Maltz v Witterick: Facing the Facts on Copyright Protection for Historic Events

During the Holocaust, a Polish Catholic single mother, Francizska Halamajowa, secreted 15 Jews away from the Nazis. Two families hid for years in the hay loft of her pigsty, while another family lived under the floor in her kitchen. She also hid a deserter from the German army in her attic. To evade suspicion, she curried favour with German officers. She even hosted dinner parties directly above the hole where one family hid.

Ms. Halamajowa’s fascinating story should be told. But, who has the right to tell it? That issue is at the heart of the recent Federal Court decision in Maltz v. Witterick.

Judy Maltz is the American granddaughter of Moshe Maltz, who kept a diary during the years he spent hiding in Ms. Halamajowa’s hay loft. Maltz and filmmakers Barbara Bird and Richie Sherman spent three years creating No. 4 Street of Our Lady, a documentary about Halamajowa. They interviewed surviving members of the hidden families and travelled with them to visit the former Halamajowa house in Poland. The film is based on the diary and the contemporary memories of the survivors and their children.

Canadian writer J.L. Witterick was the head of an asset management firm when she saw the documentary. Inspired by the story, she wrote a fictionalized version of it targeted at Young Adult readers, called My Mother’s Story. The novel is set in the original time period and told in the present tense from the point of view of four different narrators. Although she acknowledged the documentary as her inspiration in interviews, she does not mention it in the book.

Justice Boswell’s decision hinges on the principle that there there is no copyright protection afforded to history and facts. It is a well-settled principle; he cites the 2002 Federal Court of Appeal decision in CCH v. Law Society of Upper Canada, which in turn cites Deeks v. Wells, which dates back to 1931.

Although they were ultimately unsuccessful, the Applicants raised a novel and interesting argument for protecting the factual information in the documentary. Based on the expert submissions of eminent Canadian Historian Jack Granatstein, they argued that, as in cases of academic plagiarism, copyright law should differentiate between large facts—e.g. the date the Second World War began—and small facts like those found in a personal journal or family history. Since the documentary mainly revealed small facts about Halamajowa and the families she shielded, their effort in uncovering those facts should be protected.

Unfortunately for Maltz, while Witterick’s borrowing might be plagiarism in a classroom, it is not infringement in a courtroom. The difference between large and small facts might be a useful distinction in academic circles where copying of ideas is forbidden, but it does not fit well with copyright law where copying of ideas is acceptable and only copying of expression is forbidden. Prominent cases about the protection of facts have been fought over the most mundane of facts: the names and phone numbers in a telephone directory. Those minutiae are not considered protectable under copyright.

Maltz and her colleagues undoubtedly expended significant effort researching Halamajowa and bringing together the survivors to tell their own stories. The expressive elements of their work as filmmakers and journalists—the film’s script, the way the story was framed, the choice of artifacts and photographs—are protected. But the basic factual elements revealed in the film—who lived where, what dangers they faced if discovered, how Halamajowa fooled German officers—remain as facts and events that really happened. Witterick was welcome to draw on them in creating her own original story about those events.

To a layperson, the result might seem surprising. In the Globe and Mail, Kate Taylor called Ms. Witterick’s book derivative and impolite. Anyone who has set foot in a university classroom has been warned about copying and plagiarism. The entertainment media is full of stories of Hollywood producers paying to secure the rights to non-fiction books, and we assume they must be buying something. People often assume that copyright is at issue when it comes to plagiarism and movie rights.

As this case makes clear, there is no copyright in history, only in the telling of it. Someone else can tell the same story in a different way without infringing.


Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

  1. This was a fascinating case, but perhaps the Applicants should have raised a more robust substantial infringement claim rather than the “small/large facts” argument. The latter seemed destined to be unpersuasive given the well-established principles protecting history and facts and preventing the patent chilling effects on documentary and biography of all kinds. Copyright should not grant individuals or their estates an exclusive right to publish the most accurate version of their life story, nor should it grant anyone the sole right to small—even personal—facts whose revelation would benefit the public.

    Because this case featured a comparison between a fictional literary work and a documentary film, a thorough and stimulating engagement of the Supreme Court of Canada’s “holistic” substantial similarity analysis [Cinar Corp. v Robinson, 2013 SCC 73] could have been undertaken. The Applicants needed to prove the respondents’ novel took a substantial amount of their original expression. The Applicants’ evidence focused on quantitatively comparing verbatim copying instead of evidencing the cumulative expressive features of the works. Not only did the court find scant verbatim copying, but it seemed that very little evidence was raised comparing similar expression, content, form, feel, and experience between the works.

    It is disappointing that the Federal Court did not take the opportunity to delve into what might constitute expression in documentary filmmaking, and how to characterize and compare that to a fictional literary work having no audiovisual components.

  2. Before I wrote the original article, I read the book and tracked down the documentary (the only practical way to see it in Canada was on the Sony Playstation Network of all things) and my feeling is that a substantial similarity argument would be very difficult to support. It’s not that easy through casual consumption to get past the fact that they’re telling the same basic story based on the same basic factual real world events, but my feeling was that if you take away the facts there simply wasn’t a lot of overlap in any of the other Cinar holistic elements.

    The movie is structured around the modern day experiences of the survivors and their children, returning to the home and telling the story they either remember or were told about. The modern journey is as important to the documentary as the historical story. The novel is given the historical setting.

    The story in the movie is told in brief sound bites from a variety of people and from a journal interwoven to tell the whole history. The novel follows each of the narrators for several chapters at a time, allowing them to tell large swaths of the story in their own voice.

    Feel is hard to assess. On the one hand, they are both sad stories with elements of hope in them. But that might well be because it’s a terrible piece of history that came to a moderately happy ending. The book also adds an entire romantic sub-plot and some significant moments of suspense that change the tone. It’s more melodramatic than the movie, which is sentimental in a different way.

    There’s also not really the possibility of comparing characters and personalities, since these are real people and composite/fictional characters, not purely fictional creations whose personal traits as exhibited in the movie were protected. The Court pretty much dismisses that whole angle of attack when it distinguishes Anne of Green Gables, though I think there’s potentially more room for protection there than the judgement acknowledges.

    It might have been possible for Maltz to argue that documentarians take a perspective on their subjects and through selecting the anecdotes about them create an impression of their personality that isn’t necessarily 100% factual. (I’m not suggesting it was false, just presented in a way that supports a particular perspective.) If Witterick’s characters then reflected those constructions really strongly, that might constitute copying. But I didn’t come away from the documentary with a strong sense of the personalities of the people involved while Witterick’s fictionalized versions, at least for focus characters, come across much more clearly.

    There might also be an argument to be made if the specific historical figures that the movie focused on were also the narrators/focal points of the novel. I don’t remember either in enough detail to say whether they were or were not, just suggesting that if if they were, there might be an argument there. Say, for example, if someone had decided in the 80s that among all the thousands of passengers on the Titanic, to make a documentary about a wealthy socialite who fell in love with a third class passenger, they might then look in askance at James Cameron’s fictionalized version focusing on precisely those people. But this story is a small story — there were only the Halamajowas and the hidden families that even could be the focus of the story. As well, outside the documentary, there’s a limited amount of factual information available about these people. The counter-argument might simply be that Witterick focused her story on the people she actually had information to base her characters on.

  3. Your insight, having consumed both works, is immensely helpful.

    I’m always a little confused (especially on the Cinar facts which include an unfinished work) by how we should best compare two different types of creation. What substantial parts of a sculpture can a song reproduce?

    I think, too, about Justice Binnie’s clarification in Theberge, that the Act’s aim in obtaining a just reward for the creator, is more accurately to “prevent someone other than the creator from appropriating whatever benefits may be generated”. It makes me wonder, when we have two distinct types of work, whether the benefit generated by the impugned work would have ever been generated by the “original”. And, Maltz immediately made me think about Nobel Prize-winner Bob Dylan’s “Hurricane”. I don’t know of any documentary that preceded his classic, but had there been one which included more intimate details of Hurricane Carter’s life, would the “benefit” resulting from Dylan’s composition be considered as appropriated from the hypothetical original work? Surely, Dylan’s work would not exist without Carter’s story. It may even include intimate details of his life without fictionalization. But is Carter’s story entitled to the fruits of any labour resulting from its use?

    Your Titanic example, I think, is a clearer route to justification on that benefit-appropriating basis. The audience of a documentary about the Titanic told with a Romeo and Juliet-/West Side Story-vibe probably shares similar movie-consumption habits to that of James Cameron blockbusters having that same vibe. That “vibe” is a needed consideration in substantiality analyses, when the lay person perspective is adopted and the two works are thus compared. As you say, “feel is hard to assess” but assessing it nonetheless may be crucial.

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