Federal Court of Appeal File No. A- / 9.3 -/6 (Federal Court No. T-500-14) FEDERAL COURT OF APPEAL BETWEEN: JUDY MALTZ, BARBARA BIRD and RICHIE SHERMAN Appellants and - JENNIFER L. WITTERICK and PENGUIN CANADA BOOKS I! Respondents NOTICE OF APPEAL TO THE RESPONDENTS: A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the appellants. The relief claimed by the appellants appears on the following pages. THIS APPEAL will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court directs otherwise, the place of hearing will be as requested by the appellant. The appellants request that this appeal be heard at Ottawa or Toronto. IF YOU WISH TO OPPOSE THIS APPEAL, to receive notice of any step in the appeal or to be served with any documents in the appeal, you or a solicitor acting for you must prepare a notice of appearance in Form 341 prescribed by the Federal Courts Rules and serve it on the appellants? solicitor, or where the appellant is self-represented, on the appellant, WITHIN 10 DAYS of being served with this notice of appeal. IF YOU INTEND TO SEEK A DIFFERENT DISPOSITION of the order appealed from, you must serve and file a notice of cross-appeal in Form 341 prescribed by the Federal Courts Rules instead of serving and filing a notice of appearance,Copies of the Federal Courts Rules, information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office. IF YOU FAIL TO OPPOSE THIS APPEAL, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. Dated: June 9, 2016. giGINAL SIGNED BY Issued By: VICTORIA GAWN Address of Local Office: Federal Court of Appeal 90 Sparks Street Ottawa, ON’ KIA 0H9 TO: ‘The Administrator Federal Court of Appeal 90 Sparks Street Ottawa, ON K1A 0H9 AND TO: Jennifer L. Witterick and Penguin Canada Books Inc. c/o Peter Jacobsen, Tae Mee Park and Andrew MacDonald Bersenas Jacobsen Chouest Thomson Blackburn LLP Barristers, Solicitors 33 Yonge Street, Suite 201 Toronto, Ontario, Canada MSE 1G4 Phone: (416) 982-3800 Facsimile: (416) 982-3801 Email: info@lexcanada.com Solicitors for the Res APPEAL THE APPELLANTS APPEAL to the Federal Court of Appeal from the judgment of Justice Boswell dated May 10, 2016, in Application No. T-500-14 (“the judgment”). Justice Boswell dismissed with costs the Appellants’ Application seeking a declaration, inter alia, that the Respondents had infringed the Appellants’ copyright and moral rights and for damages and a permanent injunction in consequence thereof.THE APPELLANTS ASK: 1. That this Honourable Court set aside the judgment of Justice Boswell (“the learned Judge”) and declare that the Appellants’ copyright and moral rights have been infringed as. alleged in the Notice of Application as filed in the Federal Court and as duly amended on September 23, 2014, pursuant to Order dated September 22, 2014 (“the Amended Notice of Application”); 2, ‘That this Honourable Court order that this matter be remitted to the Federal Court for a reference and determination of damages, injunctive relief and any other applicable relief consistent with the aforesaid declaration and the Amended Notice of Application; 3. That this Honourable Court award costs of this Appeal and the proceedings below to the Appellants; and, 4, That this Honourable Court order any further and other relief as to this Honourable Court may seem just. ‘THE GROUNDS FOR APPEAL ARE Overall 5. The Appellants will argue that the judgment is based upon errors of law, errors of mixed fact and law, and palpable and overriding errors of fact including but not limited to the following main categori &. Misapplication of the law concerning the issue of “substantiality” and what constitutes a “substantial part” of a work; b. Failure to conclude that the Respondents have infringed copyright by reproducing a substantial part of the Appellants’ Documentary; ¢. Failure to address whether the Respondents infringed copyright by converting the Appellants’ Documentary into a novel without permission; 4. Application of inapposite lower court American jurisprudence when recent Canadian Supreme Court and other Canadian jurisprudence is applicable and dispositive;e. Concluding that the Appellants” moral right of attribution was not infringed; f, Determination that what was copied was pure fact in spite of the law and evidence showing the Respondents copied a substantial part of the Appellants’ expression of fact. This expression of fact includes verbatim or near verbatim passages from the Documentary, as well as the specific selection of material the filmmakers used and highlighted in creating their narrative, which required significant skill and judgment; and, . Overlooking key evidence and making other errors of mixed fact and la extricable questions of law or palpable and overriding errors of fact. ‘The Background of this Appeal 6. The following is the background of this litigation, which is on the record in evidence. 7. The Appellants produced a documentary film that was released in early 2009 in DVD format entitled “No. 4 Street of Our Lady” (hereinafter “the Documentary”). Judy Maltz was, at the time, a professor of journalism, and Barbara Bird and Richie Sherman were professors of film, Maltz is now a journalist with Haaretz in Tel Aviv, Israel. Bird has now retired. Sherman is still a professor of film at Pennsylvania State University, 8. The Documentary is based upon the true story of Franciszka Halamajowa, a Polish- Catholic woman who rescued 15 of her Jewish neighbors during the Holocaust in the small town of Sokal, then in eastern Poland and now in Ukraine, while cleverly passing herself off as a Nazi sympathizer. Amongst those saved by Halamajowa were Maltz’s grandparents and father, two aunts and an uncle, 9. A subjective form of storytelling, documentary filmmaking is a creative endeavour that involves the exercise of significant skill and judgment. In creating the script for “No. 4 Street of Our Lady,” the Appellants were faced with countless creative and editorial choices, the sum of which are reflected in their unique expression of this otherwise virtually unknown story. The filmmakers shot more than 40 hours of footage while making their film, most of it interview material, Yet, less than 90 minutes of the interview material was ultimately used in the film. Theand compiling what interview material would be used in the film and what interview material would not be used required the filmmakers to exercise their well-honed storytelling skills and make countless judgment calls. 10. The story, which the Appellants chose to tell in the Documentary, therefore, reflects their unique expression of the dramatic events that took place in the small town of Sokal during World War I and the heroic rescue of 15 Jews by the Polish-Catholie woman Franciszka Halamajowa and her daughter Helena, 11, The following is a brief synopsis of the story, as the Appellants chose to tell it in their Documentary. On the eve of World War II, more than 6,000 Jews lived in Sokal, a town situated along the Bug River in an area known then as Eastern Galicia. By the end of the war, only about 30 had survived, half of them rescued by Halamajowa, who received tremendous assistance from her daughter Helena. For close to two years, she hid her Jewish neighbours in her tiny home and cooked and cared for them, right under the noses of her hostile neighbours. In the final months of the war, she also had German troops camped on her property. Two families were hidden in the hayloft of her pigsty and one family in a hole dug under her kitchen floor. In the final months of the war, she also provided shelter to a German soldier who had defected. 12, Aside from these basic facts, almost all the other material incorporated in the Documentary can be categorized as personal testimonies, expression of feelings, recollections, diary entries, and family lore ~ none of which can be categorized as historical fact, and certainly not common historical fact. 13. The Respondent Witterick (hereinafter “Witterick”), by her own admission, saw the the has also Documentary as early as November 10, 2011, at a screening in Toronto, Ontari acknowledged that she downloaded a copy of the Documentary. 14. On or about March 25, 2013, iUniverse, Inc., (hereinafter “iUniverse”), an American self-publishing company, published the Book with the authorization of the RespondentWitterick. The Book was described as “based on a true Holocaust story”. Ms. Witterick purchased a large number of these books herself, Within a month, it entered the Toronto Globe & ‘Mail bestseller list in the category of “Canadian non-fiction” and stayed on that list for many . The Book has been widely available in printed format both in stores and through Amazon’s Kindle and Indigo’s Kobo editions. iUniverse is part of the worldwide Penguin Group. 15. With the exception of certain limited fictional aspects, the expression of plot, characters, incidents and elements in the Book is substantially similar to that in the Documentary. jons to the story that was told and expressed in the Documentary relationship between Mrs. Halamajowa’s daughter and a local German businessman and a happy ending for the German defector, who, as recounted in the Documentary, was shot by the Russians after being discovered. 16, The cumulative effect of the great amount of material copied from the Documentary that, in tum, forms essential elements of the Book, is such that any reasonable observer would conclude that the Book is an adaptation of the Documentary or a conversion of the Documentary into a novel. 17. Taken as a whole, the Book, which includes the main elements and numerous details copied literally or nearly literally from the Documentary, as well as considerable cumulative copying of other features of the Documentary, is in any quantitative, qualitative and holistic sense a reproduction of @ substantial part of the Documentary. Moreover, even where the Book does not exhibit verbatim or nearly verbatim copying from the Documentary, it is nonetheless a colourable imitation thereof, as shown by the many attempts to disguise or deceptively differentiate it from the Documentary. Such attempts include, but are not limited to, the changing of some character names, and the addition of certain limited fictional elements. 18. Witterick and Penguin Canada Books Inc. (“Penguin Canada’) have copied, and authorized others directly or indirectly to copy, the following aspects, inter alia, of theAppellants’ Documentary in the Book: a. Dialogue, diary entries, interview material and text; b. Expressive elements that pertain to intimate and emotive family incidents, as well as. comments and observations that were not otherwise on the historical record or available or accessible apart from the Documentary, but which constitute essential features of the narrativ c. The selection, arrangement and compilation of written and oral accounts that form its basis. 19. A chart demonstrating 30 instances of verbatim or nearly verbatim and substantial copying of expressive content from the Documentary into the Book was included in the Notice of Application and the evidence put before the learned Judge. Numerous other elements copied from the Documentary were in evidence and referred to in written submissions. Taken together, all these instances illustrated that a substantial part of the Documentary ~ including the —had been reproduced in the Book. compilation of factual, non-factual and expressive mat 20. Witter amongst the characters, as well as their personal expression of reminiscences, recollections, ick copied numerous expressive depictions of personalities and interactions impressions, emotions, diary entries and other subjective aspects of life experience, all of which were carefully selected by the Appellants in creating their narrative. This included such intimate and personal details as mentioning that the happiest moment of Maltz’s father’s young life was beating his father (Maltz’s late grandfather, Moshe Maltz) at chess in the hideout. 21. Witterick and Penguin Canada have never acknowledged the Documentary or provided attribution to the Appellants in any printings of the Book. 22. Other evidence showed that: a. Although Witterick has portrayed her Book as a work of fiction, it appeared for 12 out of 16 weeks on the Globe and Mail bestseller list as a non-fiction work, and she took no steps to correct this misleading error; b. The Book has been published internationally in Canada and several other countries in at least eight languages through a deal arranged though Penguin Canada’s parent company,Putnam, in New York; and, ©. Witterick’s intention was to tell the very same story told in the Documentary. The synopsis of the book, published on various websites, is almost identical to the synopsis of the Documentary, published on the Appellants’ website. Moreover, Witterick herself is on record in a radio interview pre-dating the litigation, saying the following: "After I viewed this documentary, I thought, ‘Wow, this is such a powerful story, people should know about this story, and somebody should write a book about it’, And then one day I just thought “Well why not me’2" 23. Following the order of Justice Locke of May 5, 2015, any production of evidence as to sales in Canada or elsewhere was deferred to a reference stage, which has not taken place in light of the judgment of the learned Judge. 24, — Witterick used her early apparent success with the self-published edition to enter into a worldwide publishing deal with the Penguin Group. On September 19, 2013, Quill & Quire, ‘Canada’s authoritative Magazine of Book News and Book Reviews, reported that the Book had sold 15,000 copies to date since it had been self-published six months earlier and that “world rights” had been acquired by Putnam, an imprint of the Penguin Group. Quill & Quire also noted at that time that the Book had been sold in Germany, Spain, Italy, the Netherlands, Taiwan, Hong Kong, Thailand and other territories. ies that 25. The Appellants alleged that, by authorizing third parties to engage in ac er Witterick nor Penguin Canada had any right or colour of right to engage in themselves, ni the Respondents have infringed the Appellants’ copyright and moral rights pursuant to s. 3, 14.1, 27(1), 27(2), 28.1 of the Copyright Act, R.S.C. Ch. C-42, as amended, and are liable for all afi profits earned by them and th tes and all damages suffered by the Appellants as a result of such infringing authorization and other infringing acts. 26. The Respondent Penguin Canada, although represented throughout this litigation by the same Counsel as the Respondent Witterick, put in no affidavit evidence and took no active part in the proceedings.27. The learned Judge rendered a judgment dated May 10, 2016 (the “judgment”), in which he dismissed the Application and held, inter alia, essent a. That “...there is no substantial taking or use by the Respondents of anything owned by the Appellants because the use of common historical facts is not copyright infringement”; b. That “The Respondents have not appropriated or taken a substantial portion of the Documentary’s originality. It is difficult to identify a single element taken that is not ly as follows: either something generic or merely a fact”; ¢. That “It is apparent upon comparison of the Book with the Documentary that the place and people and some occurrences are at least recognizably similar between the Book and the Documentary. But these are also all facts”; d. That there was “little, if any, verbatim copying of any dialogue from the Documentary into the Book”; ¢. That“... there isa significant and material change in medium in the telling of the story, from the audio-visual of the Documentary to the written words and fictionalized characters of the Book, and the change from a documentary to a fictionalized story, both of which are substantial changes from the original use of the facts by the Appellants; and, £. That “Considering the significant differences in expression, content, form, feel, and experience from the Documentary, it is apparent, on a qualitative and holistic view, ation of or substantial taking from the Documentary. that the Book is not a mei On the contrary, the Book in its own right constitutes a new and original work of fiction emanating from historical facts.” Issues That Will Be Raised In the Appeal 28. The leaned Judge erred in law by misapplying the law with respect to what constitutes a “substantial part” and “substantiality” as laid down by the Supreme Court of Canada (“SCC”) in Cinar Corporation v. Robinson 2013 SCC 73, for example as follows: a, By misapplying the SCC’s admonition in Cinar that the “abstraction-filtration- comparison” approach should be avoided when comparing works such as films and books, and thereupon proceeded to erroneously engage in precisely the type of analysis cautioned against by the SCC; b. By misapplying the principle that “the cumulative effect of the features copied from the work must be considered to determine whether those features amount to a substantial part of (the Appellants'] the skill and judgment expressed in [their] work as a whole”;10 c. By misapplying the teaching of the SCC that it is important to avoid conducting the substantiality analysis by dealing with the copied features piecemeal through a process of dissection, and that the cumulative effect of the features copied from the ‘work must be considered to determine whether those features amount to a substantial part of the skill and judgment expressed in a work as a whole; 4. By misapplying the teaching of the SCC that the question of whether there has been substantial copying should focus on whether the copied features constitute a substantial part of the plaintif?’s work — not whether they amount to a substantial part of the defendant's work; e. By failing to apply the teaching of the SCC and the Copyright Act, according to which the alteration of copied features or their integration into a work that is notably different from the plaintiff's work does not necessarily preclude a claim that a substantial part of a work has been copied and that infringement includes “any colourable imitation” of a work; By failing to focus more on what was copied from the Documentary into the Book rather than what is different in the Book. 29. The learned Judge erred in law by failing to consider whether the Respondents converted the Documentary into a Book, without the consent and permission of the Appellants, contrary to s. 3(1)(b) of the Copyright Act. 30. The learned Judge erred in law by holding that there is no copyright infringement when a work is adapted or converted from one medium to another and when it is partly fictionalized. 31. The learned Judge erred in law by failing to recognize that a copying of expression need not be exact to constitute infringement and that the paraphrasing of protected expression, even if it is an expression of historical or factual information, can be protected. 32. The learned Judge erred in law by failing to recognize that a compilation of expressive ‘material, or even purely factual material, can be protected provided that the making of the compilation requires skill and judgment in selecting and arranging material. He also erred in law by not properly applying the principle that “Where copyright is claimed in a compilation it is not the correct approach to dissect the work in fragments and, if the fragments are not entitled to copyright, then deduce that the whole compilation is not so entitled; rather, the court shoulduw canvas the degree of industry, skill or judgment which has gone into the overall arrangement”, 33, The learned Judge erred in the application of the law with respect to the moral right of attribution by holding that infringement requires proof of prejudice and that a hearsay reference in an after-the-fact newspaper article mentioning the Documentary amounts to attribution. 34, The leamed Judge erred in law by failing to take into consideration the legal consequences that flow from the admitted fact that Witterick has access at all material times to the Documentary. 35, The learned Judge erred in law by applying inapposite lower court American jurisprudence when recent Canadian Supreme Court and other Canadian jurisprudence is applicable and dispositive. 36. Furthermore, the learned Judge overlooked key evidence and made other errors of mixed fact and law involving extricable questions of law or palpable and overriding errors of fact, including but not limited to the following: a. Concluding that was copied from the Documentary into the Book was all “common historical fact” when the evidence that was presented was plainly otherwise; b. Finding it “difficult to identify a single element taken that is not either something generic or merely a fact” when the evidence that was presented was plainly otherwise; ©. Finding that there is “litle, if any, verbatim copying of any dialogue from the Documentary into the Book” and that the copying was of a “de minimus” nature, when evidence that was presented was plainly otherwise: d. Concluding that was copied was merely facts, when a substantial amount of what was copied was protected expression of fact, expression of emotions, diary entries and recollections; e. By finding overall “that the Book does not amount to a substantial taking from the Documentary”; {By finding implicitly or explicitly that the Appellants sought to establish that there can be “copyright in facts”;2 &. By overlooking the difference between commonly known historical facts and personal reminiscences, recollections, impressions, emotions, diary entries and other subjective aspects of life exp h. By not considering the distinction between dry textbook history and the creative and subjective nature of documentary filmmaking; i, By overlooking that certain “facts” copied from the Documentary were in fact inadvertently inaccurate and not factual as such; and, J. By suggesting that the Appellants were relying to any extent on the “sweat of the brow” doctrine in their claim for copyright infringement 37. The implications of the judgment, unless reversed, would lead to the absurd result that a substantial amount of the expressive content of any documentary, biography, autobiography, historical or other work containing factual content can be copied at will as long as the resulting work simply involves some minor changes in medium or content. 38. The Appellants rely, inter alia, upon the Copyright Act, R.S.C. Ch. C-42 as amended, including sections 2, 3, 14.1, 27(1), 27(2), 28.1, 34 and 35 and the Federal Courts Act, RS.C. 1985, Ch. F-7 as amended, s. 27 and such further and other grounds as this Honourable Court may permit. 39. _ In view of the foregoing, the Appellants respectfully request that this Appeal be allowed with costs here and below, DATED AT OTTAWA, this 9" day of June, 2016, ci a (ape € oe tne MACERA & JARZYNA LLP Barristers & Solicitors 1200-427 Laurier Avenue West Ottawa, Ontario KIP 7YS Howard P. Knopf (LSUC #19578F) Tel: (613) 238-8173 Fax: (613) 235-2508 howard.knopf@macerajarzna.com Solicitors for the Appellants THERES CERF Below anette gt ‘ect sel ia be Cont a ala sop 09 2 Victoria GavWRegistry Officer