Copyright infringement claim over Holocaust novel raises questions about when a "substantial part" is substantial

Mark Leiser: I am a PhD Candidate in Cyber Law at the University of Strathclyde in Glasgow. I have written submissions for the Leveson Inquiry into the culture and ethics of the media and for the Scottish Parliament on the use of social media during trials. My PhD is supervised by Professor Andrew Murray at the London School of Economics and focuses on the effectiveness of cyber-regulation. My research and interests revolve around main areas of Internet law and policy including internet governance & regulation, democracy, social media, privacy, and intellectual property. My PhD research focuses on developing a system of modelling to measure the effectiveness and legitimacy of Internet Regulation. I write in a personal capacity.

A copyright dispute has opened up in Canada over the Holocaust film, No. 4 Street of Our Lady, a documentary about Francziska Halamajowa, a Catholic Polish woman who saved some of her Jewish neighbours during the Second World War.

The filmmaker, Judy Maltz, has a personal connection to the case: Maltz’s grandparents, father, two aunts and an uncle were saved by Halamajowa, who fed, housed and hid 15 of her Jewish neighbours during the war. She kept them safe for almost two years in her tiny house in Sokal, a town then in Eastern Poland that is now part of Ukraine. Latterly, there were German troops stationed on her property, and she resorted to hiding the families in a hayloft above her pigsty and in a hole dug under her kitchen floor. While posing as a Nazi sympathiser, she also hid a German soldier who had defected. In 1986, both Halamajowa and her daughter Helena were honoured by Yad Vashem, the Israeli Holocaust memorial.

In 2013, an author named Jenny Witterick self-published a book called My Mother’s Secret – a historical novel about a women and a daughter who saved seven Jews during the Holocaust by hiding them in their cellar and in a pigsty. The novel was self-published but heavily publicised by Witterick herself before the novel was picked up by Penguin books and published under the Penguin imprint. The rights to the books were sold on to several European publishers. A lawsuit filed in the Federal court in Canada alleges that the book takes the characters and the plot from No. 4 Street of Our Lady infringing the copyright. The suit alleges there are 30 instances where the narration in Witterick’s book matches exactly or mimics the narration found in Maltz’s film.

Witterick herself has admitted that she saw the film at a Holocaust education event and used the documentary as inspiration for writing the historical, but fictional novel: “I took facts that were true and developed the characters. My understanding is you can’t copyright facts,” she said. “I don’t think there is a law against being inspired by something.”

Witterick takes the main theme of the documentary, refuses to change Halamajowa’s name, reduces the number of Jews saved by the heroine in the novel to seven, and adds a romantic narrative to the story. The author, a successful business women and money manager, provides a happy ending for the German deserter. The lawsuit raises the interesting question about when authors can take historical events, fictionalise them and create a new piece of work from an existing, yet factual event. The story reminds me of the James Cameron film, Titanic. Take a historical and true event, and make a fictional story out of real events. The major difference is that obviously the filmmaker used a considerable amount of work developing a documented narrative, using over 40 hours of interviews.

It begs the question – how would British courts treat a similar case brought against a defendant for copyright infringement? Infringement occurs when someone reproduces a substantial part of an original work.

In 2007 the author of a book called The Holy Blood and the Holy Grail brought an action against Dan Brown and the Random House for infringing copyright in popular book and film, The Da Vinci Code. In Baigent vs Random House, an author of a historical book about a conspiracy involving the Catholic Church covering up the existence of, and the true descendants of Jesus Christ. The court ruled that the themes expressed in The Holy Blood and the Holy Grail were insufficient to qualify as a substantial part of the literary work, and that what had been taken from that book by the author of "The Da Vinci Code" amounted to “generalised propositions at too high a level of abstraction” to qualify for copyright protection because it was not the product of the application of skill and labour by the authors of the former book in the creation of their work. Essentially the court ruled that Baigent did not have copyright in a theory about the meaning of the Holy Grail.

In 2011 a screen writer and his company infringed copyright by copying a substantial part of an autobiography in a film script. Whilst the majority of dramatic events in the book had not been copied, the details and incidents and their interpretation which were reproduced formed a key part of what made the book original and amounted to a “substantial part”. The court ruled in Hodgson vs Isaac, that there was much in the script which was wholly independent of the book. However, when they were considered as a whole, the script was very closely related to the book in terms of its plot, characters and the striking incidents and events which took place. Nearly half of the dramatic incidents in the film were mirrored in the book. This amounted to a substantial part.

In Massey vs Dinamo Productions, the court struck out a claim for infringement of copyright where the claimant failed to show evidence that there were similarities between his synopsis of a children's television programme and that of another producer. Again, the similarities were pitched at a high level of generality.

Of course Canada is a different jurisdiction from the UK, although our copyright regimes are similar. In the case of The Adventures of Robinson Curiosity, the Canadian Supreme court suggested that the court must determine in infringement claim cases over the use of a substantial part. To determine whether a substantial part has been copied, one must conduct a qualitative and holistic assessment of the similarities between the works taking into account the relevant resemblances and differences.

It looks like the lawsuit over No.4 Street of Our Lady will turn on the facts of the case, but leave us pondering what steps authors have to take when fictionalising historical events that have been documented in a copyrighted work.

Get the Newsletter

Keep up to date with the latest news and insights.

Subscribe

Mark Leiser

I am a PhD Candidate in Cyber Law at the University of Strathclyde in Glasgow. I share lecturing responsibilities for Internet Law (LLB) and the Law of Business Associations (Honours). I tutor Voluntary Obligations, Property/Trust/Successions, Legal Methods, Business Law, Internet Law, Commercial Law and BA Legal Methods. I also tutor Commercial Law 2 and Business Law 2 at Glasgow Caledonian University.

My PhD is supervised by Professor Andrew Murray at the London School of Economics and focuses on the effectiveness of cyber-regulation. My research and interests revolve around main areas of Internet law and policy including internet governance & regulation, democracy, social media, privacy, and intellectual property. My PhD research focuses on developing a system of modelling to measure the effectiveness and legitimacy of Internet Regulation.

All by Mark