A Federal Court judge is being asked to adjudicate a case that asks, in effect, who owns the story of a Holocaust survivor.
Is it the daughter whose father and other family members were hidden from the Nazis in a Polish farmer’s barn and whose story is recounted in a documentary film that she co-directed.
Or is that story, and the facts behind it, now in the public realm and therefore can properly be used as the basis of a novel, with fictionalized elements incorporated into it, without infringing the filmmakers’ copyright protection?
Laymen and legal specialists are watching with interest as a Federal Court judge in Ottawa ponders the issue, after an attempt at mediation failed. Four days of court time were set aside, starting Jan. 11, for legal arguments and to consider testimony, which has already been recorded.
The case pits Judy Maltz, whose father, grandfather, aunts and uncle were hidden during the war, versus Jennifer Witterick and Penguin Books Canada. Maltz is suing Witterick for allegedly lifting whole segments from her copyrighted documentary film, No. 4 Street of our Lady. Witterick’s book, My Mother’s Secret, was published by Penguin Books about four years after the documentary was released. Maltz and her co-directors, Barbara Bird and Richie Sherman, are asking for $6 million in damages.
Witterick told The CJN in 2013 that she was inspired to write the book after viewing the film at Congregation Habonim during Holocaust Education Week in 2011.
“I’ve done nothing wrong and will be defending this case,” said Witterick, founder and CEO of Sky Investment Counsel, a Toronto investment firm.
“All the characters in the book are fictional, because I created them,” she added when first contacted by The CJN about the case in March 2014.
The filmmakers, however, say the book lifts entire passages from their 2009 film.
“With the exception of certain limited fictional aspects… the plot of the book is almost identical to that of the [film],” allege documents filed in court.
“The book tells the story of a Polish-Catholic mother and daughter, Franciszka and Helena Halamajowa, who save several Jewish families during the Holocaust, along with a German soldier who defects from the army. Some of the Jews are hidden in the pigsty above her hayloft and others in a hole dug under the kitchen floor. The Halamajowa house is located on Street of Our Lady in the small town of Sokal on the Bug River in Poland.
“The book tells a story that is almost identical to that told in the [film], and in a way that is substantially similar to and a colourable imitation of the [film]. Although some of the names of the characters and places have been changed, the names of the main protagonists and places are the same,” Maltz’s court documents allege.
They go on to say that hers is the authentic version of the story and that without the film, “the book would not exist.”
“The alteration of the [film] by adding fictionalized and sensationalized aspects does not change the fact that the book is substantially similar to and a colourable imitation of the [film]. Other than distorting the [film] and causing significant elements of the public to become aware of a fictionalized and sensationalized version of the [film], the book contains very little original expression of its own,” the documents allege.
“Amongst those saved by Halamajowa were Maltz’s grandparents and father, two aunts and an uncle. Prior to the release of the [film], this story was virtually unknown, recorded only in the posthumously published diary of the late Moshe Maltz, who was one of those rescued by Halamajowa.”
The case attracted the attention of the 1709 Blog, about copyright issues. It said it raises the thorny issue of a fictional work based on historical facts, especially when the facts can be found in only one other source. Another British blog, the Drum, notes “the lawsuit raises the interesting question about when authors can take historical events, fictionalize them and create a new piece of work from an existing, yet factual event.”
In March 2014, Witterick explained why she was motivated to write the book. As a Taiwanese-Chinese immigrant, she could “never understand why people didn’t like Jewish people. I’ve always been really interested in the Holocaust. I myself am a child of immigrants and I understand what it’s like to be on the outside and being and underdog. So this kind of Holocaust story really resonates with me.”
Witterick said she donated her book advance to charity. “My objective was never to make money on this book. My objective was to write a book to help young people understand what happened in the Holocaust.”