‘Ottawa’ Investment Manager Turned Novelist Jenny Witterick Wins Copyright Case
In her 30 years in the investment management business — first with Confed Investment Counselling, then with Foyston Gordon & Payne and finally with her own firm, Sky Investment Counsel — Jenny Witterick’s full-time focus was on managing international equities.
As a global manager with a value style of investing, Witterick knew the value of patience. “You have to be right and you have to wait it out. But the key is to be right,” she was fond of saying.
When Witterick closed her money management business she embarked on a new career: a writer of historical fiction that saw her first book, My Mother’s Secret published in 2013. The book, written, she says, as an inspiration to others, became a best-seller.
Being right and being patient were also required for that second career because soon after writing the book, Witterick and her publisher Penguin Canada Books, were sued for $6 million.
This week the Honourable Justice Keith Boswell of the Federal Court handed down his judgment and reasons. The 24-page document was sweet music to Witterick, who was also awarded costs. “We always believed that I did nothing wrong. The allegations were hurtful and untrue which was confirmed by a judge this week. But you have to be patient. The universe unfolded as it should and there was no copyright infringement,” she said Friday.
Witterick and Penguin were sued by Judy Maltz, Barbara Bird and Richie Sherman, who produced a documentary film about two people (Franciszka Halamajowa and her daughter Helena) who sheltered three Jewish families in Sokal, Poland, during the Second World War. Maltz was the granddaughter of Moshe Maltz, one of those hidden by the Polish family and whose diary helped with the documentary.
In 2011, Witterick saw the documentary, which inspired her to write the book, which she regarded as a “fictionalized version” of the Halamajowa story.
The applicants alleged that Witterick and her publisher “infringed their copyright and moral rights in the documentary,” adding that the book “impermissibly copied from their documentary.” The applicants alleged “at least” 30 similarities between the documentary and the book.
On behalf of the applicants, Jack Granatstein, a professor at Toronto’s York University filed an affidavit that, in part, focused on differences between small facts and large facts.
The respondents had a different take while acknowledging that the documentary is a dramatic work protected by copyright. They asserted that the only “similarities” between the documentary and the book “are the facts.” Sara Horowitz, another York University professor filed an affidavit for the respondents.
This week Judge Boswell ruled that the applicants “have failed to establish that their copyright and moral rights in the documentary have been infringed by the Respondents.” In his ruling, Judge Boswell said, “copyright law recognizes no such difference or distinction [between small and large facts.] Facts are facts.”
Peter Jacobsen, founder of Bersenas Jacobsen Chouest Thomson Blackburn, one of the two firms that acted for Witterick and Penguin, said the judgment is an “important” decision.
“It reinforces freedom of expression and the concept that authors can use historical fact to create new works.” Jacobsen noted the book “is quite different from the film. It has a plot, fictional characters and relied on true historical facts that were taken from the documentary.” In other words, noted Jacobsen, “you can’t copyright historical fact.”
We were unable to reach the law firm that acted for the three applicants.