Holocaust novel focus of copyright suit

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Three American documentary filmmakers are suing a best-selling Canadian author and her publisher, alleging that she copied her Holocaust novel straight from their film.

In an application filed with the Federal Court of Canada in late February, filmmakers Judy Maltz, Barbara Bird and Richie Sherman are seeking damages from J.L. Witterick and Penguin Canada, the author and publisher of My Mother's Secret. In the application, they allege that Witterick's 2013 book takes its plot and all of its central characters from No. 4 Street of Our Lady, their 2009 documentary about Francziska Halamajowa, a Catholic Polish woman who saved some of her Jewish neighbours during the Second World War. They also list 30 instances where lines in the book are very similar to dialogue or narration that appears in the film. These are allegations and have not been proven in court.

This week, Witterick and Penguin filed notice they intend to oppose the application. "The similarities between My Mother's Secret and the film No. 4 Street of Our Lady relate only to the facts of the true story of Francziska Halamajowa," said Tracey Turriff, spokeswoman for Penguin Random House Canada. "Ms. Witterick's creative retelling of this story is in her own entirely original, fictional form."

Witterick's book, about a Catholic Polish woman and her daughter who save seven Jews during the war by hiding them in a pigsty and a cellar, was self-published last spring. It was widely advertised by Witterick, who is a successful Toronto money manager and owner of Sky Investments, and rapidly made its way onto bestseller lists, appearing in the non-fiction category of The Globe's list. The book was then picked up by Penguin Canada and published as a novel under the Penguin imprint in both Canada and the U.S. last September. Penguin has also sold the book's rights to publishers in Poland, Germany, Israel, Italy, the Netherlands and Taiwan, where Witterick was born.

Witterick, who immigrated to Canada at the age of seven, said in an interview that she saw No. 4 Street of Our Lady at a Holocaust education event in 2011 and was inspired to write her book.

"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."

According to the application, the film was a very personal project for Maltz, an American-Israeli citizen who lives in Tel Aviv where she works as a senior correspondent for the newspaper Haaretz.

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 sympathizer, she also hid a German solider who had defected. In 1986, both Halamajowa and her daughter Helena were honoured by Yad Vashem, the Israeli Holocaust memorial.

With the help of Bird and Sherman, both of them documentarians and professors of film at Penn State University in State College, Pa., Maltz turned this remarkable and little-known story into a documentary, travelling to Sokal, locating the house where the events took place and arranging for survivors to return there. In their application, the filmmakers say they shot 40 hours of interviews and other footage to make a 90-minute documentary that won various awards at international film festivals.

Witterick's book does not change Halamajowa's name, but it reduces the number saved to seven, adds a romance to the story and provides a happy ending for the German deserter. She said she made no money from the self-published version and has donated her advance from Penguin to various charities, including the Love of Reading Foundation, medical research and animal shelters.

This is the second copyright suit Penguin Canada is facing over a high-profile novel. In 2011, Chinese-Canadian authors Wayson Choy, Sky Lee and Paul Yee sued the publisher and Toronto author Ling Zhang alleging that her novel Gold Mountain Blues had borrowed plots about Chinese immigrants to Canada from their books. The book was a massive bestseller in its original, Chinese-language version, and the case had begun with an online controversy in China over its sources. It only moved to the courts when the book was translated into English and published here.

Penguin has responded that there are only a few general plot similarities between Gold Mountain Blues and the other books, but the case has still not been resolved. The authors' lawyer, May Cheng, said this week she expects it will go to trial in 2015.

Copyright cases can be difficult to win: Infringement is a narrow legal concept that involves direct reproduction of a substantial part of the original – compared to the broader academic or journalistic notions of plagiarism that can involve unattributed borrowing of ideas or sentences. For example, in a case in Britain (where the law is similar to Canada's), authors Michael Baigent and Richard Leigh were unsuccessful in a 2006 suit against Random House in which they alleged Dan Brown's The Da Vinci Code infringed the copyright of their non-fiction book The Holy Blood and The Holy Grail. A judge ruled that Baigent and Leigh did not have property rights over their theory about the existence of descendants of Jesus Christ and Mary Magdalene, and thus a fictional book based on it did not infringe.

On the other hand, a recent Supreme Court of Canada decision would seem to direct judges toward a more holistic approach to copyright infringement. Last December, the court handed down a decision in a long running suit between the children's television producer Cinar and Claude Robinson, an artist who had successfully argued the company's Robinson Sucroe character infringed his copyright on a concept for a series entitled The Adventures of Robinson Curiosity.

In making a final decision about damages in the case, the court argued that the notion of a "substantial part" was a flexible one that was a matter of quality, not quantity. "A substantial part of a work is not limited to the words on the page or the brushstrokes on the canvas," the court ruled.