Monday 24 March 2014

Historical facts and copying - a Holocaust book prompts a new claim

A copyright dispute in Canada over a book which allegedly  copies a film about the Holocaust, titled No. 4 Street of Our Lady has focussed attention on the thorny issue of basing a work on 'historical facts' - particularly when in this case those facts are found only in one other work. The film is a documentary by Judy Matlz about Francziska Halamajowa, a Catholic Polish woman who saved the lives of fifteen of her Jewish neighbours during the Second World War. Maltz’s grandparents, father, two aunts and an uncle were saved by Halamajowa, who fed and housed her Jewish neighbours during the war. Posing as a Nazi Sympathiser, she kept them safe for almost two years in her tiny house in Sokal (now in the Ukraine). Even when German troops were stationed on her property she persevered and she resorted to hiding the families (and a German army deserter) in a hayloft above her pigsty and in a hole dug under her kitchen floor. 

So what's happened? Well, in 2013 another author named Jenny Witterick wrote a book called My Mother’s Secret – a historical novel about a women and a daughter who saved a number of Jewish people during the Holocaust by hiding them in their cellar and in a pigsty. The novel was self-published and then successfully publicised by Witterick, before the novel was picked up by Penguin books and published under their Penguin imprint - and the rights to the book were sold on to several European publishers. It is advertised as a novel "Based on a True Holocaust Story". 

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 and infringes 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 Matlz's  film at a Holocaust education event and used the documentary as inspiration for writing her novel, saying: “I took facts that were true and developed the characters. My understanding is you can’t copyright facts” adding “I don’t think there is a law against being inspired by something.” The Drum says that it's clear that Witterick has taken the the main theme of the documentary and indeed has used Halamajowa’s name - but there again she has added a romantic narrative to the story - and has, in the authors own eyes, turned real events into a work of fiction. Is this infringement?

In the United Kingdom the first case that springs to mind is the unsuccessful  action brought by two of the authors of a book of 'historical conjecture' called The Holy Blood and the Holy Grail against Dan Brown and Random House who wrote and published the widely popular The Da Vinci Code. In Baigent v Random House Mr Brown admitted that he had referred to HBHG in the course of research for his book but denied copyright infringement. The Claimants alleged that the Defendant had copied the “Central Theme” of HBHG. At first instance Mr Justice Peter Smith found that that six chapters of DVC were largely derived from HBHG but rejected the claim of copying – the Claimants had not created a Central Theme as alleged and therefore no such theme could have been copied. The appeal was dismissed and the Court of Appeal held that  that the trial judge had been correct to consider whether the Central Theme was the central theme of HBHG (as opposed to one of several), and was entitled to come to the finding of fact which he did. Mummery LJ held 

"Original expression includes not only the language in which the work is composed but also the original selection, arrangement and compilation of the raw research material. It does not, however, extend to clothing information, facts, ideas, theories and themes with exclusive property rights, so as to enable the Claimants to monopolise historical research or knowledge and prevent the legitimate use of historical and biographical material, theories propounded, general arguments deployed, or general hypotheses suggested (whether they are sound or not) or general themes written about.”

However the court noted that "this does not mean authors can do as they please with their sources". The Court of Appeal endorsed the decision of Ravenscoft v Herbert and New English Library Ltd [1980] RPC 193, where there was a finding of copyright infringement by the author of a novel who took a substantial part of a historical work, The Spear of Destiny. In that case, there was “wholesale pillaging” of historical characters, incidents and the interpretation of historical events. Although the Court of Appeal did not specifically suggest a lower level of protection for historical works, that is the natural result: architecture, characters and themes are inherently harder to pin down in historical rather than fictional works.

In the U.S., in the case of Miller v. Universal City Studios, Inc., the appeals court reversed a jury verdict and remanded the case for retrial because it found reversible error in the trial judges’ instructions to the jury. The case concerned a film made about the kidnapping of Barbara Mackle - and whether a made for TV film could infringe on an earlier book by Gene Miller, a Miami Herald reporter,  who had initially agreed to collaborate with Universal, who eventually made the film. At trial Miller testified to the number of similarities between his book, “83 Hours Till Dawn,” and the Universal’s version, “The Longest Night”. Miller pointed out these similarities were only in his book and not in any of the available public records and even mistakes in his book had been copied into the film. At the close of the trial, the defence requested that the judge include in his jury instructions that “factual matters such as news events, the facts themselves are not copyrightable, but the form of expression of the facts and their arrangement and selection are copyrightable.” The plaintiff argued, over the objections of the defence, that the jury instructions should also include mention that the writer’s research is also copyrightable. The appellate court found that the judge’s instructions, which included the statement that the labor of research by an author is protected by copyright, had been given in error and were in part in error. The defence motion argued that a writer’s research is not copyrightable. The appeals court agreed, and overturned the jury’s verdict and remanded the case back to the district court for a new trial.

However, on Toksvig v. Bruce Publishing the plaintiff, the author of The Life of Hans Christian Andersen argued that her book had been copied.The trial judge made detailed findings of fact and awarded judgment to plaintiff against defendants Bruce Publishing Company and Margaret Ann Hubbard, and enjoined defendants from publishing the infringing book, 'Flight of the Swan,' as long as it contained the language which infringed upon plaintiff's copyrighted book. The research by the plaintiff in connection with her book took three years and was done exclusively from Danish sources including the original works and letters of Andersen and conversations with persons having knowledge of matters and incidents pertaining to the life of Andersen. At trial Judge Duffy  found infringement as to certain general concepts of Andersen and his life and friends as set forth for the first time in plaintiff's book. In its opinion, the court emphasized that plaintiff was the first to translate the Danish sources and that translations are generally copyrightable and noted the copying of 24 specific passages of plaintiff's book (emphasis added). 

Perhaps the best summary is found in A.A. Hoehling v. Universal City Studios, Inc where the appellate court said:

"A grant of copyright in a published work secures for its author a limited monopoly over the expression it contains. The copyright provides a financial incentive to those who would add to the corpus of existing knowledge by creating original works. Nevertheless, the protection afforded the copyright holder has never extended to history, be it documented fact or explanatory hypothesis. The rationale for this doctrine is that the cause of knowledge is best served when history is the common property of all, and each generation remains free to draw upon the discoveries and insights of the past. Accordingly, the scope of copyright in historical accounts is narrow indeed, embracing no more than the author's original expression of particular facts and theories already in the public domain. As the case before us illustrates, absent wholesale usurpation of another's expression, claims of copyright infringement where works of history are at issue are rarely successful.

Of course Canada is a different jurisdiction from the UK and the USA. The recent case of The Adventures of Robinson Curiosity  might give us some clues: That case centred on Claude Robinson's creation, in the early 1980s, of preliminary sketches and scripts for a prospective TV series for children that he called Robinson Curiosité; In 1995, Cinar and co-producers France Animation and Ravensburger introduced a new TV series, Robinson Sucroé, with characters strikingly similar to Robinson’s concept. The Canadian Supreme court suggested that the court must determine in infringement claim cases was 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 and considered the cumulative effect of the copied features and assessed whether those features amounted to a substantial part of Robinson's expression in his original work; the case suggests that "Copyright owners should now look beyond mere literal copying of their work and consider that, though ideas themselves are not afforded protection by the Canadian Copyright Act, intangible aspects of their work may be protected and expert testimony may assist in identifying latent infringement.".

Baigent and Leigh v The Random House Group Ltd (CA)  [2007] EWCA Civ 247 

Miller v. Universal City Studios, Inc.  650 F.2d, 1372 (1981)

Toksvig v. Bruce Publishing Co 181 F.2d 664 (7th Cir. 1950)

A.A. Hoehling v. Universal City Studios, Inc, 618 F.2d 972 (2d Cir. 1980) 

The 'Howard Hughes' case is also of interest: Rosemont Enterprises, Inc., v. Random House, Inc. y John Keats 366 F.2d 303 (1966)

The 'Cohens and the Kellys' case: Nichols v. Universal Pictures Corporation et al. Circuit Court of Appeals, Second Circuit November 10, 1930 45 F.2d 119; 7 USPQ 84

Judge Learned Hand noted that protection of literature can not be limited to the exact text, or else an infringer could get away with copying by making trivial changes. The question then is whether the part taken was 'substantial'. However, it is impossible to set a firm boundary demarcating the line between work and ideas, he said, stating "Nobody has ever been able to fix that boundary, and nobody ever can" and "her copyright did not cover everything that might be drawn from her play; its content went to some extent into the public domain." In this case, there was no infringement, as the ideas that are copied are really universal concepts and stock characters.

Robinson v Films Cinar Inc, 2013 SCC 73

My thanks to earlier comments and information from both Pablo Palazzi and Michael Cooley on a related post.

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