Would the Second Circuit Have Ruled Differently in the Maltz Canadian Copyright Case? Insights from Reavis Parent Lehrer Associate Allison “Ally” M. Grein

After discovering her grandfather’s diary, written in the Holocaust-era village of Sokal (formerly in Poland, now considered part of Ukraine), Israeli-American documentarian Judy Maltz traveled to an address recorded in the diary—the home of Francizska Halamajowa, a woman who offered safe haven to Maltz’ grandfather, three Jewish families and a German soldier who defected.  Maltz interviewed living survivors and their descendants, conducting a great deal of original research to learn more about Halamajowa and the risks she took to help Jews escaping the Holocaust.  Maltz’ research eventually became the basis of her 2009 documentary, No. 4 Street of Our Lady.

The film inspired Canadian author Jennifer Witterick to write a book on the subject, drawing expansively on Maltz’ labor-intensive and costly research.  After the book was published, Maltz sued Witterick for copyright infringement.  Recently, the Federal Court of Canada found in favor of Witterick, stating that copyright does not protect facts even if such facts inspired another creative work.  The Court ruled that Maltz’ copyright protections for the documentary extended only to the expression of facts and theories, rather than the facts themselves, particularly because Witterick fictionalized the events and characters depicted in the documentary.

One of the most famous historical cases in which a court considered the labor and resources required to produce a creative work was the 1950 Seventh Circuit case Toksvig v. Bruce Pub. Co. (1)  In Toksvig, Margaret Ann Hubbard was found to have plagiarized Signe Toksvig’s biography of Hans Christian Andersen because she did not independently consult the biography’s sources.  Instead, she relied on Toksvig’s research alone, completing her book in one year, while Toksvig’s extensive research and translation work took him three years. (2)  In New York, the Second Circuit made a similar copyright ruling in Orgel v. Clark Boardman Co., concluding that “Appropriation of the fruits of another’s labor and skill in order to publish a rival work without the expenditure of the time and effort required for independently arrived at results is copyright infringement.” (3)

Later, the Second Circuit changed its tune in its 1966 ruling in Rosemont Enterprises, Inc. v. Random House, Inc., (4) holding that simply relying on earlier publications did not presume copyright infringement.  Citing both Toksvig and Orgel, the Court found that a biography about famed millionaire recluse Howard Hughes did not violate copyright law because copyright protection does not grant an author a monopoly in the narration of historical events and that, in fact, “it is both reasonable and customary for biographers to refer to and utilize earlier works dealing with the subject of the work and occasionally quote directly from such works.” (5)  Specifically, the Second Circuit determined that the public’s interest in being informed about public figures should prevail over the possible damage to the copyright owner, (6) particularly if there is no evidence that the value of the original copyrighted work was lessened because of the new work. (7)

Again in 1980, the Second Circuit reaffirmed its position that factual information is in the public domain in Hoehling v. Universal City Studios, Inc., (8) regarding two different books on the Hindenberg disaster.  While the later author consulted the previously published book, the Court found there was no copyright infringement, also reasoning that “in order to avoid a chilling effect on authors who contemplate tackling an historical issue or event, broad latitude must be granted to subsequent authors who make use of historical subject matter, including theories or plots.” (9)

More recently in 2012, the Court in Effie Film v. Pomerance found that a film (and the screenplay it was derived from) did not infringe the copyrights of two other screenplays.  The Court found that even though the screenplays’ main characters were based on the same historical figures, the characters were interpreted “in strikingly different ways,” leading the Court to conclude that the overall concept and feel of the two works were distinct enough to defeat any copyright infringement claim, (10) reiterating that “copyright protection…does not extend to facts or to true events, even if they are discovered through original research.” (11)

It is likely that Maltz’ lawsuit would have resulted in the same treatment had it been filed in the Second Circuit today.  The above precedents illustrate that, while the courts value the labor and resources required to produce creative work, public interest in the dissemination of knowledge has equal or greater value, necessitating policy considerations, the impact of a newer work on the value of an existing one and the degree of similarity or appropriation of expression (12) when determining copyright infringement.

Correction:  In an earlier version of this article, Ms. Maltz was incorrectly identified as being of Canadian nationality.  Ms. Maltz identifies as Israeli-American.  As a point of clarification, the village of Sokol was part of Poland until the 1951 Polish-Soviet territorial exchange; it is currently part of Ukraine.


  1.  Toksvig v. Bruce Pub. Co., 181 F.2d 664 (7th Cir. 1950).
  2.  Toksvig, 181 F.2d at 667.
  3.  Orgel v. Clark Boardman Co., 301 F.2d 119, 120 (2d Cir. 1962).
  4.  Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 303(2d Cir. 1966).
  5.  Rosemont Enterprises, Inc., 366 F.2d at 307.
  6.  Rosemont Enterprises, Inc., 366 F.2d at 309.
  7.  Rosemont Enterprises, Inc., 366 F.2d at 3011.
  8.  Hoehling v. Universal City Studios, Inc, 618 F.2d 972, 974 (2d Cir. 1980).
  9.  Hoehling, 618 F.2d at 978.
  10.  Effie Film, LLC v. Pomerance, 909 F. Supp. 2d 273, 312 (S.D.N.Y. 2012).
  11.  Effie Film, LLC, 909 F. Supp. 2d at 297.
  12.  Hoehling, 618 F.2d at 980.

This article is intended only as a general discussion of these issues.  It is not considered to be legal advice or relied upon.  For more information regarding intellectual property law, please contact Reavis Parent Lehrer LLP Associate Allison “Ally” M. Grein, who regularly counsels clients on intellectual property, commercial and employment matters. Ms. Grein is admitted to practice in New York State and United States District Courts for the Southern and Eastern Districts of New York.


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