A documentary film is, by its nature, a work of non-fiction. It
expresses a set of facts, arranged and portrayed in a particular
way. If a fictional novel is written, based on a documentary film,
is copyright infringed? Put another way, does copyright protect the
"facts" in the documentary?
In the recent Federal Court decision in Maltz v. Witterick, the court considered a
claim of copyright and moral rights infringement by the makers of a
documentary entitled No. 4, Street of Our Lady about the Hamalajowa
family, a real-life family who harboured and saved three Jewish
families during the Second World War in Poland. A writer, inspired
by the documentary, wrote a fictional young adult novel based on
the same real-life experiences of the Hamalajowa family, even going
so far as to use many of the same names, the same storyline and
facts. The book, entitled My Mother's Secret, was published by
Penguin Canada and went on to become a modest success.
After hearing of the book, the filmmakers sued both the author
and Penguin Canada for infringement of their copyright in the
documentary film. Although there was no verbatim copying of the
dialogue or narrative, the filmmakers claimed that their copyright
was infringed in the overall themes, relying on the interesting
Cinar Corporation v. Robinson, which stands for the proposition
that the cumulative features of a work must be considered, and that
for the purposes of copyright a "substantial taking" can
include similarities such as themes. The filmmakers also argued
that a distinction must be drawn between "big facts" and
"small facts". For example, a "big fact" that
Polish Jews were captured and deported to concentration camps is
not deserving of copyright protection, whereas a "small
fact" that a particular Jewish family was taken away from a
particular place on a specific day – this kind of fact is
deserving of protection, and it was this type of information that
was copied by the author from the documentary film without
The court rejected this notion. "The Applicants'
arguments based on differences between "small" and
"large" facts, with the former deserving of protection in
this case and the latter not so deserving, are without merit.
Copyright law recognizes no such difference or distinction.
Facts are facts; and no one owns copyright in them no matter
what their relative size or significance." (Emphasis
The Court also made an important clarification regarding
characters in the story. Citing the Anne of Green Gables decision,
the filmakers claimed infringement of the "well-delineated
characters" in the film, including the members of the
Hamalajowa family. They argued that "the characters in the
Book are clearly based on and are virtually identical to the
individuals in the Documentary." This analysis is misguided,
according to the Court. "[T]here are no fictional characters
in the Documentary; there are only real people or references to and
recollections of once real persons, and there cannot be
copyright over a real person, whether dead or alive."
The copyright and moral rights claims were dismissed. The
important message that is reinforced by this fascinating decision
is that the only copyright in the filmmakers' story lies in
their expression of that story and not in its facts.
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).