IP Law Daily, COPYRIGHT—D. Kan.: Scholars who track nineteenth century German migrants will face each other in trial, (Jan 14, 2026)

By Matthew Hersh, J.D.

But the copyright and trademark infringement lawsuit will be substantially narrowed.

A genealogy researcher who specializes in German migrants who settled in the United States in the early years of the nation could not be liable under the Copyright Act for reproducing portions of the work by another scholar because the text that he copied was merely a compilation of facts that could not be protected by copyright law, the federal court for Kansas has held. But the court, which also dismissed a false advertising claim against the researcher, found that allegations that he copied photographs from the competing researcher could not be shielded, at least as a matter of law, by a claim of fair use (Hein v. Mai, No. 6:24-cv-01126-JWB (D. Kan. Jan. 7, 2026)).

The lawsuit arises out of a dispute between two researchers who specialize in the genealogy of the so-called Volga Germans, a Germanic people who suffered persecution in the Volga region of Russia in the 18th and 19th century and whose descendants sought refuge in, among other places, the American Midwest. Margreatha Hein, the owner of a company named Volga German Research, publishes her research on her website www.volgagermans.org. Brent Mai, the Dean of Libraries at Wichita State University, publishes his own research on his website www.volgagermaninstitute.org.

Hein, claiming that Mai had purloined aspects of her website, brought suit against her fellow researcher in 2024. Her lawsuit asserted claims of copyright infringement based on the researcher’s alleged reproduction of original text and photographs from her site. She also alleged, among others, a claim of false advertising under the Lanham Act.

Mai moved for partial summary judgment on the complaint, leading to this opinion.

Standing. The court found that Hein had standing to pursue her copyright infringement and Lanham Act claims. Under traditional Article III principles, a plaintiff cannot pursue a claim for violation of a federal statute unless she can show that, among other things, she suffered a concrete harm from the violation. But the Supreme Court has carved out an exception, the court noted, where the statutory violation is “coupled with a harm traditionally recognized as providing a basis for a lawsuit in American courts.” The doctrine clearly applied to copyright law, the court noted, because copyright laws predated even the ratification of the Constitution and therefore the Copyright Act had a “historic or common-law analogue” in pre-statutory law.

That still left an open question with respect to the copyright claim, however. Hein did not operate her website for commercial purposes, so she could not claim a loss measurable in money. But had she nonetheless asserted a valid harm that was “traditionally recognized as providing a basis for a lawsuit in American courts?” Hein argued that she did, and the court agreed. As copyright claims are “fundamentally grounded in notions of property rights,” the court noted, claims of copyright infringement protect against, among other things, “the unauthorized reproduction and distribution of protected works.” In sum, the court noted, because Hein had alleged “invasion of her rights to “control her creative works,” she had standing on her copyright claims.

The court also found that Hein had standing to pursue her Lanham Act claim. Hein asserted, the court noted, that Mai listed her name as a “contributor” or “researcher” on his website, thus allegedly diminishing the value of her work and harming her reputation. She also claimed, the court noted, that Mai had published inaccurate information on his website and that as a consequence she is now “associated with a website that is inaccurate.” Reputational harms of this nature, the court observed, “clearly sufficed to support standing in Article III courts.” As a result, the court reasoned, Hein had standing to pursue her Lanham Act claim.

Statute of limitations. The court also found that Hein’s copyright claim was not ruled out on the basis of the statute of limitations. Under the Copyright Act, as interpreted by the Tenth Circuit as well as many other appellate courts around the nation, a claim is timely if it has been filed within three years of the time the alleged violation was discovered (or with due diligence should have been discovered). Moreover, each subsequent publication of an infringing work is treated as a new “discrete action” that restarts the statute of limitations.

Hein had gathered enough evidence to pass the summary judgment hurdle and get to trial, the court found. Hein contended, the court noted, that Mai republished the work when he recreated his website at each educational institution where he was hired—including, most recently, in 2023 when he joined Wichita State University. Moreover, the court noted, Hein claimed that she did not discover the “full scope” of infringing acts until late 2023, placing her lawsuit well within the three-year statute of limitations. Mai disagreed, the court noted, but each side had proffered evidence in support of their position. As a result, the court noted, barring Hein’s claims at the summary judgment stage “would be inappropriate.”

Substantial similarity. But while the court found that Hein could get past the standing and timeliness hurdles, she would not be permitted to proceed on one of her copyright claims on the merits. Mai did not challenge the claim of copyright infringement in Hein’s photographs at this stage, the court noted, but he did argue that no reasonable jury could rule in Hein’s favor with respect to the allegedly purloined text. The court agreed.

The problem with Hein’s copyright infringement claim, according to the court, was that she did not claim that Mai copied any material that was copyrightable under the law. Taking the entire work in full, the court acknowledged, Hein’s material was arguably protectable on the basis of her selection and arrangement of historical facts. But the problem for Hein, the court noted, was that Mai did not copy all of her text precisely as she had written. Filtering out the words that Mai did not copy from the words that he did, the court noted, what was left was “composed almost entirely of facts (names, dates, and locations) that are not subject to copyright protection.” Given that, the court noted, while the entire Hein passage was copyrightable, the aspects of it that Mai copied were not. A reasonable jury could not find substantial similarity in this case as a result, the court concluded.

Fair use. But while the claim of infringement of the website text would fail, the court found, the claim over alleged infringement of the website’s photos would go forward. Mai challenged this claim only on the grounds of fair use, rather than substantial similarity. But the court easily disposed of this argument. As to the first factor test of commerciality, the court found, although Mai’s use was “on its face non-commercial,” there was “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.” (The court did not, perhaps surprisingly, consider the other aspect of the first fair use prong—whether the use of the work was transformative.) The nature of the copyrighted work and the amount and substantiality of the copying, factors two and three, easily weighed against fair use. As to the effect on the market, the court found, this weighed in favor of fair use—Hein had not yet marketed the work, although in the future she could. But in balancing all four factors, the court found, the case against fair use was strong enough to at least get to trial.

Lanham Act. Finally, the court easily dismissed Hein’s claim under the Lanham Act. Hein argued that Mai’s use of her name, with the title “researcher” or “contributor” placed next to it, constituted false advertising under the Act because it “diminishes her stature in her research field and falsely indicates she has a professional association with Dr. Mai.” But the Lanham Act has a precondition, the court noted, that a plaintiff’s use of the alleged mark be used “in commerce,” and the mere fact that both websites were on the internet—and that Mai used another page of the same website to market his tours and translations—was not enough to qualify.

The Case is No. 6:24-cv-01126-JWB.

Attorneys: Catherine Simmons-Gill (Office of Catherine Simmons-Gill, LLC) for Margreatha Hein. Cristina Silva (Morris, Laing, Evans, Brock & Kennedy) for Brent Mai.

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