## Facts

- Michael J. Simon, born in the Theresienstadt concentration camp, inherited his parents’ Holocaust-era diaries and related artifacts after their deaths.
- The diaries (especially Simon’s mother’s) were written in archaic German shorthand and required transcription into modern German before translation into English.
- Simon contacted Oberlin College and provided the diaries and artifacts to Heidi Thomann Tewarson for transcription/translation work.
- Tewarson acknowledged that Simon owned the original physical documents.
- The parties discussed possible publication of the diaries, but their conversations never became a definite agreement on publication rights or terms.
- After about two years, Tewarson sent Simon a written contract addressing “rights to and publication” of the diaries’ contents; Simon refused to sign and demanded return of the originals.
- Tewarson filed an action for declaratory judgment seeking a court declaration of the parties’ rights and duties regarding the originals and the transcriptions/translations.
- Simon answered and counterclaimed, seeking replevin of the originals and an order preventing Tewarson from publishing or using the diaries, transcriptions, or translations without his consent; Simon also sought copyright registration.

## Issues

1. Whether the Ohio common pleas court lacked subject-matter jurisdiction because the dispute “arose under” federal copyright law and belonged exclusively in federal court.
2. Whether the Copyright Act (17 U.S.C. § 301) preempted state-law adjudication of the parties’ contract and property/replevin dispute concerning the diaries and translation work.
3. Whether the evidence supported the judgment granting Simon replevin of the original diaries and related artifacts and restricting Tewarson from publishing or otherwise using materials derived from them without Simon’s consent.

## Decision

- The Court of Appeals of Ohio, Ninth Appellate District, affirmed in part and modified the trial court’s judgment.
- The court held the trial court had subject-matter jurisdiction because the case was pleaded and tried as a state-law dispute (declaratory judgment, contract, and possession/replevin), not as a copyright infringement action.
- The court rejected Tewarson’s claim of a binding agreement giving her publication rights, concluding the parties never reached a meeting of the minds on publication.
- The court upheld replevin awarding Simon immediate possession of the original diaries and artifacts, since Simon owned them and Tewarson’s possession was limited to the agreed work.
- The court left in place the core relief preventing Tewarson from publishing or using the diaries or the transcriptions/translations without Simon’s consent, while modifying the judgment entry in limited respects.

## Legal Principles

- A case does not fall within exclusive federal copyright jurisdiction merely because it involves copyrighted subject matter; state courts may decide contract and property disputes tied to literary works when the claims turn on state-law rights and duties.
- Copyright preemption under 17 U.S.C. § 301 does not apply to state-law claims requiring an “extra element,” such as mutual assent to contract terms or entitlement to possession of physical property.
- Formation of an enforceable agreement requires assent to essential terms; negotiations and a later unsigned proposed contract support a finding that no publication-rights contract was formed.
- Replevin requires proof of the plaintiff’s superior right to immediate possession; temporary transfer of diaries for transcription/translation does not transfer ownership or a continuing right to keep the originals.
- Where no agreement grants publication rights, a translator’s work on another’s diaries does not, by itself, authorize publication or other use of the diaries’ contents or derived materials without the owner’s permission; courts may grant injunctive relief to prevent unauthorized publication.

## Conclusion

Tewarson v. Simon held that Ohio courts could resolve a translator–owner dispute over Holocaust-era diaries through state contract and replevin principles without being displaced by federal copyright law, and that because the parties never formed an agreement on publication rights, Simon retained control over publication, was entitled to the return of the original diaries and artifacts, and could obtain relief barring Tewarson from publishing or using the diaries or the transcriptions/translations without his consent.


Tewarson v. Simon, 750 N.E.2d 176 (2001)