Canada: Historical Facts And Copyright: The Maltz v. Witterick Case

On May 10, 2016, the Federal Court of Canada rendered its decision in Maltz v. Witterick,1 denying the Applicants, Judy Maltz, Barbara Bird and Richie Sherman, producers of a documentary called No. 4 Street of our Lady (the "Documentary"), an award in damages for breach of copyright and infringement of moral rights allegedly caused by Jennifer L. Witterick, author of the book My Mother's Secret (the "Book").

In re-examining the question of whether a particular set of facts can be subject to copyright protection, this case sheds light on the "substantial taking" test as set out in Cinar Corporation v. Robinson.2 The Federal Court, mindful not to upset the balance between the  protection of original work and the public's interest in maximizing the production of intellectual work, seemed reluctant to award copyright protection to a set of specific facts as portrayed in the Documentary.  The case also briefly refers to the issue of infringement of moral rights under s. 14.1 of the Copyright Act.3

The issue between Maltz and Witterick arose in 2013 when Ms. Witterick first published a fictional novel online targeting a readership comprising mostly of young adults. Ms. Witterick acknowledged that she was inspired to write the novel after attending to a screening of the Documentary. Penguin Canada Books acquired the rights to the Book and later published it in Canada and the United States. Ms. Maltz's legal counsel then sent them a cease and desist letter, alleging that the factual similarities between the Book and the Documentary amounted to a substantial taking in breach of Ms. Maltz's copyright protection, as per Cinar. Following the cease and desist letter, Ms. Witterick made an offer to Ms. Maltz, giving her the opportunity to include "something" in the Book. In Ms. Witterick's opinion, this gesture was meant as "an opportunity to include her views in the Book".4

Given the refusal of Ms. Witterick and Penguin Canada Books to conform to the cease and desist letter, Ms. Maltz brought a claim pursuant to s. 34(4) of the Copyright Act, alleging that "the Book copies personal family stories as well as the structure and narrative devices of the Documentary".5 In essence, Ms. Maltz claimed that the Book copied "small facts" not documented anywhere other than in the documentary and that Ms. Witterick "used various storytelling devices from the Documentary".6 On the other hand, while Ms. Witterick acknowledges that the inspiration for the Book came from the Documentary, she asserts that the Documentary's characters reproduced in the Book are facts and as such, they are not protected by copyright. In fact, she claims that only the "originality" of the work – the "skill and judgment used to shoot, compile and arrange the Documentary"7 – is protected by copyright, and that the Book and the Documentary have a different "feel", since the Book is a "fictional story aimed at young readers".8 As such, Ms. Witterick argues that Ms. Maltz failed to prove that there was a "substantial taking", in that the Documentary was not substantially reproduced in the Book.

Justice Boswell began by holding that despite Ms. Waltz's expert's affidavit, no difference exists between "small" facts – e.g. one's diary entry relating to a specific action taken on a given day – and "large" facts – e.g. universally known historical events, stating that "[f]acts are facts; and no one owns copyright in them no matter what their relative size or significance".9 Therefore, Justice Boswell held that using an actual fact from the Documentary in the Book did not amount to an infringement of Ms. Maltz's copyright protection.

Justice Boswell then applied the "substantial taking" test set out in Cinar. To do so, he determined whether Ms. Witterick improperly copied "the originality of the Documentary, such as its structure, tone, theme, atmosphere and dialogue".10 Citing Cinar, he reminded the parties that "it is important to not conduct the substantiality analysis by dealing with the copied features piecemeal ... [r]ather, the cumulative effect of the features copied from the work must be considered".11 Justice Boswell then found that despite the Book's core story being "clearly taken from the Documentary",12 it was not sufficient to find a substantial taking given that there is no copyright in historical facts, nor in real persons, dead or alive. Furthermore, he found that there was "significant and material change in medium in the telling of the story, from the audio-visual of the Documentary to the written word and fictionalized characters of the Book, and the change from a documentary to a fictionalized story".13 Therefore, the originality of the Documentary remained intact, as the Book constituted a new and original work of fiction.

Justice Boswell then held that though "an author has the right to be associated with his or her work",14 under s. 14.1 of the Copyright Act, there was no presumption of infringement of said right in the case at bar, given the lack of evidence of prejudice presented by Ms. Maltz's legal counsel in their Memorandum of Fact and Law. He also mentioned in obiter that had there been evidence of such prejudice, no damages would have been attributed to Ms. Maltz since she refused Ms. Witterick's offer to include "something" about the Documentary in the Book.

Ultimately, the Maltz v. Witterick case is interesting in that it reiterated a fundamental principle in copyright law that there cannot be copyright protection in facts and offers an example as to what extent one can use names and facts from an artistic work and use it to create another original artistic work without being an infringement of copyright.


1 Maltz v Witterick, 2013 FC 524  [Maltz v Witterick].

2 Cinar Corporation v. Robinson, 2013 CSC 73 [Cinar].

3 Copyright Act, RSC 1985, c C-42 [Copyright Act].

4 Maltz v Witterick, supra note 1 at para 8.

5 Ibid, at para 10.

6 Ibid, at para 15.

7 Ibid, at para 17.

8 Ibid, at para 19.

9 Ibid, at para 31.

10 Ibid, at para 33.

11 Ibid, at para 36.

12 Ibid, at para 39.

13 Ibid, at para 45.

14 Ibid, at para 50.

Historical Facts And Copyright: The Maltz v. Witterick Case

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions