Hein v. Mai, 2026 WL 44798, No.
24-01126-JWB (D. Kan. Jan. 7, 2026)
Some interesting stuff going on in
the genealogy world!
The Volga German
people are individuals of German origin who moved to the Volga region of Russia
in the eighteenth century. … There is a sizable Volga German diaspora in the
American Midwest. Plaintiff Margreatha Hein and Defendant Dr. Brent Mai are
both genealogy researchers on the Volga German people. Their research is the
subject of this lawsuit.
Hein operates volgagermans.org,
where she publishes her research. Mai is the Dean of Libraries at Wichita State
University, has held similar positions with other universities, and operates volgagermaninstitute.org,
where he publishes his research.
Hein first objected to Mai’s
copying in 2020; in 2023, she registered the copyright in eight photos she took
in Europe that were republished on Mai’s website as early as 2017. (This
removes her eligibility for statutory damages.) She also registered ten “textual
compilations” and alleged that Mai copied 107 textual compilations from her
website: paragraph form summaries of genealogical information, organized by
last name.
The parties focused on a particular
example, which plaintiff’s expert contended was representative; as plaintiff
has the burden of proof of infringement, the court extended its finding of
noninfringement to the other, unargued examples; plaintiff didn’t provide “any
additional examples that vary in a significant way.”
Hein registered this text:
Johann Jacob
Hessler (son of Johann Jacob Hessler of Niedergründau) was baptized on 15
December 1718. Anna Maria Meininger (daughter of Johannes Meininger of
Mittelgründau) was baptized on 2 December 1725. Johann Jacob and Anna Maria
married in Rothenbergen on 26 August 1745.
Baptisms were
recorded for the following children, all born in Rothenbergen: Johann Conrad,
born 5 February and baptized 12 February 1747 (died 30 April 1754); twin
daughters born 28 May and baptized 29 May 1751, Anna Margaretha (died 16 May
1754) and Christina; Anna Margaretha born 22 May and baptized 25 May 1755;
Elisabetha, born 24 January and baptized 26 January 1760 (died 27 Jan 1760);
and twin sons born 5 February and baptized 7 Feb 1762, Valentin (died 5 Mar
1764) and Friedrich.
Jacob Hessler
died on 8 Nov 1762. On 5 Jan 1764, Anna Maria Hessler (widow of Jacob Hessler)
married Hartmann Ifland (son of Johannes Ifland from Lützelhausen) in
Rothenbergen. They had a daughter Catharina, born 2 January and baptized 8
January 1765.
Hartmann, Anna
Maria, and three of the Hessler children (Christina, Anna Margaretha, and
Friedrich) arrived in Russia on 9 August 1766. Hartmann apparently died during
the journey to the villages.
Mai admittedly copied; he listed
Hein as a contributor or researcher. The parties’ research is “freely
accessible to the public and neither party receives any income directly from
the disputed material on their website.” Mai, however, on occasion receives income
from leading tours of the Volga region or translating certain documents. Hein
has stated she has no interest in similar business.
The court first allowed Dr.
Kenneth Crews to testify as a copyright expert, but only about issues of fact
(the process of getting a registration and possibly some facts related to fair
use, though it’s harder to see how that would work), not ultimate legal issues.
Mai challenged Hein’s standing
since she doesn’t seek to generate revenue, but she adequately alleged
copyright infringement—which has a sufficient common law analogue—and reputational
harm for the Lanham Act by listing her as a researcher/contributor and
allegedly including inaccurate information.
Copyright limitations period:
contested issue of facts precluded summary judgment for Mai given the discovery
rule and the possibility that Mai engaged in new publications when he moved
institutions/changed domain names. The court accepted Hein’s argument that she
didn’t discover the “full scope” of the infringement until 2023 as sufficient
to avoid summary judgment, though I’m not sure how persuasive that is given the
2020 objections.
Copyright in the form compilations
of historical genealogical information: This claim failed because Mai did not
copy anything copyrightable. The court’s north star was the Supreme Court’s
admonition that “the selection and arrangement of facts cannot be so mechanical
or routine as to require no creativity whatsoever.” Still, there might be a
valid copyright in Hein’s compilations. But even with a triable issue on that,
infringement claims failed.
Stripping each entry of uncopyrightable
facts/asserted facts, what remained was a mechanical “skeleton.” An abstraction-filtration-comparison
approach was useful here given the thinness of the copyright. The sample Hessler
text was “composed almost entirely of facts (names, dates, and locations) that
are not subject to copyright protection.” Without the facts, here was the
selection/coordination/arrangement:
_____________
(son of _____________of _____________) was baptized on _____________.
_____________ (daughter of _____________ of _____________) was baptized on
_____________. _____________and _____________married in _____________on
_____________. … etc.
Mai’s version:
Johann Jacob
Hessler, son of Johann Jacob Hessler of Niedergründau, was baptized on 15
December 1718. Anna Maria Meininger, daughter of Johannes Meininger of
Mittelgründau, was baptized on 2 December 1725, Johann Jacob and Anna Maria
were married Rothenbergen on 26, August 1745.
The Gründau
parish register records the baptisms of the following children of Johann Jacob
& Anna Maria Hessler, each born in Rothenbergen: (1) Johann Conrad, born 5
February 1747, baptized 12 February 1747, died 30 April 1754; (2 & 3) twins
Anna Margaretha (who died 16 May 1754) & Christina, born 28 May 1751,
baptized 29 May 1751; (4) Anna Margaretha, born 22 May 1755, baptized 25 May
1755; (5) Elisabetha, born 24 January 1760, baptized 26 January 1760, died 27
January 1760; and (6 & 7) twins Valentin (who died 5 March 1764) &
Friedrich, born 5 February 1762, baptized 7 February 1762.
Johann Jacob
Hessler died 8 November 1762, and his widow remarried on 5 January 1764 to
Hartmann Ifland. They had a daughter Catharina, born 2 January 1765 and
baptized 8 January 1765.
The Ifland
family, along with 3 of the Hessler children, arrived from Lübeck at the port
of Oranienbaum on 9 August 1766 aboard the pink Slon under the command of
Lieutenant Sergey Panov.
“While Mai’s reproduction
certainly contains the same basic information as Ms. Hein’s skeleton above, it
can hardly be said to be a copy of copyrightable content. Basic sentences,
which at least in this example Mai does not copy verbatim, and words like ‘baptism’
or ‘born’ which appear throughout, do not possess the ‘creative spark’ required
to demonstrate copyright protection.”
What about the “mode of
presentation”? “Because Ms. Hein chooses the humble paragraph format to present
her information, she argues that Dr. Mai should not have been able to do so. But
this argument proves too much. Copyright law cannot grant the first researcher
who discovered and published a compilation of facts with little additional
synthesis a monopoly over the mode of presentation of that information.” All
the other examples Hein submitted were substantially similar; summary judgment
for Mai was appropriate.
That left the photos, as to which
the court denied Mai’s motion for summary judgment on fair use. (This is also
framed as a finding of no fair use, but it seems like it’s still available for
trial.)
Purpose and character: Mai “primarily”
argued noncommerciality, not transformativeness, which probably makes sense. “While the court agrees that Dr. Mai’s use is
on its face non-commercial, there is at least a question of fact as to whether
the photographs contribute to Dr. Mai’s other sources of income, such as his
tours or translations.”
Nature of the work: photos are
creative. (Sigh; no mention of publication status or free availability
elsewhere, though that shouldn’t necessarily outweigh creativity—but not all
photos are the same!)
Amount and substantiality: eight
whole photos.
Market value: Because Hein has no
interest in monetization of the website or through tours and translations, “there
can be no effect on the market.” However, “the fair market value could at some
future date be affected should Ms. Hein ever decide to monetize her work.” Summary
judgment denied. Mai’s pyrrhic victory on factor four is probably matched by
Hein’s overall pyrrhic victory, given that statutory damages and attorneys’
fees are unavailable.
Lanham Act/state law unfair
competition claims: Hein argued that the use of her name, with the title
“researcher” or “contributor” placed next to it, diminished her stature in her
research field and falsely indicated she has a professional association with
Mai. Mai argued that Hein wrongly tried to create a “required citation format”
through federal law, highlighting “apparently conflicting complaints that Dr.
Mai does not give Ms. Hein credit but also diminishes her when he cites her.”
(This is Dastar’s concern, too.)
The court didn’t have to reach the
issue because it found that the Lanham Act and state law claims didn’t cover noncommercial
uses. “The court’s survey of Lanham Act case law confirms a commerciality
requirement.” (Citing Lexmark and its progeny—this requires the plaintiff
to suffer a commercial injury and is different from requiring the defendant to
be commercial.)
Although Hein alleged that the use
of her name enabled Mai to receive income from selling tours and translations
on a different page of his website, that wasn’t enough; it was simply “too
attenuated,” given that Mai’s website was “overwhelmingly noncommercial in
nature,” despite its link to another website with information about his tours. Even
more attenuated were other alleged commercial connections: Mai’s “paying for a URL and copyright
registrations, having a bank account, and spending substantial sums on hard
copy research materials, subscription websites, technical support for a
website, and travel for research and to attend conferences.” Thus, Mai wasn’t
using Hein’s name “in commerce.”
Posts
No comments:
Post a Comment