Maltz v. Witterick, 2016 FC 524

The Applicants are the producers and directors of a documentary film which they alleged was infringed by the Respondents, an author and publisher of a book. The evidence provided that the Respondent author saw the documentary and it inspired her to write the book.

Although the author used the real names and facts she learned from the documentary, she said she targeted the book at young adults and the style was influenced by novels such as the Hunger Games.

The Applicants pointed to what they alleged are at least 30 similarities between the documentary and the book, which amounted to a substantial taking. The Applicants further acknowledged that while well-known "large" historical facts are open to use by anyone, the 30 similarities are "small facts" not documented anywhere but in the documentary.

The Court did not agree that there is a distinction between "large" and "small" facts, stating that no one owns copyright in facts no matter what their relative size or significance. Furthermore, the Court did not find that the book was a substantial taking from the documentary. As stated by the Court, since facts are not protected by copyright, they are not part of a work's originality.

The Court then contrasted the copying of a work with fictional characters compared with real people, finding that there cannot be copyright over a real person, whether dead or alive. Therefore, although the framing of the story and certain phrases or words might have been taken from the documentary, this was not considered to be the same as a copying of fictional characters brought to life in the documentary.

Ultimately the Court found that the book and the documentary both tell the story of the same real person, but considered that the book is not a mere imitation or substantial taking from the documentary.