The publishing industry in Canada recently welcomed a Federal Court of Canada decision dismissing a claim in copyright brought by documentary filmmakers against the publisher and author of a fictional novel that was inspired by facts brought to light by the applicants' documentary.(1)

Facts

The applicant filmmakers spent three years producing their documentary about a Polish-Catholic woman, Francizska Halamajowa, who had rescued several Jewish families during the Holocaust. Halamajowa and her daughter Helena hid the families in their home. One of the families included the relatives of one of the applicants, Judy Maltz.

The respondent author, Jennifer Witterick, first learned about the Halamajowa rescue story when she viewed the documentary in November 2011. Inspired by Halamajowa's courageous acts, the author wrote a fictionalised version of the story aimed at young adults. Witterick used the real names of the Halamajowas and several facts from the documentary, including the location of the story, where Halamajowa and her daughter hid people, that Halamajowa had left her husband and that she had a son and a daughter. However, the author testified that the characters and personalities in the book were fictional, drawn from her own experiences and imagination.

Witterick first published the book through a self-publisher, IUniverse. The book became a bestseller. GP Putnam's Sons, an imprint of the Penguin Group in the United States, subsequently acquired the worldwide publishing rights to Witterick's book and it was published in several countries, including Canada.

Decision

The author admitted to using certain facts as she recalled them from the documentary and working them into her book. However, the court held that any facts copied or taken by the author and used in her book were not protected by copyright. As for the expression of any facts, the court concluded that, viewing the two works as a whole, the book did not infringe the applicants' copyright: "the book was not a mere imitation of or substantial taking from the documentary and the book in its own right constitutes a new and original work of fiction emanating from historical facts."

Comment

In dismissing the application, the court made several statements that are of interest to the media industry for their implications on the creation of historical fiction. For example, the court stated that while the author clearly used the documentary for reference, and that the taking of such material from the documentary saved her the time and effort in replicating the research performed by the applicants, this was not sufficient to find that the author had infringed the originality of the applicants' work. The court also rejected the applicants' claim that certain facts are protectable if they are "small facts" (ie, not "big facts" such as the date of the war), and their claim that certain characters in the documentary were protected as though they were fictional characters. It noted that "there are only real people or references to and recollections of once real persons [in the documentary], and there cannot be copyright over a real person, whether dead or alive".

Given that the applicants sought C$6 million in total damages against the author and Penguin Canada, if the application had been granted the decision would likely have had a chilling effect on the publication of historical fiction.

For further information on this topic please contact Carlos P Martins or Tae Mee Park at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800) or email (cmartins@lexcanada.com or tpark@lexcanada.com). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.

Endnotes

(1) Maltz v Witterick, 2016 FC 524.

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