Copyright does not monopolize facts – documentary filmmakers’ claim against book author and publisher fails

In May 2016, the Federal Court of Canada confirmed that copyright does not protect facts, even where a book’s author is clearly inspired by the content of a film (Maltz v. Witterick, 2016 FC 524 (CanLII)). The plaintiff’s documentary film was entitled: No.4 Street of Our Lady, which was based on the story of Francizska Halamajowa, who harboured and hid three Jewish families and a German deserter in World War II. The film was also based in part of the diary of Moshe Maltz, who was one of those hidden by Halamajowa, and Maltz was also the grandfather of one of the plaintiffs.

The plaintiffs claimed that Penguin Books and the author Jennifer Witterick infringed copyright, and specifically that Witterick’s novel entitled My Mother’s Secret unlawfully copied from the documentary film.

It was clear that the author Witterick had seen the documentary for the first time when attending the screening in 2011 in Toronto. She admitted she was inspired by Halamajowa’s story and her courageous acts to write her book. But Witterick argued that the book was just a fictionalized version of Halamajowa’s story, which was aimed at the young adult market.

It is noteworthy that Witterick used the real names of the Halamajowas and several facts from the documentary, such as the location of the story, where people were hidden, that Mrs. Halamajowa had left her husband, and that she had a son and a daughter. The author Witterick otherwise claimed that the characters and personalities were fictional.

The evidence also showed that in July, 2012, Witterick downloaded a copy of the documentary to confirm the historical accuracy of some of the facts in her book.

After Penguin published the book in Canada in 2013, the plaintiffs’ legal counsel sent their first cease and desist letter in late October, 2013.

There was later an offer by the defendants to include some form of acknowledgement of the film in the book, but the negotiations were apparently unsuccessful.

The plaintiffs claimed there are at least thirty similarities between the documentary and the book, including what they described as “small facts”, which were not documented anywhere but in their film.

Justice Keith Boswell of the Federal Court first noted that the documentary as a whole is undoubtedly protected by copyright, but that there can be no copyright in facts. He ruled that Halamajowa’s story and its factual details are not covered by copyright, but only the plaintiffs’ specific expression as captured through their own skill and judgment.

Justice Boswell rejected the plaintiffs’ reference to small facts deserving of protection, and ruled that: “facts are facts, and no one owns copyright in them no matter what their relative size or significance.”

Boswell also stated: “Since facts are not protected by copyright, they are not part of the work’s originality. Consequently, any facts copied or taken by Ms. Witterick and used in her book should not form part of the assessment as to whether a substantial part of the documentary was taken by her.”

The Court also found that there were no fictional characters in the documentary, but only real people and recollections of real persons, to which copyright does not apply.

The Court found that there was little if any verbatim copying of dialogue from the documentary.

The Court also stated that the author: “…clearly used the documentary for reference and, while taking material from the documentary saved her the time and effort of re-creating the research effort performed by the plaintiffs, this is not sufficient to find that she has infringed the originality of plaintiffs work.”

It was ruled that the defendants’ book in its own right was a new and original work of fiction emanating from historical facts, and that therefore the defendants had not appropriated or taken any substantial portion of the documentary’s originality. The Court said it was “difficult to identify a single element taken that is not either something generic or merely a fact.”

This case clearly shows that even admitted access to a work based on fact, and the subsequent development of a new work, may not constitute copyright infringement, if the expression of the first work is not copied.

SHARE

Archive

Search Archive


Generic filters
Filter by Custom Post Type

 
 

Caution – Reform ahead for Newfoundland and Labrador automobile insurance

April 18, 2019

Rodney Zdebiak and Anthony Granville On Monday, April 15, 2019, the Newfoundland and Labrador legislature passed a number of changes to the Automobile Insurance Act (“Act”) stating that the intent is to help stabilize insurance rates,…

Read More

The Ocean Supercluster – Navigating Innovation Together

April 12, 2019

Andrea Shakespeare, Kevin Landry and Matthew Jacobs The Canadian government has placed itself in the “global innovation race”. In response to the demands for innovation, the Canadian government has established the Innovation Superclusters Initiative which…

Read More

No Compass Needed – Ocean Supercluster Activities Explained

April 12, 2019

Andrea Shakespeare, Kevin Landry and Matthew Jacobs Canada’s Ocean Supercluster is a co-investment initiative between Canada’s federal government and the private sector that is part of the Innovation Superclusters Initiative. As we wrote about in…

Read More

Mapping Out Your Plan for a Technology Leadership Project in the Ocean Supercluster

April 12, 2019

Andrea Shakespeare, Kevin Landry and Matthew Jacobs As we discuss in our article, No compass needed – Ocean Supercluster activities explained, there are many ways to participate in the Ocean Supercluster and the Innovation Superclusters…

Read More

Project Eligibility in the Ocean Supercluster – Making Sure Your Proposal Can Set Sail

April 12, 2019

Andrea Shakespeare, Kevin Landry and Matthew Jacobs Technology Leadership Projects are collaborative projects undertaken by the Ocean Supercluster led by industry members in which industry members and the Ocean Supercluster will co-invest to perform research,…

Read More

Employer or employee: who owns social media accounts or contacts?

April 4, 2019

Grant Machum and Richard Jordan Employers carefully safeguard customer or client lists as confidential information. Gone are the days, however, where an employer’s customer list is only found in a Rolodex or in a closed…

Read More

Paper light employment files

March 28, 2019

Grant Machum and Guy-Etienne Richard Maintaining employment files requires physical space and can be costly. Nowadays many employers are moving away from keeping paper files to electronic storage. This brings up two issues: Are employers…

Read More

Nova Scotia announces changes to defined benefit pension funding

March 13, 2019

Level Chan and Dante Manna On March 12, 2019, the Nova Scotia legislature introduced long anticipated amendments to the Pension Benefits Act (“PBA”) which, according to a statement by Finance Minister Karen Casey, are aimed…

Read More

Supreme Court rules bankrupt companies cannot walk away from their environmental liabilities in Redwater decision

March 6, 2019

Julia Parent and Graham Haynes In the long-awaited decision in the case of Orphan Well Association v Grant Thornton Ltd, the Supreme Court of Canada held that end-of-life environmental cleanup obligations imposed by Alberta’s provincial…

Read More

Richards Estate sets the limits on actions against LTD insurers

March 6, 2019

Michelle Chai & Jennifer Taylor Justice Ann Smith of the Supreme Court of Nova Scotia recently dismissed an action against a disability insurer for being out of time. The case, Richards Estate v Industrial Alliance…

Read More

Search Archive


Generic filters
Filter by Custom Post Type