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. 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
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.
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.
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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.
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