of TR’s words. Those
words—the orange juice—are nothing other than the building
blocks “to promote the progress of science” in the field.501

2. Wedding of Idea and Expression

A separate application of the merger doctrine comes in
Harper & Row v. Nation. The Supreme Court there vindicated
copyright protection for President Ford’s memoirs.502 But in that
context, the Court further noted, “Some of the briefer quotes from
the memoirs are arguably necessary adequately to convey the
facts; for example, Mr. Ford’s characterization of the White
House tapes as the ‘smoking gun’ is perhaps so integral to the
idea expressed as to be inseparable from it. Cf. 1 Nimmer at §
1.10[C].”503
The section from Nimmer on Copyright that the Court cites
contains a discussion captioned, “The Wedding of Idea and
Expression.”504 That concept bears heavily on the process of
manuscript reconstruction.
Echoing the Supreme Court’s very phraseology, one
Christian theologian characterizes MMT as “the ‘smoking gun’
for which students have been searching for generations.”505 A
Jewish scholar avers that this amazing document “hold[s] the
key to many mysteries of the Dead Sea scrolls.”506 One cannot do
justice to the epochal pronouncements of MMT by skirting
around its edges or paraphrasing its content. For the precise
words that TR used are “so integral to the idea expressed as to be
inseparable from it.”
A social critic or historian can sensibly talk about President
Ford’s role in the Nixon impeachment and pardon, even if limited
to approaching the domain periphrastically. In other words, the
precise locutions by which Ford described his thoughts and
conduct are not themselves the issue for scholarly debate. In

500. WHO WROTE THE DEAD SEA SCROLLS?, supra note 229, at 326 (quoting Bill
Ziobro, Secretary-Treasurer of the American Philological Association).
501. U.S. CONST. art. I, § 8, cl. 8.
502. 471 U.S. 539 (1985).
503. Id. at 563.
504. 1 NIMMER ON COPYRIGHT § 1.10[C][2]. To express the matter biblically, merger
arises when idea cleaves to expression such that they share one flesh. See Genesis 2:24.
505. Refer to note 368 supra and accompanying text.
506. Refer to note 256 supra and accompanying text.
2001] DEAD SEA SCROLLS 105

sharp contrast, one cannot talk about the specific halachic

standards that MMT imposed without quoting its text
verbatim.507 Once one does so, Qimron claims violation of his
copyright. But that claim functions as the ultimate wedding
party-pooper.
Given the marriage between Qimron’s reconstruction and
the ideas that he is propounding in the mouth of one of the key
figures in the history of Western religion, the copyright monopoly
plays no role here. For this reason as well, the infringement
claim fails.

3. No Other Way to Express Unprotected Ideas

In Kern River Gas Transmission Co. v. Coastal Corp.,508 the
plaintiff drafted maps depicting its proposed route of a natural
gas pipeline. The defendant, plaintiff’s competitor, copied the
maps and consequently prevailed in a competition for
government approval of pipeline construction based on its plans.
The plaintiff responded by suing for copyright infringement.
Drawing a map to locate a gas pipeline presents a task as
complex (and potentially creative) as reconstructing an ancient
text. One does not simply plot the shortest distance from point A
to point B.509 Instead, a host of issues must be subjectively
juggled:
1. Shortest distance between two points;
2. Reasonable cost;
3. Future pipeline security;
4. Good constructability;

507. Imagine that after arranging a given fragment horizontally rather than
vertically, there remain spaces on either side of it, a centimeter before it and two
centimeters after. If Qimron were to determine that the scribe in question generally fit
seven letters into a centimeter—except that the letters yod and vav occupied only a half-
space—then he w ould have made room for seven letters and fourteen letters respectively
(or more letters, given the requisite appearance of yods and vavs). As to such matters,
Qimron has the greatest expertise, as he literally wrote the book on the subject. See
ELISHA Q IMRON, THE HEBREW OF THE DEAD SEA SCROLLS 31–33 (1986) (assimilation of
yod and vav).
Let us posit further that Qimron developed a certain Hebrew formulation that
fit into that domain, consisting of the appropriate number of letters—say, asher diber
[that he spoke], which has seven letters (including the intermediate space between the
words). The only adequate way to formulate Qimron’s reconstruction of the lacuna as
consisting of asher diber is to quote it; any other method falls painfully short. But this
does not mean that asher diber now becomes protected expression. It is merged with the
idea that into a space capable of sustaining seven letters, TR in this instance chose to
express himself with the locution asher diber.
508. 899 F.2d 1458 (5th Cir. 1990).
509. Robert A. Martin, Jr., “On the Ground” Aspects of Pipeline Routing, in
PROCEEDINGS OF THE 1991 API PIPELINE CONFERENCE 460–61 (1991).
106 HOUSTON LAW REVIEW [38:1

5. Environmental and governmental permit requirements;

6. Possibility of being constructed in a timely manner.510
Each of these considerations in turn engenders subfactors.511
In addition, other desiderata must be weighed in the calculus,
such as choosing an area of low population; following existing
property lines and highway corridors; avoiding high value
acreage; and circumventing areas of known property owner
resistance groups.512 Consequently, the best route represents a
composite of many considerations.513
Notwithstanding any creativity that went into the choice of
where to locate the pipeline, the Fifth Circuit dismissed the
copyright claim pursuant to the merger doctrine. The court held
the idea of the location of the pipeline and its expression
embodied in the maps inseparable, and thus not subject to
protection.514 To extend protection to the maps would be to grant
plaintiff a monopoly of the idea for locating a proposed pipeline at
a given location, “a foreclosure of competition that Congress could
not have intended to sanction through copyright law.”515
The only way an archaeologist or philologist can give shape
to her idea about how an ancient author expressed himself is by

510. Id. at 461.

511. As to the environment, for example, thought must be given along the following
lines:
1. Watch out for environmental impacts such as
a. wet lands
b. other bodies of water
c. threatened and endangered species
d. historical areas such as burial grounds
2. Meet with involved agencies to find out their concerns
3. Identify hazardous waste-superfund areas
See id. at 462. As to constructability, the factors include:
1. avoid rocky areas, areas of rough terrain and wooded areas
2. river and water way crossings can be expensive and time consuming
3. try to use the shoulder of roadways since compaction and asphalt
replacement can be very expensive
See id. at 463. As to engineering, again multiple concerns intervene:
1. how costly will the route be?
2. hydraulics concerns—don’t go over mountains
3. can pump stations be acquired and is there access
4. can you conform to DOT requirements?
See id.
512. Id. As a subspecies of the last consideration, “crossing of Indian lines can be
very expensive and require a very long process time.” Id. at 462.
513. Id. at 464.
514. Kern River Gas Transmissions Co. v. Coastal Corp., 899 F.2d 1458, 1463–64
(5th Cir. 1990).
515. Id. at 1464.
2001] DEAD SEA SCROLLS 107

putting the fragments together and filling in the lacunae in a

manner that she perceives to be correct.516 Over the course of
eleven years, Qimron had many ideas about what TR was
saying.517 One was to substitute an ayin for an aleph. Another
was to assemble fragments widthwise rather than lengthwise.
The only way to express each of those ideas is through the text
that Qimron proposed. In these and every other instance of
manuscript reconstruction, the expression merges with the idea.
Even more than a map is the most effective way to convey the
idea of where to locate a suggested pipeline route, a
reconstructed manuscript is the only effective way to convey the
ideas regarding how to reconstruct that manuscript.518 It is
impossible to imagine that Congress intended to foreclose
competition in ideas about how to assemble ancient manuscripts
via copyright law. Qimron’s proposed reconstruction, which
merges idea with e xpression, therefore stands outside copyright
protection.

C. Enemy of the True

Bender v. West states that “the creative is the enemy of the

true.”519 That aperçu carries great force as applied to the chore of
manuscript reconstruction.

516. As long as selections of facts involve matters of taste and personal opinion,
there is no serious risk that withholding the merger doctrine will extend
protection to an idea. . . . However, where a selection of data is the first step
in an analysis that yields . . . even a better-than-average probability of
some result, protecting the “expression” of the selection would clearly risk
protecting the idea of the analysis.
Kregos v. Associated Press, 937 F.2d 700, 707 (2d Cir. 1991).
517. The amount of effort invested in conceiving the idea does not confer protection.
In Kern River, the court found that the plaintiff “conducted expensive and detailed field
work to acquire the information needed to formulate . . . the precise location of their
pipeline.” 899 F.3d at 1464. This factor did not change the conclusion that the idea of the
location of the pipeline and the maps in which it was embodied were inseparable.
Similarly, the years that Qimron put into the reconstruction of the manuscript are
immaterial to the fact that his reconstructed manuscript is the only effective expression of
his ideas.
518. The amount of cogitation, number of permutations considered, and other
intellectual labor that goes into manuscript reproduction makes it no more subject to
copyright protection than do the equivalent factors that underlie preparation of a pipeline
map.
519. Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 674, 688 (2d Cir. 1998), cert.
denied, 526 U.S. 1154 (1999).
108 HOUSTON LAW REVIEW [38:1

1. Copyright Estoppel520
Vindication of the fact/expression dichotomy discussed
above 521 comes as well in a different doctrine of law, copyright
estoppel. This doctrine arises when an author disavows the
seemingly creative nature of her work to claim that it actually
portrays objective factual material.522
Care must be taken to apply the estoppel doctrine with real-
world sensitivities. In other words, simply because a work’s
packaging would fool the ingenuous (or humorless) into believing
it a work of fact is no reason to blinker common sense when it
screams the opposite.523 Examples are legion:
??In A Study in Scarlet, The Sign of the Four, and
innumerable adventures, Sir Arthur Conan Doyle
presented what seemed to be the real-world adventures of
a Victorian detective named Sherlock Holmes as
recounted by his faithful amanuensis, Dr. Watson.
Nonetheless, there can be no question but that the good
knight engaged in copyrightable expression to produce
the tales. 524 By the same token, I Claudius was authored

520. It should be noted that a question of copyright estoppel did not remain at the
end of the day in the Bender v. West opinions, for West early on abandoned the argument
that its factual reporters contain its own creative expression rather than the judge’s
words. Id. at 681 n.4.
521. Refer to Chapter VII, section (A) supra.
522. In Oliver v. Saint Germain Foundation, 41 F. Supp. 296 (S.D. Cal. 1941), the
plaintiff’s book, A Dweller on Two Planets, related that the manuscript was a factual
account entirely dictated to him by a spirit from another planet known as Phylos, the
Thibetan. Id. at 297. In finding for the defendant, the court held that “equity and good
morals will not permit one who asserts something as a fact which he insists his readers
believe as the real foundation for its appeal to those who may buy and read his work, to
change that position for profit in a law suit.” Id. at 299. In Arica Institute, Inc. v. Palmer,
970 F.2d 1067 (2d Cir. 1992), the plaintiff claimed that its author had “discovered” the ego
fixations [of the human spirit], which are scientifically verifiable ‘facts’ of human nature”;
it was therefore estopped to claim copyright protection. Id. at 1075.
By contrast, in Cummins v. Bond, 1 Ch. 167 (1926), the plaintiff medium
produced an account of the Apostles, purportedly written contemporaneously with them,
by engaging in “automatic writing” from a 1900-year-old spirit. Id. at 168–69, 173. Noting
that “I have no jurisdiction extending to the sphere in which [the dead spirit] moves,” id.
at 173, the Chancery judge declined to hold that “authorship and copyright rest with some
one already domiciled on the other side of the inevitable river,” id. at 175, and thus held
for plaintiff. Id. at 176. See Peter H. Karlen, Death and Copyright, COPYRIGHT WORLD,
Apr. 1994, at 43, 46–47.
523. Readers have long looked to novels as the guideposts for their own lives. See
Introduction to A HISTORY OF READING, supra note 146, at 25. But those who fail to
realize the fictitious intent here belong “in the same category as the people who send
cheques to radio stations for the relief of suffering heroines in soap operas.” ANATOMY OF
CRITICISM, supra note 159, at 76.
524. 1 NIMMER ON COPYRIGHT § 2.11[C].
2001] DEAD SEA SCROLLS 109

by Robert Graves, 525 notwithstanding that it appears to

be the diary of an early Roman emperor; The Name of the
Rose was composed by Umberto Eco, notwithstanding
that the prologue recounts the tale of its ancient
manuscript being discovered on a visit to Prague; and on
and on.
?? Even in the context of law review articles, the purported
archaeological “find” of an ancient opinion by Tiberius, J.,
with an affirmance per Hades, C.J.,526 cannot be taken at
face value by anyone possessing the slightest modicum of
sophistication.
??Indeed, almost any novel, approached uncritically, could
be taken as portraying itself as a recitation of “true
events.”527 Thus, Moby Dick recounts the unfortunate
events that befell a man named Ishmael when he got on
Captain Ahab’s ship; Vanity Fair, the occurrences
befalling various people after the carriage pulled up to
Miss Pinkerton’s Academy for Young Ladies on Chiswick
Mall, etc. Indeed, it is only those “hypermodern” books in
which the narrator portrays himself as the narrator of a
work of fiction that fall outside this framework.528
The question arises where, along that spectrum, lies
Qimron’s reconstruction of 4QMMT. It is submitted that its
factual nature amply warrants application of the estoppel
doctrine.
At the time Qimron v. Shanks was tried, Qimron had not yet
published his manuscript. Accordingly, it may have been difficult
at that time to pinpoint indicia that unambiguously reveal its
factual nature. Still, Qimron’s testimony would seem to suffice in
this regard.529 Moreover, the fact that it was widely circulated in

525. Graves also produced a two-volume translation entitled THE G REEK MYTHS
(1955). It is fascinating to note that the very first entry, the archaic Pelasgian Creation
Myth, contains a reference to “the author of the Universe.” Id. at 27.
526. See An Odyssey Through Copyright’s Vicarious Defenses, supra note 303, at 163,
183.
527. “[U]nless a reader is delusional in a clinical sense, he or she never actually
imagines that Emma Bovary or Isabel Archer or Huckleberry Finn is a real person.”
ROBERT ALTER, THE PLEASURES OF READING IN AN IDEOLOGICAL AGE 50 (1989). See What
Is an Author?, supra note 155, at 152. Of course, there have been occasional hoaxes, in
which works of fiction were widely accepted as true. ANATOMY OF CRITICISM, supra note
159, at 135 (stating that such hoaxes “correspond to trompe l’oeil illusions in painting”).
528. Cf. JOHN BARTH, O N WITH THE STORY 71 (1996) (character in novel rips page out
of the book, which corresponds to an actual page printed in the book that the readers hold
in their own hands). For the perspective that the Bible itself might qualify as
“hypermodern,” see THE ART OF BIBLICAL NARRATIVE, supra note 108, at 71.
529. In other words, what we wanted to do is to take all of the manuscripts and
110 HOUSTON LAW REVIEW [38:1

the academic community and formed the subject matter for

graduate seminars in archaeology, history, and religious
studies—rather than in creative writing—leaves little doubt but
that its purveyor offered it to the world based on its factual
character rather than its fabulous properties.
To the extent that there were any doubts on that score as of
the 1993 trial, uncertainty has since evaporated. For in the
interim, DJD X has been published.530 Oxford’s Clarendon Press
trumpets DJD X as the text that was discovered at Qumran,
rather than as a fanciful reconstruction, an idiosyncratic
version531 or any other type of creation of literature.532 That
characterization begins in the flyleaf with the following words—
”This book . . . is the first edition . . . of one of the most important
documents found at Qumran: a letter from one of the leaders of
the Dead Sea sect . . . to one of the leaders of Israel. . . . The letter
is a unique and exceptionally interesting legal document from the
first century AD . . . .” Notably absent from that characterization
are disclaimers as to “educated guesses,” “speculations,”
“personal version,” “meditation” and the like. Throughout, the
volume repeatedly cites to characteristics of “the letter” written
by TR, not to “one possible way to read the letter, given the
manifold hazards of reconstruction” or the like.

to try to reconstruct the original work to the extent that we can reconstruct
it . . . . In other words the result is in effect the maximum that we were able
to do to arrive at an arrangement of the text that the author wrote to the
extent possible. . . . Without understanding the work in depth it is not
possible to produce an authentic text.
Protocol at 170–74.
530. See DJD X, supra note 229. That book came out in 1994, a half-dozen years
before the Supreme Court ruled. Justice Türkel acknowledged that this post-trial book
“can shed light on the picture of matters before the Court.” App. Opin., supra note 331, at
para. 7.
531. Had Qimron advertised himself as presenting an abridgement or epitome of
TR’s words, the situation would have been a bit different. In that case, he would more
closely resemble—albeit still fall short of—the individual who produced a scale-reduced
version of Rodin’s sculpture. “In a work of sculpture, this reduction requires far more than
an abridgement of a written classic; great skill and originality is called for when one seeks
to produce a scale reduction of a great work with exactitude.” Alva Studios, Inc. v.
Winninger, 177 F. Supp. 265, 266–67 (S.D.N.Y. 1959). Refer to note 91 supra.
532. How could it be otherwise? By its own charter, Oxford University Press was
founded so that “‘sordid and vulgar artizans may not pervert the indulgence of that most
clement prince to their own private lucre . . . [by] thrust[ing] into publication any words,
however rude and incorrect.’” THE NATURE OF THE BOOK, supra note 24, at 39 n.60.
2001] DEAD SEA SCROLLS 111

2. Subjective Expression

a. The Esthetic Impulse

What would result if Qimron, instead of presenting a
scholarly book like DJD X to the world, had taken it upon himself
to wax metaphorical? For instance, let us imagine that in the
context of heavy reflection concerning leather and its status
within the regulation of halacha, Qimron devised an apt ground
for comparison in a well-honed metaphor, whether an
unfavorable comparison (“a rotting carcass”) or a pleasant one
(“sweet as myrrh”). What would the reaction be if Qimron
inserted that metaphor of his own device into his reconstruction
of MMT in the context of DJD X?533 The very accusation is
defamatory.534
The job of the philologist, in short, is distinct from that of the
poet. If TR wanted to draw an appropriate metaphor, he was free to
do so. If a modern writer inspired by the Scrolls chooses multiple
rhetorical devices, that also is perfectly appropriate.535 But for an
archaeologist to present his own original musings as the product of
antiquity fundamentally betrays the métier that he has chosen.
Again, we revert to Dr. Kefalos.536 There is nothing
inappropriate about Qimron attempting to divine through
intense study and immersion those metaphors, alliterations,
allusions, and other rhetorical devices that TR imbued into the
text. But to the extent that Qimron is thinking in terms of
metaphors, allusions, and the rest, it is strictly at the second
level, akin to psychoanalysis; in other words, the job of
reconstruction might be benefited by placing oneself in the
original author’s shoes, but that is a far cry from exercising one’s
own subjectivity to produce new and original material.

b. Scholar or Artist?
Norman Golb appeared as an expert witness at the trial of

533. “Poetical feelings are a peril to scholarship. . . . [It requires] repression of self-
will. . . . To be a scholar, the first thing you have to learn is that scholarship is nothing to
do with taste . . . .” TOM STOPPARD, THE INVENTION OF LOVE 36, 38, 69 (1997). Stoppard
places these thoughts in the mouth of A.E. Housman, meditating on the fragility of efforts
to reconstruct ancient manuscripts, and encountering Oscar Wilde (albeit not Napoleon
Sarony) in the process. Id. Refer to note 28 and accompanying text supra.
534. “[T]he historian selects his facts, but to suggest that he had manipulated them
to produce a more symmetrical structure would be grounds for libel.” ANATOMY OF
CRITICISM, supra note 159, at 75.
535. Refer to Case 1 (The Inspiration) supra.
536. Refer to Case 16 (The Shrink) supra.
112 HOUSTON LAW REVIEW [38:1

Qimron v. Shanks on behalf of co-defendant Eisenman.537 In

response to a question from Qimron’s attorney, he “answered
that any manuscript scholar who, in a lecture, defined his work
of reconstruction as an act of creation would be laughed off the
stage by his peers.”538
Qimron could have been moved by MMT, like Karen Hai-
Sod, to write, “Her hair was dark as night,” or other literature of
his own inspiration.539 Had he elected to do so, the product o f his
composition would have been protected by copyright.540 In the
process, though, he probably would have committed “scholarly
suicide” no less than the Dead Sea Scrolls scholar who postulated
that Christianity began amidst orgiastic rites induced by
psychedelic mushrooms.541
In actuality, Qimron soberly chose otherwise. Instead of
writing a historical romance, he purported to create a scholarly
reproduction of the text.542 Having pursued the objective route,
he cannot now turn around to claim the protection that clothes
subjective works.543
An aesthete might reject the Procrustean bed between
scholar and artist, riposting: is there not truth in beauty?544 The
works of artists, in other words, themselves display timeless
truths, yet they do not thereby forfeit copyright protection. That
postulate does indeed rest on an accurate perception. At the
culmination of his Ode on a Grecian Urn,545 Keats proposes,
“Beauty is truth, truth beauty.”546

537. WHO WROTE THE DEAD SEA SCROLLS?, supra note 229, at 324. When I visited
the Shrine of the Book on May 28, 2000, this book was the only one among all those cited
herein on sale at the gift shop.
538. Id.
539. Refer to Case 1 (The Inspiration) supra.
540. For instance, Rabbi Milton Steinberg took off his objective yarmulke and put on
the beret of a novelist when writing As a Driven Leaf. The book’s dramatization of the life
of Talmudic sage (and later apostate) Elisha Ben Abuya for that reason lies within
copyright protection.
541. Refer to note 383 supra.
542. See generally Steve Woolgar, What is a scientific author?, in WHAT IS AN
AUTHOR?, supra note 11, at 175–86.
543. We reach here “[o]ne of the most familiar and important features of literature[:]
the absence of a controlling aim of descriptive accuracy.” ANATOMY OF CRITICISM, supra
note 159, at 75. If Qimron was trying to recapture TR’s words through the most accurate
description, then he was not creating literature.
544. A 1744 copyright case labels a literary composition as “an Assemblage of Ideas
so judiciously arranged as to enforce some one Truth.” The Author as Proprietor, supra
note 19, at 35 (quoting Donaldson v. Becket). But Blackstone replied, “Style and sentiment
are the essentials of a literary composition.” Id. at 36.
545. Refer to Case 23 (The Magician) supra.
546. Ode on a Grecian Urn, line 59.
2001] DEAD SEA SCROLLS 113

For the poet, perhaps,547 it may be accurate that “that is all

Ye know on earth, and all ye need to know.”548 But in this
sublunary sphere, at least, without contesting that there is a
“higher truth” in works of fiction,549 there is a sharp break
between the creative and the true,550 which for these purposes we
can denominate the subjective and the objective.551 To reiterate,
“the creative is the enemy of the true.” Simply stated, copyright
protects subjective expression, as recognized by Bender v. West552
and countless other cases.553
Qimron presents himself to the world as an objective
historian, not as the “sylvan historian” immortalized in Keats’s
well-wrought Ode.554 Having elected to proceed in the objective
sphere insofar as manuscript reconstruction is concerned,
Qimron lacks copyright protection for that labor. He is estopped
to claim otherwise.

3. Intermingled Material
There is a third facet to the estoppel doctrine, this one with a

547. It did not, however, convince T.S. Eliot and other critics of the Ode. See CLEANTH
BROOKS, THE WELL WROUGHT URN 124–25 (1947). Brooks’s whole book can be taken as
defending Keats’s insight against his detractors. See also LIONEL TRILLING, The Poet as Hero:
Keats in His Letters, in THE O PPOSING SELF: NINE ESSAYS IN CRITICISM 32 (1955).
548. Ode on a Grecian Urn, line 59. On one reading, this interplay undergirds even
The Law, whose “solemn guardians . . . strove for beauty and by their very beauty for
truth.” THE READER, supra note 84, at 181.
549. Manifestly, people would soon stop reading literature if they did not find
applications therein to their own life. See THE PLEASURES OF READING, supra note 527,
at 49; Amy B. Cohen, Copyright Law and the Myth of O bjectivity: The Idea-Expression
Dichotomy and the Inevitability of Artistic Value Judgments, 66 IND. L.J. 175, 184–86
(1990). The Bible itself attempts “to realize through the medium of literature an order of
truth that utterly transcends literature.” THE WORLD OF BIBLICAL LITERATURE , supra
note 155, at 46.
550. “History makes particular statements, and is therefore subject to external
criteria of truth and falsehood; poetry makes no particular statements and is not so
subject.” NORTHROP FRYE , THE G REAT CODE : THE BIBLE AND LITERATURE 46 (1982).
551. One commentator identifies “authorial subjectivity as the hallmark of original
works of authorship.” Jane C. Ginsburg, Creation and Commercial Value: Copyright
Protection of Works of Information, 90 COLUM . L. REV . 1865, 1867 (1990). See Figures of
the Author, supra note 194, at 15; The Law’s Eye, supra note 113, at 83. But see Dropping
the Subject, supra note 25, at 108, 109 (postulating that it distorts to view “authorship
and its law as a transparent adjunct of human subjectivity”; “historiography of authorship
and copyright need not be subsumed in the analysis of subjectivity”).
552. 158 F.3d 674, 689 (2d Cir. 1996), cert. denied, 526 U.S. 1154 (1999).
553. See Fin. Info., Inc. v. Moody’s Investors Serv., Inc., 808 F.2d 204, 206–08 (2d Cir.
1986) (holding that the “‘simple clerical task’” of collecting the most straightforward
information about bonds, with no subjectivity or variation whatsoever, was not
copyrightable).
554. Ode on a Grecian Urn, line 3. As noted above, Qimron’s copyright case, insofar
as it unfolded in the United States, did so in the courts of Pennsylvania. Refer to Chapter
V, section (B)(1) supra.
114 HOUSTON LAW REVIEW [38:1

twist. When a putative copyright holder has mingled his

purportedly protected expression inextricably with public domain
material, there is reason to deny copyright protection. This lesson
derives equally from Bender v. West and Qimron v. Shanks. For in
both cases, the claimant took a legal text that was not subject to
copyright protection, and claimed copyright based on its
intermingled additions.555

a. West
The early correspondence between West and rival publishers
leaves no doubt that West adopted a conscious policy of relying on
its emendations to judicial opinions as the basis for asserting
copyright protection in its reporters. West banked on the fact that it
would be impossible for newcomers to separate out those
emendations in attempting to engage in rival presentations of
public domain judicial opinions. Instead, as West well knew, the
intermingling of the “chaff” of West additions would make the entire
“wheat” of the judicial opinions indigestible to all competitors.556
Arguing the illegitimacy of that practice, we cited to the
district court a section of the Copyright Act that not only had
never been relied upon in any published opinion but, to the best
of my knowledge, had never even been previously cited to any
court. The section in question provides that a published work
reproducing works of the United States government must bear a
copyright notice identifying, “either affirmatively or negatively,
those portions of the copies . . . embodying any work or works
protected under this title.”557 That provision, as illustrated by its
legislative history,
is aimed at a publishing practice that, while technically
justified under the [1909 Act], has been the object of
considerable criticism. In cases where a Government work is
published or republished commercially, it has frequently been

555. For these purposes, we discard the specialized argument postulated above that
4QMMT remains subject to copyright through 2002. Refer to Chapter VI, section (B)(1) supra.
556. In a letter to HyperLaw dated October 9, 1991, West advised that “you should
carefully compare the enclosed copy of the public domain slip opinion in Mendell [v. Gollust,
909 F.2d 724 (2d Cir. 1990)] to the West case report of the same case,” claiming that “you will
see that the slip opinion and case report vary substantially in their selection, coordination, and
arrangement of material included.” Exhibit 13 to Intervenor Complaint, HyperLaw, Inc. v.
West Publ’g Co., No. 94 CIV. 0589, 1997 WL 266972, (S.D.N.Y. May 19, 1997) (emphases in
original). In fact, comparison of the opinion portion of West’s report of Mendell v. Gollust shows
it to be letter-for-letter identical to the slip opinion, except for the addition of parallel citations.
Declaration of Michelle Kramer, dated July 31, 1996, filed in support of Matthew Bender’s
motion for Summary Judgment, Ex., 1 at 1, Hyperlaw v. West, No. 94 CIV. 0589, 1997 WL
266972, (S.D.N.Y. May 19, 1997).
557. 17 U.S.C. § 403 (1994).
2001] DEAD SEA SCROLLS 115

the practice to add some “new matter” in the form of an

introduction, editing, illustrations, etc., and to include a
general copyright notice in the name of the commercial
publisher. This in no way suggests to the public that the bulk
of the work is uncopyrightable and therefore free for use.558
Based on West’s failure to follow that provision, Bender
argued that West had committed copyright misuse,559 thereby
invalidating protection over its reporters published during the
pendency of that provision.560 As we pointed out to the district
court, West always had the option of including its emendations
[in brackets] or in a special type font, or otherwise distinctively
segregated from the public domain judicial opinions. West,
however, availed itself of no such option. Instead, it consciously
mixed its emendations into the text on a seamless basis, so that
it would be impossible to separate it out absent the commercially
unfeasible activity of parsing West’s reporters line-by-line.561
The district court agreed. Thus, Bender v. West became the
only judicial opinion in U.S. history that I know of to cite that
section of the Copyright Act as part of its rationale.562

b. Qimron
At first blush, Qimron’s activity stands at the opposite end of
the spectrum from West’s. First, the provision noted above
applies solely to works of the United States Government, thus
excluding MMT. Second, Qimron’s reconstruction of 4QMMT
includes within brackets the materials that he has posited as
part of his reconstruction.563 In other words, he apparently
adopted the very methodology that we criticized West for
omitting. It would seem, therefore, that Qimron is immune from
the criticism that we leveled at West.
Further examination undermines that conclusion. It is
necessary to revert here to the realization that Qimron can lay
claim to copyright protection solely for the mistakes that he
committed, rather than for accurate re-creation of the words
authored by the Teacher of Righteousness.564 Such brackets as

558. H. R. REP. NO. 94-1476, at 145 (1976).

559. Refer to Chapter VI, section (A)(2) supra.
560. That version of 17 U.S.C. § 403 was in operation from January 1, 1978, through
March 1, 1989.
561. See Declaration of Michelle Kramer, supra note 556.
562. Bender v. West, 53 U.S.P.Q.2d 1436, 1438 (S.D.N.Y. 1999).
563. The material not in brackets, in turn, represents the matter that he simply
transcribed from the ancient documents. See FACSIMILE EDITION, supra note 259, at Plate 8.
564. Refer to Chapter IX, (C)(2) infra.
116 HOUSTON LAW REVIEW [38:1

Qimron inserted into his reconstruction of MMT do not

distinguish the accurate from the mistaken. To appreciate how
that factor plays out, we need to garb Qimron’s choices with some
approximate numerical figures.
?? Let us imagine that, during the 11 years that he spent
reconstructing MMT, Qimron was able to re-create TR’s
words 65% of the time.
??Although 65% would not be a laudable grade in
coursework, let us further posit that a 65%-accurate
reconstruction from an ancient manuscript represents a
signal achievement.
??On the foregoing assumptions, the material representing
Qimron’s mistakes—the “original” expression included in
his reconstruction not traceable back to the Teacher of
Righteousness—is 35% of the 40% portion of the work
that he claims to have regenerated.
??On that basis, 14% of the material that Shanks published
in the offending exhibit represents Qimron’s original
authorship and, hence, could give rise to a claim of
copyright infringement.
When one reviews Qimron’s reconstruction, there is no way
to segregate the 14% of putatively copyrightable expression from
the 86% of manifestly uncopyrightable material. For, as
previously noted, the brackets give no indication as to which
contain accurate reconstructions and which contain mistakes.
Accordingly, the estoppel doctrine applies to Qimron’s
reconstruction in the same way that it does to West’s case
reporters. In neither event can a newcomer promote the progress
of science by extracting out the massively uncopyrightable
materials without risking infringement of the small quantum of
copyrightable materials interspersed throughout. Qimron’s
claims fail on this basis as well.

4. Of Authors and Authorities

Stemming from its constitutional authorization, copyright
law has always concerned itself with the author. That term,
however, is fraught with the potential for confusion. For it bears
connotations resonant of authority.565 Indeed, it seems to be
precisely those connotations that led Judge Dorner astray.

565. See Our Homeland, the Text, supra note 357, at 308 (discussing “the auctoritas
of authorship”).
2001] DEAD SEA SCROLLS 117

Consider whether Qimron can be said to be the author of the

text on which he premised suit. Judge Dorner’s fixation on the
depth of Qimron’s knowledge of philology and halacha and the
time that he spent expending intellectual labor into the process
of reconstruction led her to answer the authorship question in
the affirmative.566
If the question were one of authority, it is submitted that
Judge Dorner ruled correctly. Qimron is, one may readily
concede, an authority on the Qumran sect, the Dead Sea Scrolls,
the philology of the language used in the Judean desert in
millennia past, and related disciplines. His authority in such
matters is what brings value to his reconstruction.
But one needs to go all the way back to Hobbes in 1651 to
encounter the archaic construction of “author” as the individual
who wields “authority.”567 By contrast, the author in whom
copyright vests is the one who has injected subjective expression
into the mix.568 An authority, by virtue of his expertise, is able to
construct the true. But the true is the enemy of the creative and,
hence, of copyrightable expression.569 For all these reasons,
Judge Dorner misses the mark by conflating “author” with its
cognates.

566. One should recall here the distinction between creativity in the process and
creativity in the product. Refer to note 153 supra. The former Qimron possessed in
abundance; the latter, none—at least to the extent he hit the bull’s eye of his effort to
reconstruct TR’s words.
567. Refer to Chapter II supra.
568. One can switch the discourse to “the author of a theory, tradition, or discipline.”
What Is an Author?, supra note 155, at 153. But such usages as calling Freud “the author
of psychoanalysis,” though not an abuse of authorial terminology, plainly depart from the
copyright realm. Id. at 155. See JON D. LEVENSON, THE DEATH AND RESURRECTION OF THE
BELOVED SON 74–75 (1993) (posing God as “author” of the struggle between Cain and
Abel); ROBERT WRIGHT, NONZERO: THE LOGIC OF HUMAN DESTINY 250 (2000) (postulating
God as “author” of the process of evolution itself). See also Childress v. Taylor, 945 F.2d
500, 506 (2d Cir. 1991) (“The ‘author’ of an uncopyrightable idea is nonetheless its author
even though, for e ntirely valid reasons, the law properly denies him a copyright on the
result of his creativity.”).
569. Refer to Chapter IV supra.
118 HOUSTON LAW REVIEW [38:1

VIII.
SIN ORIGINAL
“The writing was the writing of God engraved upon
the tablets.” Rabbi Joshua Ben Levi says: “Do not
read ‘engraved’ (charut) but rather ‘freedom’
(cheyrut). For you are not free unless you engage in
study of Torah.”
Pirkei Avot 6:2

Peeling further layers off the onion yields more tears.

Moving from general considerations underlying manuscript
reconstruction to Qimron’s particular acts of authorship, the
question arises whether Qimron’s work is copyrightable as an
original composition. There is reason to doubt that it is.

A. Evaluating the Quantum of Originality

What did Qimron do to reconstruct MMT? His contributions

formed the basis for winning his copyright claim. Thus, to
appreciate the core of his case against Shanks, careful attention
must be paid to the originality that purportedly undergirds
Qimron’s acts of authorship.

1. The Opinions
In seeking to determine whether Qimron’s work contains the
requisite originality to qualify for copyright protection, Judge
Dorner acknowledges at the outset that if a particular work is a
mere duplication of another work, the “duplicator” is not entitled
to copyright protection, no matter how much effort has been put
into that work.570 But Qimron is not a duplicator, she reasons,
inasmuch as the original scroll for MMT has never been fully
recovered; the dozens of fragments found relate to more than one
scroll; the majority of the fragments did not physically match;
and almost half a scroll was still missing even after assembling
the fragments.571 Qimron needed to engage in research in

570. Trial Opin., supra note 195, at 23, end of § 21. In this regard, it is instructive to
revert to Cases 11 and 12 (The Doppelgänger and The Forgery) supra. Note that despite
her invocation of the presumption of identify of laws, Judge Dorner’s opinion cites to both
the U.S. Supreme Court’s Feist case and to Nimmer on Copyright in reaching her
determination.
571. Trial Opin., supra note 195, at 24, § 22.
2001] DEAD SEA SCROLLS 119

philology and in halacha 572 in order to fill in the missing parts,

an effort upon which he expended eleven years.573
These circumstances amply demonstrate that the task of
restoration was complex. But Judge Dorner herself realizes that
the amount of work put into copying an original work of art is
irrelevant when it comes to the originality required to establish
copyright protection.574 Therefore, the sweat that Qimron
produced to solve the jigsaw puzzle cannot serve as the basis for
copyright protection.575
Paradoxically, Qimron’s philological expertise and painstaking
labor over the decades, if anything, diminish the scope of any
copyright protection that he can urge. Consider that one inspired to
compose a stream of consciousness ode based on glimpsing the
scrolls undeniably obtains copyright protection for her work
product.576 The farther that Qimron stands from the poet—the
closer his painstaking research and analysis bring him to
reconstructing TR’s words—the less is his protection. At the
limiting case in which he is exactly right, he manifestly can claim
zero originality. Accordingly, Judge Dorner’s ruminations, rooted in
an inchoate sense that hard and valuable labor deserves reward,
incline in exactly the wrong direction from the copyright standpoint.
Indeed, her conclusion actually matches an earlier view of
copyright law, exemplified by Toksvig v. Bruce Publishing Co.577
That case declared that a biography of Hans Christian Andersen,
in which the author personally unearthed various facts and
engaged in her own research into the original Danish sources,
deserved protection against copying. Toksvig posed the question
as “not whether [defendant] could have obtained the same
information by going to the same sources, but rather did she go to
the same sources and do her own independent research?”578 That

572. That word refers to the system of Jewish law, the way to “walk” (the word comes
from that verb) down the path prescribed by Torah.
573. Trial Opin., supra note 195, at 15, § 3.
574. Id. at 23, § 22.
575. Judge Dorner specifically rejects protection for fitting together any pieces that
physically “matched.” Rather, her goal is to protect placing of pieces that were not
physically connected and filling in lacunae. Id. at 24, § 22 (“composition of the composite
text on the basis of halakhic and linguistic research of the author”).
576. Refer to Case 1 (The Inspiration) supra. Pristine ignorance of halacha, history,
and every other scholarly discipline, and spending as little time as possible on the project
stand our hypothetical poet at the far end of the spectrum from Qimron. Yet it is she who
has engaged in the type of subjective act of authorship that finds protection under the
copyright rubric.
577. 181 F.2d 664 (7th Cir. 1950).
578. Id. at 667.
120 HOUSTON LAW REVIEW [38:1

requirement of “independent research” has now been discarded

by a unanimous Supreme Court:579
It may seem unfair that much of the fruit of the
compiler’s labor may be used by others without
compensation. As Justice Brennan has correctly observed,
however, this is not “some unforeseen byproduct of a
statutory scheme.” It is, rather, “the essence of copyright,”
and a constitutional requirement. The primary objective of
copyright is not to reward the labor of authors, but “[t]o
promote the Progress of Science and useful Arts.” To this
end, copyright assures authors the right to their original
expression, but encourages others to build freely upon the
ideas and information conveyed by a work. This principle,
known as the idea/expression or fact/expression dichotomy,
applies to all works of authorship. As applied to a factual
compilation, assuming the absence of original written
expression, only the compiler’s selection and arrangement
may be protected; the raw facts may be copied at will. This
result is neither unfair nor unfortunate. It is the means by
which copyright advances the progress of science and art. 580
But let us look more deeply into the particular circumstances
that Judge Dorner adduced as a basis for finding Qimron to have
engaged in authorship. Her opinion details two examples.
??Strugnell believed that the sentences in some parts of the
scroll are nine lines long, and therefore the fragments
should be assembled lengthwise. By contrast, Qimron’s
research led him to conclude that the relevant sentence is
eighteen lines long, and therefore the fragments should be
assembled widthwise. That conclusion changed
dramatically the content of the recovered scroll.581
??Another part of the scroll was constructed of six tiny
fragments in a way that Qimron testified to be speculative.
The whole meaning of the paragraph depended on the
question whether a missing letter in the text of the word ’orot
was the Hebrew letter aleph as Strugnell supposed, so that
the reconstructed word would mean “lights,” or whether the
missing letter was the letter ayin, to reconstruct a Hebrew

579. Adverting to Toksvig’s subject matter regarding the fables of Hans Christian
Andersen, “Feist has sung the swan song for Toksvig, a case that has been long derided in
any event as a judicial ugly duckling.” 1 NIMMER ON COPYRIGHT § 2.11[E]. The courts
have subsequently joined the treatise in disavowing Toksvig. See Nash v. CBS, Inc., 899
F.2d 1537, 1542 (7th Cir. 1990).
580. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–50 (alteration in
original) (citations omitted).
581. Trial Opin., supra note 195, at 24, § 22.
2001] DEAD SEA SCROLLS 121

word that means “[animal] hides.”582 Following research of

the contemporary halacha regarding the purity of leather,
Qimron concluded that the text should be assembled so that
the word at stake would mean “hides.”583 The content of the
text is far different from the meaning it would have held had
the missing word been completed as “lights.”
When the Supreme Court affirmed, it relied solely on
those two examples.584 Although likewise eschewing reliance
on the “sweat of the brow” doctrine,585 the opinion’s
terminology is telling—it refers throughout to Qimron’s
reconstruction of MMT as the “Deciphered Text.”586 That
language only highlights the objective nature of the task facing
Qimron and his absence of subjective expression.587
In any event, how do the two contributions cited by both
courts lie within the realm of copyright? One who takes a work
of nonrepresentational art that has traditionally been
exhibited lengthwise, and convincingly demonstrates that it is
to be rehung widthwise, has not engaged in any copyrightable
act of authorship.588 It is hard to credit the first contribution

582. To elaborate, Hebrew contains a word or (plural, orot) spelled aleph-vav-resh,

which means “light.” Hebrew contains a separate word ’or (plural, ’orot) spelledayin-vav-
resh, which means “leather.” Herein, the first plural will be translated “lights,” the second
as “hides.” Although the pronunciation is identical, the word with an aleph will be
transliterated as orot, the one with an ayin as ’orot to signal the difference.
583. For a rough analogy to Qimron’s task here, compare the emendation of Thomas
Nashe’s line from “brightness fell from the air” to “brightness fell from her hair.” See The
Uncommon Reader, in NO PASSION SPENT, supra note 212, at 7.
584. App. Opin., supra note 331, at para. 14.
585. Introducing Judge Dorner’s famous two examples, the appellate opinion
comments as follows:
Qimron’s work was not, therefore, technical work, “mechanical,” like simple
manual labor the results of which are known in advance. His “inspiration,” the
“added soul” that he gave to the Scroll fragments, that transfigured the
fragments into a living text, were not only confined to the investment of human
resources, like “sweat,” in the sense of “the sweat of a man’s brow.” These were
the fruits of a process in which Qimron used his knowledge, expertise and
imagination, exercised judgment and chose between different alternatives.
Id. at para. 14. Earlier, the Court referenced “‘inspiration’ in the sense of yitron haruach
[literally, ‘advantage of the spirit’] according to one of the interpretations of the words in
Malachi 2:15.” Id. at para. 10.
586. Throughout, the opinion refers to it as hatext hamephu’anach. Some of those
passages including this phrase have already appeared above.
587. Refer to Case 19 (Chicken Little) supra.
588. Lee v. A.R.T. Co., 125 F.3d 580, 581 (7th Cir. 1997).
122 HOUSTON LAW REVIEW [38:1

differently. Moving to the second, it is impossible to maintain

that a single letter589 can a copyrightable composition make.590
But these considerations are not conclusive. Perhaps the trial
judge simply cited insufficient examples of the evidence adduced to
her, and the appellate court had nothing further in the record upon
which to rely.591 It is, therefore, necessary to look more broadly
before drawing any conclusions as to Qimron’s originality.

2. Qimron’s Own Explanation

For this purpose, developments since trial afford an
excellent vehicle to judge the nature of Qimron’s contributions.
Nine scholarly essays fill the book Reading 4QMMT.592 One of
the contributions is by Qimron himself. The philologist-plaintiff
there details “three passages which demonstrate the nature of
the text and the way in which it was reconstructed.”593 Given
that the book is aimed at specialists rather than a general
audience—and given that Qimron ends his own contribution by
noting how he “anxiously await[s] the critical judgement of my
esteemed colleagues”594—this work furnishes the perfect vehicle
to gauge the originality of Qimron’s contributions.595
Qimron begins by claiming that his reconstruction of MMT
“probably constitutes 40% of the composite text.”596 (Strugnell, by
contrast, estimates that “we have about two-thirds, or it depends,
between two-thirds and three-quarters of the whole theoretically
existent text.”)597 On several occasions, Qimron claims that
reconstruction “is no more than an educated guess on the basis of
the scholar’s knowledge and intuition.”598 These claims, if credited,

589. Moreover, even the letter that Qimron changed in the text was not the product
of his original authorship. The suggested letter was authored by TR, and recovered by
Qimron, who literally saw it “on several tiny fragments.” Refer to text accompanying
notes 609, 653 infra.
590. Even a single word would not suffice, and a single line is dubious. Judge Frank
suggested that copyright protection should be accorded only to extraordinarily fanciful
lines, such as “‘Euclid alone has looked on Beauty bare.’” Heim v. Universal Pictures Co.,
154 F.2d 480, 487 n.8 (2d Cir. 1946). For the mathematical justification regarding Euclid,
see THE MAN WHO LOVED O NLY NUMBERS , supra note 99, at 32–33.
591. The latter proposition is dubious. Refer to note 530 supra.
592. Refer to note 254 supra.
593. The Nature of the Reconstructed Composite Text of 4QMMT , supra note 254,
at 10.
594. Id. at 13.
595. Moreover, it can scarcely be contended that Qimron’s views were edited against
his interest. The editors single out Qimron for their especial thanks. READING 4QMMT,
supra note 254, at xi.
596. The Nature of the Reconstructed Composite Text of 4QMMT , supra note 254, at 9
597. Strugnell Testimony at 190.
598. The Nature of the Reconstructed Composite Text of 4QMMT, supra note 254,
2001] DEAD SEA SCROLLS 123

would seem to demonstrate original contributions. Yet it is

interesting to juxtapose Qimron’s own examples of reconstruction
against that standard. Qimron offers three particulars.
As to the first, Qimron explains what he did with a fragment
that read simply, “it from one day to the following one.” He noticed
the similarity of this fragment to materials found on another
scroll.599 Qimron suspected that these sources were explicating a
biblical controversy arising out of Leviticus 7:15. That
commandment contains the imperative of the verb “to leave.”
Qimron further notes as follows: “Fortunately, I succeeded in
finding the word she-manichim (“that they leave”) on a tiny
fragment containing parts of several letters that belong to lines 9
and 11. These letters establish the placement of this fragment as
certain.”600
Taking Qimron at his word, this example does not deserve
copyright protection. Far from being subjective, an educated
guess, a locution for which many variant expressions are
possible, the placement is certain. There would appear to be
nothing copyrightable here.601
The second example comes from a different fragment of
MMT. Qimron modestly notes, “It was Menachem Kister who
first suggested the present placement of this fragment.”602
Though Strugnell and others disagreed with Kister, Qimron
further notes that “Bezalel Porten believes that papyrology in
fact supports Kister’s placement of this fragment.”603 If credited,
these circumstances could support a claim by Kister to copyright
protection.604 But they do not support Qimron’s claim.
The final example that Qimron adduces is the very one that
Judge Dorner adduced in her ruling. It comes from the most

at 9. By contrast, Sussmann, whilst conceding that there are “quite a few lacunae,” opines
that “the work itself — its aim, significance and the remnants of most of its paragraphs
are quite clear.” DJD X, supra note 229, at 185.
599. The Nature of the Reconstructed Composite Text of 4QMMT , supra note 254,
at 10, referencing 11QT 20:12–:13.
600. Id. (emphasis added; transliteration substituted in place of Hebrew characters).
601. Of course, even if an educated guess were at issue, it would stand outside of
copyright protection based on many of the doctrines discussed above.
602. The Nature of the Reconstructed Composite Text of 4QMMT , supra note 254,
at 12. Elsewhere, Qimron concedes that Kister suggested the order adopted for the entire
composite text of MMT. DJD X, supra note 229, at 201.
603. The Nature of the Reconstructed Composite Text of 4QMMT, supra note 254, at 13.
604. Of course, a separate inquiry would need to unfold to determine whether Kister
had an original idea; whether he clothed it in concrete terms; whether he set it down in a
tangible medium of expression; and whether the balance of prerequisites for copyright
protection are also present.
124 HOUSTON LAW REVIEW [38:1

extensively reconstructed area of the text.605 Proceeding based on

the homophone of the words “hides” and “lights,”606 Strugnell had
suggested the reading “lights.”607 Qimron posited the alternative
reading of “hides.”608 His methodology is worth quoting:
I discovered that parts of the words ’orot and ’or (“hide” in
the singular) are also found on several tiny fragments. I
assumed that this word must be the basis of some
controversial law. The placement, then, of these tiny
fragments in the composite text and the restoration of the
missing portions was based on the controversial laws found
in the Temple Scroll concerning the hides of ritually pure
animals. . . . The fact that the fragments which contain the
word ’orot were derived from two separate manuscripts of
4QMMT provides further confirmation for this suggested
arrangement. Since this reconstruction is based on the
temple Scroll, it contributes very little which is new to our
understanding of this actual law from Qumran.609
That passage could support diverse propositions—that
Qimron is punctilious, that he is broad in his knowledge, that he
is painstaking in his reconstruction, that he is loath to oversell
the significance of the matter entrusted to his care. Y et it would
seem equally to refute the claim that Qimron injected into this
aspect of his reconstruction of 4QMMT any subjective original
expression of the sort that must underlie copyright protection.
But let us dig more deeply before drawing any final
conclusions as to Qimron’s inclusion of subjective elements in his
reconstruction. To do so requires examination of the process of
Hebrew manuscript reconstruction.

B. Manuscript Reconstruction

1. In General
Strugnell set forth the essence of the general exercise here:
Q. For us laymen, could you describe for us the process of
transcribing a fragment?
A. Yes, well, the process is trying to give as rough a

605. Id. at 11.

606. Both words can be transliterated into English as ’orot. The first letter of “lights”
is an aleph. The first letter of “hides” is an ayin. Refer to note 582 supra.
607. Strugnell was later a convert to Qimron’s view. Strugnell Testimony at 159.
608. The Nature of the Reconstructed Composite Text of 4QMMT , supra note 254,
at 11.
609. Id. at 11–12 (footnote omitted).
2001] DEAD SEA SCROLLS 125

facsimile as you can on a piece of paper to a piece of leather,

not copying the exact style of the script, the copy giving you
a copy of what is said there, following the same shape
exactly so you can then see what we need, two words to fit
in that space and then things like this. . . . And the
reconstruction must fit the material data. In other words, if
the gap is that large, you must put in that number of words.
Q. What are joins?
A. Joins are when, when, what I talked about as the work
of the jigsaw puzzle — When you fit together two fragments
and you see the traces where the lameds [lamed is the
Hebrew letter corresponding to Greek lamda and our “L”]
from the bottom one fit with the tops of lameds, etc. As I
say, these are less, from my impression overall in the work
at Qumran is that there are less, they’re not so frequent as
the long distance joins, but they’re important, obviously.
Q. In order to give us the proper terminology, what’s the
overall process called? I know it’s of the transcription and
the reconstruction and the joins. Is there a term for the
overall process?
A. I suppose it would be reconstruction. Transcription is
part of it, but what I want is a reconstruction of the whole.
Q. What’s the object of the reconstruction process?
A. Well, to recover a book that otherwise is hopelessly
lost.
Q. Well, how do you know if a reconstruction is a good
reconstruction or a bad reconstruction, how does one
objectively determine the success or the quality of the
reconstruction?
A. That’s what you employ critics for. I could read you
pages of A.E. Housman on the subject. Good scholars
immediately recognize it, and bad scholars don’t
understand what’s happening.610
Moreover, turning to 4QMMT itself, Strugnell further
elaborates on Qimron’s task:
Q. Imagine ten scholars and each scholar producing a
different version even of a line or of a word. Is the
version — is each of the ten versions a correct version?

610. Strugnell Testimony at 95–97 (edited). For more on A.E. Housman, refer to the
epigraph to Chapter XIV infra.
126 HOUSTON LAW REVIEW [38:1

A. No, in general they’re all dubious, some more dubious

than the other.
Q. How many correct versions —
A. Oh, there’s only one, I mean, the correct version is the
one of the original composer of MMT, which we can’t always
get at, but in where we have manuscripts, we can get near
to it. . . . It’s the same problem as with classical, texts of
classical antiquity, and the restoring of the original text of
Aeschylus or Homer is a very tricky business, but still the
consensus of scholars is that that is a correct reading, that
is a correct emendation and the like. . . . That is what
Qimron is trying to get at in his reconstructed text. He
doesn’t do it completely because there are large holes left in
that text, but where we have any evidence, we can assess
whether his reading or someone else’s is likely to be either
the original reading or near [it].611
Reconstructing text is always a delicate operation, as even
the simple example of Chicken Little demonstrates.612 Attempts
to reconstruct Hebrew pose even more delicate considerations.613
The consonantal foundation of all Hebrew writing —
numerous words grow out of a radical of three consonants
— is crucial. It allows, indeed makes unavoidable, a
polysemic plurality and richness of possible readings
probably unmatched by any other written tongue. The same
consonantal cluster can, with different vocalizations, be
interpreted in wholly different senses. 614
As such, Hebrew stands in contrast to truly alphabetic scripts,
such as Greek.615

611. Strugnell Testimony at 219–21 (edited).

612. Refer to Case 19 (Chicken Little) supra.
613. My Honors Thesis as an undergraduate at Stanford University was based on
deciphering medieval Hebrew manuscripts translating (a now lost intermediate Arab
translation of) Aristotle’s Nichomachean Ethics. Those kindergarten efforts serve only to
sensitize me to the delicacy of the task faced by serious Scrolls scholars.
614. A Preface to the Hebrew Bible, supra note 212, at 57. See JOSÉ FAUR, G OLDEN
DOVES WITH SILVER DOTS: SEMIOTICS AND TEXTUALITY IN RABBINIC TRADITION 121 (1986)
(“It is hardly possible to conceive a more ‘unreadable’ text than one made exclusively of
consonants!”). In an earlier age, mastery of Hebrew’s polysemic plurality was viewed as a
ticket to necromancy. THE PRINTING PRESS AS AN AGENT OF CHANGE , supra note 17,
at 277. The advent of the printing press promised access to the hidden secrets encoded
into the Hebrew text; piecemeal publication of works appeared part of a cosmic unfolding,
as “fragments [were] drawn from some vast Ur-book of Knowledge.” Id. at 279.
615. THE MUSE LEARNS TO WRITE , supra note 463, at 9, 91. Havelock throws out the
intriguing suggestion that the difference stemmed from an ancient “arms race” in a locale
where Greek and Semitic languages co-existed, such as Cyprus or Crete. Id. at 85.
2001] DEAD SEA SCROLLS 127

Already by the compilation of the Mishna in the second

century, the rabbis took advantage of Hebrew’s “polysemic
plurality . . . of possible readings” to make homilectical points. An
example comes in Exodus 32:16: “And the tablets were the work of
God and the writing was the writing of God engraved upon the
tablets.” In the tractate Pirkei Avot,616 Rabbi Joshua Ben Levi
explicates that verse: “Do not read charut (“engraved”) but rather
cheyrut (“freedom”). For you are not free unless you engage in study
of Torah.”617
When Qimron read an ayin rather than an aleph, what was he
doing? Was he trying to achieve alliteration, or to recall to the
reader’s mind an apropos biblical verse? Although those strategies
would be valid from the quill of any author of a literary text,618 they
should form no part of Qimron’s vocation—except in a derivative
sense to be discussed in a moment. In other words, for Qimron to
turn a phrase nicely to achieve a pleasing esthetic e ffect would be
for him to leave the realm of history, for which his visa was
stamped,619 and to enter the realm of literature, in which he is an
illegal alien.620
Yet in a derivative sense, as just mentioned, Qimron could
have chosen those tactics. This realm is limited to recapture of
what TR desired. In other words, to the extent that Qimron’s
studies led him to conclude that TR habitually followed two
words beginning with ayin with a third, then he could have

616. Why, in an essay on copyright law as the efflorescence of Romanticism, are we

turning to Pirkei Avot? “My drift I fear/Is scarcely obvious,” as Wordsworth said in The
Prelude. For the juxtaposition of that first Romantic poet with the sensibilities of Pirkei
Avot, see Wordsworth and the Rabbis, in THE O PPOSING SELF, supra note 547, at 101,
104–32.
617. Pirkei Avot 6:2. The theme has appeared often since in Western literature. See,
e.g., John Donne, Batter My Heart, Three-Person’d God, lines 12–13 (1633) (“for I/Except
you entrall me, never shall be free”). It is to be doubted that Donne violated R’ Joshua’s
copyright.
618. One commentator invokes the “creative contract—to synthesize information
obtained from many sources into a fluid, coherent whole.” Laurie Stearns, Copy Wrong:
Plagiarism, Process, Property, and the Law, 80 CAL. L. REV . 513, 547 (1992). Cf. THE
PLEASURES OF READING, supra note 527, at 33 (recognizing that all languages use certain
mechanisms of literature such as “strategic selection of vocabulary, shifts in level of
diction, juggling of syntax, repetition, [and] metaphorical substitution”). Refer to note
1054 infra.
619. It is to be recalled the Israel Antiquities Authority conveyed exclusive rights
over 4QMMT first to Strugnell, and later to Strugnell and Qimron. The quid pro quo for
that arrangement was that the two scholars were to prepare a definitive text—not that
they would be inspired to esthetic creations by virtue of their proximity to the scrolls.
Refer to Case 1 (The Inspiration) supra.
620. See THE WELL WROUGHT URN, supra note 547, at 5–7 (observing that
Wordsworth creates a literary paradox by describing ordinary experiences and places in
an unusual way).
128 HOUSTON LAW REVIEW [38:1

posited the corresponding reading of ’orot as “hides” rather than

“lights,” in the event that it occurred following two other words
initiated by an ayin. Likewise, to the extent that Qimron had
learned that TR invariably quoted to the 54th chapter of Isaiah,
then he could have brought that knowledge to bear in inserting a
citation to that chapter into his reconstruction of MMT.621
But to the extent that Qimron inserted either of those
hypothetical features into his reconstruction of 4QMMT, it is
vital to realize that Qimron was not acting as the author of a
literary text. Instead, he was acting akin to the psychiatrist who
could unravel his patient’s thought processes.622 He no more
deserves copyright protection for his insight into the psyche of
another than did Dr. Kefalos, posited above.623 Indeed, to the
extent that he succeeded, Qimron simply recaptured words that
TR had written millennia ago.624

2. “Read Rather Thus”

Consider an ancient precursor to the task of textual
rectification. This example is probably the most celebrated
occurrence625 of a famous Hebrew locution, Al tikrei . . . elah, “Do
not read [thus] but rather [so]!” The first tractate of the Talmud
ends with the following pericope: “Said Rabbi Elazar in the name
of Rabbi Chanina: Sages increase the peace of the world, as it is
written ‘and all your children are learned of God and great is the
peace of your children.’ Do not read (al tikrei) ‘your children’ but
rather ‘your builders.’”626
To unpack R’ Chanina’s insight requires a bit of Hebrew
background. The verse cited is Isaiah 54:13. The word in that
verse for “your children” is bana’ich. By revocalizing it, that word
becomes bona’ich, which means “your builders.” The question

621. Gauged by the number of manuscripts recovered, Isaiah was the most popular
prophet at Qumran. MYSTERY AND MEANING, supra note 211, at 161. In addition, Qumran
yielded some of the most complete manuscripts for that particular book of the Bible.
Notwithstanding minor textual variants, nothing substantive emerges from the scrolls
affecting meaning. See Q UMRAN IN PERSPECTIVE, supra note 198, at 180–81, 203.
622. Of two proposed reconstructions from an ancient manuscript, “one of them
always makes the better sense if you can get into the writer’s mind, without prejudices.”
THE INVENTION OF LOVE , supra note 533, at 67–68.
623. Refer to Case 16 (The Shrink) supra.
624. Note that Dr. Kefalos does not achieve copyright protection simply because his
analysis of his patient proves inaccurate. By the same token, mistakes on Qimron’s part
are precisely that—mistakes, not copyrightable expression. Refer to Chapter IX, section
(C)(2) infra.
625. The passage about to be quoted forms part of the weekly Sabbath liturgy. See
ARTSCROLL PRAYER BOOK 328 (1988).
626. BRACHOT, supra note 15, at 64a.
2001] DEAD SEA SCROLLS 129

arises why the subject verse repeats the word “children” instead
of omitting it the second time and using a substitute (“and great
is their peace”). R’ Chanina concludes that this repetition
signifies an alternate reading for the repeated word, thereby
deriving from the verse itself the lesson that our children are
those who build our legacy after we are gone.
There are two ways to take R’ Chanina’s enterprise:
inventive or informative.
??Inventive. Perhaps R’ Chanina woke up one morning with
the juices flowing and wanted to share his original
insight with posterity.627 In that event, he was an author,
in the copyright sense, of the insight that has come down
to us in his name.
??Informative. On the other hand, perhaps R’ Chanina
wished to transmit a tradition he had heard from his
master (and perchance he from his, in a great chain),628
whereby the holy tongue of Hebrew629 has encoded within
it certain correspondences, the unraveling of which is
essential to appreciating the full meaning of the text in
Isaiah. Under this view, there is no copyright to
R’ Chanina’s insight. To the contrary, attached to it
comes something that might be called “copy
obligation.”630
Normative Judaism posits that the sage was not then
assuming the modern role of author or critic631 to show how
clever he was.632 Even setting aside what some might dismiss as
mere folklore,633 there is concrete evidence to bolster that claim.

627. The word “inventive” is not used to conjure up the patent standard of novelty. It
might be that others before R’ Chanina had already independently alighted on the same
insight. It is enough for copyright that he came up with the insight from his own head,
rather than copying it.
628. See ISAIAH HOROWITZ, SHNEI LUCHOT HA-BRIT (1649), quoted in 2 HA-
ENZYCLOPEDIA HA-TALMUDIT 1 n.7 (1987) (“[I]t is passed down, from one person to
another.”).
629. As recently as 1640, an inquisitor, refining the Index of Prohibited Books,
considered “vulgar” all tongues save Hebrew and a few select others. Reading and the
Counter-Reformation, supra note 194, at 243–44 (citing Greek, Latin, Chaldean, Syriac,
Ethiopic, Persian, and Arabic as “the other non-vulgar languages”).
630. Adams and Bits, supra note 194, at 229–32.
631. He was not trying to change the Masoretic text. See ARTSCROLL PRAYER BOOK,
supra note 625, at 329; JACOB TZVI OF MECKLENBURG, HA-K TAV VEHA-Q ABBALAH (1839),
commenting on Exodus 12:17.
632. Epitomizing one view, Abraham Ibn Daud comments, “Never did the sages . . .
of the Mishnah [] teach anything, however trivial, of their own invention.” MOSHE
HALBERTAL, PEOPLE OF THE BOOK 55 (1997).
633. Refer to note 273 supra and accompanying text.
130 HOUSTON LAW REVIEW [38:1

The text itself quotes the insight to “Rabbi Elazar in the name of
Rabbi Chanina.” That internal evidence gives rise to an inference
that we are dealing here with a tradent in the chain of
tradition,634 rather than a lighting bolt.635
From the external standpoint, my original 636 research637
reveals an even more fascinating phenomenon. The Dead Sea
Scrolls themselves, for the first time in history, allow us to go
behind the textus receptus of the Bible handed down by the
Masoretes almost a thousand years ago, to investigate whether
R’ Chanina may indeed have been privy to a different recension
of the holy text. The result is startling: The version of
Isaiah 54:13 contained in the Dead Sea Scroll of St. Marks
Monastery638 reads: “And all your children are learned of God
and great is the peace of your builders.”639
It would seem, therefore, that R’ Chanina was being
informative—he was telling us about a variant text that he read. It
should go without saying that one whose contribution is only to
inform the world that he has read a textual variant cannot achieve
any copyright protection in the process.640 As a result, R’ Chanina’s
insight stands outside copyright as being informative, not inventive.
At a higher level, my own original work641 in this field is but
another example of a “Read rather thus.” In other words, the
mere fact that I have unearthed a variant text does not confer a

634. Admittedly, the reference to Rabbi Chanina furnishes only one explicit link of
that chain.
635. Some commentators view midrash as an exercise in “creative philology,” by
which the ancient rabbis imposed their own meanings onto the biblical text. See Ithamar
Gruenwald, Midrash and the “Midrashic Condition”: Preliminary Considerations, in THE
MIDRASHIC IMAGINATION: JEWISH EXEGESIS, THOUGHT, AND HISTORY 8–10 (Michael
Fishbane ed., 1993). As previously noted, to accuse Qimron of “creative philology” in that
sense borders on the defamatory. Refer to note 534 supra.
636. As to the content of my “originality,” however, refer to note 641 infra.
637. I hasten to add that this “research” consisted solely of pulling down volumes of
printed books from my living room shelf.
638. BIBLIA HEBRAICA STUTTGARTTENSIA at XLVII (Rudi Kittel ed., 1937) (Isaiah
manuscript discovered in Cave 1 at Qumran).
639. Id. at 761 n.13a (emphasis added by my translation). Actually, the reading there
is bona’ichi, with an extraneous yod at end of the word, as compared to how R’ Chanina is
quoted in the Talmud.
640. Some pregnant cases above vouchsafe that conclusion. Refer to Cases 9–10 (The
Shivviti and The Reader) supra.
641. It reflects original research to the extent that I developed it on my own, rather
than copying it from Frank Cross, James VanderKam, or any other scholar in the field.
However, this is not to remotely imply that this particular insight is novel. In other
words, among the 6000 items published in Dead Sea Scroll studies that I have not read,
see MYSTERY AND MEANING, supra note 211, at 199, my guess is that the point is made,
perhaps even often.
2001] DEAD SEA SCROLLS 131

copyright on me to prevent future commentators from copying

this insight, even in the context of R’ Chanina as quoted in the
Talmud, juxtaposed against the Dead Sea Scrolls.

3. Qimron’s Reading
We return now to the famous aleph that Qimron transposed
to an ayin. What role does “Read rather thus” play here? First, it
must be forthrightly acknowledged that Qimron was not overtly
engaging in the same type of activity as occupied the rabbis who
bequeathed al tikrei to posterity.642 For Qimron was trying to
reconstruct a previous writing, rather than attempting to make
the type of homiletical point which largely concerned the sages of
yore. But given that at least one aspect of al tikrei, as described
above,643 inheres in preserving a tradition of textual variation,
the tasks are not altogether dissimilar.644
Second, a preliminary question arises whether Qimron’s
reading was banal. As Strugnell commented, “the transcriptions
differ according to the difficulty of the manuscript. The
reconstruction differs according to what part of the manuscript
the wretched worm has eaten away. Sometimes it’s very easy to
postulate a missing reading, sometimes it’s very difficult.”645
Imagine that one comes upon a moth-eaten text that reads, “Oh,
say can you see, By . . . early light, What so . . . last gleaming”
(the ellipses representing two large lacunae). If the first one had
room for ten letters (including punctuation and spaces) and the
second for thirty-five letters, then it would evince essentially no
creativity to fill in the two with “the dawn’s” and “proudly we
hailed by the twilight’s,” respectively.646 How do Qimron’s efforts

642. Qimron neither claims that “hides” is a variant of “lights” nor that the text he is
reconstructing means to preserve two simultaneous readings.
643. Refer to section (B)(2) supra.
644. Dr. Lim of the Edinburgh Faculty of Divinity, although partially resisting my
typology, concedes that al tikrei represents “an exegetical/scribal method already found in
double readings among the Qumran scrolls, . . . indicative of the ‘polysemic’ or ‘polyvalent’
nature of the biblical texts [that some] would regard . . . as a technique of variant
preservation.” E-mail from Timothy H. Lim to David Nimmer (Sept. 22, 2000) (on file with
the Houston Law Review).
645. Strugnell Testimony at 103–04. Later, he expressed himself more forcefully
regarding the less complex passages: “It’s a work which a halfwit could reconstruct.” Id. at
176.
646. “When you have so mething about Adonai El Moshe [‘God to Moses’], that’s what
makes me think to put a va’yedaver [‘and he spoke’] there isn’t that difficult.” Strugnell
Testimony at 104 (translations added).
In extended testimony, Strugnell opined that for manuscript reconstruction in
general, and for MMT in particular, “it is relatively easy to decipher, let’s say ninety,
eighty percent, ninety percent of a text of a given scroll, but the last ten percent may take
up a lot of work.” Nonetheless, as to the last ten percent, “it could have still taken a lot of
132 HOUSTON LAW REVIEW [38:1

stack up against that hypothetical? We can assume for current

purposes that at least some of his reconstructions were not so
pedestrian. Therefore, Qimron can be presumed to have vaulted
the hurdle of banality.647
With those preliminaries out of the way, it is time to turn to
substance. Strugnell read orot as “lights,” but Qimron’s
substitution of a single letter transposed it into “hides.” It is
instructive to compare that transformation against a celebrated
predecessor. Genesis 3:21 records that, after the expulsion of
Adam and Eve from the Garden of Eden, “the LORD God clothed
[them] with garments of leather.” Of course, the final word of
that verse, ’or, is spelled with an ayin. But a midrash from over
1500 years648 ago recounts that in the Torah649 of Rabbi Meir, the
word ’or in Genesis 3:21 was spelled with an aleph, meaning that
God clothed them with “garments of light.”650
Although great symbolism obviously attends Rabbi Meir’s
textual variant—indeed the very name “Meir” derives from or,
and means “one who enlightens”—that is not the focus here.
Instead, what the midrash just quoted tells us is that, many
centuries before Qimron, the “light/leather” homonym was
established as a recognized form of textual variation. For Qimron
to take Strugnell’s “lights” and to decipher it as “hides,” in short,
is a form of reading, not inspiration.651

time and a lot of work to make the necessary improvements, and these improvements
could be very significant scientifically for the understanding of the scroll.” See Strugnell
Testimony at 155–56. That passage supports the notion that Qimron expended vast sweat
of the brow. Id. (“Yes, that’s his reading.”)
647. Stop the Presses! On the eve of publication, I learned that one of the giants of
Scrolls studies at Groningen University in the Netherlands has just published an analysis
of DJD X purportedly demonstrating that essentially all the reconstruction of 4QMMT
was undertaken by John Strugnell by 1961, decades before Qimron’s involvement. Giving
Credit Where Credit is Due: New Study Shows that John Strugnell Substantially
Reconstructed and Deciphered MMT , BAR Mar./Apr. 2001 at 49, 50, citing Florentino
Garcia Martinez, Discoveries in the Judean Desert: Textes légaux (I) , 32 J. STUD. JUDAISM
71–89 (2001). Not having seen the underlying article yet, I simply cabin that intriguing
supposition into this footnote. The future promises no less controversy swirling around
this issue than the past.
648. THE ART OF BIBLICAL NARRATIVE, supra note 108, at 10–11.
649. Torato shel R. Meir could refer to a Torah scroll. But the Mirkin Hebrew edition
of Breishit Rabbah suggests the interpretation that it refers simply to a collection of
R’ Meir’s thoughts and interpretations of various verses.
650. “And the LORD God made for Adam and his wife garments of skin (’or), and
clothed them.” In R’ Meir’s Torah it was found written, “garments of light” (or).
This refers to Adam’s garments, which were like a torch [shedding radiance],
broad at the bottom and narrow at the top.”
BREISHIT RABBAH, 20:12 (English translation from Soncino Edition).
651. Qimron’s co-author would seem to support this interpretation. For Strugnell
himself volunteered that it is a “reading” that is at issue here:
2001] DEAD SEA SCROLLS 133

But, more basically, what Qimron did amounts to one

species of “Read rather thus.”652 We have previously noted that R’
Chanina cannot claim copyright protection by virtue of revealing
the fact that he has seen a different version with a textual
variant. Of course, Qimron likewise cannot claim copyright
protection over the variants that he has seen by virtue of his
unique access to the Qumran stash.
Qimron would attempt to differentiate his situation from
that of R’ Chanina by pointing out that he did not actually see
the text that he is positing. Instead, he applied his scholastic
talents to posit a potential reconstruction, based on similar
matters that he discerned in the Temple Scroll, a wholly different
document found in Qumran. On that basis, he concludes that he
does indeed deserve copyright protection.
But that logic is flawed. Qimron himself admits that ’orot
with an ayin is “found on several tiny fragments”653 of 4QMMT.
Qimron, therefore, actually did see the variant text upon which
he posits copyright protection.654 The additional feature that he
brought to the table was to associate those isolated fragments
with the same word appearing elsewhere. That correspondence
allowed him to draw the inference that the same material
belonged in the place under examination.
An inference is merely a way of “seeing” something at a
higher level. A witness who testifies to seeing something is
recounting a fact.655 A witness who infers something is also

Q. Let’s assume that ten scholars were given the same manuscript and would
have approximately the same knowledge in the necessary fields and each of
them would sit separately in a different room. Is it possible that they would
come up with the identical work?
A. (Pause). They would come with the identical reading, yes, I think quite
possible, you know, and there are only two letters that are difficult as far as I
remember them.
Strugnell Testimony at 163–64.
652. Breishit Rabbah does not present it with that formula. But the claim here is
that, functionally, it amounts to the same thing for copyright purposes.
653. See The Nature of the Reconstructed Composite Text of 4QMMT, supra note 254,
at 11.
654. As to ’orot, Qimron at one point claims, “Only the top part of the letters has
survived.” Id. at 11–12. The Hebrew spelling of that word is ayin-vav-resh-vav-tav. One
would therefore expect to see the top portions of five letters. Yet, as Dr. Lim points out,
the last vav and tav are clearly and wholly preserved and part of resh also.
There is no sign of any tops of an ayin or [the first] vav. In other words the first
two letters have been reconstructed from the readings of other fragments,
despite the way that it has been described by Qimron.
E-mail from Timothy H. Lim, supra note 644.
655. E.g., “I saw a man in a white coat walk past me.”
134 HOUSTON LAW REVIEW [38:1

testifying to a fact,656 albeit she subjects herself to cross-

examination, not only about her vision, but also about her
reasoning process.657 A scholar who observes something cannot
obtain copyright protection over his observations. A scholar who
infers something is in the same category—he simply opens his
conclusions to reinterpretation based not merely on the strength
of his powers of observations, but of his inference as well.
In sum, it would seem that Qimron’s entire copyright claim
is premised on the faulty foundation that the textual variants
that he indirectly observed entitle him to copyright protection.
That conclusion cannot stand.

656. E.g., “I saw a doctor walk past me.”

657. E.g., Q: “Why do you conclude that the man was a doctor?”
A: “Because we were at Ichilov Hospital at the time; my colleagues, Nurses
Buzaglo and Smith, were addressing him as ‘Dr. Rofeh’; he was ministering
to a patient on a gurney; he was giving instructions to Nurses Buzaglo and
Smith, about the necessary dosage to give that patient;” etc.
2001] DEAD SEA SCROLLS 135

IX.
INCENTIVES TO CREATE
The immediate effect of our copyright law is to secure
a fair return for an “author’s” creative labor. But the
ultimate aim is, by this incentive, to stimulate
artistic creativity for the general public good.
Justice Potter Stewart658

Copyright is redolent of public policy.659 The issues arise in

Qimron v. Shanks no less than in Bender v. West.

A. Incentives and Access

A Lockean660 view would posit that natural law 661 confers on

authors the right to exploit their artistic progeny.662 Whatever
the philosophical merits of that 663 point of view,664 “the [U.S.]

658. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
659. As the Supreme Court has stated, “The monopoly privileges that Congress may
authorize are [not] primarily designed to provide a special private benefit.” Sony Corp. of
Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
The point is not merely that the individual rights of authors must be
balanced against the social good. The Constitution stipulates that authors’ rights
are created to serve the social good, so any balancing must be done within the
overall context of the public good, i.e. between the specific aspect of the public
good that is served by intellectual property . . . and other aspects of the public
good such as the progressive effects of the free circulation of ideas.
Jeremy Waldron, From Authors to Copiers: Individual Rights and Social Values in
Intellectual Property, 68 CHI .-K ENT L. REV . 841, 848–49 (1993) (footnotes omitted).
660. For a taxonomy of intellectual property into its Lockean and Hegelian
justifications, see Justin Hughes, The Philosophy of Intellectual Property, 77 G EO. L.J.
287, 296–300, 330–32 (1988).
661. “On the one hand, although the official line about copyright is that it is a matter
of social policy, judicial and scholarly rhetoric on the subject retains many of the
characteristics of natural rights talk.” From Authors to Copiers, supra note 659, at 848.
662. All of these cultural developments — the emergence of the mass market for
books, the valorization of original genius, and the development of the Lockean
discourse of possessive individualism — occurred in the same period as the long legal
and commercial struggle over copyright. Indeed, it was in the course of that struggle,
under the particular pressures of the requirements of legal argumentation, that the
blending of the Lockean discourse and the aesthetic discourse of originality occurred
and the modern representation of the author as proprietor was formed.
The Author as Proprietor, supra note 19, at 30. See Wendy J. Gordon, A Property Right in
Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property,
102 YALE L.J. 1533, 1540–50 (1993); Figures of the Author, supra note 194, at 13.
663. Of course, things are not as simple as all that. The Lockean view actually blends
natural law with an instrumentalist rationale about increasing utility. See The
Philosophy of Intellectual Property, supra note 660, at 296–97.
664. A simple view contrasts the Continental droit d’auteur, derived from a natural-
136 HOUSTON LAW REVIEW [38:1

Supreme Court has explicitly rejected natural law copyright

arguments.”665
Instead, it takes a more instrumentalist approach:666
Copyright protection is granted “for the very reason that it may
persuade authors to make their ideas freely accessible to the
public so that they may be used for the intellectual advancement
of mankind.”667 The discussion above has referred on many
occasions to copyright’s need to foster public access to materials
of popular concern.668 We turn now to the flip side of public
access: namely, the incentives on the author to create.669 For if
“access” looks to the interests of a potential copyright defendant
in relying on a previous work, then “incentives” looks to the
interest of a potential copyright plaintiff in developing a new
work. Generalizing from the insight, “Poetry can only be made

law focus on the author’s personality, with the Anglo-American copyright, a purely
instrumentalist construct. See Alain Strowel, Droit d’auteur and Copyright: Between
History and Nature, in O F AUTHORS AND O RIGINS , supra note 19, at 235–36. But Strowel
sets forth a much more nuanced view, id., as does Jane C. Ginsburg, A Tale of Two
Copyrights: Literary Property in Revolutionary France and America, in OF AUTHORS AND
O RIGINS , supra note 19, at 131–36. See also F. Willem Grosheide, Paradigms in Copyright
Law, in O F AUTHORS AND O RIGINS , supra note 19, at 203–09.
665. Alfred C. Yen, The Interdisciplinary Future of Copyright Theory, 10 CARDOZO
ARTS & ENT. L.J. 423, 425–26 (1992). Nonetheless, Yen contends that the roots of
copyright in this country lie in both economics and natural law. Id. at 425–30. See also
Droit d’auteur and Copyright, supra note 664, at 243–44.
666. An empirical question looms here—what real-world incentives actually move
authors? There is no shortage of pronouncements on the subject. See, for example, Chuck
Philips, Music Giants Miss a Beat on the Web, L.A. TIMES , July 17, 2000, at A1, quoting
Time Warner President Richard Parsons:
This isn’t just about a bunch of kids stealing music. It’s about an assault on
everything that constitutes the cultural expression of our society. If we fail to protect
and preserve our intellectual property system, the culture will atrophy. And
corporations won’t be the only ones hurt. Artists will have no incentive to create.
Worst-case scenario: The country will end up in a sort of cultural Dark Ages.
Id. But no longitudinal study definitively answers the empirical question. See The
Personality Interest of Artists and Inventors, supra note 121, at 81–83, 180. As we shall
see in Part Two, perhaps the strength of the law is its refusal to seesaw based on
conflicting answers to such basic questions from one era to another.
667. 4 NIMMER ON COPYRIGHT § 13.03[B][2][a]; Gary L. Francione, Facing the
Nation: The Standards for Copyright, Infringement, and Fair Use of Factual Works, 134
U. PA. L. REV . 519, 538 (1986) (quoting same).
668. Refer to Chapter VII supra.
669. The foregoing discussion has already confronted the economic rationale for
copyright protection, as well as a potential Lockean foundation in natural law. However,
those perspectives should not be viewed as exhaustive. Commentators champion the role
of copyright in fields as diverse as promulgating democratic discourse, safeguarding
privacy, and serving the interests of personhood. See Copyright and a Democratic Society,
supra note 5; Stephen B. Thau, Copyright, Privacy, and Fair Use, 24 HOFSTRA L. REV .
179, 180–82, 235 (1995); The Personality Interest of Artists and Inventors, supra note 121.
2001] DEAD SEA SCROLLS 137

out of other poems; novels out of other novels”670 (just as this

work is composed out of umpteen previous works),671 the question
arises how copyright protection should be titrated in order to
produce the most potent mixture benefiting future authorship.672
The public needs access to objective works free of private
blockades, but has no corresponding need for unconsented access to
subjective expression. Correlatively, copyright law should provide
an incentive to create subjective expression, but the impetus behind
objective scholarship lies in other domains673—university posts,
research grants, scholarships founded on the commonweal, fame,
recognition, and attribution.674 (As Strugnell himself characterized
Qimron, “I think like the rest of us, he worked for the glory.”)675
Those domains stand distinct from copyright.
Consider the need to quote various material verbatim. As
applied to a psalm newly composed by James Michener676 or a
story inspired in the mind of Karen Hai-Sod by viewing
4QMMT,677 the need is extremely small. For the precise locutions

670. ANATOMY OF CRITICISM, supra note 159, at 97. See JACK STILLINGER, MULTIPLE
AUTHORSHIP AND THE MYTH OF SOLITARY G ENIUS 96 (1991); The Author as Proprietor,
supra note 19, at 55 (revealing that “current literary thought emphasizes . . . that texts
permeate and enable each other”); JULIA K RISTEVA, SEMIOTIKE 146 (1969) (“[E]very text
builds itself as a mosaic of quotations, every text is absorption and transformation of
another text.”). As Judge Easterbrook has observed, “Every work uses scraps of thought
from thousands of predecessors, far too many to compensate even if the legal system were
frictionless, which it isn’t.” Nash v. CBS, Inc., 899 F.2d 1537, 1540 (7th Cir. 1990).
671. Writers from biblical time forward have been “compelled in one way or another
to make their text out of antecedent texts (oral or written) because it would not occur to
them in the first place to do anything so unnatural as to compose a hymn or a love poem
or a story unless they had some model to emulate.” THE WORLD OF BIBLICAL LITERATURE,
supra note 155, at 50. The contrary supposition would be akin to attempting “‘speech in a
language one has not yet learned.’” Id. at 107–08.
672. The legislative history for the 1909 Act, after reciting that enactment of
copyright legislation “is not based upon any natural right that the author has in his
writing,” goes on to note that Congress must balance “[f]irst, how much will the
legislation stimulate the producer and so benefit the public, and, second, how much will
the monopoly granted be detrimental to the public?” H.R. REP. NO. 60-2222, at 7 (1909).
See Lord Mansfield’s 1785 encapsulation of the same balance, quoted in The
Metamorphosis of Contract Into Expand, supra note 48, at 77.
673. As Lord Camden stated in 1774, “Glory is the Reward of Science, and those who
deserve it, scorn all meaner Views.” Figures of the Author, supra note 194, at 16. As
previously noted, the eighteenth century sense of “science” refers to the domain of
literature. Refer to note 36 supra.
674. Rewards for scholarship include an enhanced reputation and recognition of one’s
peers—as well as the more ethereal satisfaction that comes from “the broadening of
human knowledge.” Raiders of the Lost Scrolls, supra note 83, at 334. See Legal Aspects of
Recent History of the Qumran Scrolls, supra note 372 (“This view deserves full
acceptance.”).
675. Strugnell Testimony at 123.
676. Refer to Case 2 (Psalm of the Tunnel Builder) supra.
677. Refer to Case 1 (The Inspiration) supra.
138 HOUSTON LAW REVIEW [38:1

used in those sources will only illuminate the thought processes

of Michener and Hai Sod; general scholarship itself has no need
to quote their works in order to march on in its investigation of
the ancient Middle East. To the contrary, only those who are
interested in the artistry of Michener or Hai Sod have the “need”
to quote their words. There is every reason to compensate those
authors in exchange for satisfying that particular need.
The status of 4QMMT is completely different. When the
precise wording of a text is at stake, then, to quote Cleanth
Brooks, “to paraphrase is heresy.”678 In order for Scroll
scholarship to progress, it is absolutely vital to quote the Teacher
of Righteousness verbatim, e xactly, and comprehensively. To the
extent that the exercise inevitably leeches into copying the
expression of Qimron, then copyright’s greater good posits the
choice of keeping the idea free rather than locking up the
expression. In this way, the doctrine discussed above serves the
copyright goal of promoting the progress of science.679
***
Moving more deeply, what is the purpose upon which
copyright protection is founded? In contrast to justifying
copyright based upon natural law considerations, in which an
author “deserves” to benefit from the works of authorship that
she has brought to term in her womb,680 the United States
Supreme Court takes the instrumentalist view:
The economic philosophy behind the clause empowering
Congress to grant patents and copyrights is the conviction
that encouragement of individual effort by personal gain is
the best way to advance public welfare through the talents
of authors and inventors in “Science and useful Arts.”681
Under this view, the purpose of copyright is to provide an
incentive for individuals to create.682 Therefore, it is not the
author who enjoys a “natural” right to the fruits of her labor, but

678. Actually, I am paraphrasing Brooks. See THE WELL WROUGHT URN, supra note
547, at 165–66.
679. Refer to Chapter VII, section (B) supra.
680. Refer to note 661 supra and accompanying text.
681. Mazer v. Stein, 347 U.S. 201, 219 (1954). It remains to be seen how Justice
Breyer would confront that issue at present. See Stephen Breyer, The Uneasy Case for
Copyright: A Study of Copyright in Books, Photocopies and Computer Programs, 84 HARV.
L. REV . 281, 321 (1970).
682. Justin Hughes skillfully shows how the Court promptly slips from
instrumentalist goals to normative evaluations, when the opinion continues: “Sacrificial
days devoted to such creative activities deserve rewards commensurate with the services
rendered.” Mazer, 347 U.S. at 219 (emphasis added), quoted in The Philosophy of
Intellectual Property, supra note 660, at 303.
2001] DEAD SEA SCROLLS 139

society that will benefit in the long-run through the

encouragement of authorship by affording a temporary “personal
gain” during the term of copyright protection.683 It is instructive
to bring that purpose to bear against the claims advanced by
Qimron, reverting to Bender v. West as well in this context.

B. Should Copyright Provide an Incentive

to Secretly Alter Judicial Opinions?
From a strictly pragmatic standpoint, it strikes me that
West ultimately lost its copyright case for one major reason. This
reason finds no reflection in the various opinions issued by the
courts. Nonetheless, it underlies, perhaps, the sensibilities that
were brought to bear on the dispute.
For over a century, West has been in business to sell case
reporters. Undoubtedly reaping billions of dollars during that
time,684 it has established a premier—and, in my
opinion, deserved—reputation for accuracy and reliability. When
West sells a volume of case reporters, it represents to the public
that the volume in question accurately sets forth the words of the
judges as contained in the opinions collected therein. Given that
those opinions constitute “the law” in a common-law system, West
achieves its sterling reputation for accurately purveying “the law.”
(In fact, West had always professed such fidelity to the judges’
words that it once defeated a libel charge on the basis that the
words contained in the Federal Reporter reflected those of the judge
whose opinion was reproduced, West Publishing Company being
merely the conduit for conveying those words to the public.685)
When it came time, however, to litigate the copyright issue,
West made an abrupt volte-face. By laying claim to protection
over the emendations that it inserted into its reporters, West
claimed copyright over matters that judges did not write. In other
words, West, which had always prided itself on accuracy and the
ability of lawyers and judges to quote “the law” out of its
reporters without fear of error, was now claiming that those
same reporters were replete with material of West’s own
invention, unratified by the judges into whose opinions they were

683. See The End of Copyright, supra note 443, at 1416.

684. As a privately held corporation, its revenues were always secret, but the
$3.43 billion that Thompson paid to purchase West in 1996 surely reveals the company’s
worth as of that time. See Yolanda Jones, You Can’t Get Where you are G oing Unless You
Know Where You Have Been: A Timeline of Vendor-Neutral Citation Developments, at
http://vls.law.vill.edu/staff/yjones/citation.
685. See Lowenschuss v. West Publ’g Co., 402 F. Supp. 1212, 1216–17 (E.D. Pa.
1975), aff’d, 542 F.2d 180 (3d Cir. 1976).
140 HOUSTON LAW REVIEW [38:1

inserted and unbeknownst to its customers who thought that

they were reading the judges’ words, not West’s.
No one, I dare say, has ever thought to purchase a West
reporter in order to obtain West’s emendations. Instead,
practitioners and judges alike have always sought West volumes
because of the fidelity with which they report the words of the
judges themselves. Thus, West was, in effect, claiming copyright
protection over deformations that it had inserted into the law.686
As a matter of incentives, there is little reason to encourage
purveyors of judicial opinions to secretly alter them. To the
extent that West can ensure punctilious replication of what the
judges intended, then its editors are to be applauded. On the
other hand, to the extent that those editors have injected
subjective expression into case reporters that are sold under the
pretense of accurately portraying the law, then their activity
becomes less than socially compelling. In this larger sense,
therefore, it is wholly to be expected that West’s copyright claims
failed.

C. Should Copyright Provide an Incentive

for Bad Scholarship?
Qimron v. Shanks arises at the intersection of two interests:
copyright protection and scholarly protection. When viewed
through the former lens, the various doctrines canvassed herein
demonstrate why the plaintiff’s interest failed to measure up. Yet
one must also advert to the other interests that Qimron brought
to bear—those of a scholar. The discussion below attempts to
untangle those threads, beginning with the latter doctrine.

1. Scholarly Convention
The Israel Antiquities Authority vested exclusive control
over 4QMMT first in Strugnell, and then later in Qimron.687 By a
scholarly convention known as editio princeps, that status
guaranteed Qimron priority in publishing the document—
notwithstanding that the doctrine of editio princeps itself
nominally enjoys no legal standing.688 Yet along came Shanks,
iconoclast of scholarly convention. In the battle between, on the

686. West actually had the audacity to advance this claim explicitly at an early stage
in the litigation. Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 674, 681 n.4 (1998),
cert. denied, 526 U.S. 1154 (1999) (“West initially claimed some creativity in its
corrections to the text of opinions, but it has abandoned this claim . . . .”).
687. Refer to Chapter V, section (A)(2) supra.
688. See PLAYING DARTS WITH A REMBRANDT, supra note 228, at 164. For a further
discussion of this doctrine, refer to Chapter X, section (B)(1) infra.
2001] DEAD SEA SCROLLS 141

one hand, an Israeli, a member of the university community, an

individual who had been given official imprimatur by the IAA,
someone who was scrupulously conforming his affairs to
scholarly convention and, on the other, a foreigner, a non-
academic, a profit-seeker, a critic of the IAA (and hence of the
Israeli government), someone who was waging his own war
against a worldwide academic “cartel,” it is not altogether
surprising that the Israeli courts favored the former. Telling here
is a finding that Judge Dorner made, which the Supreme Court
quoted in full:
Shanks quite deliberately reached the conclusion that he
would not be sued for copyright infringement, not by
Strugnell, who was ailing (and in this he was correct), and
not by the shy and retiring claimant (Qimron), who
moreover lived in Israel. 689
David cuts a more inviting figure than Goliath. One view of
the courts is that they should protect the interests of the
dispossessed—the noble but impecunious (and, moreover, ill!)
over the powerful and uncaring.690 Indeed, the reference to
Qimron as “shy and retiring”691 virtually trumpets the moral
inequality, with his residency in “the home court” of Israel
furnishing the coup de grace.692 The Israeli courts put a righteous
end to the alien bull’s rampage through the china shop.
But hard cases make bad law.693 When the battle is not seen
as an archetype of good vs. evil, but rather as a legal matter
requiring resolution, different considerations rise to the fore. It is
those copyright interests that are the focus of concern throughout
the various chapters of the instant work.
Nonetheless, having mentioned the perceived equities of the
parties, that aspect requires further attention. Accordingly, the

689. App. Opin., supra note 331, at para. 18 (the second parenthetical was added by
Justice Türkel).
690. One must hasten to add that sources as far back as Leviticus 19:15 and Exodus
23:3 warn against that temptation to equalize matters by favoring the poor over the
powerful. See CALUM CARMICHAEL, THE SPIRIT OF BIBLICAL LAW 44–45, 151–52 (1996).
691. The Hebrew ha-shaket veha-ba’ishan literally means “quiet and bashful.” On
March 5, 2001, I participated in a live webcast, emanating from the Haifa University
Faculty of Law, entitled The Dead Sea Scrolls: Copyright and the Future of Academic
Research. See http://weblaw.haifa.ac.il/dss/main_eng.htm. Justice Dorner, who also
particpated, used the English locution “diffident and modest” to translate this Hebrew
phrase.
692. “It’s a hometown court,” Eisenman remarked to the press. Scholar’s Copyright
Upheld, supra note 362, at *3.
693. See Northern Sec. Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J.,
dissenting).
142 HOUSTON LAW REVIEW [38:1

next chapter treats fully Qimron’s claim to trespass on his moral

interests, reverting in that context to the doctrine of editio
princeps.694
Moreover, the clash of values described above that moved
the Israeli courts to rule against Shanks is itself not entirely
foreign to the history of how copyright law has developed. In the
seventeenth century, long before there was any formal copyright
statute, printers—who, rather than authors themselves, were
typically in control of works of authorship—obtained rights to
works by marking their territory in the register contained at
Stationers Hall.695 At that time, there was no such thing as
intellectual “property.” Rather, the term “propriety” defined the
state of mind of all concerned.696 The upshot is that those who
usurped697 the priority contained in the official registry were
guilty of a gross breach of propriety.
The facts of Qimron v. Shanks rehearse the events of four
centuries past. Qimron—who, rather than the author of MMT,
was in control of the text—“registered” his exclusive claim with
the Israel Antiquities Authority. Shanks unilaterally usurped
priority by publishing the text. That deliberate course of conduct
constituted the type of flagrant contravention of propriety that
earns the disdain of those who uphold these particular
standards. Indeed, although the Israeli Supreme Court at first
disclaimed any inquiry into the morality of the underlying
positions of the parties,698 it later equivocated,699 and ended up
slamming Shanks repeatedly,700 in particular for arrogating

694. Refer to Chapter X infra.

695. THE NATURE OF THE BOOK, supra note 24, at 213–14.
696. Id. at 187–90.
697. During this inverval, “the most common term used to describe an offense
against literary property seems to have been not ‘piracy’ nor even ‘plagiary,’ but
‘usurpation.’” Id. at 461 & n.31 (stating that “plagiary” was defined first to mean slave
trading and second book stealing). See Copy Wrong, supra note 618, at 516–17.
698. “[T]he justice of Shanks’s public struggle — even if he saw publication of the
Book as a part of this struggle — is not our concern, inasmuch as this matter deviates
from the framework of the discussion of the copyright in the Deciphered Text.” App.
Opin., supra note 331, at para. 9.
699. “It is true, we are dealing with a struggle between interests, that stand
sometimes one against the other — the right of the individual to protection of the fruits of
his creation against the right of society to continue to flourish upon the fertile ground of
the past — between them one must balance.” Id. at para. 15.
700. Besides the contrast quoted above between the brash Shanks and the “shy and
retiring” Qimron, see the quotation below regarding “contempt and mockery of the poor”
in note 726 infra. Towards the end of the opinion, the Supreme Court offers that the
district “court was correct, therefore, when it used the full force of the law against the
Appellants and awarded Qimron the highest amount set forth in the law.” App. Opin.,
supra note 331, at para. 27. The Supreme Court also hammered Shanks on remedies.
2001] DEAD SEA SCROLLS 143

priority to himself.701 It may be for precisely this reason that

Shanks lost before the Israeli courts.

2. Copyright Law
Putting aside scholarly convention and sticking close to
copyright doctrine, a deep question underlies Qimron v. Shanks:
Should copyright law provide incentives to produce bad
scholarship? It would be difficult to imagine any basis on which
to posit an affirmative answer.
Copyright law, of course, protects scholarship regardless of
quality. Thus, a textbook, article, or monograph is protected—
insofar as its expression is concerned—regardless of whether
colleagues in the field consider it a breakthrough, a solid
advance, pedestrian—or even plain wrong. “Bad poetry, box office
failures, and redundant scholarly articles are not denied
copyright protection because they are worthless or, arguably, a
net loss to society.”702 To this extent, copyright provides an
incentive for scholarship, whether good or bad. But Qimron, at
base, advanced an unprecedented variant—that copyright draws
a distinction between good scholarship and bad, protecting only
the latter. This claim cannot stand.
It should be reiterated that the matter under discussion in
Qimron v. Shanks is not copyright protection over the 235-page
analysis of 4QMMT contained in DJD X. Instead, the question is
posed whether copyright protects a reconstruction of an ancient
manuscript. As previously noted, Qimron can claim no copyright
in that reconstruction to the extent that he has succeeded.703 For
any recreation of the Teacher of Righteousness’s words means
that the copyright, by definition, does not belong to Qimron.
Instead, it is only over errors that Qimron can claim protection.
We were forced to conclude previously that Qimron’s creativity,
if any, inheres only in his mistakes.704 Very well, then—let us posit
that such mistakes deserve copyright protection. After all, George
Steiner points out that “misunderstanding can yield the more
urgent reading, the more compelling attention.”705 Judge Frank

Refer to Chapter V, section (B)(3) supra.

701. In contrast to what the court saw as “not our concern” in the excerpt quoted
above (refer to note 698 supra), it decided to deny Shanks’s defense of “fair dealing”
because his “primary purpose was to publish the Deciphered Text in defiance of the
research ‘monopoly’ given to the international team of scholars.” App. Opin., supra note
331, at paras. 19–20.
702. The Philosophy of Intellectual Property, supra note 660, at 309.
703. Refer to Chapter VI § (B)(1) supra.
704. Id.
705. Our Homeland, the Text, supra, note 357, at 304. See REAL PRESENCES, supra
144 HOUSTON LAW REVIEW [38:1

ruled to the same effect in an early copyright case: “A copyist’s bad

eyesight or defective musculature, or a shock caused by a clap of
thunder, may yield sufficiently distinguishable variations. Having
hit upon such a variation unintentionally, the ‘author’ may adopt it
as his and copyright it.”706
In this regard, we must ask what Qimron was doing? If he
was acting like R’ Chanina in an inventive mode, who chances
upon variations and then adopts them as his own, then he can
indeed copyright his “mistakes.” Except, at that juncture, they
are no longer mistakes—they are consciously adopted variations,
that is, post facto products of choice.707 So copyright for mistakes,
pure and simple, is still not a viable option.
But what Qimron did was in no way to adopt mistakes
consciously. Instead, he offered to the world his best efforts,
painstakingly undertaken, of reconstructing 4QMMT as
accurately as scholarship permitted.
At this point, copyright’s incentives come into focus. To the
extent that Qimron has produced first-class scholarship and has
been able to exercise his philological skills to fruition by
recreating TR’s words, then he does not have copyright
protection. Correlatively, protection arises only to the extent that
he has failed.
It would be a perverse scheme indeed that provided an
incentive to fail. Copyright law would ill serve its premises to the
extent that it barred first-class scholars from shelter but
accorded rights and remedies to inferior scholars. Were that the
law, then Magen Broshi’s fear would indeed be realized: The
world of Dead Sea Scrolls could be “inundated with third- and

note 89, at 126 (describing “work that is worth successive misreadings”).

706. Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 105 (2d Cir. 1951)
(footnote omitted) (quoting Plutarch: “A painter, enraged because he could not depict the
foam that filled a horse’s mouth from champing at the bit, threw a sponge at his painting;
the sponge splashed against the wall — and achieved the desired result.”). See Dale P.
Olson, Copyright Originality, 48 MO. L. REV . 29, 49–56 (1982) (discussing how even
accidental departures made during a painting’s restoration can be sufficient to establish
copyright).
Robert Alter remarks that “every literary text is the handiwork of an artificer who
seeks to give it purposeful shape.” THE PLEASURES OF READING, supra note 527, at 142. Of
course, the poet may fail in his efforts and simply rationalize after the fact. ANATOMY OF
CRITICISM, supra note 159, at 87 (featuring a cartoon depicting a sculptor gazing at his
work and remarking, “Yes, the head is too large. When I put it on exhibition I shall call it,
‘The Woman with the Large Head.’”).
707. My secretary once erroneously transcribed a portion of my speech containing a
reference to “meatspace” as “meetspace.” Given that physical space is the realm in which
our meat in fact meets, I “adopted” the transcription and incorporated it into Brains and
Other Paraphernalia, supra note 455, at 3.
2001] DEAD SEA SCROLLS 145

fourth- and fifth-rate productions”708 commanding legal

protection, while the most sparkling breakthroughs went
unprotected. No sensible interpretation of the law can support
such a pointless result.
These considerations, at base, furnish the ultimate answer
why Qimron’s copyright claim is fatally flawed. Nonetheless, it is
hard to believe that even Qimron himself would be the loser, in
the greater sense, by confining copyright to its proper bounds. As
a philologist, his work and advancement in the field is dependent
on his ability to quote and build upon the philological
advancements of his predecessors. He is clothed with complete
protection for his book-length review of MMT and for his other
articles on the subject. The denial of copyright to his
reconstruction of MMT simply affords successor philologists the
same elbow-room that allowed Qimron himself to achieve his own
accomplishments.

708. Refer to text accompanying note 344 supra.

146 HOUSTON LAW REVIEW [38:1

X.
MORAL
American copyright law, as presently written, does
not recognize moral rights or provide a cause of
action for their violation, since the law seeks to
vindicate the economic, rather than the personal,
rights of authors.
Judge Joseph Edward Lumbard709

In addition to analyzing Qimron’s complaint for copyright

infringement, it is necessary to address the other cause o f action
joined in his complaint—for violation of his moral rights.
Although the case made copyright headlines,710 it is actually in
the domain of moral rights that Qimron felt injured, and that
moved the judge to rule in his favor.

A. Chronology
The chronology at issue in Qimron v. Shanks was such that
Shanks’s publication preceded Qimron’s own. A table illustrates:

DATE DESCRIPTION
1952 Cave 4 excavated.
1954 MMT assigned to Strugnell.
1960s through Tantalizing fragments revealed to the
1970s public about the existence of MMT.
1984 Strugnell and Qimron openly discuss
MMT at a scholarly conference.
1991 Biblical Archaeology Society publishes A
Facsimile Edition of the Dead Sea
Scrolls.
1992 Qimron files suit against Shanks.
1993 Judge Dorner issues district court ruling.
1994 Oxford University Press publishes DJD
X about MMT.
2000 Israeli Supreme Court affirms.

709. Gilliam v. Am. Broad. Cos., 538 F.2d 14, 24 (2d Cir. 1976).
710. See, e.g., Abraham Rabinovich, Scholar: Reconstruction of Dead Sea Scroll
Pirated, WASH. TIMES : NAT’L WKLY. EDITION, Apr. 12, 1998, at 26, 26 cited in Matthew
Bender & Co. v. West Publ’g Co., 158 F.3d 674, 688 n.13 (2d Cir. 1998), cert. denied, 526
U.S. 1154 (1999).
2001] DEAD SEA SCROLLS 147

TABLE 1

Imagine instead that the case had arisen in an inverted

timeline:

DATE DESCRIPTION
1954 MMT assigned to Strugnell.
1990 Qimron and Strugnell release best
effort reconstruction of 4QMMT but
not their attendant commentary.
1991 Biblical Archaeology Society
publishes A Facsimile Edition of
the Dead Sea Scrolls.
TABLE 2

The remarkable fact about Table 2 is that it almost certainly

would have resulted in no lawsuit. For in that alternative
universe, Qimron would never be able to say that his “dream to
be the first editor of the scroll vanished.”711 Indeed, Judge Dorner
grounded her holding of mental distress as follows:
There is no doubt that the plaintiff suffered grief. He
explained in his testimony that he felt his whole world
collapsed, and his dream of gaining glory vanished. Here
are his exact words:
I was stunned. I cannot describe such a feeling. It’s like
somebody approached me and took something
forcefully, saying, “Who are you, anyway?” This belongs
to me, this thing that I made. I would not have taken
an unpublished text and worked on it for so many years
unless I was assured that my right of primacy 712 would
be protected. As a matter of fact, the scroll, or any text
that is published will always be named after its first
editor. No matter how many editions will follow, people
will always go back to the first edition. Throughout the
years that I worked on MMT, I hardly worked on
anything else. My family lived in penury. If my wife
complained, I told her “Look, this is our life, we will
gain glory. It might be more important than money.”713

711. Refer to note 321 supra.

712. The Hebrew here is z’chut ha-rishoni’ut. That term is loaded, inasmuch as the
same word rishoni’ut, translated above as “primacy” comes from the word rishon, which
can also mean “original.”
713. Protocol at 207–08. Another source quotes Qimron as stating that the
148 HOUSTON LAW REVIEW [38:1

Given that Table 2 would not have produced litigation714 but

Table 1 actually did, it is pertinent to inquire at the outset: Who
is responsible for the timeline unfolding according to Table 1
rather than Table 2? Certainly, not defendant Shanks—his whole
crusade was to pry open an early publication for MMT. Indeed,
had that text seen an early publication, it would have pre-empted
any inclusion of it in the Facsimile Edition. Although Strugnell
might be a worthy runner-up, it is Qimron himself who,
notwithstanding Shanks’s efforts at openness, chose to delay
publication of his “baby.”715 To the extent that Qimron felt
scooped by publication of the Facsimile Edition and hence
aggrieved, his ire, in fact, should have been directed inward.

B. Moral Rights Claims

Let us imagine, however, that Qimron’s doppelgänger in the
parallel universe of Table 2 in fact would have filed suit.716
Notwithstanding the alteration in chronology, the two cases are
identical as a matter of copyright law. In other words, whether or
not Qimron owns a copyright to the reconstruction of the
4QMMT, and whether or not Shanks has violated that copyright,
is not dependent on order of publication.717 The essence of

uncredited publication of MMT “‘has caused me and my family a great deal of

suffering. . . . A major achievement of my career has been stolen from me.’” THE HIDDEN
SCROLLS, supra note 190, at 240.
714. After the Israel Supreme Court ruled, a Jerusalem reporter from the Chronicle
of Higher Education interviewed me. He told me that he had talked to Qimron
immediately after the court ruling, during the latter’s victory celebration. In response to
the question “Would you have brought this case if Shanks had listed your name?,” Qimron
paused to consider (as the reporter later told me) and then speculated that he probably
would not have.
715. The depth of Qimron’s feelings in this regard is difficult to overestimate. In
response to Judge Dorner’s question, Qimron admitted that “even now I feel if they would
let me I would have held it a little more.” Protocol at 184. Even when “overjoyed” about
his ultimate Supreme Court triumph, “Qimron said he has regrets about the access others
now have to the scrolls. He said it robbed scholars such as himself of the leisurely pace
they once enjoyed.” Scholar’s Copyright Upheld, supra note 362, at *3.
716. It is doubtful that Qimron would even be allowed to file such a suit. For after
the publication of DJD X, that right belonged to the publisher. Letter dated Dec. 5, 1994,
from Oxford University Press to Hershel Shanks 1 (on file with the Houston Law Review)
(“We are responsible for handling permission requests: our contract for the book allows us
this exclusive right and states that Professor Qimron will refer any enquiries to us.”).
When Shanks applied to the copyright owner—namely Oxford University Press, not
Qimron—for permission to reproduce 135 lines of 4QMMT, in Hebrew and English, in a
forthcoming issue of Biblical Archaeology Review, the publisher freely granted that
license. Id. (“As far as we are concerned, you properly obtained permission”
notwithstanding the contrary claim by Qimron’s lawyers).
717. Compare CDN, Inc. v. Kapes, 197 F.3d 1256, 1262 (9th Cir. 1999) (holding
defendant liable for reproducing book based on previously published sources), with
2001] DEAD SEA SCROLLS 149

Qimron’s plaint, properly viewed, is, therefore, not copyright

infringement simpliciter. Indeed, his complaint so reflects. For
bundled with Qimron’s claim for copyright infringement is
another cause of action for violation of his moral rights. What are
those moral rights? There are several candidates.

1. Droit à la paternité
Qimron sued for violation of his attribution right. Though it
was not clear to Judge Dorner wherein that cause of action is
localized as a matter of U.S. law,718 the answer is relatively
straightforward: Section 43(a) of the Lanham Act.719 That
statutory section has given rise to a large body of case law for
failing to attribute properly.720
The Israeli courts held that publication of the Facsimile
Edition violated Qimron’s moral rights for failure to credit his
name.721 Instead, as will be recalled, Shanks’s introduction
references MMT as follows:
The text was assigned to John Strugnell for publication
nearly 40 years ago. However, he did not even disclose its
existence until 1984. Then, with a colleague, Strugnell
proceeded to write a 500-page commentary on this 120-line
text. 722
Immediately, the question arises why Shanks chose that
formulation. He has e xplained that he did not know the extent of
Qimron’s contributions and wished to avoid being critical of “a
young untenured Israeli scholar.”723 That explanation is
eminently believable.724 But let us adopt for current purposes the

Salinger v. Random House, Inc., 811 F.2d 90, 100 (2d Cir. 1987) (holding defendant liable
for reproducing a book based on previously unpublished sources).
718. Because Judge Dorner had decided to apply Israeli law to the case based on the
“presumption of identity of laws,” she did not need to establish whether, and where, the
attribution right (or moral rights in general) is protected under U.S. law. See Trial Opin.,
supra note 195, at 22, § 20 (focusing on state, as opposed to federal, law).
719. 15 U.S.C. § 1125(a) (1994).
720. See 3 NIMMER ON COPYRIGHT § 8D.03.
721. At work here is a sensibility arising out of natural law. Refer to Chapter IX,
section (A) supra. “A man is entitled to have his name applied to the ‘children of his
spirit.’ His spiritual connection to these is, almost, like his connection to those who spring
from his loins.” App. Opin., supra note 331, at para. 23.
722. Refer to text accompanying note 301 supra (emphasis added).
723. Intellectual Property Law and the Scholar, supra note 274. “I wanted to save
Qimron from the criticism I was heaping on John Strugnell, but I ended up offending
Qimron beyond redemption.” Id.
724. When a noted critic wanted to cite three examples of atrocious writing to which
jargon-prone academics had fallen prey (with the “diagesis,” “foregrounding,” “signifieds”
and the rest), he noted that, “for reasons of simple decency, I will not cite the sources or
the authors’ names.” THE PLEASURES OF READING, supra note 527, at 16. No lawsuit
150 HOUSTON LAW REVIEW [38:1

cynical interpretation that Shanks, through animus, harbored

the subjective intent to deprive Qimron of the glory.725 The
question nonetheless remains whether Shanks’s words achieved
that putatively nefarious end.726
Had Shanks simply omitted attribution altogether, then he
would have been on the safe side of the law.727 For no case holds
the failure to list any author as a violation of Section 43(a).728
Nonetheless, that statute has been construed to require
speakers who volunteer to identify authors to do so accurately.
Cases hold actionable the “failure to attribute authorship to a co-
author resulting in only a partially accurate designation of origin
constitut[ing] reverse palming off.”729 At first blush, Qimron
would therefore seem to state a valid cause of action under that
provision.

eventuated, Robert Alter assured me. E-mail from Robert Alter to David Nimmer (July
11, 2000) (on file with the Houston Law Review).
725. As a matter of law, whether the intent is to praise or criticize Qimron should
play no role in the analysis. As a practical matter, however, that factor is probably
decisive. It is instructive to compare Qimron’s outrage against Shanks with a
contemporaneous usage in a book about authorship. One of the commentators there
quotes a poem “just in from Bangladesh.” She explains in the footnote, “I quote Mazhar’s
poem in full because I doubt that the present readership would otherwise have access to
the work of [t]his considerable poet-activist.” Gayatri C. Spivak, Reading The Satanic
Verses, in WHAT IS AN AUTHOR?, supra note 11, at 104. Again, to my knowledge, no
lawsuit eventuated.
726. The Supreme Court of Israel was particularly virulent in its rejection of
Shanks’s defense here:
The mention of a “colleague” without noting his name, and without noting
that here was an act of creation of the Deciphered Text is contempt and mockery
of the poor. Such “mention,” including the argument that it is enough to fulfill
the commandment of the Ordinance — if not the human-moral obligation — is
more insulting than no mention at all. There is no need to add words with
respect to the fact that the words that were quoted — that are two lines
swallowed up within a forward of eleven pages, and far from the page on which
the Deciphered Text was published, without the mention of a name — cannot
fulfill the obligation to attribute the work to the author “in the scope and to the
extent that is accepted.”
App. Opin., supra note 331, at para. 24.
727. Lest one lapse into believing that authors enjoy a God-given right to be
identified with their artistic progeny, consider: The first playbill that ever identified the
author of a play performed in England “dates from March 1699, a full century after
Shakespeare was at the height of his powers.” MULTIPLE AUTHORSHIP, supra note 670,
at 164. Evidently at work here was an earlier “‘courtly tradition of anonymity.’” Figures of
the Author, supra note 194, at 17.
728. The concern here is separate from potential copyright liability, which has been
discussed above. (Nota bene that Israeli moral rights law, which hews more closely to the
Berne Convention, may entitle the author to attribution, rather than only having
protection against misattribution.)
729. Rosenfeld v. W.B. Saunders, 728 F. Supp. 236, 243 (S.D.N.Y.), aff’d mem., 923
F.2d 845 (2d Cir. 1990); Lamothe v. Atlantic Recording Corp., 847 F.2d 1403, 1406–07
(9th Cir. 1988).
2001] DEAD SEA SCROLLS 151

On deeper analysis, however, there are insuperable

problems with that construction.730 First, Shanks did not commit
a “partially accurate designation of origin.” Most precisely, his
reference to Strugnell and a colleague should be labeled a
“partially explicit and partially oblique, yet nonetheless wholly
accurate, designation of origin.”731 Unlike the cases articulating
the standard quoted in the previous paragraph, Shanks fooled no
one into thinking that one individual deserved full credit for a
work in fact authored by two. Instead, Shanks honestly apprised
the world that 4QMMT had two fathers, although he listed only
one by name (in order to excoriate him, sparing the unnamed one
his wrath). The gravamen of the offense would appear to be
absent here.
Second, by way of comparison, Larry Lessig in a recent book
cites to an article co-authored by David Nimmer, Elliot Brown,
and Gary Frischling732 with the following formulation: “David
Nimmer et al.”733 By omitting the latter two contributors’ names,
has Lessig transgressed their rights? Is the standard manual on
legal citation, which counsels that course of action,734 to be held
vicariously liable?
In this context, it is useful to distinguish between a citation,
which can legitimately be to the primary author “and colleagues,”
and a reproduction of the work itself,735 which could commit the

730. In support of Qimron, Shanks’s locution—“with a colleague, Strugnell proceeded

to write a 500-page commentary on this 120-line text”—could be taken to refer to the
commentary alone, not to the reconstruction. Combined with the later reference to
“Strugnell’s transcription of MMT (Figure 8)” in the Facsimile Edition (which does not
mention Qimron), readers might have been confused as to who authored the
reconstruction. If the evidence showed that a fair reading leads to that misconception,
then the case against Shanks grows stronger. But Judge Dorner found that Scrolls
cognoscenti knew of Qimron’s contribution. See Trial Opin., supra note 195, at 39, § 52 (“It
is reasonable to assume that the scholars that were involved enough to know that the
reconstructed text was the work of the plaintiff, also understood that we are dealing with
a draft.”). Refer to note 751 infra.
731. Most readers today associate The Rime of the Ancient Mariner as Samuel Taylor
Coleridge’s most memorable work. But when it first appeared in print, it appeared solely
under the name of William Wordsworth. In the preface to the 1800 edition, however,
Wordsworth did mention—shades of “Strugnell and a colleague”!—“the assistance of a
Friend . . . .” MULTIPLE AUTHORSHIP, supra note 670, at 69–70.
732. The Metamorphosis of Contract Into Expand, supra note 48, at 17.
733. LAWRENCE LESSIG, CODE AND O THER LAWS OF CYBERSPACE 267 (1999).
734. THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION R. 15.1.1, at 108 (Columbia
Law Review Ass’n et al. eds., 17th ed. 2000) (“If a work has more than two authors, use
the first author’s name followed by ‘ET AL.’”).
735. In other words, had the California Law Review presented The Metamorphosis of
Contract Into Expand listing “David Nimmer, et al.,” there would have been a sensible
diminution of Messrs. Brown’s and Frischling’s rights.
152 HOUSTON LAW REVIEW [38:1

tort of misattribution by omitting the co-authors’ names.736 The

question thereupon arises whether the Facsimile Edition
contains Qimron’s “whole work” or simply referenced his whole
work. Qimron could argue that his “full work” was thereby
published without his name, positing that his reconstruction of
4QMMT constitutes “the work” in question. Given that DJD X
was not yet in print at the time the Facsimile Edition appeared,
that argument would appear cognizable.737 Yet given that the
bulk of Qimron’s authorship actually went into that 235-page
book, not the 120-line reconstruction of MMT, it would seem that
Qimron should not prevail on this basis. Shanks no more violated
Qimron’s attribution right than did Lessig the comparable right
of Brown and Frischling.
Third, right-of-attribution cases should always be judged
based upon their real-world impact on the intended audience
rather than by incantation of the magic formula of the author’s
name. To give a simple example, a footnote above cites the book
Holy Blood, Holy Grail to “Michael Baigent, Richard Leigh &
Henry Lincoln.”738 What if, instead of listing the first two
authors, it simply referenced “the authors of The Dead Sea
Scrolls Deception cited above and Henry Lincoln?” Given that
Baigent and Leigh wrote the latter and, therefore, that the
posited formulation is equivalent to full enumeration of all three
pertinent names, the conclusion should follow that it is
nonactionable.739

736. In the cases cited above, refer to note 729 supra, the tort was committed by
omitting the authors’ names in the context of reproducing their works as a whole. See,
e.g., Lamothe v. Atlantic Recording Corp., 847 F.2d 1403, 1405:
In both versions (album and sheet music), authorship of the music and lyrics of
‘I’m Insane’ was attributed solely to Robinson Crosby and the music and lyrics of
‘Scene of the Crime’ were attributed to Robinson Crosby and Juan Croucier.
Neither Robert Lamothe nor Ronald Jones received credit for their roles in the
writing of these songs.
Id.
737. Further support for Qimron emerges from Cleary v. News Corp., 30 F.3d 1255,
1262 n.4 (9th Cir. 1994):
We note that where the plaintiff complains of misattribution of a work that
consists solely of revisions to a previous work, the more appropriate approach
might be to consider whether the revisions written by the plaintiff were bodily
appropriated, instead of whether the work as a whole was a bodily
appropriation. Under this approach, the plaintiff would prevail if he could
establish that his part of the book was included in the new edition in verbatim or
near verbatim form.
Id.
738. Refer to note 385 supra. Refer also to note 360 supra.
739. See Cleary, 30 F.3d at 1260 (“[T]he case law does suggest that the Lanham Act
does not create a duty of express attribution, but does protect against misattribution.”).
2001] DEAD SEA SCROLLS 153

At this juncture, the factual question rises to the fore

whether the Facsimile Edition properly invoked Qimron to its
target audience? An empirical question thereby presents itself:
How many readers of the Facsimile Edition knew exactly who
the unnamed “colleague” was?
It does not seem an undue stretch to maintain that the few
hundred readers740 who were willing to shell out $200741 for a
two-volume series of 1785 photographic plates would have more
than passing familiarity with the goings-on in Qumran circles.
Among that population, there can be few or none who were
ignorant of Qimron’s role in the reconstruction of 4QMMT.
Although these ruminations are dehors the record, it strikes this
observer as overwhelmingly likely that thorough ventilation of
the issues would prove that Elisha Qimron suffered no sensible
diminution of his publicity or notoriety via the omission in the
Facsimile Edition of his name being explicitly spelled out.742 If
these suspicions are correct, they furnish an additional basis why
Qimron should have lost this branch of his moral rights case.743
Finally, it is worth reverting to Qimron’s grief-stricken fear
that the editio princeps744 for MMT would be forever in Shanks’s

The case law can be read as providing elliptical support for the proposition set forward in
the text. For instance, when an advertisement was directed at the audience of racecar
aficionados, the portrayal of Car No. 11 was deemed sufficient to conjure up the identity
of its perennial driver, Lothar Motschenbacher. See Motschenbacher v. R.J. Reynolds
Tobacco Co., 498 F.2d 821, 827 (9th Cir. 1974). When copyright law required a notice in
the proprietor’s name, it allowed as a variant the proprietor’s “initials, monogram, mark,
or symbol” by which it is known in the target market. 17 U.S.C. § 19 (1909). See 2
NIMMER ON COPYRIGHT § 7.07[A].
740. Three hundred copies of the Facsimile Edition were sold. Raiders of the Lost
Scrolls, supra note 83, at 337 n.204.
741. MYSTERY AND MEANING, supra note 211, at 58. Evidently, Robert Alter obtained
the volumes on sale. See How Important Are the Dead Sea Scrolls?, supra note 219, at 36
(stating a purchase price of $195).
742. They find support in another aspect of Judge Dorner’s ruling. Refer to notes 730
supra and 751 infra (citing Trial Opin., supra note 195, at 39, § 52).
743. Only if Qimron’s “marketability” was damaged would he be entitled to invoke
Section 43(a) of the Lanham Act. See Omiogui v. W.B. Saunders Co., 30 U.S.P.Q.2d 1716,
1717 (E.D. Pa. 1994) (concluding that diminution of curriculum vitae could impair a
professor’s marketability); Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 926–27 (2d
Cir. 1994); Wojnarowicz v. Am. Family Ass’n, 745 F. Supp. 130, 142 (S.D.N.Y. 1990)
(“Every instance of the Lanham Act’s far-reaching application has been to practices
commercial in nature, involving imitation, misrepresentation, or misappropriation in
connection with the sale of goods or services by the defendant.”). See also Waldman Publ’g
Corp. v. Landoll, Inc., 43 F.3d 775, 784–86 (2d Cir. 1994) (vacating a preliminary
injunction absent a showing of continuing economic harm, as standing is limited to a
“purely commercial class” of plaintiffs); Berni v. Int’l Gourmet Rest. of Am., Inc., 838 F.2d
642, 648 (2d Cir. 1988) (“[A]t a minimum, standing to bring a section 43 claim requires
the potential for a commercial or competitive injury.”).
744. Refer to Chapter IX section (C)(1) supra.
154 HOUSTON LAW REVIEW [38:1

name.745 Hindsight dispels that worry. When DJD X came out, it

was under Qimron’s name as primary author. That work, rather
than Shanks’s, is now universally credited as the primary source in
discussions of MMT. The editors of Reading 4QMMT mention
Shanks only in a tone of masked condescension,746 while heaping
honor on Qimron.747 There can be no doubt that the scholarly
community credits Qimron (along with Strugnell) for paternity of
MMT, and that any imputation of moral loss he might have suffered
from publication of the Facsimile Edition has since evanesced.748
From his lofty perch in academia, Strugnell captures the matter
pungently: “When I’ve looked at the quality of the use being made of
this work, of the transcriptions, of the Pole and so on of various
people of the translations, I don’t think Qimron has anything to
worry about, the quality is so poor.”749

2. Droit de divulgation
Given that the injury at issue was in fact not to Qimron’s right
of attribution, is there another theory at work here? If we dig more
deeply, we can excavate another theory, in actuality, more
responsive to the injury that Qimron believes he suffered. To the
extent that his “dream to be the first editor of the scroll vanished,”
Qimron suffered a violation of his droit de divulgation, the right to
be the first to publish a work. As a group of scholars said in support

745. For criticism of the scholarly institution of editio princeps, see PLAYING DARTS
WITH A REMBRANDT, supra note 228, at 164–65. One observer concedes that “the team
appointed by Fr. R. de Vaux could exclusively take advantage of the scrolls for a certain
limited period of time.” But as properly confined to “the period indispensable for sound
scientific evaluation,” it is hard to imagine that the Strugnell/Qimron delay over the
decades falls within the limitations period. See Legal Aspects of Recent History of the
Qumran Scrolls, supra note 372 (“The period of time could last several years — say two to
five, or even eight — if we take into account the complexity of the task entrusted to
them. . . . Almost five decades of restricted access seems unacceptable in light of
established international standards.”).
746. Introduction, in READING 4QMMT, supra note 262, at 1 (calling Shanks “one of
the key non-academic players”) (emphasis added).
747. They single out Qimron (but not Strugnell) for their especial thanks. READING
4QMMT, supra note 254, at xi.
748. One commentator notes that DJD X leaves him
with the impression of being witness to the quarrels of a couple who, after the
love has become sour, are fighting for the custody of the only child. The judge
has assigned the custody of this child to Qimron (he is the only owner of the
copyright of the book!) but Strugnell has cared longer for the child and at the end
he knows better.
4QMMT in the Qumran Context, supra note 370, at 15. Note that the only debate in that
writer’s mind is whether Strugnell or Qimron deserve the honor; Shanks does not even
register. Id.
749. Strugnell Testimony at 198. “The Pole” is undoubtedly Kapera. Refer to note
299 supra.
2001] DEAD SEA SCROLLS 155

of Qimron, “‘all scholars have a right to see their work appear in

print for the first time under their own name.’”750 The question
arises whether that point is well-taken.751
It must be emphasized that this inquiry takes place outside the
domain of copyright infringement. Strugnell hits the nail on the
head. Professing that “I don’t know what copyright is, but I know
what publishing is,” he shares his perspective on the matter:
My experience here has been that every time that we
published the document in the form that we wanted, it then
fell into the public domain, and if another person wanted to
discuss it, produce a new translation or the like, that was
what publishing was about. . . . Our rights were to be, to have
our work cited. If someone wanted to discuss it, they discussed
it, and if they wanted to cite the text, I had no objection to
anyone doing this, we published it, so long as the, so long as it
was published by us in the form that we wanted.752
....
My own opinion is so long as they print the text as we
publish it and make changes and announce them and so on,
this is all right, but the main thing is so that we should
have, that we decide where it should be published in what
form the first time.753
So the question remains whether Qimron had the right to
control the first publication of the reconstruction of 4QMMT.
Again, a superficial examination inclines in Qimron’s favor. U.S.

750. WHO O WNS INFORMATION?, supra note 283, at 135. That “right” lacks legal
substance. Refer to text accompanying note 688 supra.
751. The tenor of the opinion, taken as a whole, lo oks to the attribution right. See,
e.g., Trial Opin., supra note 195, at 33, end of § 38 (“pursam lelo izkur shmo, uvechach
hufra z’chuto hamusarit”; English translation: “published without mentioning his name,
and in this way his moral rights have been violated”). Yet it also contains references to
the breach occurring by virtue of publication of a work prior to its publication by the
author, which would correspond to a breach of the droit de divulgation. Id. at 39.
Another branch of moral rights is the droit au respect de l’oeuvre. See 3 NIMMER
ON COPYRIGHT § 8D.04. Qimron argued that he had suffered a violation of that right, too,
given MMT’s publication in the Facsimile Edition between letters authored by others.
Protocol at 541. That strained theory finds no reflection in Judge Dorner’s opinion.
Qimron further argued a violation inasmuch as the reconstruction as published by
Shanks was only a draft. Judge Dorner likewise rejects that argument, inasmuch as
insiders knew that it was Qimron’s work and that it was a draft, preparatory to the
official version to be published by him along with Strugnell, together with commentary.
Trial Opin., supra note 195, at 39, § 52. That rationale actually undermines any
conclusion that Qimron’s attribution right had been violated. Refer to notes 730, 742
supra.
752. Strugnell Testimony at 224–25.
753. Id. at 227.
156 HOUSTON LAW REVIEW [38:1

law recognizes a type of droit de divulgation, as exemplified in

Harper & Row, Publishers, Inc. v. Nation Enterprises.754 The U.S.
Supreme Court in that case vindicated President Ford’s efforts to
protect his own memoirs under copyright law, and rebuffed a fair
use defense for their premature publication.755 A host of other
cases likewise stand for the proposition that an incident of
copyright ownership includes first publication rights.756
Nonetheless, the facts of Qimron v. Shanks afford a very
poor candidate for vindication of the droit de divulgation. The
problems are several. First, U.S. law recognizes no separate right
of divulgation; it is only a copyright owner who can protect her
bundle of rights under copyright law by demanding special
solicitude for first publication. By contrast, one who does not own
a copyright simply has no interest to vindicate in this regard.757
As the above discussion has demonstrated at length,758 Qimron
enjoys no copyright over 4QMMT. As such, he is facially
ineligible to pursue any claim for violation of his droit de
divulgation.
Even if the reconstructed manuscript were copyrightable,
moreover, Qimron’s case would still present a weak posture for
vindication of this branch of moral rights. In Harper & Row, the
Supreme Court limited its solicitude for unpublished texts as
follows: “‘[T]he scope of the fair use doctrine is considerably
narrower with respect to unpublished works which are held

754. 471 U.S. 539 (1985). Does the equation hold? After all, the droit de divulgation,
as a species of droit moral, is personal; whereas Harper & Row v. Nation recognized the
existence of an economic right (droit patrimonial ). Under skillful cross-examining, a
luminary of the Continental system confessed to me that, putting aside issues of duration
and transferability, any distinction is evanescent, even under French law. Conversation
with André LUCAS, Université de Nantes, in the office of Ysolde GENDREAU, Université
de Montréal, (Oct. 26, 2000).
755. Crucial in this context is the second fair use factor. Refer to Chapter VI supra.
756. See 4 NIMMER ON COPYRIGHT § 13.05[A][2][b].
757. That particular aspect stands this case at the vortex of issues likely to be hotly
contested in the future. Feist commands that comprehensive databases stand outside
copyright protection. As a consequence, various industries are attempting to convince
Congress, in essence, to overrule that case by adopting legislation modeled on the
European Union’s database directive. J.H. Reichman & Pamela Samuelson, Intellectual
Property Rights in Data?, 50 VAND. L. REV . 51, 126–30 (1997). A database of tremendous
commercial value—the recently decoded full human genome—presents issues paralleling
those in Qimron v. Shanks, both of attribution and pseudo-copyright protection for
research. Paul Jacobs, Who’ll Get Credit Is Issue Even Before Code Is Broken, L.A. TIMES,
May 7, 2000, at A41 (reporting that a company spokesman told Congress, “The only
protection that we have indicated that we would seek is a database protection, as exists in
Europe.”).
758. Refer to Chapters VI–IX supra.
2001] DEAD SEA SCROLLS 157

confidential by their copyright owners.’”759 That quotation derives

from Nimmer on Copyright—except that the Court added its own
emphasis by italicizing the phrase just quoted (which appears in
plain text in the treatise). Elsewhere, the same opinion notes
that in “a given case, factors such as implied consent through de
facto publication on performance or dissemination of a work may
tip the balance of equities in favor of prepublication use.”760
These considerations leave little doubt that, to the extent that
U.S. law affords authors a droit de divulgation, it has little
application to works that, although technically unpublished, are
nonetheless not maintained confidentially by their authors.761
How do those factors apply to 4QMMT? Had Qimron chosen
to lock his reconstruction of 4QMMT in his file cabinet, Shanks
would have had scant basis to justify sending in a second story
man to purloin it.762 In fact, however, Qimron did not maintain
his version confidentially. Rather, he shared it with his friends in
the academy and deprived access to it for those who were outside
the “charmed circle.”763 Qimron’s own activities of circulating his
reconstructed text to scholars at other universities, in order to
teach undergraduate and graduate seminars in its subject
matter, opened the way for availability of his manuscript.
Qimron’s moral rights claim fails.

759. 471 U.S. at 597 (emphasis added by Court) (quoting 3 NIMMER ON COPYRIGHT
§ 13.05).
760. Id. at 551.
761. See, e.g., Rotbart v. J.R. O’Dwyer Co., 34 U.S.P.Q.2d 1085, 1088 (S.D.N.Y. 1995)
(finding that unfixed, undisseminated talk, delivered publicly, is de facto published);
Diamond v. Am-Law Publ’g Corp., 745 F.2d 142, 147–48 (2d Cir. 1984).
762. The facts of Qimron v. Shanks lie at the opposite extreme from Harper & Row v.
Nation. In the latter case, Time Magazine published excerpts from President Ford’s
unpublished memoirs that he made every effort to maintain confidential pending
imminent publication. The Nation Magazine, in fact, relied on a purloined copy of the
memoirs in order to scoop Time Magazine. See 471 U.S. at 542 (“[A]n undisclosed source
provided The Nation Magazine with the unpublished manuscript of ‘A Time to Heal: The
Autobiography of Gerald R. Ford.’ Working directly from the purloined manuscript, an
editor of The Nation produced [the work that resulted in suit].”).
763. As Shanks complained, “‘If you’re a graduate student at Harvard, you can
publish a Dead Sea Scroll for your dissertation. But not if you go to Yale or Princeton or
Columbia.’” The Dead Sea Printouts, supra note 267.
158 HOUSTON LAW REVIEW [38:1

XI.
AFTERWORD
Textual criticism is a science whose subject is
literature, as botany is the science of flowers and
zoology of animals and geology of rocks.
Tom Stoppard764

For the wealth of reasons posited above, Qimron lacks

copyright over his reconstruction. Besides all the affirmative
reasons just canvassed, consider the negative rationalization for
the same conclusion—what would flow from a construction that
he did indeed own a copyright in his reconstruction of MMT?
??A scholar who derived new insights into TR’s meaning in
4QMMT, deeply rooted in the language of the text, would
be allowed to quote TR’s words only at Qimron’s
sufferance.
??A scholar who found Qimron’s reconstruction implausible
on linguistic grounds would not be able to quote those
words as a prelude for positing her own alternative text.
By themselves, these two points show the danger of allowing
Qimron copyright protection. For Qimron could use his copyright
to authorize scholars to produce works agreeing with his
scholarly view, and to effectively prevent other scholars from
taking a contrary position. As thus abused, copyright would
become a vehicle to ensure orthodoxy in Scrolls scholarship.
Is it an adequate answer that those utilizations would
plainly find shelter as fair use? Clearly not. For, although a fair
use determination might eventuate, it is not a foregone
conclusion; only after slogging through lengthy court proceedings
would that r esolution emerge, if then.765 The specter of needing to
fight a copyright battle, which might ultimately be lost, is enough
to deter all but the most hardy litigants from entering the fray.766
Consider additional ramifications:
??To the extent that Ted Hughes were dissatisfied with the

764. THE INVENTION OF LOVE , supra note 533, at 38.

765. “The malleability of fair use emerges starkly from the fact that all three [fair
use cases to reach the highest court] were overturned at each level of review, two of them
by split opinions at the Supreme Court level.” 4 NIMMER ON COPYRIGHT § 13.05.
766. It should be recalled that even though Carson and I agree that Shanks should
have prevailed at trial, not even we see eye-to-eye as to application of the fair use doctrine
to the facts of Qimron v. Shanks. Refer to Chapter VI supra.
2001] DEAD SEA SCROLLS 159

Strugnell/Qimron translation and went back to the

original Hebrew reconstruction to produce a new English
translation, he would be infringing.767 Copyright law
would allow Qimron to enjoin further dissemination of
that translation.768
??Wacholder and Abegg, to the extent that they discussed
MMT, would open themselves up to the charge that they
were likewise preparing an unauthorized derivative
work.769
A defender of Qimron could maintain that the specter of the
above cases is simply the price we pay to encourage Qimron to
engage in the labor of reconstructing MMT and presenting it to
the public—until such time as the work is published, Qimron
should not face the risk of being pre-empted. To that point of
view there are two answers. First, the encouragement to Qimron
lies in the unquestioned copyright he enjoys over the 235 pages of
DJD X. It is both unnecessary and counterproductive to ratchet
up his protection to include, as well, the ancient words of TR as
he has reconstructed them.
Second, and even more fundamentally, each of the
disabilities noted in the bullet points above would apply not
simply to the period of time prior to publication of DJD X —they
would apply instead throughout the twenty-first century. Only in
the twenty-second century would progress on MMT be allowed to
proceed, unimpeded by the copyright claim of Qimron and his
heirs.770 That result turns the constitutional purpose of copyright
on its head.
At the end, myriad copyright paths converge on one
conclusion: There is no protection for a reconstruction of an old
manuscript of an uncopyrighted work. Any one rationale is
sufficient by itself. As MMT itself teaches righteously, “‘you will
rejoice in the end when you find some of our words correct.’”771

767. Refer to Case 3 (The Translation) supra.

768. 17 U.S.C. § 101 (1994) (defining “derivative work”).
769. Refer to Chapter VI supra.
770. As of this writing, Qimron’s copyrights will continue until at least 2071. On the
assumption that Elisha Qimron—may he live to 120—is still alive in 2031, then the
copyright in his writings will endure until 2101. See 17 U.S.C. § 302(a) (1994) (providing
that copyright lasts for the life of the author plus seventy years).
771. THE HIDDEN SCROLLS, supra note 190, at 173 (translating portion of MMT).
160 HOUSTON LAW REVIEW [38:1

PART TWO

THEORY

Part One has approached the copyright issues of the Dead

Sea Scrolls through the lens of doctrine. Part Two now changes
the perspective to theory. It moves, moreover, from the specifics
of Qimron v. Shanks to general considerations.
When a philologist reconstructs an ancient text, the product
consists of an alphanumeric writing that looks, at first blush,
indistinguishable from a copyrightable composition. Exactly the
same applies to the notations made by the mathematician to solve
Fermat’s theorem; similar considerations arise with respect to the
drawing made by a physicist probing the atom, the sculpture
produced by the hydrologist restoring a medieval fountain, and the
various products of other -ologists in their own respective fields.772
Is there a razor that can, in fact, etch a distinction, labeling
the vast bulk of writings (as well as sculptures, drawings, etc.)
works of “authorship,” while simultaneously disqualifying some
few at their birth from that appellation of origin? 773
The reader will hopefully forgive me my trespass in an alien
domain,774 if she accepts the thesis that I attempt to
demonstrate, viz., that copyright law proceeds from a theory of

772. Refer to Chapter II supra.

773. “What constitutes a literary work? How is a literary composition different from
any other form of invention, such as a clock or an orrery? What is the relationship
between literature and ideas?” Mark Rose traces “the trajectory of this debate” in the
eighteenth century copyright cases. The Author as Proprietor, supra note 19, at 33.
774. “Literature . . . is too important to be turned over to literature professors.
Literature’s importance to judges, lawyers, and law professors follows from its importance
to human beings in general.” James Seaton, Law And Literature: Works, Criticism, and
Theory, 11 YALE J.L. & HUMAN. 479, 505 (1999).
2001] DEAD SEA SCROLLS 161

authorship wholly at odds with that underlying any literary

theory.775
More precisely, the thesis animating the discussion in this
Part is that copyright law is remarkably unconcerned with any
theory at all about what constitutes authorship—with one single
exception: intentionality. Copyright protection arises only for
works that reflect an intent to produce something personal or
subjective. By contrast, works that are objective, whether in fact
or as presented, fail to qualify as works of “authorship” in the
copyright sense.

775. My ignorance will come back to haunt me only in the event that someone can
demonstrate that there is a literary theory of authorship that comports with the
utilitarian doctrines underlying copyright protection. Though I believe that no such
theory exists, I look forward to monitoring the responses, to determine whether I have
been obliterated.
162 HOUSTON LAW REVIEW [38:1

XII.
AUTHORSHIP AND LITERARY THEORY
Roland Barthes announced the ‘Death of the
Author’ in 1968. . . . [T]he declaration became
arguably the most famous slogan for the fast-
growing field of ‘theory.’ . . . [T]he path was clear
for the proliferation of questions about the process
of reading. A revolution in thought had begun.
Maurice Biriotti776

It is time to explore the figure of the author as he

(historically, it has largely been a masculine domain)777 has
developed in literary theory,778 before reverting to the author that
copyright law protects.
Of course, authors never labor in a vacuum. “In theory, it
takes a human being — an author at one end or a reader at the
other — to register meaning; there is no meaning possible
without a human being to think it.”779 Imagine a triangle, the
vertices of which represent the author, the text, and the reader.780
During the Romantic era, the author reigned supreme.781 In the
1920s, the New Critical school replaced him with the new concept
of an autonomous “text in itself.”782 In more recent decades, as we
shall soon see, the reader has come into her own.783

A. Myth of the Romantic Genius

Two centuries ago, art was conceptualized as the product of

776. Maurice Biriotti, Introduction: authorship, authority, authorisation, in WHAT IS

AN AUTHOR?, supra note 11, at 1.
777. See REAL PRESENCES, supra note 89, at 207.
778. Besides literary theory, other types of theories, as germane, are encountered
anon.
779. JACK STILLINGER, READING T HE EVE OF ST. AGNES 6 (1999).
780. This image, and the rest of this paragraph, emerge from READING T HE EVE OF
ST. AGNES. Id. at 3–15.
781. “The biographical study of authors . . . quickly became the principal method of
writing about literature during the Romantic period, when the personalities of the poets
and the essayists were thought to be central in their works and there was widespread
discussion of such topics as inspiration, originality, creativity, and genius.” MULTIPLE
AUTHORSHIP, supra note 670, at 6–7.
782. READING T HE EVE OF ST. AGNES, supra note 779, at 6.
783. The same is true of viewer, spectator, listener, and other recipients of the
artistic experience. “It’s not the painting that is Catholic or Protestant but the people who
look at it, [said Vermeer] and what they expect to see.” TRACY CHEVALIER, G IRL WITH A
PEARL EARRING 139–40 (1999).
2001] DEAD SEA SCROLLS 163

a wholly new inspiration under the sun, courtesy of the God-

given efforts of a Romantic genius.784 Culminating with the
efforts of Martha Woodmansee,785 that view survives today
primarily as the target of attack.786 So contends Northrop Frye:
All art is equally conventionalized, but we do not
ordinarily notice this fact unless we are unaccustomed to
the convention. In our day the conventional element in
literature is elaborately disguised by a law of copyright
pretending that every work of art is an invention distinctive
enough to be patented.787 Hence the conventionalizing
forces of modern literature — the way, for instance, that an
editor’s policy and the expectation of his readers combine to
conventionalize what appears in a magazine — often go
unrecognized. Demonstrating the debt of A to B is merely
scholarship if A is dead, but a proof of moral delinquency
if A is alive. This state of things makes it difficult to
appraise a literature which includes Chaucer, much of
whose poetry is translated or paraphrased from others;
Shakespeare, whose plays sometimes follow their sources
almost verbatim; and Milton, who asked for nothing better
than to steal as much as possible out of the Bible. It is not
only the inexperienced reader who looks for a residual
originality in such works. Most of us tend to think of a
poet’s real achievement as distinct from, or even contrasted
with, the achievement present in what he stole, and we are
thus apt to concentrate on peripheral rather than on central
critical facts. For instance, the central greatness of
Paradise Regained, as a poem, is not the greatness of the
rhetorical decorations that Milton added to his source, but
the greatness of the theme itself, which Milton passes on to

784. “Whoever creates is God,” says Ralph Waldo Emerson, in the epigraph quoted in
Law and the Creative Mind, supra note 169, at 152.
785. Refer to note 25 supra.
786. See Carol M. Rose, The Several Futures of Property: Of Cyberspace and Folk
Tales, Emission Trades and Ecosystems, 83 MINN. L. REV . 129, 150–51 (1998); Margaret
Chon, New Wine Bursting From Old Bottles: Collaborative Internet Art, Joint Works, and
Entrepreneurship, 75 O R. L. REV . 257, 263–64 (1996).
787. Frye is not alone in blaming copyright law for being part of the problem. The
“proprietary author” has been condemned as “nothing but an ideological
misrepresentation sustained by legal buttressing.” Dropping the Subject, supra note 25,
at 99. Another perspective holds,
In order to be an author in modernity, one must do something avowedly
‘new’; in order to be new, it must be in contradistinction to prevailing norms.
Three things follow. Firstly, authority depends upon distinction. Secondly, to be
an author one must hypothesise a prior system of law in the area in which one
wants authority. Thirdly, once this hypothetical system is in place, one must
intervene with some violation or transgression of its norms or laws.
Authority, history and the question of postmodernism, supra note 85, at 63–64.
164 HOUSTON LAW REVIEW [38:1

the reader from his source. This conception of the great

poet’s being entrusted with the great theme was elementary
enough to Milton, but violates most of the low mimetic
prejudices about creation that most of us are educated in.
The underestimating of convention appears to be a result
of, may even be a part of, the tendency, marked from
Romantic times on, to think of the individual as ideally
prior to his society. The view opposed to this, that the new
baby is conditioned by a hereditary and environmental
kinship to a society which already exists, has, whatever
doctrines may be inferred from it, the initial advantage of
being closer to the facts it deals with. The literary
consequence of the second view is that the new poem, like
the new baby, is born into an already existing order of
words, and is typical of the structure of poetry to which it is
attached. The new baby is his own society appearing once
again as a unit of individuality, and the new poem has a
similar relation to its poetic society.
It is hardly possible to accept a critical view which confuses
the original with the aboriginal, and imagines that a
“creative” poet sits down with a pencil and some blank paper
and eventually produces a new poem in a special act of
creation ex nihilo. Human beings do not create in that way.
Just as a new scientific discovery manifests something that
was already latent in the order of nature, and at the same
time is logically related to the total structure of the existing
science, so the new poem manifests something that was
already latent in the order of words. 788 Literature may have
life, reality, experience, nature, imaginative truth, social
conditions, or what you will for its content; but literature itself
is not made out of these things. Poetry can only be made out of
other poems; novels out of other novels. Literature shapes
itself, and is not shaped externally: the forms of literature can
no more exist outside literature than the forms of sonata and
fugue and rondo can exist outside music.789

B. Apotheosis of the Text

Over the course of the twentieth century, the author has

become increasingly incapable of maintaining a magisterial
presence. For the author can live up neither to being a fount of

788. To switch to George Steiner, “The poet’s language takes us home to that which
we did not know.” What Is Comparative Literature? in NO PASSION SPENT, supra note 212,
at 142, 144.
789. ANATOMY OF CRITICISM, supra note 159, at 96–97.
2001] DEAD SEA SCROLLS 165

wholly new inspiration nor even a being whose intent is

graspable. “[T]he author’s intention ceases to exist as a separate
factor as soon as he has finished revising.”790 George Steiner has
said it well:
The notion that we can grasp an author’s intentionality,
that we should attend to what he would tell us of his own
purpose in or understanding of his text, is utterly naïve.
What does he know of the meanings hidden by or projected
from the interplay of semantic potentialities which he has
momentarily circumscribed and formalized? Why should we
trust in his own self-delusions, in the suppressions of the
psychic impulses, which most likely have impelled him to
produce a “textuality” in the first place? The adage had it:
Do not trust the teller but the tale.791
***
No sentence spoken or composed in any intelligible
language is, in the rigorous sense of the concept, original. It
is merely one among the formally unbounded set of
transformational possibilities within a rule-bound
grammar. The poem or play or novel is strictly considered,
anonymous. It belongs to the topological space of the
underlying grammatical and lexical structures and
availabilities. 792
***
Given language, it cannot be otherwise. Each word793 in
either an oral or written communication reaches us charged
with the potential of its entire history.794
***
At best, the major writer adds graffiti to the walls of the
already extant house of language.795
The cumulative wisdom that follows is that we cannot isolate
the genius of authorship as the basis on which to build theory. That
way lies madness. Jack Stillinger encapsulates the matter perfectly:
[A]cademic critics . . . tend to write their interpretations as

790. Id. at 73.

791. Real Presences in NO PASSION SPENT, supra note 212, at 20, 29.
792. Id. at 28.
793. An additional point: “Languages without traditions of literacy do not have a
word for ‘word.’” Reading in the Later Middle Ages, supra note 146, at 130.
794. What is Comparative Literature?, supra note 788, at 143. “Cognition is re-
cognition.” Id. at 142.
795. Id. at 144.
166 HOUSTON LAW REVIEW [38:1

if the texts under scrutiny existed in some fixed, definitive

form from the very beginning. The lesson is that, because
the product comes to us as a whole entity, we have
mistakenly assumed that it was created whole in the first
place. In other words, the mythic author is a projection
from the text that we see or read, rather than a historical
reality. To the extent that we wish to focus only on the
formal whole, therefore, we should probably omit references
to the author altogether!796
But the notion of text is itself unstable. Even classics have
been obsessively revised by their authors: Samuel Taylor
Coleridge’s Rime of the Ancient Mariner exists in no fewer than
eighteen distinct versions,797 and the history of literature is
replete with like examples.798 A new move is necessary. We
therefore reach the reader.799

C. Birth of the Reader

Focus on the text in itself already prefigures the

desacrilization800 of the author.801 The seminal piece in new
critical studies is Roland Barthes’s essay, The Death of the
Author,802 ubiquitously cited in the literature.803 Its auctoricide
unfolds in a remarkably short seven pages.804

796. MULTIPLE AUTHORSHIP, supra note 670, at 173–74.

797. READING T HE EVE OF ST. AGNES, supra note 779, at 8.
798. See generally JACK STILLINGER, COLERIDGE AND TEXTUAL INSTABILITY: THE
MULTIPLE VERSIONS OF THE MAJOR POEMS (1994).
799. “The text now has a life of its own and an endless series of possible meanings,
which are no longer subject to control either by the author’s actions, decision, and
intentions, or by the rules and conventions of language. Textuality replaces the author
with the reader.” Graham McCann, Distant voices, real lives: authorship, criticism,
responsibility, in WHAT IS AN AUTHOR?, supra note 11, at 72, 73–74.
800. It is de rigeur in this domain to invoke the de- prefix and the -ize infix. THE
PLEASURES OF READING, supra note 527, at 15–16.
801. The full quotation is, “The desacrilization of the image of the Author . . . .” The
Death of the Author, in IMAGE ____MUSIC____TEXT, supra note 9, at 142, 144.
802. Id. at 142. The essay takes off from Balzac’s Sarrasine, as does Barthes’s book, S/Z
(1975).
803. Unremarked, however, is that the title Le Mort d’Auteur carries an
unmistakable invocation of the Le Morte [sic] d’Arthur, thus winding our way back to the
realm of the troubadours. Refer to Chapter II supra. Refer also to note 1081 infra. Note
that Sir Thomas Malory’s Book of King Arthur and of his Noble Knights of the Round
Table was “fitly enough, the last important English book written before the introduction
of printing into [England], and since no manuscript of it has come down to us it is also the
first English classic for our knowledge of which we are entirely dependent on a printed
text.” See Bibiographic Note, at http://etext.lib.virginia.edu/cgibin/browse-mixed?
id=Mal1Mor&tag=public&images=images/modeng&data=/lv1/Archive/eng-parsed (1999).
804. One appreciates the terseness of the essay when its background is clarified.
Barthes wrote The Death of the Author for an American magazine or, more precisely,
2001] DEAD SEA SCROLLS 167

The explanation of a work is always sought in the man or

woman who produced it, as if it were always in the end,
through the more or less transparent allegory of the fiction,
the voice of a single person, the author “confiding” in us. 805
Though that statement might have been simply “a polemical
overstatement” when uttered, it has now matured into “entrenched
academic dogma.”806
Basically, Barthes’s position807 is that no longer should we
believe in the “fetish”808 of an antecedent Author who nourishes the
book and gives it its meaning. Instead, the text itself, being
“eternally written here and now,” becomes a performative act,
hearkening back to the I Sing of the ancient troubadours.809 The
text is no longer to be viewed as containing a single “theological”
meaning corresponding to “the ‘message’ of the Author-God,”810 but
instead becomes “a multi-dimensional space in which a variety of
writings, none of them original, blend and clash.”811
Having dethroned the author, what fills the breach? It is the
Reader, who occupies “the space on which all the quotations that
make up a writing are inscribed without any of them being
lost.”812 Barthes’s final words are widely quoted:813

early multimedia effort, which was kept in a white box. “Barthes’s essay is boxed in, one
of twenty-eight pieces, nothing more than a pamphlet stuck between movies, records,
diagrams, cardboard cut-outs, and advertisements.” Molly Nesbit, What Was an Author?,
73 YALE FRENCH STUD. 229, 241 (1987).
805. The Death of the Author, supra note 801, at 143.
806. Distant voices, real lives, supra note 799, at 72.
807. Barthes’s own philosophy evolved, as a bit of history dramatically illuminates.
In a paper first published only two years before his Death of the Author, Roland Barthes
enumerated three standard concepts of a narrator—including the historical author who
created the work! MULTIPLE AUTHORSHIP, supra note 670, at 5.
808. ROLAND BARTHES, THE PLEASURE OF THE TEXT 27 (Doubleday 1975) (1973).
809. The Death of the Author, supra note 801, at 145–46. Further denying originality,
Barthes continues that “the writer can only imitate a gesture that is always anterior,
never original.” Id. at 146.
810. Id. The history of the book is itself intimately tied to the quest to gain
knowledge of God. Introduction to A HISTORY OF READING, supra note 146, at 17;
M. B. Parkes, Reading, Copying and Interpreting a Text in the Early Middle Ages, in A
HISTORY OF READING, supra note 24, at 90, 91. Along the line of these topoi, reading is
“‘mastication of the Word.’” Jacqueline Hamesse, The Scholastic Model of Reading, in A
HISTORY OF READING, supra note 24, at 103, 104.
811. The Death of the Author, supra note 801, at 146.
812. Id. at 148 (“[A] text’s unity lies not in its origin but in its destination.”).
813. Indeed, this perspective has become dominant in the English-speaking world.
Figures of the Author, supra note 194, at 7.
168 HOUSTON LAW REVIEW [38:1

[W]e know that to give writing its future, it is necessary to

overthrow the myth: the birth of the reader must be at the
cost of the death 814 of the Author.815
What went into this move? “Perhaps the earliest theoretical
impulse to remove the Author was based on a discrediting of the
concept of intentionality.”816 “The notion of a single intending
psyche which exists before and beyond language now seems
hopelessly inadequate.”817 Indeed, decades earlier, an influential
piece tried to demonstrate the fallacy of interpreting a literary
work in light of its intent.818
(It should go without saying that writers are not expected to
literally vanish; they are merely taken off any pedestal of being
given “a privileged position as a category of interpretation.”819 In
other words, Barthes’s call for the death of the author certainly
was not an appeal for the death of the writer. Yet the fatwa820
issued two decades later against Salman Rushdie gave his words
an eerie twang.821)
We are now deeply in the realm of “theory.”822 Inevitably,
reference must now branch off into such delicate questions of
current concern as the literary canon823 and imperialism of the

814. Besides “death,” theoretical writings of the last two decades have subjected the
author to “disappearance,” “absence,” “removal,” and “banishment.” MULTIPLE
AUTHORSHIP, supra note 670, at 3. “[I]t only remains for jurists to sign off on the death
certificate.” The Personality Interest of Artists and Inventors, supra note 121, at 91.
815. The Death of the Author, supra note 801, at 148. The next stage following death
of the author and birth of the reader is, of course, the death of reading itself. See THE
WORLD OF BIBLICAL LITERATURE , supra note 155, at 8.
816. Introduction: authorship, authority, authorisation, supra note 776, at 2.
817. Id. at 5.
818. MONROE C. BEARDSLEY & W.K. WIMSATT, JR., The Intentional Fallacy, in W.K.
WIMSATT, JR., THE VERBAL ICON: STUDIES IN THE MEANING OF POETRY 3 (1954). (One
authority traces publication of the piece eight years earlier, back to 1946. MULTIPLE
AUTHORSHIP, supra note 670, at 8 & n.9.). For a discussion of the disparate views taken of
the intentional fallacy, see id. at 188–202. See also ANATOMY OF CRITICISM, supra note
159, at 86, 88–94, 113.
819. Film Authorship in the Changing Audio-visual Environment, supra note 21,
at 58.
820. For ruminations on that device within Islamic law, we must turn back to one of
the Dead Sea Scroll scholars quoted above. See ROBERT H. EISENMAN, ISLAMIC LAW IN
PALESTINE AND ISRAEL 56 (1978).
821. Reading The Satanic Verses, supra note 725, at 104. As Foucault put it, “The
work, which once had the duty of providing immortality, now possesses the right to kill, to
be its author’s murderer.” What Is an Author?, supra note 155, at 142.
822. To a Marxist, for example, any theory of authorship is inextricably linked to
questions of political power. Cf. Introduction: authorship, authority, authorisation, supra
note 776, at 7 (discussing Terry Eagleton).
823. See THE WORLD OF BIBLICAL LITERATURE , supra note 155, at 198.
2001] DEAD SEA SCROLLS 169

dead white male.824

Understanding—as we understand it—is fundamentally
an act of intellectual appropriation. There is a
phenomenological situation in which a Subject of
consciousness comes to inhabit a position from which the
text makes sense, and thus he or she gains an
“authoritative” understanding of the text. ‘Under-standing’
is, of course, in these terms, ‘over-coming’, mastering a
text. 825
The death of the author, as summarized above, has given
birth to the reader. Literary theory has moved beyond the
revelation from on-high of “authority (the auctoritas of
authorship)”826 to a realm in which it is the interpretive
community that constitutes the text, and the reader reigns
supreme.827 At the end of the day, where do these considerations
leave the authors whom the Copyright Act clothes with
protection? We return to these considerations presently.

824. See Reading to Read, supra note 146, at 357–58. Given that the current work
was commissioned for the Houston Law Review, it is not amiss to note that the Italian
commentator of that piece deems Houston “the most future-oriented city in the United
States today.” Id. at 359. How the contest was held is not revealed.
825. Authority, history and the question of postmodernism, supra note 85, at 61.
826. Our Homeland, the Text, supra note 357, at 308.
827. See STANLEY FISH, Literature in the Reader, in IS THERE A TEXT IN THIS CLASS?
21, 21–67 (1980). Of course, this domain is as volatile as the study of Dead Sea Scrolls;
thus a citation to Fish is to what he believed at one particular point, which may be a
proposition that he subsequently disavowed. See Introduction, or How I Stopped Worrying
and Learned to Love Interpretation, in IS THERE A TEXT IN THIS CLASS? 1, 1–3 (“[T]he
reader’s response is not to the meaning: it is the meaning, . . . or so I claimed.”).
170 HOUSTON LAW REVIEW [38:1

XIII.
BIBLICAL EXCURSUS
[M]odern biblical scholarship is the particularly
urgent turn given by revealed religion to the quest
for origins initiated by European romanticism.
Robert Alter828

The last chapter exits the boundaries of copyright proper to

explore some of its roots in the neighboring domain of literary
theory. This chapter ventures farther still, testing some of those
literary theory notions. The instant test unfolds in a domain that
would be familiar to the Teacher of Righteousness, namely
through adducing biblical texts and commentaries. The next
chapter then reverts back to the more familiar moorings of
copyright. Thereafter, the discussion tries to integrate all these
strands into a unified whole.829

A. God is Strong
From the quest for origins initiated by Romanticism insofar
as it relates to the book,830 it is fitting to turn to the same
question vis-à-vis The Book.831 The Bible (from the Greek word
meaning “the book”)832 undoubtedly stands as the paradigm for
Barthes’s criticism, the work most in need of “desacrilization of
the image of the Author,”833 or more pungently, of the single

828. THE WORLD OF BIBLICAL LITERATURE , supra note 155, at 193. Alter follows that
formulation immediately with ruminations on Hershel Shanks, and the cultural
phenomenon represented by his Biblical Archaeology Review. Id. at 193–94 (noting that
the magazine has “more than 125,000 subscribers, a figure I find astonishing”).
829. “The primary intellectual encounter between Judaism and modern culture has
been precisely in a mutual preoccupation with the historicity of things.” JOSEPH CHAIM
YERUSHALMI, ZACHOR 81 (1982).
830. Refer to Chapter XII supra.
831. This investigation is essentially continuous with what has come before. “The
disciplines of reading, the very idea of close commentary and interpretation, textual
criticism as we know it, derive from the study of Holy Scripture . . . .” Real Presences, supra
note 791, at 36. Jewish scholars have played a “preponderant role in the development of
comparative literature.” What Is Comparative Literature?, supra note 788, at 148. George
Steiner characterizes as “Judaic derivatives” both Freudian psychoanalysis and Derridean
deconstruction. A Note on Kafka’s “Trial,” in NO PASSION SPENT, supra note 212, at 239,
240–41. He further characterizes Marxism as “Judaism grown impatient.” Through That
Glass Darkly in NO PASSION SPENT, supra note 212, at 328, 341.
832. More precisely, ta biblia refers to “the books.” THE WORLD OF BIBLICAL
LITERATURE , supra note 155, at 48.
833. Refer to note 801 supra.
2001] DEAD SEA SCROLLS 171

meaning (Barthes calls it “theological”) corresponding to “the

‘message’ of the Author-God.”834 It goes without saying that The
Death of the Author carries with it “an anti-theological activity,
an activity that is truly revolutionary since to refuse to fix
meaning is, in the end, to refuse God and his [sic] hypostases —
reason, science, law.”835
I quarrel with Barthes’s theology. Is his enterprise “truly
revolutionary”? The birth of the reader as a focus of attention
scarcely resulted from parthenogenesis in 1968.836 As early as
1912, Charles Péguy commented that the real achievement of a
text and of a work of literature itself is to acquire “une lecture
bien fait,” that is, an attentive reading.837 At around the same
time, Kafka observed, “If the book we are reading does not wake
us, as with a fist hammering on the skull, then why do we read
it?”838 A hundred years earlier, Keats himself anticipated the
current focus in literary studies, under one view at least, as “an
early advocate of some fundamental ideas of twentieth-century
reception theorists.”839 Emily Dickinson said it too, without the
jargon: “If I feel physically as if the top of my head were taken
off, . . . I know this is poetry.”840
The Bible itself disclaims the intent to present a single
meaning corresponding to “the ‘message’ of the Author-God.”841
As first proof-text for this proposition, consider Jeremiah 23:29:
“Is not my word thus like a fire, says the Lord, and like a
hammer that shatters a rock?” That last image of a hammer
causing a single rock to fly off in multiple pebbles842 moves the

834. Refer to text accompanying note 810 supra.

835. The Death of the Author, supra note 801, at 147.
836. See ANATOMY OF CRITICISM, supra note 159, at 66.
837. The Uncommon Reader, supra note 583, at 17–18. In the context of orality and
writing, it is an interesting phenomenon that “lecture” connotes the former in English, the
latter in French.
838. Franz Kafka, In Front of the Law (quoted in Our Homeland, the Text, supra note
357, at 315).
839. READING T HE EVE OF ST. AGNES, supra note 779, at 87.
840. ANATOMY OF CRITICISM, supra note 159, at 27. The same point is made non-
verbally in Dennis W. Arrow, Pomobabble: Post-Modern Newspeak and Constitutional
“Meaning” for the Uninitiated, 96 MICH. L. REV . 461, 689 (1997).
841. Indeed, one view is that the Bible does not even support the notion of God as
Author of all the world; contrary to the traditional notion of creatio ex nihilo, this view
posits that certain forces are primordial—in existence independent of God’s creation. See
JON D. LEVENSON, CREATION AND THE PERSISTENCE OF EVIL: A JEWISH DRAMA OF DIVINE
O MNIPOTENCE (1988) (citing example of the Leviathan).
842. A more nuanced reading is that it is the sparks that fly off from the collision:
“My word, says God, is like fire; but what sort of fire? Like those fiery sparks produced by
a hammer when it strikes rock—and like the many senses that every verse in Scripture
holds ready to let fly at the strike of the interpretive hammer.” DAVID STERN, MIDRASH
172 HOUSTON LAW REVIEW [38:1

rabbinic sages to comment, “[L]ikewise does one text yield

several flavors.”843 Even more explicit is Psalms 62:12: “God
spoke once; I heard it twice: for God is strong.”844 Again, the
rabbis interpret the verse’s plain meaning845 as being that “one
text yield several flavors.”846
To pigeonhole the LORD into the equation of one utterance =
one meaning represents utter foolishness. Given their realization
that a single text can convey a wealth of readings, for
theoreticians to maintain that the Almighty Himself lacks the
power to take advantage of those polysemous possibilities betrays
bad theology. The Bible itself rejects that formulation: “God is
strong”—so of course He can (and does) compress multiple
readings into a single pronouncement.847
It is precisely that sensibility that moves the rabbis to
invoke the repercussive category of al tikrei, “Read rather
thus.”848 Thus, Minchat Shai, “the most famous of all the works
of Masorah,”849 invokes the two biblical texts cited above and
explicates al tikrei as bringing two readings such that both
intentions are included within Scripture; it further maintains
that the sages are justified in invoking all tools of interpretation,
based on the maxim that “one text yields many flavors.”850

AND THEORY: ANCIENT JEWISH EXEGESIS AND CONTEMPORARY LITERARY STUDIES 18

(1996).
843. BABYLONIAN TALMUD TRACTATE SANHEDRIN 34a. My translation of af miqra
echad yotze lekama t’amim is perhaps overly literal, although taking the word miqra even
more literally would produce “likewise from one reading do several flavors emerge.” See
THE WORLD OF BIBLICAL LITERATURE supra note 155, at 49. Usage of flavors might also
be overly literal (but I like it). Certainly, the sense is “one verse yields many teachings.”
ARTSCROLL TALMUD TRACTATE SANHEDRIN 34a3.
844. Given its shortage of adjectives, the Hebrew expresses the second half of the
verse as “for strength [is] to God.”
845. But forfend that it be represented as the one and only literal meaning! Unless,
that is, one admits that “it is virtually impossible to assign to literal meaning a
significance any more definite than the first or most obvious meaning of a passage as
apprehended by one familiar with the language and context.” WALTER J. O NG S. J., THE
PRESENCE OF THE WORD: SOME PROLEGOMENA FOR CULTURAL AND RELIGIOUS HISTORY 46
(1967).
846. SANHEDRIN, supra note 843, at 34a.
847. In fact, it is doubtful that there is such a thing as one and only one reading. See
THE WORLD OF BIBLICAL LITERATURE , supra note 155, at 88. Alter characterizes Barthes’s
attempt “to rescue the absolute literal” as “a particularly instructive failure.” Id. at 89.
See id. at 165 (giving Harold Bloom, who otherwise missed the boat in his Book of J,
credit for resisting Barthes).
848. Refer to Chapter VIII, section (B)(2) supra.
849. 16 ENCYCLOPEDIA JUDAICA 1478 (1972).
850. JEDEDIAH SOLOMON RAPHAEL BEN ABRAHAM OF NORZI , MINCHAT SHAI (1626),
explicating Zephaniah 1:12.
2001] DEAD SEA SCROLLS 173

Another sage 851 likewise brings down the existence of al tikrei as

permitting different readings of the unvocalized Biblical text,
given that “both interpretations are contained within the text.”852
In that context, he cites the illustrious dictum, “there are seventy
faces to the Torah.”853 (Of course, “seventy” is not an attempt at
quantification; it represents manifold, unbounded
possibilities.)854

B. Unheard Melodies

In his poem of Romantic genius, Keats teaches that “Heard

melodies are sweet, but those unheard/Are sweeter.”855 That
insight opens a window into an additional dimension.856 Call it
“meta-intention.” As James Seaton notes:
Authors normally intend that readers should go beyond the
authors’ explicit intentions. Aware that their writing will be
read by strangers distant in space and time, authors want
their meanings to go beyond their own conscious intentions
and the constraints on meaning that are imposed by what
they and their contemporaries can conceive in their own time
and place.857

851. It should be conceded that unanimity on this construction is lacking. The great
Maimonides dismisses al tikrei as homiletic: “in the way that poets use poetical devices,”
“beautiful poetic interpretation.” G UIDE TO THE PERPLEXED, translated from Arabic to
Hebrew by Joseph David Qapach, at page shin-ayin-vav. Note that Maimonides’
reflections on this matter launch a whole book on the subject of midrash. See DANIEL
BOYARIN, INTERTEXTUALITY AND THE READING OF MIDRASH 1 (1990).
852. 2 HA-ENZYCLOPEDIA HA-TALMUDIT, supra note 628, at 1 n.12, citing responsa of
the Radbaz (b. Spain 1480).
853. Id. Though the “70 faces” phrase is as famous in observant Jewish circles as,
say, “with liberty and justice for all” would be to an educated American audience, its roots
actually lead back to an obscure book called Otiyot d’Rabbi Akiva, “a semimystical tract of
the early post-Talmudic period.” MIDRASH AND THEORY, supra note 842, at 18. See
G OLDEN DOVES WITH SILVER DOTS, supra note 614, at 120.
854. There are 25,000 commentaries on Hamlet, “sepulchred in the decent dust of
deposit libraries.” REAL PRESENCES, supra note 89, at 23, 25. But interpretation of the
Pentateuch dwarfs even that number. Id. at 40–41.
855. Ode on a Grecian Urn, lines 11–12.
856. See Jeffrey Malkan, Literary Formalism, Legal Formalism, 19 CARDOZO L. REV.
1393, 1400 (1998) (citing Marshall Brown, Unheard Melodies: The Force of Fo rm, 107
PMLA 465, 477 (1992)).
857. Law And Literature, supra note 774, at 497. This move is familiar to
constitutional interpreters, on both the left and right.
174 HOUSTON LAW REVIEW [38:1

That realization shows how simplistic it is to attribute one

fixed meaning to the Bible, most enduring of all mankind’s
literature.858 Almost two millennia ago, an entire corpus of rabbinic
literature known as midrash859 developed to interpret scripture
based on the recognition that “there is often a gap between
authorial intent and reader reception.”860 Not only does midrash
recognize the role played by the reader in determining textual
meaning,861 but it “‘encourages multiple and even contradictory
meanings to be discovered in the text, while the intention of its
author(s) is perceived as elusive.’”862 It thus comes as no surprise
that literary critics have begun to appreciate the affinity between

While privileged to serve in the Those on the political right are usually
Chambers of Judge Oakes, I worked on a credited with hewing most closely to
case brought against Representative original intent. See Charles Fried,
Elizabeth Holtzman, seeking to disqualify Sonnet LXV and the “Black Ink” of the
her from taking her seat in Congress Framers’ Intention, 100 HARV. L. REV. 751,
based on the Constitution’s unambiguous 759–60 (1987). Yet no one has questioned
limitation to the male gender in defining the extension of the constitutional power
the qualifications for Congressional office. “to make Rules for the Government and
U.S. CONST. Art. I, § 2, cl. 2 (“State in Regulation of the land and naval forces” to
which he shall be chosen”). The Second embrace as well an air force—something
Circuit had little problem rebuffing that that the eighteenth century framers could
claim. See Sharrow v. Holtzman, 614 F.2d not possibly have had in mind. See Robert
1290 (2d Cir. 1979) (mem.). Post, Theories of Constitutional
Interpretation, 30 REPRESENTATIONS 13,
21–22 (1990).

858. I originally attributed this simplistic view to Barthes, but found myself
rightfully reproved:
But any such attribution of fixed meaning would be very un-Barthes-like: for
him all texts, including the bible I suppose, are polysemic and multiple. What
Barthes is objecting to is that kind of hermeneutic—literary or theological—
which would attribute a single true, final, and fixed point of meaning and
authority to any text and call it the “author” or call it “God.” In the context in
which Barthes was writing such a position really was “revolutionary,” which was
why there was such an angry response to the new French criticism in the 1970s.
E-mail from Mark Rose to David Nimmer (December 17, 2000) (on file with the Houston
Law Review).
859. Refer to Chapter VIII, section (B)(3) supra.
860. David Weiss Halivni, From Midrash to Mishnah: Theological Repercussions and
Further Clarifications of “Chate’u Yisrael,” in THE MIDRASHIC IMAGINATION, supra note
635, at 23, 29. See generally G OLDEN DOVES WITH SILVER DOTS, supra note 614.
861. See David Stern, The Rabbinic Parable and the Narrative of Interpretation, in
THE MIDRASHIC IMAGINATION, supra note 635, at 90–91.
862. Robert Bonfil, Can Medieval Storytelling Help Understanding Midrash? The
Story of Paltiel: A Preliminary Study on History and Midrash, in THE MIDRASHIC
IMAGINATION, supra note 635, at 228, 244. See THE WORLD OF BIBLICAL LITERATURE ,
supra note 155, at 142–44 (“[M]ultiple and contradictory solutions . . . might be the very
hallmark of its greatness.”).
2001] DEAD SEA SCROLLS 175

their “modern” theories and the ancient midrashic mode of

interpretation.863
Irresistible to recount here is the famous864 story of God
leading Moses after death back to the study hall,
R. Judah said in the name of Rav: When Moses ascended on
high, he found the Holy One affixing crowns to letters. Moses
asked, “LORD of the universe, [why use crowns to intimate
what You wish]? Who hinders Your hand [from writing out in
full all of Torah’s precepts]? God replied, “At the end of many
generations there will arise a man, Akiva ben Joseph by
name, who will infer heaps and heaps of laws from each tittle
on these crowns.”865 “LORD of the universe,” said Moses,
“permit me to see him.” God replied, “Turn around.” Moses
went and sat down behind eight rows [of R. Akiva’s disciples
and listened to their discourses on law]. Not being able to
follow what they were saying, he was so distressed that he
grew faint. But when they came to a certain subject and the
disciples asked R. Akiva, “Master, where did you learn this?”
and R. Akiva replied, “It is a law given to Moses at Sinai,”
Moses was reassured. He returned to the Holy One and said,
“LORD of the Universe, You have such a man, yet You give the
Torah [not by his hand] but by mine?” God replied, “Be
silent — thus has it come to My mind.”866

863. Moshe Idel, Midrashic Versus Other Forms of Jewish Hermeneutics: Some
Comparative Reflections, in THE MIDRASHIC IMAGINATION, supra note 635, at 45, 45. See
Suzanne Last Stone, Judaism and PostModernism, 14 CARDOZO L. REV . 1681, 1685, 1696
(1993); THE WORLD OF BIBLICAL LITERATURE , supra note 155, at 86. See generally
INTERTEXTUALITY AND THE READING OF MIDRASH, supra note 851. David Stern traces the
infatuation of literary critics with midrash, and their subsequent disappointment that
polysemy does not equate to indeterminacy. MIDRASH AND THEORY, supra note 842, at 1–13.
864. See, e.g., Calum Carmichael, THE SPIRIT OF BIBLICAL LAW 12 (1996). The other
Talmudic saying that naturally fits into this profile is the one that ends “Both these and
those are the words of the living God,” which has been called “a metamidrashic comment
which marks the indeterminacy of the biblical text as inherent in it.” INTERTEXTUALITY
AND THE READING OF MIDRASH, supra note 851, at 141 n.23. See MIDRASH AND THEORY,
supra note 842, at 21.
865. Hence the title of the work cited earlier, O TIYOT D’RABBI AKIVA, supra note 853,
which means “the letters of Rabbi Akiva.”
866. HAYIM NAHMAN BIALIK & YEHOSHUA HANA RAVNITZKY, THE BOOK OF LEGENDS
SEFER HA-AGGADAH: LEGENDS FROM THE TALMUD AND MIDRASH 232 (William G. Braude
trans., 1992) (quoting BABYLONIAN TALMUD TRACTATE MENACHOT 29b). The end of the
story turns grim:
Then Moses said, LORD of the universe, You have shown me his Torah — now
show me his reward.” “Turn around,” said God. Moses turned and saw R. Akiva’s
flesh being weighed out in a meat market. “LORD of the universe,” Moses cried
out in protest, “such Torah, and such its reward?” God replied, “Be silent — thus
has it come to My mind.
Id. That last segment portraying God in an inexplicable light goes beyond current
concerns, as it raises a problem of theodicy (as opposed to The Odyssey, which would
176 HOUSTON LAW REVIEW [38:1

There can be no ambiguity from this tale that the later rabbis
were acutely conscious that God’s words to Moses contained an
intent of being unpacked long later. In other words, “[T]he author
may well have implanted ambiguity in the text in order to authorize
later interpreters to choose between a range of legitimate
options.”867
The Romantic notion is that a poet creates ex nihilo, acting
ideally like God Himself.868 Barthes is the archetype of the anti-
Romantic.869 Yet his bad theology, as wooden as the Teacher of
Righteousness’s,870 moves him to replicate the error that he
wishes to condemn.871 In other words, Barthes rejects the notion
that the single meaning of the author, imbued God-like, serves as
the basis for interpreting the text. When one realizes that God
can express seventy or more thoughts in each word of His text,
the need for deicide as a hermeneutic tool evaporates.
At the opposite end of Barthes’s claim that literature must
be liberated from the author-God lies George Steiner’s
perspective that all true art gains its meaning from God’s
presence.872 Regardless of whether one wishes to go that far, the

return us to Homer).
867. Judaism and PostModernism, supra note 863, at 1699. Indeed, this matter can
be pushed even further:
Judicial interpretation is not based on uncovering the mind of the divine author
or determining the meaning the author would have assigned to the work.
Instead, as in reader-response theory, the rabbis generate their own meaning.
Finally, as in deconstructionism, rabbinic hermeneutics engages in the self-
referential “play of the signifiers.”
Id. at 1685.
868. O RALITY AND LITERACY, supra note 1, at 22. The trope actually traces back to
the Renaissance. See REAL PRESENCES, supra note 89, at 208; O RIGIN AND ORIGINALITY IN
RENAISSANCE LITERATURE , supra note 82, at 4.
869. Yet elsewhere, Barthes himself seems to fall prey to a Romantic recrudescence.
“[B]liss may come only with the absolutely new, for only the new disturbs (weakens)
consciousness (easy? not at all: nine times out of ten, the new is only the stereotype of
novelty) . . . (Freud: ‘In the adult, novelty always constitutes the condition for orgasm’).”
THE PLEASURE OF THE TEXT, supra note 808, at 40–41.
870. With particular reference to the Habakkuk Persher (another one of the Dead
Sea Scrolls), TR takes scripture as a code with a one-to-one correspondence to
contemporary events. MIDRASH AND THEORY, supra note 842, at 22–23.
871. The passage from Maimonides discussed above, refer to note 851 supra, accuses
Kara’ites of ignorance for attacking the alternative meaning posited in an al tikrei; that
alternative meaning is not proposed as the essence of the text. Maimonides equally attacks
the foes of the Kara’ites, the Rabbanites, for defending the value of the insight contained in
an al tikrei; they should simply realize that it comes as a homiletic commentary. In like
manner, Barthes falls prey to the Romantic vision he wishes to condemn.
872. REAL PRESENCES, supra note 89, at 120, 216–32. As Ronsard observed, “les vers
viennent de Dieu/Non de l’humaine puissance.” O RIGIN AND O RIGINALITY IN RENAISSANCE
LITERATURE , supra note 82, at 26. Note that Quint’s entire book traces the Renaissance
adherence to, and development beyond, Ronsard’s claim that “poetry comes from God, not
2001] DEAD SEA SCROLLS 177

defects in Barthes’s formulation should be apparent. As the

foregoing excursion into the Bible reveals, his theory is
theoretically flawed.

from human power.”

178 HOUSTON LAW REVIEW [38:1

XIV.
AUTHORSHIP UNDER THE COPYRIGHT ACT
The recovery of ancient texts is the highest task of
all. . . . When you consider the ocean of bilge
brought forth by the invention of printing, it does
make you wonder about this boon of civilization. I
wonder about it every time I open the Journal of
Philology.
A.E. Housman873

The move from author to text explained above finds some

echo in the law. Although, as explained previously, U.S. case law
has devoted virtually no cerebration to what is an “author,”874
consideration as to what constitutes a copyrightable text is far
from uncommon.875 One commentator identifies
a twin birth, the simultaneous emergence in the discourse
of the law of the proprietary author and the literary work.
The two concepts are bound to each other. To assert one is
to imply the other, and together, like the twin suns of a
binary star locked into orbit about each other, they define
the centre of the modern literary system. 876
Just as early copyright statutes in the United States
provided no attempt to give definition to who constitutes an
“author,” the governing act at present, passed in 1976, is
similarly laconic.877 Yet the 1976 Act did introduce several
innovations, compared to the previously regnant 1909 Act, with
respect to “works of authorship.” It is here that attention must
therefore be directed.

A. Release of “Works of Authorship” From Physical Constraints

As passed in 1791, the first copyright statute protected
physical items, viz., “any map, chart, book or books.”878 The 1909
Act, which governed for most of the twentieth century, was
largely the same, applying to such productions as “books,”

873. THE INVENTION OF LOVE , supra note 533, at 71, 73.

874. Refer to Chapter II supra.
875. Toward a Theory of Copyright, supra note 25, at 472–74.
876. The Author as Proprietor, supra note 19, at 39. Ultimately, the “work” becomes
as problematic a concept as the “author” who created it. What Is an Author?, supra note
155, at 143–44.
877. That Act took effect on January 1, 1978.
878. Act of May 31, 1790, § 2, 1 Stat. 124 (1790).
2001] DEAD SEA SCROLLS 179

“periodicals, including newspapers,” “maps,” “photographs,”

“motion-picture photoplays,” and the like.879
The 1976 Act introduced an innovation here. Essentially, the
copyrightable took wing, as protection was liberated from
physical instantiations to cover idealized types.880 We r evert here
to the “fundamental distinction” confronted earlier881 between a
copyright and the material object in which it is embodied.882
Instead of protecting “books” or “newspapers,” the current Act
protects “literary works” regardless of the form in which they
might be concretized.883
Which is the superior mechanism, from the theoretical point
of view: the approach of the 1976 Act or of the 1909 Act? One can
fault the approach of that earlier law as outmoded:
Whatever they may do, authors do not write books. Books
are not written at all. They are manufactured by scribes
and other artisans, by mechanics and other engineers, and
by the printing presses and other machines. 884
So does that mean that the new methodology is free from reproach?
Such a conclusion is far from automatic. According to literary
theory, “the form in which a text is presented for reading also plays
a part in the construction of the meaning. Versions of the ‘same’
literal text are not the ‘same’ when the physical support that
transmits it to readers . . . varies.”885 Indeed, texts have no real
existence on the ethereal plane; “even in their most rarefied form

879. 17 U.S.C. § 5 (1909).

880. “The statement cannot be identified with a fragment of matter; but its identity
varies with a complex set of material institutions.” MICHEL FOUCAULT, THE
ARCHAEOLOGY OF K NOWLEDGE AND THE DISCOURSE ON LANGUAGE 103 (1972).
881. Refer to Chapter VII, section (A)(2) supra.
882. As quoted above, the House Report posits
a fundamental distinction between the “original work” which is the product of
“authorship” and the multitude of material objects in which it can be embodied.
Thus, in the sense of the bill, a “book” is not a work of authorship, but is a
particular kind of “copy.” Instead, the author may write a “literary work,” which
in turn can be embodied in a wide range of “copies” and “phonorecords,”
including books, periodicals, computer punch cards, microfilm, tape recordings,
and so forth.
H.R. REP. NO. 94-1476, at 53 (1976). Refer to note 487 supra.
883. As previously noted, it could even be fixed in gigantic stone monuments set up
atop Mt. Eival. Refer to note 489 supra.
884. Introduction to A HISTORY OF READING, supra note 146, at 5.
885. Roger Chartier, Reading Matter and ‘Popular’ Reading: From the Renaissance to
the Seventeenth Century, in A HISTORY OF READING, supra note 24, at 269, 275. To
illustrate the point, one commentator claims that the Simon and Garfunkel song The
Boxer, as performed in 1969, was a different “text” from the same song performed by the
same singers in 1981, given divergences in audience reaction. See Beyond Metaphor,
supra note 474, at 727.
180 HOUSTON LAW REVIEW [38:1

[they] are always enmeshed in circumstance, place, and society—in

short, they are in the world, and hence are worldly.”886
Textus comes from the Latin for “woven cloth.”887 A text is
made of a warp of words, as woven into a woof of cloth, paper,
and binding.888 Yet the current Copyright Act equates novels
and poems with training manuals,889 along with e-mails and
laundry lists, in an omnibus category called “literary works.”
Moreover, that same category of “literary works” equally
embraces the computer programs of every description that
increasingly dominate copyright jurisprudence,890 from
microcode891 to Microsoft892 to macro-applications893 such as
those that automate a dental laboratory.894 Copyright law
thereby runs roughshod over some important distinctions.

B. On the Incommensurate Vastness of “Works of Authorship”

Under the Statute
But those above considerations are only the warm-up. No
sooner does the attempt to reconcile literary theory with
copyright doctrine begin than a vast disconnect looms:
Copyright protection applies equally to works of “high
authorship” and to works of emphatically “low authorship.”
For every novel like The Handyman that a Caroline See
lovingly crafts, it is no exaggeration to recognize the existence
of 10,000 works along the following lines:
??Watercolors and finger-paintings created by first graders,
??Love letters and other missives, 895

886. Edward W. Said, The Text, the World, the Critic, in TEXTUAL STRATEGIES, supra
note 155, at 161, 165.
887. Moving from Latin to Greek, rhapsody has the same etymology. O RALITY AND
LITERACY, supra note 1, at 13 (“to stitch songs together”).
888. These thoughts are modeled on Jesper Svenbro, Archaic and Classical Greece:
The Invention of Silent Reading, in A HISTORY OF READING, supra note 24, at 37, 44.
889. Koontz v. Jaffarian, 787 F.2d 906, 910 (4th Cir. 1986).
890. Anyone who thinks that the roots of U.S. copyright law derive from the
Romantic Era should ponder—the same category that applies to poetry is the one that
protects “hard drive prefailure warnings”! See Compaq Computer Corp. v. Procom Tech.,
Inc., 908 F. Supp. 1409 (S.D. Tex. 1995). See generally 4 NIMMER ON COPYRIGHT § 13.03[F].
891. E.F. Johnson Co. v. Uniden Corp. of Am., 623 F. Supp. 1485, 1497 (D. Minn. 1985).
892. Microsoft Corp. v. Harmony Computers & Elecs., Inc., 846 F. Supp. 208, 214
(E.D.N.Y. 1994).
893. Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 698 (2d Cir. 1992).
894. Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1225 (3d Cir. 1986).
895. For Foucault, “A private letter may well have a signer—it does not have an
author; a contract may well have a guarantor—it does not have an author.” What Is an
Author?, supra note 155, at 148. The law draws no such distinctions. See Salinger v.
2001] DEAD SEA SCROLLS 181

??Wish lists and meditations doodled on paper,

??Manager’s directives to their subordinates as to the
earnings goals for the upcoming quarter,
??Endless compositions and recordings896 by “wannabe”
songwriters, 897
??Labels for goods from shampoo898 to automobile
packaging899 and everything between,
??E-mails, 900
??Photographs901 and videos902 of the family vacation,903

Random House, Inc., 811 F.2d 90, 96 (2d Cir. 1987) (holding that private letters are
protected by copyright); Continental Cas. Co. v. Beardsley, 253 F.2d 702, 705 (2d Cir.
1958) (granting insurance policy copyright protection).
896. Note that this category is doubled: A separate copyright inheres in musical
works and in the sound recordings rendering those works. See 1 NIMMER ON COPYRIGHT
§§ 2.05, 2.10.
897. Occasionally, this category results in litigation. See Ellis v. Diffie, 177 F.3d 503,
505 (6th Cir. 1999) (declining to find striking similarity between defendant’s lyrics, “Prop Me
Up Beside the Jukebox (If I Die)” and plaintiff’s, “Lay Me Out By the Jukebox When I Die”).
898. Quality King Distribs., Inc. v. L’Anza Research Int’l, Inc., 523 U.S. 135, 138
(1998).
899. Ford Motor Co. v. B & H Supply, Inc., 646 F. Supp. 975, 980 (D. Minn. 1986).
900. Letters, missives, and e-mails are plainly subject to copyright protection, as long
as they reflect a sufficient spark of creativity. See Diamond v. Am-Law Corp., 745 F.2d
142 (2d Cir. 1984) (letter to editor copyrightable). Although some briefer ones—such as
“Thanks,” “Got it,” or “See you Thursday”—may admittedly fail protection, uncounted
numbers of e -mail qualify. For instance, when the Houston Law Review assigned Russell
Chorush to assist me in this project, he sent me an e-mail: “I would enjoy the opportunity
to introduce myself briefly over the telephone and to glean some idea of the scope of the
research project. If this is acceptable, would you please let me know your telephone
number as well as an appropriate time to call. I very much look forward to working for
you.” That material is a literary work. 17 U.S.C. § 102(a)(1) (1994). It is fixed in a tangible
medium of expression. MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 517–18
(9th Cir. 1993). It contains a modicum of creativity in expression. Feist Publ’ns, Inc. v.
Rural Tel. Serv. Co., 499 U.S. 340 (1991). It is therefore copyrightable.
901. Since the days of Napoleon Sarony, photography has posed peculiar problems to
copyright doctrine. Refer to Chapter II supra. Right up to today, “the recognition of the
photographer as an author in the full meaning of author’s rights is still a problematic
issue in many countries.” Film Authorship in the Changing Audio-visual Environment,
supra note 21, at 61. The matter is sufficiently complicated as to have generated an entire
comparative study. See COPYRIGHT AND PHOTOGRAPHS : AN INTERNATIONAL SURVEY
(Ysolde Gendreau, Axel Nordemann & Rainer Oesch eds., 1999).
902. More conceptual problems lurk here. A movie is a series of photos, thereby
implicating the issues of the previous note. In addition, that series is effectuated by
countless individuals (authors? technicians? others?). We thereby enter a politique des
auteurs, at the end of which emerges a construct of “film author.” Film Authorship in the
Changing Audio-visual Environment, supra note 21, at 65, 77. Like the subject covered in
the previous note, the instant subject matter is also most complicated, and has likewise
generated a literature unto its own. See NIKOLAS REBER, FILM COPYRIGHT, CONTRACTS
AND PROFIT PARTICIPATION (2000).
182 HOUSTON LAW REVIEW [38:1

??And on and on.

As a matter of copyright doctrine, there is no categorical
distinction between works of high authorship and the vastly more
numerous904 works of low authorship.905 One provision of the
statute accords protection to each.906 Another provision sets forth
the guidelines for fair use of each of them;907 others, the guidelines
for infringement actions908 and remedies.909 Though the law is not
blind to the distinction,910 neither does it crop up much.
At the outset then, we must investigate why copyright casts
its net so widely as to encompass the mundane more often than
the ethereal.911 Consider the following chart, which catalogs

903. According to one source, Americans took over 17 billion photographs in 1996.
See Robert Monaghan, Photography Industry Statistics, (Nov. 1999), at
http://www.smu.edu/~rmonagha/mf/photostats.html. Virtually all would seem to be
nominally subject to copyright protection. See 1 NIMMER ON COPYRIGHT § 2.08[E][2]
(suggesting that protection would be lacking only for copies of prior photos). Compared to
that magnitude, the combined output of all the publishing houses in the U.S., whether
high-brow or low, bound or in periodical form, of general interest or niche, is derisory.
904. To be a bit more explicit, albeit at the risk of attempting precision without the
benefit of the slightest bit of empirical research (beyond that set forth in the previous
note), my claim is as follows: One can aggregate The Handyman with all of the works
cited herein, and every book published and distributed by a publisher in 2000, every
motion picture released on screen or on video that year, every sculptural work exhibited
in every museum and gallery in the same period, etc., to come up with all the works of
“high authorship.” Against those, can be juxtaposed all of the kid’s drawings, memos,
lists, and other works of low authorship created during the same interval. The former
constitute but a tiny fraction of the latter, much less than 1% of 1%, I would bet.
905. Given how much more often a kid writes a homework essay or a clerk sends an
e-mail message than someone snaps a photograph, one may posit that a hundred other
copyrightable works are created for every photo taken. Generalizing from 17 billion
photos, the total number exceeds a trillion annually.
906. See 17 U.S.C § 102 (1994).
907. Id. § 107.
908. Id. § 501.
909. Id. §§ 502–505.
910. As a “proof-text,” consider Lish v. Harper’s Magazine Foundation, 807 F. Supp.
1090 (S.D.N.Y. 1992). The court held that a magazine’s reproduction of excerpts of
bombastic prose from an unpublished letter sent to students in a noted writer’s workshop
constituted copyright infringement, but computed damages as zero. Id. at 1111.
911. There is an additional dimension here. The overwhelming concern above has
been with literary works, and corresponding attention has been paid to the readers of
those literary texts and to ilterary theory. But given that copyright extends so
broadly, it is equally incumbent upon theorists to describe music, listeners, and
auditory theory; audiovisual works, viewers, and film theory; sculpture, observers,
and theory of the plastic arts; etc. It is, in short, necessary “to challenge the notion of
a single, universal and monolithic ‘Theory of Authorship’ covering all practices, and
to propose instead the need to understand authorship in relation to specific practices,
and within the constraints of specific institutional operations.” JOHN CAUGHIE,
introduction to Pam Cook, The Point of Self-Expression in Avant-Garde Film, in
THEORIES OF AUTHORSHIP 271 (John Caughie ed., 1981). See Pam Cook, The Point of
Self-Expression in Avant-Garde Film, in THEORIES OF AUTHORSHIP, supra, at 276
2001] DEAD SEA SCROLLS 183

works of high authorship.

(commenting about the film Remedial Reading Comprehension). The instant study
cannot aspire to that comprehensive goal.
184 HOUSTON LAW REVIEW [38:1

1 Celebrity

Excellent
Works

A. Works of great artistry

At the apex of this pyramid stand those few works by “household

name” authors. In those instances, it is the celebrity of the
author that sells the work.912
More common, even for works of great artistry, is category 2.
Into here fall first-class works of literature (as well as films,
paintings, music, and other copyrightable expression). But,

912. Based upon the bon mot that “[t]he business of newspapers, in fact, is not so
much to sell newspapers as to sell advertising space,” one commentator has noted that
when even a “prestigious” periodical such as the New York Times runs a book review of
recluse Thomas Pynchon by author-in-hiding Salman Rushdie, the story becomes an
“event” by which the author cements his reputation as “author” while the newspaper sells
newspapers. As the trope goes, “the author authors the ‘author’, even as he or she writes.”
Andrew Wernick, Authorship and the supplement of promotion, in WHAT IS AN AUTHOR?,
supra note 11, 85, 87, 91. See The Author as Proprietor, supra note 19, at 24 (urging that
copyright law itself “produces and affirms the very identity of the author as author”).
Moreover, “with the industrialisation of print . . . published writing became, in itself, a
‘device for advertising advertising’.” Authorship and the supplement of promotion, supra,
at 87, 91.
2001] DEAD SEA SCROLLS 185

unlike category 1, those works prosper on their own merit rather

than on the fame of their creators.
Of course, works of great artistry, taken as a whole,
comprise only a small fraction of well-wrought literature (and
films and the rest). The next pyramid portrays the category of
works of high authorship, taken as a whole.

3 Pyramid A

Pedestrian

B. Works of high authorship

It will be observed that the apex of this pyramid contains the

entirety of the pyramid showing works of great artistry. For
every Middlemarch that a publisher includes in its catalog, there
are dozens o r hundreds of more middling entries.913 Yet even the
“pedestrian” works in category 4 represent finished products,

913. Long ago, Justice Story observed, “In truth, in literature, in science and in art,
there are, and can be, few, if any, things, which, in an abstract sense, are strictly new and
original throughout. . . . [and] literature, science and art, borrows, and must necessarily
borrow, and use much which was well known and used before.” Emerson v. Davies, 8 F.
Cas. 615, 619 (C.C.D. Mass. 1845).
186 HOUSTON LAW REVIEW [38:1

often lavishly advertised and packaged to the public.

Moving on, there are many works that do not even qualify as
works of high authorship. The next pyramid illustrates.

5 Pyramid B

Billboards, ads, etc.

C. Published Works

Again, the preceding pyramid (category 5) represents only a

small fraction of published works. Even the total number of
books offered by the combined publishers in the United States (to
focus on the literary side of the equation) is but a small number
when compared to the totality of otherwise published works.914
For that reason, category 6 extends to catalogs, billboards,
instruction sheets, packaging labels, and countless other similar
products.
One is tempted to conclude that, at this point, we have
reached the end of the copyright line. But that conclusion would

914. In Millar v. Taylor, one of the Lords commented: “‘I speak not of the scribblers
for bread, who tease the press with their wretched productions; fourteen years is too long
a privilege for their perishable trash.’” MARGARET J. M. EZELL, SOCIAL AUTHORSHIP AND
THE ADVENT OF PRINT 126–27 (1999). As we shall see, the category of perishable trash
digs much deeper still.
2001] DEAD SEA SCROLLS 187

be entirely erroneous, as the last pyramid demonstrates.

188 HOUSTON LAW REVIEW [38:1

7
Pyramid C

Memos etc.

9 Doodles, marginalia, kid drawings,

etc.

D. “Works of authorship”

Continuing the progression, the top of this pyramid contains

all the previous ones. Through this process of embedding, it can
be appreciated that even the “oceans of bilge” to emerge from the
printing press represent but the tiniest fraction of works that fall
under the copyright umbrella.
Underneath all published works comes category 8. Here fall
such matters as a “Memorandum to All Personnel Regarding
Procedures to be Followed During Friday’s Fire Drill”; a posting
seeking information from fellow denizens of a particular website
regarding a pet item of interest; the sign at the corner describing
and seeking the return of a lost cat; and countless other such
ephemera.915 On reflection, one realizes that this category

915. One of the problems with our existing literary histories is that our current
modes of analyzing authorship do not deal with this type of author who had no
desire to publish or to “go public,” except to form theories to explain the
motivation behind what we see as authorial self-destruction.
2001] DEAD SEA SCROLLS 189

inevitably comprises even more items than all the preceding

pyramids combined.916
The preceding category, although not of any lasting import,
at least represents what can be called “deliberate works.” But
copyright extends even more broadly than that. In category 9, we
reach the nadir. Here fall, for example, the eighty drawings that
my children produce atop the kitchen table on any given Sunday.
Each falls within the scope of copyright protection917—
notwithstanding that they all find a common fate in the trashcan
when the “artists” tire and move onto the next project. It takes
little imagination to realize how vast is this category at the base
of the pyramid.918
***
If works of high authorship occupy the apex of the pyramid
and postmodernism has recently begun to take cognizance of
billboards and airport paperbacks, those still occupy only the
middle rung of the pyramid. At its base, the pyramid contains
works of low authorship whose profusion dwarfs both the upper
categories. At issue here are the innumerable notes, memoranda,
doodlings, sketches, and other effluvia that flood the theoretical
portholes for federal copyright protection.
The copyright on these innumerable works of low authorship
attracts little attention919—inasmuch as no one bothers to copy
the marginalia920 and memoranda invoked above, those matters
seldom devolve into litigation.921 However, their theoretical
inclusion within copyright protection cannot be doubted. Indeed,
when Congress gingerly extended moral rights protection to

SOCIAL AUTHORSHIP, supra note 914, at 42–43 (emphasis original).

916. One writer invokes examples of “subliterary works—comic strips, James Bond
novels, exchanges with waiters in restaurants.” MULTIPLE AUTHORSHIP, supra note 670,
at 16.
917. Refer to note 922 infra.
918. Photographs are but one species of copyrightable compositions, and they alone
number in the billions. Refer to note 903 supra.
919. Indeed, the “authors” of these works are not always recognized as such outside
of copyright doctrine—following the French dictionaries, some commentators define the
term “author” as “not to be applied to anyone who writes a work; the term distinguishes
among all ‘writers’ only those who have cared to have their compositions published.”
SOCIAL AUTHORSHIP, supra note 914, at 16.
920. The practice of annotating margins goes back at least to Petrarch. The
Humanist as Reader, supra note 24, at 207. It provided the venue for someone’s
celebrated Last Theorem. Refer to Case 14 (Fermat) supra.
921. Even when litigation results, the court often does not bother to issue a
published opinion. For an exceptional instance, involving an unpublished case arising
over a record company’s letters, legal documents, press releases, and a bumper sticker,
see Copyright, Privacy and Fair Use, supra note 669, at 235.
190 HOUSTON LAW REVIEW [38:1

works of visual art, it expressed concern lest the janitors’

cleaning up after the kindergarten class give rise to a new cause
of action. For exactly that reason, it limited the right against
destruction thereby conferred to “works of recognized stature.”922
Where are the lines here? On the one hand, clearly drawing
the line between “creative or literary” work and mere “popular
fare” is impossible, either from a practical or theoretical
standpoint.923 Yet that does not mean that there is no distinction
between the two. To revert to Oscar Wilde, whose photograph set
the stage for a consideration of authorship in the United
States,924 “only an auctioneer could be equally appreciative of all
kinds of art.”925
***
As set forth above, Northrop Frye debunks the notion of
genius wholly disconnected from past creations.926 Though the
basic point seems sound,927 it goes a bit far to deny that genius
ever exists. Artists do, at times, exceed conventions, and new
things occasionally arise. Yet, the point here is that copyright law
does not require genius as the foundation for protection.
It is sometimes said that copyright law is an edifice built on
the Myth of the Romantic Genius.928 Regardless of whether one
holds that such genius is always a myth or that the occasional
Keats or Stoppard qualify as (at least partial) genii,929 the
scheme set forth above shows just how far the Copyright Act of
1976 departs from that model. It operates on something that,
instead, might be called the Actuality of the Gothic Zhlob or the

922. 17 U.S.C. § 106A(a)(3)(B) (1994). Originally, the entire integrity right applied
only to works of recognized stature. The House discarded that standard, given “the fact
that, throughout history, many works now universally acknowledged as masterpieces
have been rejected and often misunderstood by the general public at the time they were
created.” H.R. REP. NO. 101-514, at 15 (1990). Nonetheless, it was restored at enactment,
but solely with respect to the anti-destruction right. Accordingly, “a doting mother
[cannot] sue her child’s kindergarten teacher for throwing out her child’s finger-painting.”
L.A. TIMES , Mar. 8, 1990, at B10, col. 1 (quoting Hirshhorn Museum deputy director).
923. MULTIPLE AUTHORSHIP, supra note 670, at 183.
924. Refer to Chapter II supra.
925. ANATOMY OF CRITICISM, supra note 159 at 25.
926. Refer to Chapter XII, section (A) supra.
927. See From Authors to Copiers, supra note 659, at 881 (“That an author’s work
should be completely original rather than derivative . . . would strike most sensible
observers as supererogatory.”).
928. See The Several Futures of Property, supra note 786, at 151.
929. I admit to adhering to the latter camp, in contrast to the dominant trend in the
law reviews. See Martha Woodmansee, On the Author Effect: Recovering Collectivity,
10 CARDOZO ARTS & ENT. L.J. 279, 279 (1992); Metamorphoses of “Authorship,” supra
note 25. For a collection of such citations, see Steven Wilf, Who Authors Trademarks?, 17
CARDOZO ARTS & ENT. L.J. 1, 7 n.13 (1999).
2001] DEAD SEA SCROLLS 191

Reality of the Pedestrian Scribbler.930 For the works that the Act,
in fact, protects, consist in overwhelming measure of the latter’s
products.

C. “Authorship” Solitary and Joint

The works in category 9 result, probably with few
exceptions, from individual efforts. In other words, there is one,
and only one, author who creates the doodle or drawing there at
issue. By contrast, works in categories 1–5 probably almost never
result entirely from individual authorship.931 Instead,
innumerable editors,932 friends, colleagues, and kibbitzers
contribute to the end product,933 although the listed author is
seldom gracious enough to credit them.934 Even Keats’s poetry
demonstrably qualifies as a work of joint authorship.935 The title
of a wonderful book says it all: Multiple Authorship and the Myth
of Solitary Genius.936
What happens when one of the uncredited collaborators has
the bad taste to go public and demand a piece of the action? The
first U.S. copyright case to present that scenario did not arise
until 1991, when a researcher on a play about legendary Black
comedienne Jackie “Moms” Mabley claimed a share of the

930. Lest one suspect that this result is inadvertent, Congress explicitly stated that
its standard for copyright protection did not include any requirement of “aesthetic merit.”
H.R. REP. NO. 94-1476, at 51 (1976). It also specified that the “term ‘literary works’ does
not connote any criterion of literary merit or qualitative value.” See Copyright Law and
the Myth of Objectivity, supra note 549, at 181.
931. The phenomenon applies to the Dead Sea Scrolls, as everywhere else. “Our
whole work was a collaborative venture, and there are bits of me in the articles of Milik,
bits of Milik in the articles by me and so on.” Strugnell Testimony at 17.
932. “Editors of printed works do what their title of editor has come to suggest: they
‘edit,’ that is alter, that expression that passes through their hands. (Yale’s editor altered
the foregoing sentence!)” THE PRESENCE OF THE WORD, supra note 845, at 116.
933. For a book-length treatment of this phenomenon, see MULTIPLE AUTHORSHIP,
supra note 670.
934. General acknowledgments are universal. See, e.g., BEOWULF, supra note 48,
at 219. But specifically baring the author’s process as to individual elements is rare. See
THE INVENTION OF LOVE , supra note 533, at 17 n.*; THE ART OF BIBLICAL NARRATIVE,
supra note 108, at 81 n.7. The current effort emphatically reflects many helpers, on both
the general and specific planes. For example, refer to note 461 supra.
935. MULTIPLE AUTHORSHIP, supra note 670, at 25–49 (crediting “Keats and His
Helpers”).
936. MULTIPLE AUTHORSHIP, supra note 670. Robert Alter frequently invokes the
uniqueness of the Bible, as a work that lacks a single artificer. See THE WORLD OF
BIBLICAL LITERATURE , supra note 155, at 2, 4, 15, 154. But in light of Stillinger, perhaps
the Redactor of yore is not wholly distinct from more modern poetasters and others who
bear the moniker “author.” See id. at 69 (acknowledging collaborative authorship, such as
in films), at 202 (adducing an irresistible urge to compare Psalmist to Keats ).
192 HOUSTON LAW REVIEW [38:1

copyright, as a joint author.937 Although past doctrine supported

the researcher’s claim, Judge Newman (writing for the Second
Circuit) simply devised a new doctrinal ingredient to reject it: All
of the participants in the venture must regard themselves as
joint authors.938 Inasmuch as that intent to share authorship
status939 was lacking in the case under consideration, the court
rejected the researcher’s claim to be a joint author.940 Other
courts have unhesitatingly followed suit.941 As a result,
researchers, editors and other contributors do not qualify as a
“joint author” with the named principal.
But that holding leaves open the possibility that the editor
or collaborator, with respect to her own contributions, still
qualifies as an individual author. On that reading, the work
would be locked up under conflicting c ontrols. When the first case
to present that wrinkle arose in 1998, the court again simply
invented new doctrine to reject it.942
In sum, the “author” in copyright law represents a
construct.943 Regardless of the facts, the courts invoke doctrines,

937. Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991). See generally New Wine
Bursting From Old Bottles, supra note 786.
938. 945 F.2d at 508–09. See generally 1 NIMMER ON COPYRIGHT § 6.07.
939. A later section will explore the intent to author. Refer to Chapter XVI, section
(E) infra. Note that the instant intent to share authorship status lies at a further point
down the intentionality spectrum. See Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th
Cir. 2000) (“[P]utative coauthors make objective manifestations of a shared intent to be
coauthors.”).
940. Childress, 945 F.2d at 509.
941. Id. at 507; Clogston v. Am. Acad. of Orthopaedic Surgeons, 930 F. Supp. 1156,
1159 (W.D. Tex. 1996); Rubloff Inc. v. Donahue, 31 U.S.P.Q.2d 1046, 1050 (N.D. Ill. 1994);
Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068 (7th Cir. 1994); Respect, Inc. v.
Comm. on Status of Women, 815 F. Supp. 1112, 1120 (N.D. Ill. 1993).
942. The case raised the issue whether a dramaturg who added more than de
minimis contributions to the play Rent thereupon qualified as its co-author. Thomson v.
Larson, 147 F.3d 195 (2d Cir. 1998). Given that the author “retained and intended to
retain at all times sole decision-making authority as to what went into” the play, his
billing of himself as sole author (albeit listing his contributor on the script’s final page as
“dramaturg”), and other evidence indicative of his intent, the court had no hesitation in
denying the contributor co-author status.
But that conclusion raises a further conundrum. Her contributions to the play of
more than de minimis content qualified the dramaturg as an author of copyrightable
material; given denial of her status as a co-author, the dramaturg thereupon argued that
“she must have all of the rights of a sole author with respect to her own contribution.” In
that particular case, the court was able to duck the issue on procedural grounds. For a
general proposal on how to avoid difficulties here, see 1 NIMMER ON COPYRIGHT § 6.07
(invoking doctrine of implied licenses).
943. As Emily Dickinson stated, “When I state myself as the Representative of the
Verse — it does not mean — me — but a supposed person.” MULTIPLE AUTHORSHIP, supra
note 670, at 6.
2001] DEAD SEA SCROLLS 193

as necessary, to focus the target on the author whom the law

regards as the person in control.944

D. Evaluation of Changes

The foregoing innovations of the 1976 Act appear

monumental. But appearances can be deceptive. For, in reality,
that enactment changes very little about how U.S. law,
considered as a whole, treats authors and their works.
(1) Consider first the abstraction from concrete to idealized
types.945 Before the effective date of the current Act in 1978,
novelists, newspaper reporters, and poets secured copyright
protection for their products. Since 1978, those same individuals
obtain protection for their “literary works.” But even at present,
such protection arises only if their efforts are fixed in a tangible
medium of expression. In other words, a poet who composes in
her head and only declaims orally has not obtained federal
statutory protection for her works.946
So where is the difference? In short, there is little. The
nomenclature has changed from “book,” “newspaper,” and “poem”
to the omnibus category of “literary work.” But the protection
remains the same.947
(2) Let us move next to the innovations described above as
to joint authors.948 The important point to realize here is that
when the issue first arose in 1991, the court simply created new
doctrine, untethered to the statutory text. In other words, the
novelty here is not a function of a difference between
congressional drafting of the 1976 versus the 1909 Act. Instead,
it reflects the need to do justice at a time when a party urges an
argument that, albeit technically correct, is viewed by the court
as subverting justice. The change in doctrine reflects evolution in
fact patterns presented for resolution, not a break imposed by
passage of the 1976 Act.

944. Otherwise stated, “the ‘fiction’ of the author enables us to locate an author of the
fiction.” Geoffrey Nowell-Smith, Six Authors in Pursuit of The Searchers, in THEORIES OF
AUTHORSHIP, supra note 911, at 221, 223.
945. Refer to section (A) supra.
946. By contrast, a poet who writes down her work may still be able to vindicate
protection after the last exemplar of it burns up. See Adams and Bits, supra note 194, at
223.
947. By a 1980 amendment to the 1976 Act, computer software was unambiguously
brought into protection as a species of “literary work.” Until that time, it was unclear
whether such products could achieve copyright protection, under either the 1909 or 1976
Acts. See 1 NIMMER ON COPYRIGHT § 2.04[C].
948. Refer to section (C) supra.
194 HOUSTON LAW REVIEW [38:1

(3) Finally, consider the incommensurate vastness of works

under the 1909 Act.949 It must be conceded that this innovation
incomparably widened the reach of federal statutory copyright

protection in the United States. Surely here, therefore, it stands

to reason that a massive change must have occurred. A graph
illustrates. Shown below is the universe of works of authorship,
as protected by the 1909 Act:

E. Works of authorship protected by 1909 Act

Each slice of the pie set forth in Figure E represents a

distinct category of authorship: books, motion picture photoplays,
photographs, etc. Given that the 1909 Act conferred protection
only on published works,950 it is only the small black areas within
each wedge that represent works covered by statutory copyright

949. Refer to section (B) supra.

950. See Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283, 287–88 (2d Cir. 1999) (“Under
the 1909 Act, an unpublished expression was protected only by a common law
copyright.”). There was also a limited exception, relating to unpublished works registered
for protection. See 2 NIMMER ON COPYRIGHT § 7.16[A][2][c]. Registrations under that
category never amounted to more than a trickle. Cf. William S. Strauss, COPYRIGHT
O FFICE STUDY NO. 29: PROTECTION OF UNPUBLISHED WORKS 6 n.53 (1957) (quoting 1938
letter from Register of Copyrights characterizing this provision as “a departure from the
normal process of securing copyright”). Accordingly, it would not even rise to the level of
“registering” on the above graph.
2001] DEAD SEA SCROLLS 195

prior to 1978. Manifestly, those shaded areas cover only a tiny

fraction of the entire universe.951

By contrast, statutory protection under the 1976 Act covers
the field. A separate chart illustrates:

F. Works of authorship protected by 1976 Act

As a glance at Chart F readily reveals, the field is now reversed.

Almost the entire field of works of authorship is now subject to
statutory protection.952 The few remaining unshaded areas
represent the residual areas of common law copyright that
remain, even after passage of the 1976 Act. Included here are
sound recordings produced before February 15, 1972,953 and
unfixed works, such as jazz improvisations and oral sermons.954
Even collectively, those categories constitute but a small
percentage of works of authorship.

951. One could quibble about some particulars on the chart. For instance, perhaps
the wedge representing the class of “newspapers” should be almost entirely darkened, on
the assumption that few unpublished newspapers were produced prior to 1978. But the
point remains the same—the universe of the published was dwarfed by the unpublished.
952. Given the conceptual focus of this inquiry, it does not focus on practical details,
such as expiration of term. Were a wedge to be included for novels published in the
nineteenth century, for example, it would be entirely blank.
953. See 2 NIMMER ON COPYRIGHT § 8C.03.
954. See 1 NIMMER ON COPYRIGHT § 2.02.
196 HOUSTON LAW REVIEW [38:1

At first blush, the juxtaposition of Charts E and F

demonstrate that a radical shift has occurred. Nonetheless,
deeper inspection reveals that the 1976 Act, in some sense,
changed very little in this realm. Consider the perspective of a
foreigner trying to discover the scope of copyright protection in
the United States. As of 1970, Chart E reveals that very few
works fell within the scope of statutory copyright. Does it follow
that unshaded areas were without any protection?
It does not. For from the inception of the United States
through the pendency of the 1909 Act, another doctrine of
copyright law pertained: common law copyright.955 Under that
doctrine, the laws of the several states conferred protection on
works of authorship that had not achieved statutory protection.
U.S. copyright law, in short, occupied two parallel tracks.956
When those two tracks converged in 1978, the corpus of
works of authorship subject to legal protection within the United
States basically remained constant. Thus, the innovation of the
1976 Act was not to recognize new species of copyright protection.
Instead, it was to federalize the field. Before 1978, copying most
works would lead to redress in state courts; since that day,
federal courts have had exclusive jurisdiction over the
infringement realm. From the perspective of our mythical
foreigner, the distinction between being hauled before the
Superior Court for Los Angeles County, as opposed to the United

955. The terminology is inaccurate, inasmuch as such protection is typically

statutory. See, e.g., CAL. CIV . CODE § 980 (West 1982). Indeed, a convincing argument
maintains that there never was such a beast as common law copyright. See Howard B.
Abrams, The Historic Foundation of American Copyright Law: Exploding the Myth of
Common Law Copyright, 29 WAYNE L. REV . 1119, 1129–34 (1983). Accord DANIEL J.
BOORSTIN, THE MYSTERIOUS SCIENCE OF THE LAW 128 (Univ. of Chicago Press 1996)
(1941) (quoting Blackstone).
956. Alongside but wholly apart from the Copyright Clause and statutory
enactments, various states of the United States have accorded copyright
protection as an outgrowth of their British common law patrimony. Thus,
copyright law in the United States has developed along two parallel tracks:
federal statute and state common law. For example, a manuscript of a novel
completed in 1970 would, at creation, have automatically been protected by the
common law of the state in which it was composed, either in perpetuity if it
remained unpublished or until publication when such protection would have
been forfeited. However, if the statutory formalities in effect at the time of
publication were satisfied, federal protection would then begin for a set term of
years. This scheme persisted through the end of 1977, after which the current
Copyright Act went into effect.
David Nimmer, United States, in INTERNATIONAL COPYRIGHT LAW AND PRACTICE § 1[1]
(1999) (footnotes omitted).
2001] DEAD SEA SCROLLS 197

States District Court for the Central District of California, whilst

significant, is not decisive.957
In sum, Chart F, which shows works protected by statutory
copyright since 1978, is equally descriptive of works protected
before that date, as long as one aggregates both statutory and
common law copyright into the mix. Copyrightable works of
authorship, considered as a whole, underwent no massive
enlargement by virtue of passage of the 1976 Act.
***
In conclusion, the law in the United States regulating works
of authorship has lumbered steadily along over the centuries.
Even aspects that appear innovative are, on inspection, simply
preservative. These considerations must underlie any attempt to
map the geography of “authors” under copyright law.

957. Litigants may have strong reasons to prefer one court over another. Generally, a
plaintiff with a strong case prefers the greater speed and flexibility of federal court, with
defendants concomitantly favoring a state forum. But there are wide divergences in both
systems, thus precluding a blanket rule.
198 HOUSTON LAW REVIEW [38:1

XV.
THE INSTABILITY OF TERMS
When Michelangelo turns his imitation into a
forgery,958 the ancient originals he imitates may be
perceived as forged in another sense of the word—
they are something made or wrought by men.
David Quint959

The epigraph is hardly needed to make the point that a

single word, no less than a text, can manifestly bear multiple
meanings. Copyright law, it seems, is constructed out of such
polymorphism—as demonstrated by its purpose to foster the
progress of “science,” a term that bears the opposite meaning
today from when the Constitution was formulated.960 As
previously noted, even the term “intellectual property” shades
into considerations of intellectual “propriety.”961 The same
phenomenon extends to copyright’s fundamental terms, not
excluding its “copy” component.
Consider a copy, by which we mean the antithesis of an
original. Whereas an “original Van Gogh” might fetch
$20 million, a “copy” of the identical work could go for a few
bucks.962 The etymology here is historically transverse: When
printer Jacob Tonson defended himself against charges of
corrupting the manuscript for Milton’s Paradise Lost, he averred:
the several places he affirms were altered by ye printer, are
exactly true to the coppy.963
Because what we call the “original” used to be known as the
“copy,” the very root of the word copyright means the antithesis
today of its historical meaning.964
The same applies to our c oncern, noted above, that copyright

958. “In a sense, plagiarism (presenting another’s work as one’s own) is the inverse of
forgery (presenting one’s own work as another’s).” Copy Wrong, supra note 618, at 511.
959. O RIGIN AND O RIGINALITY IN RENAISSANCE LITERATURE , supra note 82, at 4.
Quint recounts the delightful tale of how Pierfrancesco de’ Medici induced Michaelangelo
to trick up some marble that the young master had just carved to look like an ancient
find. Cardinal San Giorgio was too “smart” to accept delivery of the “forgery.” Id. at 1.
960. Refer to Chapter II in fine supra.
961. Refer to Chapter IX, section (C)(1) supra.
962. See 2 NIMMER ON COPYRIGHT § 8D.06[A][2].
963. THE NATURE OF THE BOOK, supra note 24, at 127.
964. See id. at 105. For good measure, the same applies to “private.” Id. at 129.
2001] DEAD SEA SCROLLS 199

exists to protect works bearing a subjective flair.965 Father Ong

demonstrates that the word subjective formerly meant
“pertaining to the subject as that in which attributes inhere,”
which corresponds to our current word objective. Correlatively,
objective used to mean “existing as an object of consciousness,”
which corresponds to none other than our current word
subjective!966
With such semantic confusion rife, is it any wonder that
errors proliferate? As a judge who has made much copyright
doctrine recently noted:
My view that juries have a difficult time understanding the
principles of such unfamiliar fields of law as copyright and
trademark is based on the fact that judges, including
myself, have difficulty fully grasping the subtleties of these
doctrines, even though we deal with them far more often
than do juries. 967
***
Following the above examination of the progression of the
word “copy” in the copy/original dichotomy, it is time to look to
the latter half of the equation. Even more movement
characterizes “original.” Consider by way of prelude the
conflation that occurs in popular language:
MARY: I’m so glad that you got rid of that clunky ten-year-
old van you were driving and bought yourself a new
car.
JOHN: Yup — a ‘51 T-Bird. Ain’t she a beaut?
The “new” car that John purchased is actually a half-century
old—far more aged, indeed, than the “old” one that he discarded.
Yet the speakers are not confused.
Had they been born in Troyes or Avignon, their language
arguably would have been more precise. Thus, if Jean were to
sell his current car and buy a Citroën straight off the factory
assembly line, Marie might call it neuf. By contrast, if Jean
purchased a used Renault from Pierre, it would be nouveau to
Jean, albeit not neuf.
These considerations help untangle originality as it exists in

965. Refer to Chapter III supra.

966. See THE PRESENCE OF THE WORD, supra note 845, at 225–26.
967. Samara Bros., Inc. v. Wal-Mart Stores, Inc., 165 F.3d 120, 136 n.5 (2d Cir. 1998)
(Newman, J., dissenting in part), rev’d, 529 U.S. 205 (2000). We last met Judge Newman
as the author of Childress v. Taylor. Refer to note 937 supra. For an example of his
scholarly writing on the subject, see Jon Newman, Not the End of History: The Second
Circuit Struggles with Fair Use, 37 J. COPYRIGHT SOC’Y 12 (1989).
200 HOUSTON LAW REVIEW [38:1

U.S. copyright law. To acquire protection, a work of authorship

need not be neuf, in the sense of something brand new to the
world. That province, instead, is the domain of patent law, which
contains a requirement of novelty.968 Instead, copyright
protection requires only that a work of authorship be nouveau,
i.e., new to its creator or, in the jargon of the field,
“independently created,” as opposed to being copied from prior
sources.969 It is for that reason that Learned Hand conjured up
the theoretical possibility of a “new” Ode on a Grecian Urn.970
The previous part has commented on the wobbliness of
author—the term can fluctuate between an originator and an
expert.971 The related term original in the copyright lexicon
betrays even greater instability. Consider the following
formulation: “A recent article by John Meikle sheds strikingly
original insight onto that long-simmering controversy over the
Constitutional Framers’ original intent.”972 The first usage of
original in that sentence connotes “new”; the second, “old.”973
Thus, the identical term points in two antithetical directions.974
As Elizabeth Eisenstein975 notes, the old meaning of original
is “closest to divine inspiration,” whereas its new meaning is “to
break with precedent.”976 This transvaluation carries ultimate
significance for copyright purposes. An original work—in its
original sense—would be one that reaches back to origins. Thus,

968. 35 U.S.C. § 102 (1994).

969. 3 NIMMER ON COPYRIGHT § 12.10[B][2][b].
970. Refer to Case 23 (The Magician) supra.
971. Refer to Chapter II supra.
972. The quote is invented, given that I could not find an actual example of such
obvious conflation. Most commentators keep the word consistent—in the same sentence,
at least. See, e.g., H. Jefferson Powell, The Original Understanding of Original Intent, 98
HARV . L. REV . 885, 885 (1985). But Ralph Waldo Emerson might come close: “The
originals are not original.” The Author Effect After The “Death of the Author,” supra note
23, at 917.
973. English, Hebrew, and many other languages all contain words that denote
antonymic meanings. See ROBERT ALTER, THE DAVID STORY 288 n.30 (1999). In Jewish
exegetical circles, there is likewise a word that means “old” simultaneously with its
etymology connoting “new.” See Yaakov Elman, Love in the Afterlife, in RABBINIC
FANTASIES 239, 251 n.8 (David Stern & Mark J. Marsky eds., 1990) (commenting on the
word hiddushim).
974. What of the related term creative? Etymologically, “the words’ roots do nothing
to help distinguish ‘creating’ from ‘originating,’ or being the source of something.” The
Personality Interest of Artists and Inventors, supra note 121, at 101. In music, a way to
augment a passage is through a crescendo, at least in terms of volume. Both words derive
from Latin roots meaning to increase. In turn, those words beget (Latin creo) the English
words author and creator.
975. George Steiner makes a similar point. See REAL PRESENCES, supra note 89,
at 27–28.
976. THE PRINTING PRESS AS AN AGENT OF CHANGE , supra note 17, at 192.
2001] DEAD SEA SCROLLS 201

Charlie’s copying of A Tale of Two Cities, Shelley’s plagiarizing of

Keats, and Marklund’s aping of Dardel are all original in this
strict sense.977 The apotheosis of originality in this old sense
would be Homer, who stitched together fragments not of his own
creation to yield the epic reaching farthest back to the origins of
literature.978
By contrast, copyright law emphatically rejects protection for
the likes of Charlie, Shelley, and Marklund. Their creations are
each poster children for works lacking originality, in the new
sense,979 as none reached into the interiority of consciousness to
produce a subjective work (as we define “subjective” today). Yet
who could deny that Charlie’s copying of Dickens—or, better, the
Bard of Stratford-upon-Avon;980 best, Homer981—yields a product
of far greater originality than the scrivener would produce if
confined to the product of his own unskilled mind?982
The change in originality that Eisenstein underlines mirrors
the progression of author from the Hobbesian to its Romantic
sense.983 Judge Dorner, as noted above, conflated author with
authority. The same confusion intrudes here. Qimron deserves
copyright protection if his work was original (1) but not if it was
original (2)—in other words, if (1) it came independently from his
head, as opposed to (2) being a recapture of an original text.
Though Qimron’s work may be celebrated in scholarly circles as
(2), its failure to qualify as (1) forfeits copyright protection.

977. Refer to Cases 11, 12, and 23 (The Doppelgänger, The Forgery, and The
Magician) supra.
978. Homer was not writing as the result of his own personal “genius.” O RALITY AND
LITERACY, supra note 1, at 21. His rhapsody, as previously remarked, literally represents
a stitching together of songs that had been handed down to him through tradition. Id.
at 23, 131, 145–46. See generally THE PRESENCE OF THE WORD, supra note 845.
979. One commentator urges that copyright forsake its traditional “originality”
inquiry in favor of an evaluation of the “effect on the broader culture through modulation
of existing convention and audience interaction with the text.” Beyond Metaphor, supra
note 474, at 752.
980. I refer to William Shakespeare, or the Earl of Oxford, or Francis Bacon, or
Queen Elizabeth I, or Alistair Cooke, or whoever else he/she/they might be. See Peter
Jaszi, Who Cares Who Wrote “Shakespeare?” 37 AM . U. L. REV . 617, 618 (1988).
981. But at the dawn of writing, Homer was viewed as a threat. For a wonderful
explanation, see generally ERIC A. HAVELOCK, PREFACE TO PLATO (1963). For a Derridean
twist, see AVATARS OF THE WORD, supra note 52, at 14–28.
982. Perhaps this sensibility underwrites Harold Bloom’s sentiment: “[O]nly one
moral attitude toward plagiarism is possible in a literary context. This is that only great
writers should be plagiarized. To copy second-rate authors indeed is m i moral.”
Plagiarism—A Symposium, N.Y. TIMES LITERARY SUPP., Apr. 9, 1982, at 413, 413 quoted
in Beyond Metaphor, supra note 474, at 757 n.138 (alteration in original).
983. Refer to Chapter II supra.
202 HOUSTON LAW REVIEW [38:1

XVI.
INTENTIONAL STEP TOWARDS THE “AUTHOR ”
[Let us not fall into] the Archimedes fallacy: the
notion that if we plant our feet solidly enough in
Christian or democratic or Marxist values we shall
be able to lift the whole of criticism at once with a
dialectic crowbar.
Northrop Frye984

The moment arrives to attempt a reconciliation between

copyright theory and literary theory. More broadly, previous
chapters have adduced a wealth of copyright decisions, initated
by “extreme copyright” hypotheticals, juxtaposed against literary
theory and theological considerations, all framed by the Scrolls
controversy. How do the various pieces cohere? Where can we
turn to find some overarching considerations that help ground
these notions? This chapter proposes a standard looking to an
“intent to author” as the missing link.

A. First Step Towards Harmonization

A previous chapter has set forth paradigmatic Case Studies
of non-authorship. The single example that presents the least
possibility of contrary argument is The Reader.985 No one should
claim that by virtue of reading a literary work, the lector gains a
copyright interest over it. It is equally undisputed that in the
case of The Translation, a copyrightable text does emerge.986 One
need only consult the numerous ways that a three-word phrase—
miqsat ma’ase ha-Torah—has been translated into English987 to
reflect that myriad possibilities exist to translate any appreciable
text from one language to another.988
Yet from the perspective of literary theory, there is more
than simply an affinity between the task of reading and of
translating. Indeed, George Steiner, quoting from Posthumus’s
monologue in Cymbeline, demonstrates at great length (not to

984. ANATOMY OF CRITICISM, supra note 159, at 12.

985. Refer to Case 10 (The Reader) supra.
986. Refer to Case 3 (The Translation) supra. But for a doctrinal glitch that could
doom The Translator, refer to Chapter VI, section (B)(2) supra.
987. For no less than nine translations of that phrase, refer to note 229 supra and
accompanying text. Refer also to note 691 supra.
988. Of course, at issue here is a literate translation, not a stilted matter such as an
interlinear translation. Refer to Case 20 (The Pedant) supra.
2001] DEAD SEA SCROLLS 203

mention with consummate virtuosity) that any reader’s act of

understanding the text is isomorphic with translating it.989
So which is it? Is the operative act here one of reading
(uncopyrightable) or of translating (copyrightable)? Even though
literary theory might construe it as the latter, copyright theory
affords no basis for construing the task as anything but the
former. For whatever cogitation occurs in the reader’s mind, and
no matter how indistinguishable it might be from the activity in
which a translator engages, that cerebration is not fixed within a
tangible medium of expression, and hence falls outside the realm
of copyright regulation.990
Our first step towards harmonization, accordingly, has
already landed us in the soup.

B. Perils of Grand Theories of Unification

Many of the current models that physicists invoke to
describe subatomic particles are so complex, seemingly ad hoc,
and weighed down in contradictory details that they strike
observers as, in a word, “ugly.”991 It is felt that they cannot be
“true” if they have insufficient “beauty.”992 Is that perspective
accurate? Does Keats’s equation—beauty is truth, truth
beauty993—apply to science as well as poetry? (Or, to state the
matter differently, is the Ode on a Grecian Urn a poem about
science, or about the statute that fulfills the constitutional
purpose of promoting “the progress of science”?)
It would be nice to be able to reformulate “copyright law as
an expression of an overarching grand theory”994 in order to
reconcile the various domains canvassed above. The inability to
alight on such a theory threatens to cause a permanent
discontinuity between the theory of literature and the law
governing literature. A certain sensibility rebels at that state of
affairs.995

989. G EORGE STEINER, AFTER BABEL: ASPECTS OF LANGUAGE AND TRANSLATION 1–50
(3d ed. 1998).
990. For a playful suggestion to the contrary, see Brains and Other Paraphernalia of
the Digital Age, supra note 455. Note the benefits of non-fixation—“fixity brings with it
rapid obsolescence.” AVATARS OF THE WORD, supra note 52, at 41.
991. See THE MAN WHO LOVED O NLY NUMBERS , supra note 99, at 25.
992. Refer to Chapter VII, section (C)(2)(b) supra.
993. In the ultimate analysis, that equation reaches to the realm of theology. See
REAL PRESENCES, supra note 89, at 216.
994. Jessica Litman, Copyright as Myth, 53 U. PITT. L. REV . 235, 235 (1991).
995. See Timothy Ferris, Grand Unification Theories: Faith in Ultimate Simplicity,
in NEXT: THE COMING ERA IN SCIENCE 160, 170–71 (Holcomb B. Noble ed., 1988).
204 HOUSTON LAW REVIEW [38:1

Notwithstanding that sensibility, the faith that a theory

exists out there, unifying copyright law and literary theory,
would seem to fall squarely within the “Archimedes fallacy.” In
other words, a faith in the existence of a Grand Unified Theory of
Copyright might exalt rationalism to an irrational extent.996 The
reach of copyright protection is simply too broad for such theories
to work. Instead, we must open ourselves to “the fact that the law
of copyright has emerged as an instrument able to regulate and
protect more than one form of authorship and more than one
kind of work.”997
Molly Nesbit captures the matter nicely. Though her words
are directed at French copyright law, they apply with equal force
to the U.S. situation:
Authors of all kinds have for a long time been flatly
equated in the law, though the equation is not made using
the familiar terms like creativity, genius, and ancient lyric
breath. It is instead an equation of rights. The legal
definition of the author is windless, dry, and plain: the
author is given rights to a cultural space over which he or
she may range and work; all authors share the same
cultural space; they are defined by their presence there as
well as by their rights to it. Through the law, then, we can
gauge the author and the work. But let us not look to the
law for the easy answer: the same law that defines the
author is responsible for much of the confusion about what
authors were and are.998
It remains to add only that we cannot look to theory, either,
for the easy answer. Theoreticians debate endlessly about the
validity of their respective interpretations,999 and even
champions of the death-of-the-author school demand punctilious
recognition for their own authorial contributions.1000

996. That problem afflicted Frazer in composing The Golden Bough; he acted as a
“Biblical scholar who thought that he was a scientist . . . and hence was subject to fits of
rationalism, which seem to have attacked him like a disease.” THE G REAT CODE , supra
note 550, at 35, 38.
997. Dropping the Subject, supra note 25, at 110 n.32. Copyright protection itself is
not an historical inevitability; it is simply a contingent response to a web of stimuli that
took shape starting in the eighteenth century. See Paradigms in Copyright Law, supra
note 664, at 205–09.
998. What Was an Author?, supra note 804, at 230.
999. See REAL PRESENCES, supra note 89, at 75–79.
1000. “The cult of the author, perhaps especially the cult of the poststructuralist
authors themselves, persists.” WHAT IS AN AUTHOR?, supra note 11, at i. Note that one
magazine contained an ad for contributions “‘from such authors as Stanley Cavell,
Jacques Derrida, Stanley Fish.’” MULTIPLE AUTHORSHIP, supra note 670, at 186–87
(emphasis added). See The Personality Interest of Artists and Inventors, supra note 121,
2001] DEAD SEA SCROLLS 205

C. High Culture and Low

Those last considerations provide entrée to the world of

culture. Again, Molly Nesbit:
The law did not even try to draw lines between good and
bad work in these media and it did not presume to erect
criteria for aesthetic quality. Slipshod failures and drawn
reproductions were covered by the same rights as the
masterpiece: a hack and a Mallarmé1001 would both be
called authors; an engraver of Salon paintings had just as
much claim to the title as an Ingres. The cultural field is
broad, said the law. It covered kitsch, avant-garde, low,
high, and middle brow work with equal justice. Authors
were not necessarily artists.
The law did not divide culture into states. It set out a
single field where standards were blurred and the different
hierarchies of the arts eroded, irrelevant. Others in
academies and newspaper columns and university lectures
could and did quibble, insisting on other definitions of
culture with genres, standards, traditions, and rules. The
law let these storms erupt around it. It held like bedrock,
content to make only basic distinctions. . . . The law had
already leveled the academic distinctions; in its very
practical, authoritative terms, culture was flat. 1002
An obvious contrast exists between “high or elite culture
against the surrounding environment of philistinism, of schlock
and kitsch, of TV series and Reader’s Digest culture . . . . But
many of the newer postmodernisms have been fascinated
precisely by that whole landscape of advertising and motels, of
the Las Vegas strip, of the late show and Grade-B Hollywood
film, of so-called paraliterature with its airport paperback
categories of the gothic and the romance, the popular biography,
the murder mystery and the science fiction or fantasy novel.”1003

at 94.
1001. George Steiner divides literary history into two periods: (1) from the Bible to
Mallarmé; and (2) thereafter. See REAL PRESENCES, supra note 89, at 96.
1002. What Was an Author?, supra note 804, at 233–34.
1003. Authority, history and the question of postmodernism, supra note 85, at 66,
quoting FREDRIC JAMESON, POSTMODERNISM AND CONSUMER SOCIETY 112 (1984). See
Paul de Man, Semiology and Rhetoric, in TEXTUAL STRATEGIES, supra note 155, at 121,
128–29 (“[S]ubliterature of the mass media” yields “a de-bunker of the arché (origin), an
‘Archie Debunker.’”). Note that de Man’s early biography matches de Vaux’, refer to note
219 supra, although colleagues managed to forgive him his Nazi past. See Jacques
Derrida, Like the Sound of the Sea Deep Within a Shell: Paul De Man’s War, in CRITICAL
INQUIRY, at 560, 561 (1988) (“To judge, to condemn the work or the man on the basis of
what was a brief episode, to call for closing, that is to say, at least figuratively, for
206 HOUSTON LAW REVIEW [38:1

Literary theory places great demands on us to jettison

authors.1004 As a reaction against the reductionism of the post-
structuralists, in which the reader’s role reigns supreme, there has
been a counter-revolutionary attempt to restore literature to the
privileged status that it used to enjoy over “newspapers, . . .
advertisements, sex manuals” and other like texts.1005 But that
move goes too far to rescue the copyrightable from the un-. For no
matter how fervently most judges would subscribe to the esthetic
privilege of Tristam Shandy over “Factory Blow-out Sale on
Toilets!,” it is a fact of copyright life that the same infinitely
capacious category in the statute, “literary works,”1006 applies not
only to novels1007 but also to newspapers,1008 advertisements,1009
and, yes, sex manuals.1010
Indeed, starting with Holmes’s diktat quoted above—which
was enunciated in the context of vindicating copyright for an
advertisement!—received gospel has held, “It would be a dangerous
undertaking for persons trained only to the law to constitute
themselves judges of the worth of pictorial illustrations, outside of
the narrowest and most obvious limits.”1011 Judges simply have
traditionally eschewed esthetic judgments in copyright cases.1012

censuring or burning his books is to reproduce the exterminating gesture against which
one accuses de Man of not having armed himself sooner with the necessary vigilance.”).
1004. The task of a criticism which would be historical is to reveal these displaced
authorities which enable the constitution of specific individuals at specific
moments as “authors.” It is only in this way that knowledge . . . will produce an
authority which is divorced from the totalising pretensions of a modernist
knowledge with its drive to power and mastery, a mastery which requires
slavery and which requires one individual to be recognised and identified as an
essentially aristocratic master, an “author.”
Authority, history and the question of postmodernism, supra note 85, at 69.
1005. THE PLEASURES OF READING, supra note 527, at 23.
1006. 17 U.S.C. § 102(a)(1) (1994).
1007. Refer to note 161 supra (discussing copyright protection for Sally Hemmings).
1008. New York Times Co. v. Roxbury Data Interface, Inc., 434 F. Supp. 217, 226–27
(D.N.J. 1977).
1009. Canfield v. Ponchatoula Times, 759 F.2d 493, 497 (5th Cir. 1985).
1010. Respect Inc. v. Comm. on the Status of Women, 781 F. Supp. 1358 (N.D. Ill.
1992). On the other hand, although I have declined to include an illustrative Case, refer to
Chapter III supra, the category of manual sex lies outside copyright protection. But see
Michaels v. Internet Entm’t Group, Inc., 5 F. Supp. 2d 823, 830–31 (C.D. Cal. 1998)
(holding that the unauthorized dissemination over the Internet of a videotape depicting
sex between Poison’s Bret Michaels and actor Pamela Anderson Lee violated their public
distribution right in the copyrighted material).
1011. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). Refer to
Chapter II supra. For an entire article attempting to debunk Holmes’s observation, see
Copyright Law and the Myth of Objectivity, supra note 549.
1012. A recent case begins by proclaiming, “We are not art critics, do not pretend to be
and do not need to be to decide this case.” Martin v. City of Indianapolis, 192 F.3d 608,
610 (7th Cir. 1999).
2001] DEAD SEA SCROLLS 207

Therefore, high or low, cultural considerations have played very

little overt roles in shaping the law that governs the cultural
industries.

D. The Legal Enterprise

From the copyright standpoint, philosophy seems to represent
a dead end: No theory encapsulates the whole.1013 The law has been
written by lawyers, whose bent, in the common law system at least,
“is more pragmatic than metaphysical.”1014 (Introducing a work by
Roland Barthes, Susan Sontag calls law “an insatiable project,
endlessly producing and consuming ‘systems,’ metaphor-haunted
classifications of an ultimately opaque reality.”1015)
Part One observed that cases are won not based on the facts,
but based on the evidence.1016 In parallel fashion, the evidence is
applied to doctrine evolved out of previous copyright cases, not to
theory abstracted out of the latest scholarly journal.
It may be for precisely this reason that copyright law
“‘singularly fails to depend on the (supposed) attributes of
individual subjects for the foundations of its provisions and
persists in treating of legal subjects with indifference to any
formal doctrine of subject.’”1017 Instead of lofty theory, the life
of copyright law has been a continuous search for how best to
effectuate “consequential positivities.”1018 When we “lower our
gaze from the heights of dialectical history and the principle of
critical linguistic theory,” we can “glimpse a crucial possibility:
perhaps book and text, print and discourse, author and subject

1013. Philosophical reticence need not be viewed with disdain; it has been the source
of flexibility. “Adopting a theory means living with its consequences.” Distant voices, real
lives, supra note 799, at 75.
1014. David Vaver, Moral Rights Yesterday, Today and Tomorrow, 7 INT’L J.L. &
INFO. TECH. 270, 276 (1999). To turn from my friend, David Vaver, to my teacher, Arthur
Leff, law represents “an attempt to create and maintain a coherent species of ‘logic’ that
would not too ridiculously fail to reflect, or even refract, experience.” Arthur Allen Leff,
Law and, 87 YALE L.J. 989, 989 (1978).
One commentator takes the matter further. Noting that most nineteenth
century doctrine about copyright originality was made by Justice Miller, he researches
that jurist’s biography, concluding: “Neither his tastes nor the exigencies of a busy life
were conducive to theoretical reflections.” Russ VerSteeg, Rethinking Originality, 34 WM.
& MARY L. REV . 801, 835 (1993) (quoting CHARLES FAIRMAN, MR. JUSTICE MILLER AND
THE SUPREME COURT 248 (1939)).
1015. Susan Sontag, Preface to ROLAND BARTHES, WRITING DEGREE ZERO xx (1968),
cited in The Personality Interest of Artists and Inventors, supra note 121, at 180 & n.367.
1016. Refer to Chapter V supra.
1017. Dropping the Subject, supra note 25, at 102, quoting P.Q. Hirst.
1018. Brad Sherman, From the Non-original to the Ab-original: A History, in O F
AUTHORS AND O RIGINS , supra note 19, at 111, 116.
208 HOUSTON LAW REVIEW [38:1

do not meet in some final point of synthesis in the subject but

occupy irreducibly different historical and theoretical
domains.”1019
***
On reflection, the matter should not be otherwise. We can
applaud courts for applying the latest advances in DNA research to
free the innocent from criminal charges, and even for taking
cognizance of scientific advances in patent cases, without
simultaneously following those who urge courts to make parallel
strides into literary theory in copyright cases.1020 George Steiner
makes a convincing case that “theory” legitimately applies to those
former realms where subsequent investigation can confirm or
disprove (as with Darwinian evolution and Freudian
psychoanalysis, respectively), but that it is incoherent to speak of
“literary theory,”1021 for which there can be no empirical testing
whatsoever.1022
It would be not only bizarre if the Fourth Circuit allied itself
with Derrida, the Federal Circuit went Foucauldian, and the Second
embraced Steiner/Stillinger while the Ninth adopted Alter or
Frye.1023 Literary theory is never-ending, and subject to constant
revision. Judges have neither the institutional competence to resolve
the critics’ disputes, nor the time to redo all past doctrine in light of
the latest school of thought. More profoundly, it would be entering
the realm of the theological—tantamount to proclaiming the truth of

1019. Dropping the Subject, supra note 25, at 106–07.

1020. One view is that in Beyond Metaphor, supra note 474, Rotstein “argues that
courts should look to literary criticism in interpreting written, copyrighted works when
making determinations of infringement.” Kenneth L. Port, Foreword: Symposium on
Intellectual Property Law Theory, 68 CHI .-K ENT L. REV . 585, 603–04 (1993). But Rotstein
himself demures:
I did not mean to suggest that judges and juries should consciously attempt to
apply literary theory in deciding cases (though I’ve been interpreted that way by
some, and I understand why). I’m a practitioner, and it’s hard enough to get a
judge to apply the straightforward cases. Rather, my point really is that, because
copyright law governs expressive works (and these works include both works of
high and low authors), judges and juries necessarily engage in an activity
analogous to what literary critics do when they consider works.
E-mail from Bob Rotstein to David Nimmer (October 30, 2000) (on file with the Houston
Law Review). Cf. O’Neill v. Dell Publ’g Co., 630 F.2d 685, 687 (1st Cir. 1980) (“Although
we may not be qualified literary critics, we are fitted by training and experience to
compare literary works and determine whether they evidence substantial similarity.”).
1021. Theorein comes from the Greek verb “to investigate.” See THE MUSE LEARNS TO
WRITE , supra note 463, at 111.
1022. See REAL PRESENCES, supra note 89, at 75–79.
1023. Even more dire would be falling prey to an Arrowneous weltanschauung. Grok
deeply Pomobabble, supra note 840, at 491, 674 (“It’s not ‘our’ f(ouc)ault! WHEEEEEE !”)
[sic] [sic] [sic].
2001] DEAD SEA SCROLLS 209

dialectical materialism or of the insights of the Buddha—for a court

to put its imprimatur on any of those schools of thought.1024 Let a
thousand theories bloom—but not inside the courtroom, please!
Accordingly, even though a philosopher with all the time in
the world might find it impossible to disentangle “aesthetic
judgement on the one hand, and the alleged decision-procedures
available to the philologist,”1025 on the other, judges lack that
luxury of cogitation. They face a docket.1026 Those exigencies
impose a pragmatic spin.

E. On the Intent to Author

How does praxis operate? It has already been noted that “the
earliest theoretical impulse to remove the Author was based on a
discrediting of the concept of intentionality.”1027 What is at stake
for the literary critics is whether an act that took place at a given
historical moment—attaching quill to paper as the result of the
conscious movement of the writer’s hand, fingers gliding over the
keyboard, and so on—is decisive for subsequent interpretations
of the text. The law confronts a different question altogether—
whether the work thereby originated falls within the parameters
of Title 17 of the United States Code.
For that reason, copyright law has always seemed antipathetic
to any notion of intentionality.1028 An unconscious copier can be held
an infringer.1029 Further, even an entirely innocent party—say, one
who owns a cinema in which a film is screened that is adjudged
substantially similar to an antecedent novel—can be held
accountable for the infringement that occurs in his establishment,
despite his best efforts never to allow illegitimate material across
the transom.1030 In short, for a defendant to be held an infringer,
intent is not a necessary ingredient.1031

1024. Wise words from a copyright case: “If I were to declare The Urantia Book to be a
divine revelation dictated by divine beings, I would be trampling upon someone’s religious
faith. If I declared the opposite, I would be trampling upon someone else’s religious faith.
I shall do neither.” Urantia Found. v. Maaherra, 895 F. Supp. 1337, 1338 (D. Ariz. 1995).
1025. REAL PRESENCES, supra note 89, at 124.
1026. “Enough theories, I’d like some facts. Give me some facts.” LUIGI PIRANDELLO,
SIX CHARACTERS IN SEARCH OF AN AUTHOR 63 (Eric Bentley trans., 1998) (1921).
1027. Refer to text accompanying note 816 supra.
1028. Well, perhaps not always: Invoking ancient forebears to copyright law, one
commentator notes that “in Roman societas, intent was the sine qua non.” Russ VerSteeg,
The Roman Law Roots of Copyright, 59 MD. L. REV . 522, 546 (2000).
1029. Refer to note 439 supra.
1030. See 4 NIMMER ON COPYRIGHT § 13.08.
1031. Id. Nonetheless, even here there are limits. Although intent is not required,
volition is. “Although copyright is a strict liability statute, there should still be some
210 HOUSTON LAW REVIEW [38:1

Nonetheless, it would seem that intent is a necessary

element of the act of authorship. Thus, although the defendant
need not copy intentionally to be held liable, the plaintiff must
intend to author in order for a work of authorship to emerge.
Intentionalism hereby creeps back as a sine qua non for
copyright protection, even as we simultaneously acknowledge
that literary critics have debunked “the ideological character of
assuming that authorial intentionality is always and everywhere
the dominant determinant of textual signification, or of
imagining that any such intention, deferred and refracted as it is
by the play of signs, could ever be fully present to itself.”1032 (Of
course, a focus on “intention” does not bring resolution in and of
itself.1033 Instead, it opens the door to yet more philosophical
inquiry, centering on such elusive concepts as “purpose,”
“motive,” “causes,” “desire,” and the like.1034 But as already
noted, the legal enterprise does not entertain endless
excavation—it moves towards resolution, damn the theoretical
torpedoes!)
Consider a publisher that puts out a new edition of To The
Lighthouse from which, by sheer accident, fifteen adjacent pages
were omitted. In all respects, the publisher presents it to the
public as an accurate portrayal of Virginia Woolf’s book. Can it be
said that the work is actually copyrightable as an “abridgement”
of the great classic?1035 Arguably not. But a version of War and
Peace shortened to attract the attention of the MTV-generation
is, beyond dispute, subject to protection. We thus return to the
conundrum of intentionality.
It is submitted that the lack of intent to abridge the big
Woolf (the bad Woolf having sprung adventitiously) prevents a
copyrightable abridgement from resulting. But let us take this
further.1036 Consider several antipodes:

element of volition or causation which is lacking where a defendant’s system is merely

used to create a copy by a third party.” Religious Tech. Ctr. v. Netcom On-Line Comm.
Servs., Inc., 907 F. Supp. 1361, 1369–70 (N.D. Cal. 1995). Note that Congress singled out
this case for its benediction in the Digital Millennium Copyright Act. See H.R. REP.
NO. 105-551, pt. 1, at 11 (1998).
1032. Terry Eagleton, Self-authoring subjects, in WHAT IS AN AUTHOR?, supra note 11,
at 42, 42. For Eagleton’s philosophical examination into what is subjectivity, see id.
at 43–46.
1033. “Modern western philosophy has devoted considerable energy to the idea of
‘intention’ and what it means to intend something . . . .” The Personality Interest of Artists
and Inventors, supra note 121, at 138–39.
1034. Id. at 139.
1035. See 17 U.S.C. § 101 (Supp. IV 1999) (defining “derivative work” to include an
“abridgement”).
1036. The discussion here vacillates between a plaintiff’s “work” and a defendant’s
2001] DEAD SEA SCROLLS 211

??After her careless brother breaks an old Barbie doll,

Little Jane throws it into the garbage heap. There it sits,
amidst bananas and other detritus of the household. By
no stretch of the imagination has a copyrightable event
occurred.
??Christu, the magnificent performance artist, 1037 decides
to go the field of “readymades”1038 one better: he buys a
Barbie doll, smashes it with a hammer, perches it amidst
banana peels and other household garbage, and displays
the product at the newly refurbished Tate Gallery. Has a
derivative work been created? It would seem so. The
differing intent underlying Little Jane’s and Christu’s
conduct would seem to vouchsafe their completely
different treatment.
Let us move to an even more obvious case. A doctor is
rushing to the emergency room to perform surgery. A child veers
into her path. With some deft driving, she leaves behind only a
screech of brakes and wild skid marks, instead of an accident.
Has she thereby created an audiovisual work? Of course not. Yet
there is both sound and image to what occurred,1039 nominally
leading one to conclude that the elements for a copyrightable
composition have been satisfied.1040

“work.” In other words, to secure copyright protection, a plaintiff must create a work. By
the same token, to infringe the adaptation right, the defendant must create a “derivative
work.” For current purposes, the distinction between the two is unimportant. See 2
NIMMER ON COPYRIGHT § 8.09[A], criticizing dictum in Lewis Galoob Toys, Inc. v.
Nintendo of Am., Inc., 964 F.2d 965, 968 (9th Cir. 1992).
1037. My hypothetical artist pays homage to Christo. See RICHARD A. LANHAM , THE
ELECTRONIC WORD: DEMOCRACY, TECHNOLOGY AND THE ARTS 48–49 (1993) (contending
that Christo’s Running Fence serves as model for the shift that personal computer
technology will wreak to printed books).
1038. See J. Alex Ward, Copyrighting Context: Law for Plumbing’s Sake, 17 COLUM.-
VLA J.L. & ARTS 159, 159 (1993) (“readymades” is a trend inaugurated in 1917, when
Marcel Duchamp rescued a discarded urinal and exhibited it under the title Fountain).
Some advocate extending even further the law’s solicitude for “appropriation art.” See
Niels B. Schaumann, An Artist’s Privilege, 15 CARDOZO ARTS & ENT. L.J. 249 (1997).
1039. Even the most pedestrian of sounds can be interpreted musically. Thus, when a
romantic genius took the train from New York to Boston, the clickity-clack of the tracks
became in his mind a theme which germinated from an “unheard melody” to become
Rhapsody in Blue. See JOAN PEYSER, THE MEMORY O F ALL THAT 80 (1993) (“It was on that
train, with its steely rhythms, its rattlety-bang that is so often stimulating to a composer—I
frequently hear music in the heart of noise—I suddenly heard—and even saw on paper—the
complete construction of the rhapsody from beginning to end.”); hear HERSHEY FELDER,
G EORGE G ERSHWIN ALONE (Tiffany Theater, Los Angeles, June 25, 2000).
1040. We can assume, for purposes of the hypothetical, that the whole is recorded on
video. As to the cameraman, it may be conceded that he gains copyright protection for his
contribution. But the question remains whether the underlying material that is filmed
more closely resembles a dance concert (independently copyrightable) or a sporting event
(not independently copyrightable). See 1 NIMMER ON COPYRIGHT § 2.09[F].
212 HOUSTON LAW REVIEW [38:1

??By the same token, when a pedestrian rushes past a

perambulator that careens into his path on the sidewalk
at Broadway and Forty-seventh, the resulting footwork is
not copyrightable.
??Yet if those same steps unfold on the stage inside the
Palace Theater at Broadway and Forty-seventh,
copyright protection applies. 1041
The case law itself gives some tenuous recognition to these
phenomena.
??Brandir International, Inc. v. Cascade Pacific Lumber
Co.1042 recognized that a large wire sculpture could
command copyright protection, even if put to the
utilitarian end of supporting bicycles.
??However, to the extent that one leaves the realm of the
esthetic and enters into the constraints of manufacturing,
adaptations of the wire sculpture for the sake of
industrial design forfeit that protection.1043
Why the difference in the various situations just considered?
Again, intent to author seems to furnish the missing ingredient
here. Avoiding prams and careless kids, throwing away garbage,
negligently leaving out a signature when printing a book,
manufacturing a utilitarian item—those activities fall outside
copyright protection. But identical products, if produced as
intentional works of authorship, can fall inside the statute.

1041. See 17 U.S.C. § 102(a)(4) (1994) (according protection to “pantomimes and

choreographic works”). See also Horgan v. MacMillan, Inc., 789 F.2d 157 (2d Cir. 1986)
(George Balanchine’s The Nutcracker). As in the previous footnote, a further question of
fixation lies here. Again, to avoid metaphysical questions, we will assume that the steps
are somehow recorded, whether on videotape or through appropriate notation. See David
Vaver, Intellectual Property: The State of the Art, L. Q. REV . 621, 625 (2000) (addressing
whether tableaux vivants constitute copyright infringement of paintings that they depict).
1042. 834 F.2d 1142, 1147 (2d Cir. 1987).
1043. Id. at 1146–47. That determination engenders its own problems:
The problem with this formulation is that it hinges copyright protection on
the historical accident of whether or not changes take place in the industrial
design process. For had the creator of the wire sculpture in Brandir simply
chosen, in his initial artistic freedom, to widen the upper loops, straighten the
vertical elements, and otherwise create the rack in line with its ultimate design,
then the result would have been to accord, rather than to deny, copyright
protection. In this fashion, the fortuitous or accidental choice of one design will
lead to copyright protection, while a slight variation will go unprotected. It is not
apparent why either the policy underlying the Copyright Act, or the Act’s
language itself, should lead to that result. Thus, this formulation, like every
other essayed in this field, leaves room for further refinement.
1 NIMMER ON COPYRIGHT § 2.08[B][3] (footnotes omitted).
2001] DEAD SEA SCROLLS 213

F. G-rounding the Extremes

All flights must end, even those of fancy; it is time to bring

this one back to earth. To do so, we revert to the “extreme
copyright” hypotheticals that launched our imagination.1044 Let
us start with Connie Sewer, the gourmet turned gourmand who
convinced herself to subjectively rate establishments according to
the number of burgers flipped.1045 As portrayed in Case 24, she
first introduced us to the notion that the identical product can be
copyrightable or not, depending on one’s perspective.
By the same token, to revert to Judge Frank, a “copyist’s bad
eyesight or defective musculature, or a shock caused by a clap of
thunder,” may each cause something undesired to creep into a text.
By itself, no copyright thereby arises. Yet there is another step.1046
“Having hit upon such a variation unintentionally, the ‘author’ may
adopt it as his and copyright it.”1047 Indeed, even if Christu’s
inspiration came from uncopyrightable garbage, his adoption of it
imbues it with protection, because of the magical infusion of
intent.1048
These considerations ground some of the copyright doctrines
set forth above. When an individual intends to produce subjective
expression unconstrained by external determinants of that
expression—such as in Case 1 (The Inspiration) and Case 2
(Psalm of the Tunnel Builder), then protection may be complete.
Of course, even the existence of partial constraints does not doom
copyright. Thus, when one can subjectively choose among a
wealth of English expressions to find the mot juste that conveys a
fixed text in another language, as in Case 3 (The Translation),
there is still ample room for copyright to subsist. But by the time
one reaches the limiting case in which there is only one option,
which must be plugged in mechanically, such as purportedly
occurs in Case 20 (The Pedant), then intention evaporates and
protection can no longer lie. By like measure, copyright is denied
when the intent is to operate in purely uncopyrightable realms,
such as machinery in Case 4 (The Fountain), facts in Case 5 (The
Phone Book), scientific building blocks in Case 6 (The Atom) and

1044. Refer to Chapter III supra.

1045. Refer to Case 24 (The Gourmand) supra.
1046. “[O]ne must not only be empowered to take advantage of random occurrences,
but one must take advantage of them.” The Personality Interest of Artists and Inventors,
supra note 121, at 144. For an extended discussion of this theme, see id. at 161–63.
1047. Refer to the quotation preceding note 706 supra.
1048. Foucault calls the author “the principle of thrift in the proliferation of meaning.”
What Is an Author?, supra note 155, at 159. The intent to author, on the theory set forth
above, imbues significance amidst a profusion of unintended “lookalike” products.
214 HOUSTON LAW REVIEW [38:1

Case 7 (The Skeleton), mathematical expressions in Case 14

(Fermat), or sporting events in Case 8 (The Veer Option).
A fortiori, no copyright can lie when one does not even
intend to author original materials at all, as in Case 9 (The
Shivviti) or Case 10 (The Reader). In neither case is there an
intent to imbue subjective expression into the mix. The same
applies to Case 17 (Bingo Cards), created by a wholly random
program. Likewise, the mere act of copying one’s predecessors,
such as in Case 11 (The Doppelgänger) or Case 12 (The Forgery)
confers no protection.
When a work is presented to the public as being factual, then
copyright protection is likewise lacking. Case 13 (The Dirigible) is
applicable here. To the extent that its account of The Hindenburg’s
crash is portrayed as factual—even if further investigation debunks
the claim—then protection must be denied. For in those instances,
the intent to author—to imbue subjectivity into the mix—was
represented as absent, even if it turns out that the author was
mistaken (whether deliberately or accidentally).
Likewise, when the subjective expression is wholly
subordinated to a higher intent to conform to external factors,
protection may be denied. Illustrative here is Case 15 (The
Cosmetologist), wherein considerations of biology, surgical
techniques, and the patient’s desires overbore any Picasso-like
instincts that the wielder of the scalpel might have otherwise
possessed. By the same token, the creativity in Case 16 (The
Shrink) was entirely subservient to constructing an accurate
psychological portrait of the individual at issue. Case 18 (The
Sistine Chapel) is cut from the same cloth—it resulted from the
intent to match a prior artifact, rather than out of the desire to
imbue new subjective insights onto the fresco.
It is profitable to juxtapose Case 22 (The Surf Channeler)
against Case 23 (The Magician). If the intent of The Channeler to
portray the words of others rather than her own subjective
expression is credited, then she cannot obtain copyright
protection. (Of course, common sense may so incline in the
opposite direction that her claim not be credited. The point,
however, is that if the claim in fact is credited, she loses
copyright protection.) The flip side here is The Magician. If
Shelly is indeed believed that she subjectively created a “new”
work that just happened to match Keats’s, then she does enjoy
copyright protection in the product. (Again, common sense may
rebel against that construction sufficiently to overbear her
profession of intent. But the point is that if her intent is credited,
then copyright protection does lie.)
2001] DEAD SEA SCROLLS 215

To revert to the discussion above, the work does not need to

be neuf to warrant protection; it is enough if it is nouveau.1049
Thus, Shelly’s poem, to the extent that it matches Keats’s, is
emphatically not objectively new. But if it is genuinely
subjectively new, copyright protection subsists over it.
The final Case 21 (The Channel Surfer) falls into a similar
category with Case 3 (The Translation). In principal, the resulting
products are new and therefore copyrightable, resulting from a
conscious desire to imbue some new and subjective expression into
the mix. Those creators accordingly enjoy copyright, unless
protection is overborne by the doctrine that forbids protection, as a
matter of public policy, to one who has unlawfully incorporated
subsisting elements inextricably into the mix.
***
That run-through will undoubtedly leave some unsatisfied.
Certainly, it can be picked apart ad infinitum in terms of how it
fails to correspond to various “theories of authorship” or those
theories denying the very existence of authorship.
But copyright law needs an author1050—or, rather, a certain
notion of “authorship” as its principle of thrift.1051 The economy in
which that thrift is bartered, it is submitted, falls into the
framework offered above.1052 Moreover, that structure is so durable
as to apply regardless of which statute Congress has implemented.
Whether gauged by nineteenth century law, the 1909 Act, o r the
current 1976 Act, the considerations remain the same.1053 For that
reason, the discussion above has freely cited U.S. copyright cases
handed down from 1834 to the present. For the authorship
construct, being timeless, is impervious to such trifles as Congress’s
wholesale overhauling of the governing statute.
We thus wind back finally to the Dead Sea Scrolls—of
which Case 19 (Chicken Little) can be taken as emblematic.
The touchstone of intent again applies. Qimron’s
reconstruction of 4QMMT can be either copyrightable or not,
depending on which side of the Sewer he falls. If he intended
to wear the artist’s beret while reconstructing the text,
imbuing it with wonderful rhetorical figures of his own device,

1049. Refer to Chapter XV supra.

1050. Evidently, constitutional theorists do, too. See James D.A. Boyle, The Search for
an Author: Shakespeare and the Framers, 37 AM . L. REV . 625, 626–27 (1988).
1051. Refer to note 1048 supra.
1052. Literary theorists need their theory of the author as well, to preserve thrift in
their discipline. Reports of the author’s death have been greatly exaggerated—even
votaries of that sect continue to beatify him/her. Refer to note 1000 supra.
1053. Refer to Chapter XIV, section (D) supra.
216 HOUSTON LAW REVIEW [38:1

then he deserves copyright in the product. On the other hand,

if his intent under the scholar’s cap and gown was to present
the words of an ancient author, then the product falls outside
copyright protection.1054
The judge facing the pressure of the docket must decide.
Which resolution is correct? Let us begin by recalling that no one
alive today can claim authorship of a manuscript written by
Shakespeare1055 or by a biblical prophet:1056 For the author of
those texts is manifestly someone other than the claimant.
What about the activity of “finding” that other person’s text as
a basis for premising protection? That conduct, as socially valuable
as it might be, plainly fails the test for copyrightability.1057 Qimron
can vindicate no copyright precisely because he qualifies as a
modern-day “troubadour”1058—he found the ancient text written by
the Teacher of Righteousness. Admittedly, his act of “finding” was
far from mechanical, requiring greater archaeological creativity
than even Indiana Jones’s1059 (albeit of a musty, rather than
swashbuckling, nature). Moreover, given that the shards discovered
in the Judean desert were themselves tattered, Qimron could
accomplish his “finding” only via a great deal of ingenuity along the
plain of decipherment.1060 One may readily concede that such
decipherment manifests a certain type of creativity, just as
interpreting the data from a particle accelerator to posit atomic and
subatomic structure manifests scientific creativity.1061 Plus, unlike
the physicist at CERN or SLAC, the medium in which Qimron
recorded his own creativity—in alphabetic characters—is
superficially identical to the medium in which wordsmiths exercise
their copyrightable skills.
Nonetheless, at the end of the day, Qimron lacked the intent to
author original expression, whether gauged at the first level of
intent or that of “meta-intention.”1062 Starting with the latter,
Qimron’s labor lacked the ingredient of meta-intent. Unlike those

1054. It matters little whether, in the process, he was wearing the believer’s skullcap,
or the skeptic’s miter, as in either event he lacked “that authorial claim to be speaking in
his/her own voice.” INTERTEXTUALITY AND THE READING OF MIDRASH, supra note 851, at
23. Refer to note 618 supra.
1055. Refer to note 153 supra.
1056. Refer to Chapter I supra.
1057. Refer to note 153 supra.
1058. On the etymology of that term, refer to note 16 supra.
1059. Refer to note 215 supra.
1060. As previously noted, the Supreme Court of Israel refers to MMT as “the
Deciphered Text.” Refer to note 586 supra.
1061. Refer to Case 6 (The Atom) supra.
1062. Refer to Chapter XIII, section (B) supra.
2001] DEAD SEA SCROLLS 217

who choose words today concededly uncertain of their future

reception, but with the conscious desire to create a work of
expression that will be interpreted differently as time unfolds,1063
Qimron’s efforts were backwards-oriented. In other words, Qimron
aimed to reconstruct a text that had already been composed in the
past, instead of imbuing some of his own subjectivity onto the new
creation of a literary text with an open-ended future.
Unlike a Philip Roth or Cynthia Ozick, Qimron did not
string together words with the intent to author them. He
therefore lacked “intent to author” even at the most simple level.
By definition, the act of decipherment eschews “original intent”—
the intention to create a work of original (“new”) expression1064—
rather, it seeks recovery of the (old) creativity previously
exhibited by another. His aim was not only to avoid the neuf, but
even the nouveau.1065 It was to summon up the ancien. In that
task, as noble as it may be, there can be no copyright protection.

1063. Id.
1064. Refer to Chapter XV supra.
1065. Refer to Chapter XV supra. If Qimron aimed to compose a text that this planet
had never been seen before, the result would be neuf. If, like Learned Hand’s magician, he
independently conjured up a “new” text that (unknown to him) just happened to match
TR’s, then the result would be nouveau. But by consciously setting his sights on
recreating a previously existing text, he avoided both neuf and nouveau.
218 HOUSTON LAW REVIEW [38:1

CODA

CODEX AND OTHER LAWS OF

CYBERTIME
Eaton S. Drone**

The pleasure of the text is that moment when my

body pursues its own ideas for my body does not
have the same ideas I do.
Roland Barthes1066

Discovery of the Dead Sea Scrolls in the Judean desert

caused quite a stir; at least on Earth (a murmur was heard even
in these parts!). Indeed, it has launched a new scientific
discipline: codicology.1067
I happened to run into the Teacher of Righteousness recently
(in 1955) at a lecture given by Joseph Story about the deep
background to Bender v. West. I remarked to him that with the
assignment of Strugnell to MMT, the world at last would soon
see its contours—unless, I puckishly added, copyright protection
got in the way.
“Weren’t you listening to Story’s story?” demanded the
rebarbative Teacher. “He just finished explaining that all the
major cases to reach the U.S. Supreme Court involving copyright
in the nineteenth century established the proposition that ‘the
law of the land’ (as embodied in case reports) stands outside

** Mr. Drone authored the standard treatise on nineteenth century U.S. copyright
law. Sadly, he died in 1917. In the intervening decades, he has been gathering his
thoughts and, inter alia, studying Hebrew as an amateur philologist (that is, a “lover of
lover of the word”). Recently, he was kind enough to submit an introduction to Paul
Marcus & David Nimmer, Forum on Attorney’s Fees in Copyright Cases: Are We Running
Through the Jungle Now or is the Old Man Still Stuck Down the Road?, 39 WM. & MARY
L. REV . 65 (1997). He posted the instant chapter, responsive to the onto-theological
ruminations that precede it, on his website (no URL is provided, as it is contained on the
ultimate Secure Server; access to it from this realm is emphatically discouraged).
1066. THE PLEASURE OF THE TEXT, supra note 808, at 17.
1067. Q UMRAN IN PERSPECTIVE, supra note 198, at 198.
2001] DEAD SEA SCROLLS 219

copyright protection.1068 Based on that authority, miqsat ma’aseh

haTorah”—he placed particular emphasis on the word haTorah—
“stands ipso facto outside of copyright protection. And it’s a good
thing too—the Sons of Darkness have only multiplied
geometrically in the interim, and they could sure use some
straightening out!”
“What do you mean that MMT is a legal code?” I meekly
demurred. “It was never codified, was it?”
“I tell you, Man of Scoffing, it was the governing text of our
community, Yachad,” shouted TR. “As ‘law,’ it stands outside of
copyright protection.”1069
“Oh, right,” I replied, and then added, “And just who were
the good folks at Yachad? Essenes? Sadduccees? Zealots?
Zadokites? Crypto-Christians? Sicarii? Therapeutae?
Boetheusians? Rastafarians?”
But he did not bite the bait. Instead, he smiled and ran
through a few knee-slappers that Pliny the Elder had recounted
to him a while back. “Walk softly and carry a big shtick!”
admonished TR, as he shuffled away.
***
I returned to reading Code and Other Laws of Cyberspace,
written by Larry Lessig of Harvard Law School. Happy to see
that the School has kept up standards since my graduation in
1866,1070 I was interested to read how this book limns an entire
exposition of the Internet, founded on the homologue between
“code” as governing law and “code” as the language in which
computer programs are written. I got to thinking about that
phenomenon in the light of MMT.
What is missing from Lessig’s masterful exploration of
current issues, copyright and otherwise, facing the Internet is the
diachronic inquiry into how the cross-over of terms that so
fascinates him arose in the first instance.1071 My investigation
into the etymology here has led me to conclude that something

1068. Refer to note 168 supra.

1069. Bldg. Officials & Code Adm’rs Int’l, Inc. v. Code Tech., Inc., 628 F.2d 730, 734–35
(1st Cir. 1980).
1070. See Obituary of Eaton S. Drone, N.Y. TIMES , Feb. 2, 1917.
1071. Needless to add, whatever Lessig’s deficiencies may be, they are less than
Nimmer’s. For instance, why does Nimmer deliberately and repeatedly note that the
Torah is commanded to be set up in stone monuments atop Mt. Eival, refer to notes 489,
883 supra, without telling us the significance? Obviously, it is a function of how new the
institution of writing was at that juncture. I will draw these thoughts together more
elaborately elsewhere, in the piece that I describe at the end of these remarks.
220 HOUSTON LAW REVIEW [38:1

rather profound is going on.1072

Why is it that computer “code” bears that name, rather than
“recipe” or “instruction set” or some other term? Was the
selection accidental?
In turn, the further inquiry arises as to where this term
derives. “Code” itself is cognate with the word for a “book” that is
neatly packaged between covers: a codex. Production of that
artifact takes us back almost 2000 years:
In the world of late antiquity all authority was founded on
those written texts, hence on the book and on reading. This
was true at the summits of power, among the church
hierarchy, in lay society and within the nucleus of the
family. Only the codex could represent that authority.1073
I would like to trace the phenomenon back even further. The
very practice of authoring text is inherently bound up with
handing down laws, as my chance encounter with the Teacher of
Righteousness brought me to realize. Let’s start with Rome.
There, the law was known as lex. That word derives from legere,
which is the familiar Latin verb that means “to read.”1074 (For
that reason, a text susceptible to being read qualifies as legible.
Cicero goes further, and links the roots of religion itself to the act
of rereading: relegere).1075 The Greek nomos might have similar
roots.1076
In fact, Hebrew also contains the same affinity. The “ten
commandments” is a poor translation from the Hebrew for the
ten dibrot. The root for that last word is dbr, meaning nothing
other than “to speak.”1077 Speaking = commanding = supreme
law. Q.E.D.
The same phenomenon plays itself out, albeit on a slightly

1072. See THE MUSE LEARNS TO WRITE , supra note 463, at 56.
1073. Between Volumen and Codex, supra note 146, at 89.
1074. Archaic and Classical Greece, supra note 888, at 41. “Writing is supposed to
need the legein or the logos that the reader adds; without the reader, writing would
remain a dead letter. Reading is thus added to writing as an ‘epi-logue.’” Id. at 42.
1075. CICERO, DE NATURA DEORUM ACADEMICA 193 (G.P. Goold, Ph.D. ed., H.
Rackham, M.A. trans., 1979) (1933).
1076. Archaic and Classical Greece, supra note 888, at 40 (nomos derived from
nemein, which might mean “to read”). The Greek words hypocrite and prophet likewise
weave into the tapestry here. Id. at 54. Having invoked both logos and nomos here, it is
not amiss to reference “the antithetical constructs of the Word-Christ-Logos (for
Christians) and the Torah-Writing-Nomos (for Jews).” Reading in the Jewish
Communities of Western Europe, supra note 25, at 161.
1077. “Decalogue” is therefore a good English translation. Without the spoken text,
the written text cannot exist. “[T]he text is not a static object but the name given to a
dynamic relationship between writing and voice and between the person writing and the
reader.” Archaic and Classical Greece, supra note 888, at 44–45.
2001] DEAD SEA SCROLLS 221

higher plane, with the word Torah, the apotheosis of law to a

Hebraic mindset. In this case, the root verb is yrh, which
means “to teach,”1078 a meaning found, let us say, adjacent to
the cluster of “to speak.”1079 (Indeed, to look up the word Torah
and all its variants in the standard concordance requires that
one locate that verb yrh.1080) Lecturing = legislating.
As Roland Barthes reiterated at last year’s Pan-
Troubadour Heavenly Hootenanny,1081 “[a]ll speech is on the
side of the Law.”1082 Indeed, when our speech coheres enough to
“pronounce a sentence,” are we not assuming the role of judge
upon a condemned criminal?1083 In this reading, “the Law
appears not in what is said but in the very act of speech.”1084
Code is code, according to Lessig’s Code.1085 I raise the ante
on Lessig: Not only does the tautology apply in the Internet
context from the 1990s onward, but all deliberate acts of
authorship create their own code.
Decoding, of course, must therefore loom large in our
consciousness. Lawyers decode legal codes. Readers decode the
codes of literature. Archaeologists decode history.
What role does copyright play in all this? A novel or creative
interpretation of a statute cannot be subject to copyright
protection.1086 A reader’s creative reading of a text likewise falls

1078. See A CONCISE HEBREW AND ARAMAIC LEXICON OF THE O LD TESTAMENT, supra
note 139, at 144.
1079. “[T]here is a fundamental tie between teaching and speech.” Writers,
Intellectuals, Teachers, in IMAGE ____MUSIC____TEXT ___, supra note 9, at 190. John of
Salisbury made a similar point in the Metalogicon early in the twelfth century. See The
Scholastic Model of Reading, supra note 810, at 105 (in Classical Latin, legere is both
“teaching” and “reading”).
1080. See SOLOMON MANDELKERN, VETERIS TESTAMENTI CONCORDANTIAE 509–10 (1896).
1081. Naturally, he hung out at the cocktail party given by Roland (the original
Roland, that is) and spent most of the evening munching veal with Roland de Vaux.
1082. Writers, Intellectuals, Teachers, supra note 1079, at 191 (emphasis original). It is
worth adding that the history of writing as well is intimately bound with the need to record
legal texts. See LITERACY AND O RALITY IN ANCIENT G REECE , supra note 24, at 65–73.
1083. Writers, Intellectuals, Teachers, supra note 1079, at 191. Hebrew is even
broader: mishpat means both a grammatical sentence and a court decision, whether in
the criminal or civil sphere (unlike English, in which a “sentence” applies to the
criminal, but not civil context). The Italian sentenza largely jibes with the usage of
mishpat.
1084. Id. at 192 (emphasis original).
1085. See CODE AND O THER LAWS OF CYBERSPACE , supra note 733.
1086. E.g., Saul Levmore, Explaining Restitution, 71 VA. L. REV . 65, 96 (1985) (“[T]he
law does not normally offer intellectual property rights to lawyers who develop novel
arguments and establish precedents.”). The precise wording of the article or brief in which
it is encapsulated is, of course, another matter.
222 HOUSTON LAW REVIEW [38:1

without copyright.1087 And as to the archaeologist—need you

ask?1088
I have actually encoded a formula to prove all of this
mathematically, and just put the finishing touches on the
accompanying essay. (It promises to be the greatest blockbuster
since the solution to Fermat’s Last Theorem.) Once I finish
proofreading it in the near future—no later than, say, winter
2600—I plan to publish the results here.

1087. Refer to Case 10 (The Reader) supra. “We know that the violinist, however
gifted and penetrating, ‘interprets’ the Beethoven Sonata; he does not compose it.” Real
Presences, supra note 791, at 32. Of course, if one defines “reading” as an essay about a
piece of literature, then copyright unambiguously applies. See, e.g., READING 4QMMT,
supra note 254; READING T HE EVE OF ST. AGNES, supra note 779.
1088. Qimron, it seems to me, has fallen prey to a peculiar linguistic fallacy. The
Hebrew word for “author” is mechaber. That noun comes from the verb ch’br, which
means “to join, connect, compose.” Thus, another equally valid translation of mechaber
would be “a composer.” (In English, we see the same transformation in the word
“composition,” used in the sense of “essay.”)
Why Hebrew alighted on that word is a mystery to me. Given the Kabbalistic
fascination with the act of creation, the Hebrew language had previously developed a
detailed vocabulary for different aspects of the creative process—atzilut, beri’a, yetzira,
and asi’a. Nonetheless, the language chose a different route when assigning the word
“author.” I must make further inquiry.