The Canadian author of a bestselling Holocaust novel has won a copyright lawsuit. Producers of a 2009 documentary film sought $6 million in damages from the Toronto author and her publisher. One historian who participated in the case described the verdict as astonishing.
“This should have been a slam dunk,” said Jack Granatstein, former editor of the Canadian Historical Review. “Not only is the documentary proprietary, but it’s the family’s story for God’s sake.”
Producers of the U.S. documentary No. 4 Street Of Our Lady sued after novelist Jennifer Witterick used the film’s theme as a basis for her book. The film documented the experience of one producer’s Jewish grandfather who was hidden by a Catholic farmwife in Sokal, Poland during the Second World War. The documentary was shown at numerous international film festivals including a 2012 screening at Toronto’s Holocaust Education Week, where it was seen by Witterick.
Federal Court heard that Witterick later downloaded the film and acknowledged her 2013 novel My Mother’s Secret was a “fictionalized version” of the fact-based story, wrote Justice Keith Boswell. Producers alleged thirty similarities between the film and the novel including the name and biographical details of the heroine; the fact that Jews were hidden under a kitchen floor and a pigsty loft; and a snippet of dialogue:
- • In the film, a German soldier who takes a Jewish infant remarks: “It doesn’t matter; we’ll get the mother later anyway”;
- • In the novel, the incident is recounted: “‘Doesn’t matter,’ says the German soldier. ‘We’ll get the mother later’.”
“It’s very odd to me that anyone looking at both of them would not see the straight-out plagiarism,” said Granatstein. “I read the book and watched the movie. With minor tinkering it was clear they were very much the same.” In an affidavit Granatstein said it was “inappropriate” for the novelist not to credit the filmmakers, the Court noted.
Justice Boswell dismissed the Copyright Act claim, noting no author can claim ownership of facts, even a personal narrative involving family members. “Facts are facts and no one owns copyright in them no matter what their relative size or significance,” the judge wrote. “Any alleged distinction between small and large facts is an artificial division.”
Peter Jacobsen of Bersenas Jacobsen LLP of Toronto, lawyer for the novelist and her publisher Penguin Canada Books Inc., said the judgment is an “important” interpretation of Canadian copyright law. “It reaffirms that freedom of expression allows an author to use historical fact,” Jacobsen said.
“What you cannot do is take the expression,” Jacobsen said. “Ms. Witterick did not take long quotes; there is no plot such as in the documentary; and the novel has a romantic element. In terms of expression, the two are totally different.”
Witterick, a Bay Street money manager, self-published My Mother’s Secret as her first novel before it was contracted by Penguin Canada as a Globe & Mail bestseller. Witterick told the Court that large portions of her novel were fictional and “drawn from her own experiences and imagination”.
Filmmakers said they spent three years researching their $100,000 project, including traveling to Florida and Israel to interview eyewitnesses.
By Jason Unrau 
