A documentary film is, by its nature, a work of non-fiction. It expresses a set of facts, arranged and portrayed in a particular way. If a fictional novel is written, based on a documentary film, is copyright infringed? Put another way, does copyright protect the "facts" in the documentary?
In the recent Federal Court decision in Maltz v. Witterick, the court considered a claim of copyright and moral rights infringement by the makers of a documentary entitled No. 4, Street of Our Lady about the Hamalajowa family, a real-life family who harboured and saved three Jewish families during the Second World War in Poland. A writer, inspired by the documentary, wrote a fictional young adult novel based on the same real-life experiences of the Hamalajowa family, even going so far as to use many of the same names, the same storyline and facts. The book, entitled My Mother's Secret, was published by Penguin Canada and went on to become a modest success.
After hearing of the book, the filmmakers sued both the author and Penguin Canada for infringement of their copyright in the documentary film. Although there was no verbatim copying of the dialogue or narrative, the filmmakers claimed that their copyright was infringed in the overall themes, relying on the interesting case of Cinar Corporation v. Robinson, which stands for the proposition that the cumulative features of a work must be considered, and that for the purposes of copyright a "substantial taking" can include similarities such as themes. The filmmakers also argued that a distinction must be drawn between "big facts" and "small facts". For example, a "big fact" that Polish Jews were captured and deported to concentration camps is not deserving of copyright protection, whereas a "small fact" that a particular Jewish family was taken away from a particular place on a specific day – this kind of fact is deserving of protection, and it was this type of information that was copied by the author from the documentary film without permission.
The court rejected this notion. "The Applicants' arguments based on differences between "small" and "large" facts, with the former deserving of protection in this case and the latter not so deserving, are without merit. Copyright law recognizes no such difference or distinction. Facts are facts; and no one owns copyright in them no matter what their relative size or significance." (Emphasis added)
The Court also made an important clarification regarding characters in the story. Citing the Anne of Green Gables decision, the filmakers claimed infringement of the "well-delineated characters" in the film, including the members of the Hamalajowa family. They argued that "the characters in the Book are clearly based on and are virtually identical to the individuals in the Documentary." This analysis is misguided, according to the Court. "[T]here are no fictional characters in the Documentary; there are only real people or references to and recollections of once real persons, and there cannot be copyright over a real person, whether dead or alive." (Emphasis added)
The copyright and moral rights claims were dismissed. The important message that is reinforced by this fascinating decision is that the only copyright in the filmmakers' story lies in their expression of that story and not in its facts.
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