Professional Documents
Culture Documents
T-500-14
FEDERAL COURT
BETWEEN
Applicants
- and -
Respondents
NOTICE OF APPLICATION
Amended September 23, 2014 pursuant to Order dated September 22, 2014
(Filed pursuant to s. 34(4) of the Copyright Act, R.S.C. 1985 Ch.1985, C-42 as amended and
Rules 61 and 300 of the Federal Courts Rules)
TO THE RESPONDENTS:
A PROCEEDING HAS BEEN COMMENCED by the Applicants. The relief claimed by the
Applicants appears on the following pages.
THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial
Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by
the Applicants. The Applicants request that this application be heard at Ottawa.
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IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the
application or to be served with any documents in the application, you or a solicitor acting for
you must file a notice of appearance in Form 305 prescribed by the Federal Courts Rules and
serve it on the Applicants’ solicitor or, if the Applicants are self-represented, on the Applicants
WITHIN 10 DAYS after being served with this notice of application.
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.
1) A declaration that the Applicants are the creators and the owners of valid and subsisting
copyright and moral rights in the original dramatic work, namely the cinematographic
work entitled No. 4 Street of Our Lady (hereinafter the “Work”);
2) A declaration that the Respondents have, contrary to the Copyright Act, R.S.C. 1985 Ch.
C-42 as amended (hereinafter the “Copyright Act”), infringed the Applicants’ copyright
and moral rights in the Applicants’ Work as follows:
a. The Respondent Jennifer Witterick has, either directly or indirectly, and without
the Applicants’ consent:
i. Reproduced a substantial part of the Applicants’ Work in her Book My
Mother’s Secret (hereinafter the “Book”);
ii. Published a substantial part of the Work, which had not been previously
published in book format, in the form of her Book;
iii. Converted the Applicants’ Work into a novel, namely her Book;
iv. Authorized iUniverse, Inc. and, Penguin Canada Books Inc. and/or
Penguin Group (USA) LLC directly or indirectly, to reproduce a
substantial part of the Applicants’ Work in the form of printed editions of
the Book;
v. Authorized Penguin Canada Books Inc. itself and/or Penguin Group
(USA) LLC and others in turn, through Penguin Canada Books Inc.,.
and/or Penguin Group (USA) LLC, directly or indirectly, to produce and
reproduce translations and reproductions of a substantial part of the
Applicants’ Work in the form of the Book;
vi. Authorized the Respondent Penguin Canada Books Inc., iUniverse, Inc.
and others, including Penguin Group (USA) LLC, directly or indirectly, to
authorize Amazon and others to reproduce a substantial part of the
Applicants’ Work in the form of an eBook edition of the Book which, in
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b. The Respondent Penguin Canada Books Inc. has, either directly or indirectly, and
without the Applicants’ consent:
i. Reproduced a substantial part of the Applicants’ Work in the form of the
printed and eBook editions of the Book;
ii. Published a substantial part of the Work, which had not been previously
published in book format, in the form of the Book;
iii. Converted the Applicants’ Work into a novel, namely the Book;
iv. Produced and reproduced translations and reproductions of a substantial
part of the Applicants’ Work in the form of the printed and eBook
editions of the Book;
v. Authorized others, directly or indirectly, including Penguin Group (USA)
LLC and other affiliated entities in the international Penguin Group, to
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4) An order for a reference and a full accounting by each of the Respondents of all revenues
received by them and the disgorgement and payment to the Applicants of all the profits
made by them and those directly or indirectly authorized by each of the Respondents
based upon the purported grant or license of rights belonging solely to the Applicants to a
substantial part of the Applicants’ Work;
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5) Damages of $1,000,000 from each of the Respondents for the infringement of the
Applicants’ moral rights;
7) In the alternative, and at the election of the Applicants pursuant to s. 38.1 of the
Copyright Act, statutory damages available pursuant to s. 38.1 of the Copyright Act
instead of damages available pursuant to s. 35(1) of the Copyright Act for each version or
translation or edition of the Book that has been published;
8) Delivery up for destruction, or at the Applicants’ sole election, destruction under oath of
all printed copies, including translations, and all plates and electronic files of the Book;
9) An order requiring the Respondents to notify any third party whom they authorized to
reproduce, sell, distribute, or communicate to the public by telecommunication copies of
the Book that those copies are infringing copies, and to exercise any contractual rights
they have to recall or cause the destruction of any printed or electronic copies of the
Book in the hands of third parties;
10) A permanent injunction restraining each of the Respondents and their directors, officers,
employees, agents and all those over whom they exercise control directly or indirectly
through licensing or otherwise from directly or indirectly infringing the Applicants’
copyright and moral rights as aforesaid;
11) Costs of this application from each of the Respondents on a solicitor and client basis;
13) Such further and other relief as this Honourable Court may deem just.
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The Grounds Of This Application And The Material Facts Supporting It Are:
3. The Applicants are the authors and makers of a dramatic work, a documentary film
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entitled No. 4 Street of Our Lady, as well as the authors of its underlying script. The Work had
its premiere at the State Theatre in State College, Pennsylvania, on March 1, 2009. The Work,
which has earned numerous awards, has been screened since then at dozens of festivals and
events around the world and broadcast on television in the USA, Israel and Poland. More details
about the Work, including the awards and reviews it has received, are available on its official
website at http://www.streetofourlady.org.
4. The Work cost approximately $100,000 in direct expenses to produce, not including the
time of the Applicants, for which they were not paid.
5. The Work became available for sale in DVD format on September 3, 2009, and has been
available for sale in DVD format since then in the USA, Canada and throughout the world. It has
been available in paid downloadable and streamed format since 2010.
6. Copyright in the Work has been registered in the Canadian Copyright Office as
Registration Number: 1107763. A copy of the registration certificate is attached hereto as
Appendix “A”.
7. The Work is a documentary 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. Prior to the release of the Work, this story was virtually
unknown, recorded only in the posthumously published diary of the late Moshe Maltz
(hereinafter the “Maltz diary”), who was one of those rescued by Halamajowa. A limited number
of copies of the Maltz diary were self-published in New York in 1993 by Moshe Maltz’s sons,
Herbert and Nathan Maltz, but it has been out of print for approximately 20 years. Copyright in
the Maltz diary is now owned by the Applicant Maltz, who is the granddaughter of Moshe Maltz
and the daughter of Herbert Maltz.
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9. The filmmakers invested almost three years in making this Work. Their work involved,
inter alia:
much skill, judgment and creativity so that ultimately they produced a work that
reflects their own original interpretation of events and the respective roles of the
individuals who partook in them.
10. The story, which the Applicants chose to tell in the Work, depicts the dramatic events
that took place in the small town of Sokal during World War II and the heroic rescue of 15 Jews
by the Polish-Catholic woman Franciszka Halamajowa and her daughter Helena.
11. The following is a brief synopsis of this story. 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 –- an act that nearly led to her execution. Even amongst the small
minority of Poles who risked their lives to save Jews during the Holocaust, Halamajowa's is by
all accounts an unusual story, considering the number of people she rescued and the amount of
time she fed and cared for them, as well as the fact that she was hiding a German defector part of
the same time.
12. Both Franciszka and Helena Halamajowa were recognized in 1986 by Yad Vashem, the
Israeli national Holocaust memorial center, as “Righteous Among the Nations” –- the highest
honor bestowed by the State of Israel on those who saved Jews during the Holocaust.
13. The Work is now included in the educational resources of Facing History and Ourselves,
the international Massachusetts-based organization that trains thousands of teachers worldwide
to teach students about the Holocaust, genocide and racism.
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14. In February 2011, following the release of the Work, the Anti-Defamation League
decided to posthumously honour Franciszka Halamajowa with its "Courage to Care Award" for
her bravery and selfless acts during the Holocaust. Previous recipients of this prestigious award
include Jan and Miep Gies, who hid Anne Frank and her family, and Oskar Schindler, the hero of
the film “Schindler's List”, who saved 1,200 Jews during the Holocaust by employing them in
his factory.
15. The Respondent Witterick, by her own admission, saw the Work as early as November
10, 2011, at a screening in Toronto, Ontario at Congregation Habonim as part of its annual
Holocaust Education Week program. She has also acknowledged at a public speaking event that
she downloaded a copy of the Work.
16. 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”. 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 weeks. The Book has been widely available in printed format both in
stores and through eCommerce sites, such as Amazon. It is also available online as an eBook,
including via Amazon’s Kindle and Indigo’s Kobo editions. iUniverse is part of the worldwide
Penguin Group.
17. With the exception of certain limited fictional aspects described below, the plot of the
Book is almost identical to that of the Work. The Book tells the story of a Polish-Catholic
mother and daughter, Franciszka and Helena Halamajowa, who save several Jewish families
during the Holocaust, along with a German soldier who defects from the army. Some of the Jews
are hidden in the pigsty above her hayloft and others in a hole dug under the kitchen floor. The
Halamajowa house is located on Street of Our Lady in the small town of Sokal on the Bug River
in Eastern Poland. The names of the two heroines are unchanged in the Book, as are the names
of the town and the address of their home. How the Halamajowa mother and daughter came to
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know these Jews, how they were able to provide for them for almost two years and the ploys
they used to deflect attention from what was going on in their home are important elements of
the Work that all find their way into the Book. The tragic events that befall the Jewish families
before they manage to find refuge with the Polish mother and daughter are a key part of the
dramatic build-up in the Work, as they are in the Book. These events include the massacre of
hundreds of Jewish men at the local brick factory and the untimely death of a baby girl whose
mother is confronted with an awful choice. Like the Work, the Book relies heavily on the
details and descriptions provided by the survivors, as selected and edited by the Applicants,
about their experiences in hiding. Many of the creative devices that the Applicants used to design
the narrative of the Work and to illustrate the personality traits of the main characters are also
incorporated in the Book.
18. However, the activities of the Respondents have caused significant elements of the public
to become aware of the fictionalized version of the story, as told by Witterick in her Book, rather
than the authentic version, as set forth in the Work, without which the Book would not exist and
which copies substantial parts of the Work.
19. With the exception of a few quantitatively limited changes to the factual narrative that
occur in the Book -- mainly the introduction of a romantic element involving Halamajowa’s
daughter, a happy ending to the story involving the German defector, and the false portrayal of
Maltz’s great-grandfather as an alcoholic who dies from drinking, when in fact he died in a Nazi
death camp -- the Book tells a story that is almost identical to that told in the Work, and in a way
that is substantially similar to and a colourable imitation of the Work. Although some of the
names of the characters and places have been changed, the names of the main protagonists and
places are the same.
20. The alteration of the Work by adding these fictionalized and sensationalized aspects does
not change the fact that the Book is substantially similar to and a colourable imitation of the
Work. Other than distorting the Work and causing significant elements of the public to become
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aware of a fictionalized and sensationalized version of the Work, the Book contains very little
original expression of its own.
21. In the Respondents’ own description of the Book, as it appears on Penguin Canada’s
website and other promotional materials, the fictionalized elements added by Witterick receive
no mention. This clearly illustrates that the Respondents also understand that the most essential
and compelling features of the Book-- its chief “selling points” -- are those that were copied
extensively and even slavishly from the Work. The Respondents’ description of the Book on
Penguin Canada’s website and the Applicants’ description of the Work on their own website are
reproduced in Appendix “B”.
22. The cumulative effect of the great amount of material copied from the Work that, in turn,
forms essential elements of the Book, is such that any reasonable observer would conclude that
the Book is an adaptation of the Work.
23. Taken as a whole, the Book, which includes the main elements and countless details
copied literally or nearly literally from the Work, as well as considerable cumulative copying of
other features of the Work, is in any quantitative, qualitative and holistic sense a reproduction of
a substantial part of the Work. Moreover, even where the Book does not exhibit literal or near
literal copying from the Work, it is nonetheless a colourable imitation thereof, as shown by the
many attempts to disguise or deceptively differentiate it from the Work. Such attempts include,
but are not limited to, the changing of some character names, the fictional elements described
elsewhere in this Application and the omission in the Acknowledgements section of any
reference to the Work.
let them know of her intentions to write a book about this story. Nor did she take any steps to
inform them that the Book had been published. The Applicants only became aware of the Book
after its publication, when on April 2, 2013, Maltz was contacted by a woman who had seen the
Work and was immediately struck by the similarities between the Work and the Book.
25. After she had learned of the existence of the Book, but without having yet seen the Book,
Maltz found a synopsis of it on Witterick’s website and was struck herself by the apparent
similarities to the Work. On April 3, 2013, she initiated contact with Witterick by email, and in
the ensuing exchange of emails, Witterick admitted that she had seen the Work and that she had
created a “fictional story based on what happened”. She then offered her “deepest apologies” for
not associating Maltz with the Book or providing any credit to the Work. Witterick subsequently
sent a few copies of the Book to Maltz. She also wrote in this email exchange that “now that I
know how you feel, I will definitely make sure to reference it in all my discussions”.
26. However, despite having ample opportunity to do so, Witterick chose not to. To this day,
for example, she has not updated the Book website, the Book Facebook page, or the synopsis of
the Book that appears on Amazon's website to include reference to the Work. Nor did she
update the Acknowledgements section of the Book, in the new Penguin versions that were
published five months later, to include reference to the Work. In addition, in a press release
clearly authorized by Witterick announcing her bestselling author status and published by
Westwind Communications on June 18, 2013, more than two months after her correspondence
with Maltz, no mention whatsoever was made of the Work or its creators.
27. Maltz looked briefly at the Book when she received it but delayed reading it for several
months because the whole situation was causing her great distress, particularly the fact that
someone she did not know and who had not consulted with her had taken the liberty to make use
of a work she had created based on a very personal family story.
28. When Maltz finally read the Book in early August 2013, she noticed that significant
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excerpts from the Work, including considerable material elicited during interviews conducted in
the filmmaking process, as well as other expressive elements, had been copied verbatim or nearly
verbatim, and that the compilation of historical facts and other elements contained in the Book
were substantially similar to that in the Work. Moreover, although the Book contained credits
extending over four pages mentioning numerous individuals and institutions, there was no
reference whatsoever to the Work or any of its creators. A copy of the Acknowledgments pages
of the iUniverse edition, which is virtually identical to the later Penguin American and Canadian
editions, is attached hereto as Appendix “C”.
29. At about the same time, Maltz also became aware via information available on the
internet that the Book was about to be published in several countries and in several languages by
the international Penguin Group. She thereupon contacted Mr. Alex Gigante, Senior Vice
President and General Counsel of Penguin Group (USA),) LLC, by email on August 11, 2013,
alerting him to her concerns about copyright infringement and lack of credit or attribution. Mr.
Gigante promptly responded on August 12, 2013, and insisted that no improper copying had
taken place, because, in his view, what was copied were only “historical facts”, which he
claimed could be freely copied under American law. Also, according to him, American law
requires no attribution. Maltz did not reply to Mr. Gigante’s invitation to prepare a detailed
analysis of instances of copying, since she believed it was the Penguin Group’s responsibility to
undertake appropriate due diligence once she had alerted it to the issues of both copyright and
moral rights infringement.
31. On or about September 5, 2013, the Book was published in the USA by Penguin Group
(USA) LLC under the G.P. Putnam’s Sons imprint. The details of this publication in other
countries are known to the Respondent Penguin Canada and to Witterick, though not to the
Applicants. Penguin Group (USA) LLC (hereinafter “Penguin USA”) is also part of the
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32. The Work is the only documentary available and the only readily available source of
material today that relays this particular Holocaust rescue story. Amongst other things, it also
incorporates otherwise unavailable testimonies from those Jews saved by Halamajowa, her
descendants and her former neighbours.
33. Witterick has admitted access to the Work at material times. It appears that the only
source of historical information for the Book was the Work. There is no indication that
Witterick conducted any historical research about the particular Holocaust rescue story that is the
subject of the Book aside from the numerous instances of direct copying of material from the
Work. The only additional historical material that is found in the Book consists of a few
universally known facts, such as the dates when Hitler came to power and invaded Poland and
the existence of an anti-Nazi resistance movement in Poland.
34. The Work is, amongst other things, a compilation of factual events, material elicited in
interviews, recollections of intimate personal events, ruminations and observations. The final
product reflects the considerable skill and judgment of the creators in the selection, coordination
and arrangement of the massive amounts of material and footage they collected. It is, therefore, a
work that carries their unique and original storytelling touch. The Book simply and extensively
reproduces key elements of this original and unique work, ranging from the verbatim copying of
several hundred words to the replication of prominent features of its overall structure, its
intentional focus on particular events and individuals, and its use of specific narrative devices.
Much, if not most, of what was copied consists of the original expression of subjective,
descriptive and emotive content that is clearly protected by the Applicants’ copyright. The entire
content of the Work concerns the intimate, yet extraordinary, rescue story of otherwise very
ordinary people who were not part of the great historical canvas of the Holocaust or World War
II. None of the characters or events in the Work or the Maltz diary are described in any other
readily available chronicle or document, apart from press reviews and articles about the Work
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and the long out-of-print Maltz diary, of which only a limited number of copies were produced.
Apart from the artifice of adding some fictional elements to a historically based documentary,
the overall narrative, its structure and organization, the selection of details and use of expression,
including literal copying, show that the Book is substantially and strikingly similar to the Work
and copies substantial parts of the Work. In fact, Maltz has been asked numerous times about the
similarity by individuals who have seen the Book prominently displayed in bookstores who
assume that she was involved with or gave permission for its publication.
35. The publication of the Book has been accompanied by considerable efforts at publicity.
These include numerous speaking engagements and press interviews by Witterick, the provision
of large numbers of free copies of the Book which the Applicants believe were purchased by
Witterick herself, and even advertisements in transit vehicles in major Canadian cities.
36. Witterick and Penguin Canada have copied, and authorized others directly or indirectly to
copy, the following aspects, inter alia, of the Applicants’ Work in the Book:
37. A chart demonstrating some examples of the types of copying from the Applicants’
Work in Witterick’s Book are shown in Appendix “D” to this Application. This comparison
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clearly illustrates that the cumulative effect of the features copied from the Work amount to a
substantial part of the Applicants’ skill and judgment expressed in this Work as a whole and
constitute a substantial part of the Applicants’ Work by any measure or criterion.
38. Appendix “D” also shows numerous examples of material copied verbatim or nearly
verbatim by Witterick in her Book from the Work. Witterick also copied numerous depictions of
personalities and interactions amongst the characters in the Work, many if not most of which
were taken directly from the Work, including 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, as noted in item 14 of Appendix “D”.
39. Witterick is entitled to write any genre of book depicting a Holocaust rescue story. She is
also entitled to draw inspiration and make use of countless sources of historical and other
materials and, through the use of her own authorial skill and judgment, to create her own original
expression. But instead, she copied a substantial part of the Work, produced a colourable
imitation of the Work and converted the Work into a novel. She saved herself most, if not all, of
the time, trouble, and expense involved in undertaking a project of this nature and, instead,
utilized the Applicants’ skill and judgment instead of exercising her own. As a first-time author,
she chose to appropriate substantial parts of the Work, add limited factual modifications, call it
“fiction“ and present it as her own.
40. The Applicants do not know where the printed copies of the Book were made. However,
the Canadian edition of the Penguin Group Book, which bears ISBN number 978-0-670-06810-
4, appears to have been printed in the USA. A copy of the copyright page of this edition is
attached hereto as Appendix “E”. The copyright owner is identified as J.L. Witterick. The
printing of these books was authorized by Witterick and Penguin Canada and/or Penguin USA.
A large quantity of these books have been imported and sold in Canada. The quantity of these
importations and sales is known to Penguin Canada, though not to the Applicants.
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41. The American edition of the Penguin Group Book, which bears ISBN number 978-0-
399-16854-3, appears to have been printed in the USA and published by Penguin Group (USA)
LLC, doing business under the imprint G.P. Putnam’s Sons. A copy of the copyright page of this
edition is attached hereto as Appendix “F”. The copyright owner is identified as J.L. Witterick.
The printing of these books was authorized by Witterick and Penguin Canada and/or Penguin
USA. The American edition has also been distributed and sold in Canada via such eCommerce
sites as Amazon.com. The quantity of these importations and sales is known to Penguin Canada,
though not to the Applicants.
42. The iUniverse editions of the Book, which bear ISBN numbers 978-1-4759-6257-4 (soft
cover) and 978-1-4759-6278-1 (hard cover), appear to have been printed and published in the
USA on or about March 25, 2013. A copy of the copyright page of this edition is attached hereto
as Appendix “G”. The copyright owner is identified as J.L. Witterick. The eBook ISBN number
is 978-1-4759-6389-5.
43. The printing and publishing of both the Penguin Group (USA) and iUniverse editions of
these books was authorized directly or indirectly by Witterick. These American editions have
also been distributed and sold in Canada via such eCommerce sites as Amazon.com, Amazon.ca
and chapters.indigo.ca, as authorized by Witterick.
44. iUniverse, with Witterick’s authorization, has also taken active steps to promote the sale
of the Book that it printed by offering exclusive publishing packages that include getting these
Canadian authorized books on the chapters.indigo.ca website and on the shelf at local Canadian
Indigo, Chapters and Coles bookstores and targeting such services for self-publishing Canadian
authors.
45. In addition to printed versions of the Book, in both hard and soft cover, Witterick and or
Penguin Canada have also produced or authorized the reproduction and distribution of various
eBook versions of the Book, such as those available via Amazon’s Kindle service and Chapters-
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Indigo’s Kobo service. The eBook versions enable readers to download copies of the Book and
read them using various electronic devices.
46. Online retailers of eBooks, such as Amazon and Chapters-Indigo, also make eBook
versions of the Book available to be read remotely by accessing and viewing copies that are
stored on “cloud” servers. Through these services, readers can gain access to the Book from a
place and at a time that they choose and read it on a personal computer or on a mobile device
without downloading and saving the Book on these platforms. This communication of the Book
to the public by telecommunication, which has been authorized by the Respondents, constitutes
communication to the public by telecommunication of a substantial part of the Work. Such
eBook versions have been authorized by Witterick, iUniverse, Penguin Canada and/or Penguin
USA.
47. The various American editions and the eBook editions have been directly or indirectly
targeting Canadian audiences through the efforts of the publishers, as authorized by Witterick,
and by Witterick herself. Such efforts have included public readings and extensive advertising in
print media, on transit vehicles and online.
48. Both the iUniverse and Penguin USA editions of the Book, in both hard and soft cover
and eBook format, are readily available to Canadians via eCommerce sites and have been
imported, sold and distributed in Canada by or with the authorization of all of the Respondents.
49. Witterick and Penguin Canada and others directly or indirectly authorized by them,
including iUniverse and Penguin USA, have infringed the Applicants’ moral rights by failing to
provide any credit to the Applicants and thereby contravening the Applicants’ right to be
associated with the Book as contributors of substantial portions of the content of the Book.
50. Witterick and Penguin Canada and others directly or indirectly authorized by them,
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including iUniverse and Penguin USA, have also violated the Applicants’ moral right of integrity
by distorting and mutilating the Work through the addition of gratuitous and prejudicial
elements of fictionalization, including the highly prejudicial portrayal of Maltz’s great-
grandfather as an alcoholic who died of alcoholism, when he in fact was murdered in a Nazi
death camp.
51. Witterick used her early apparent success with the self-published edition to enter into a
worldwide publishing deal with the Penguin Group. The details of this deal are known to the
Respondents but not to the Applicants. However, 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 this time that the Book had been sold in Germany, Spain, Italy, the Netherlands, Taiwan,
Hong Kong, Thailand and other territories.
52. On November 21, 2013, iUniverse announced in a press release that foreign publishing
rights to the Book had been sold to G.P. Putnam’s Sons, one of the world’s leading trade
imprints.
53. In her email correspondence with Maltz on April 4, 2013, Witterick stated explicitly that
the Work, and the Work alone, had been what prompted her to write the Book, when she noted
that “I saw the documentary No. 4 Street of Our Lady and couldn't stop thinking about it. I was
so moved by what happened that I decided to create a fictional story based on what happened.”
Yet subsequently, and especially after Maltz raised her concerns about copyright infringement,
the Respondents have deliberately tried to distance the Book from the Work and to downplay its
role in the making of the Book. The aforementioned press release, announcing the contract with
the Penguin Group and clearly authorized by Witterick, notes that she was inspired to write the
story after visiting Yad Vashem in Jerusalem where she “learned of Halamajowa’s story.” This
not only contradicts Witterick’s earlier admission in the email correspondence with Maltz, but it
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also blatantly contradicts what is written in the Epilogue to the Book, where Witterick states
unequivocally that the visit to Yad Vashem took place after the Book had already been written.
Only as a parenthetical afterthought in the press release does she even mention the Work.
54. Penguin Canada, Penguin USA and iUniverse are affiliated with each other, the details of
which are known to them. Witterick has authorized iUniverse and, Penguin Canada and/or
Penguin USA, directly or indirectly, to engage in all of the abovementioned acts and omissions,
and to enter into arrangements, the details of which are known to them, to authorize other
affiliates of the Penguin Group in other countries and other third parties in Canada and other
countries to engage in these acts and omissions.
55. By engaging in these acts and authorizing these third parties to engage in activities that
neither Witterick nor Penguin Canada had any right or colour of right to engage in themselves,
the Respondents have infringed the Applicants’ copyright and moral rights pursuant to s. 3, 14.1,
27(1), 27(2), 28.1 of the Copyright Act, and are liable for all profits earned by them and their
affiliates and all damages suffered by the Applicants as a result of such infringing authorization
and other infringing acts.
56. Because the chain of authorization began with Witterick to iUniverse and Penguin
Canada, and because the latter two are related to Penguin USA, which is the hub of the
worldwide Penguin Group, the Respondents Witterick and Penguin Canada are jointly and
severally liable for the profits derived and the damages caused by the entire Penguin Group and
those authorized by it directly or indirectly on a worldwide basis.
57. Witterick has deliberately avoided required association of the Applicants with the Book
and has deliberately copied substantial parts of the Work and continues to authorize infringing
activity. Penguin Canada and/or Penguin USA and its affiliates have published the Book
internationally and arranged for its translation into several languages, despite being on actual or
constructive notice from Maltz by reason of her contact with and letter of August 11, 2013, to
23
Mr. Alex Gigante of Penguin USA alerting the international Penguin Group of the likelihood that
the Book infringes the Work in several respects.
58. The Penguin edition of the Book, as published in Canada, falsely states on the copyright
notice page that:
Publisher’s Note: This Book is a work of fiction. Names, characters, places and
incidents either are the product of the author’s imagination or are used
fictitiously, and any resemblance to actual persons living or dead, events or
locales is entirely coincidental.
59. The American edition of the Book, as authorized by Penguin Canada, falsely states on the
copyright notice page that:
This is a work of fiction. Names, characters, places and incidents either are the
product of the author’s imagination or are used fictitiously, and any resemblance
to actual persons living or dead, businesses, companies, events or locales is
entirely coincidental.
60. These statements on the copyright pages of the American and Canadian Penguin editions
are in contrast to that found in the original iUniverse edition which states:
Certain characters in this work are historical figures, and certain events portrayed did
take place. However, this is a work of fiction. All of the other characters, names and
events as well as all places, incidents, organizations, and dialogue in this novel are either
the products of the author’s imagination or are used fictitiously.
61. In fact, most of the Book is based upon real events, as well as actual names and places,
which are copied from the Work. This is not mentioned anywhere in the Book.
24
62. Witterick’s and Penguin Canada’s and Penguin USA’s false and misleading statements
on the copyright notice pages of the Penguin editions have disguised and hidden the true
authorship of a substantial part of the Book. Indeed, the Book would not have been possible
without the Work. These notices and the incomplete list of credits found in the Book exacerbate
Witterick’s acts of infringing, copying and plagiarism and Penguin Canada’s apparently ongoing
attempt to deny the Applicants’ right to be associated with the Book as sources of a substantial
part thereof.
63. Such false and misleading statements, together with additional contradictory statements
made publicly by Witterick and which will be provided in evidence, indicate an “animus
furandi” with respect to both copyright and moral rights infringement.
64. For the aforesaid reasons, the Applicants are entitled to punitive damages from Penguin
Canada and Witterick.
65. Thus, the Respondents have, contrary to sections 3, 14.1, 27(1), 27(2) and 28.1 of the
Copyright Act, infringed the Applicants’ copyright and moral rights in the Applicants’ Work as
follows:
a. The Respondent Witterick has, either directly or indirectly, and without the Applicants’
consent:
i. Reproduced a substantial part of the Applicants’ Work in her Book;
ii. Published a substantial part of the Work, which had not been previously published
in book format, in the form of her Book;
iii. Converted the Applicants’ Work into a novel, namely her Book;
iv. Authorized iUniverse and, Penguin Canada and/or Penguin Group (USA) LLC,
directly or indirectly, to reproduce a substantial part of the Applicants’ Work in the
form of printed editions of the Book;
25
v. Authorized Penguin Canada itself and/or Penguin Group (USA) LLC and others in
turn, through Penguin Canada and/or Penguin Group (USA) LLC, to produce and
reproduce translations and reproductions of a substantial part of the Applicants’
Work in the form of the Book;
vi. Authorized the Respondent Penguin Canada, iUniverse and others, including
Penguin Group (USA) LLC, directly or indirectly, to authorize Amazon and others
to reproduce a substantial part of the Applicants’ Work in the form of an electronic
eBook edition of the Book which, in turn, has resulted in a communication of a
substantial part of the Applicants’ Work to the public by telecommunication of the
eBook and an authorization to members of the general public to make such
reproductions of a substantial part of the Applicants’ Work on their own devices;
vii. Authorized Penguin Canada and/or Penguin Group (USA) LLC, directly or
indirectly, to license or otherwise authorize its affiliates and others outside of
Canada acting as agents or licensees to reproduce a substantial part of the
Applicants’ Work in the form of the printed edition of the Book that infringes the
Applicants’ copyright in Canada;
viii. Imported infringing copies of the Book into Canada;
ix. Failed to associate the Applicants with the substantial part of the Applicants’ Work
included in the Book; and,
x. Further, or in the alternative, engaged in the aforesaid acts with respect to a
colourable imitation of the Applicants’ Work in the form of the Book.
b. The Respondent Penguin Canada has, either directly or indirectly, and without the
Applicants’ consent:
i. Reproduced a substantial part of the Applicants’ Work in the form of the printed and
eBook editions of the Book;
ii. Published a substantial part of the Work, which had not been previously published in
book format, in the form of the Book;
iii. Converted the Applicants’ Work into a novel, namely the Book;
26
iv. Produced and reproduced translations and reproductions of a substantial part of the
Applicants’ Work in the form of the printed and eBook editions of the Book;
v. Authorized others, directly or indirectly, including Penguin Group (USA) LLC and
other affiliated entities in the international Penguin Group, to reproduce a substantial
part of the Applicants’ Work in the form of printed editions of the Book;
vi. Authorized directly, or indirectly though Penguin Group (USA) LLC, Amazon and
others to reproduce a substantial part of the Applicants’ Work in the form of an
eBook edition of the Book which, in turn, has resulted in a communication of a
substantial part of the Applicants’ Work to the public by telecommunication of the
eBook and an authorization to members of the general public to make reproductions
of a substantial part of the Applicants’ Work on their own devices;
vii. Authorized others, both within and outside of Canada, to undertake the foregoing acts
by purporting to grant or license rights belonging solely to the Applicants to a
substantial part of the Applicants’ Work;
viii. Sold, distributed and imported copies of the Book into Canada that infringe the
Applicants’ copyright in Canada;
ix. Failed to associate the Applicants with the substantial part of the Applicants’ Work
included in the Book; and
x. Further, or in the alternative, engaged in the aforesaid acts with respect to a
colourable imitation of the Applicants’ Work in the form of the Book.
66. The Respondents have been put on notice with respect to the Applicants’ rights and the
Respondents’ infringing activity. The Respondents have been asked to cease and desist from
further infringement but have refused to do so. Such infringing activity will continue unless
enjoined by this Court.
67. The Applicants are all respected professionals and media figures. Bird and Sherman are
award-winning filmmakers and respected professors of film at The Pennsylvania State
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68. While the Work has received numerous awards -- including a Cine Golden Eagle, a
Silver Telly and various international film festival awards, along with very positive reviews in
the press -- the Book did not receive a favourable recommendation from Kirkus Review, the only
independent, mainstream publication that appears to have reviewed it. The inevitable implied
association of the Work with the Book has harmed and can only harm the Applicants’
reputation.
69. Nonetheless, the Book was a finalist in the Debut Fiction Category of the 2013 National
Jewish Book Award Winners, which will further exacerbate the harm and damages caused to the
Applicants’ efforts to create greater exposure for the Work and for which the Respondents are
liable.
70. The activities of the Respondents have caused significant elements of the public to
become aware of the fictionalized and sensationalized version of the story, as told by Witterick
in her Book, rather than the authentic version as set forth in the Work, without which the Book
would not exist and which copies substantial parts of the Work.
71. Since the publication of the Book, the Applicants have received far fewer invitations to
present and speak in public forums about this Holocaust story, which served as the basis for their
Work. These speaking engagements were critical for publicity of the Work and sales promotion
of the DVD. It would appear that Witterick has taken over this role by establishing herself as the
public face of the story. It has also come to Maltz’s knowledge that, at least at one recent
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speaking engagement, Witterick provided blatantly inaccurate information about the Work,
trivializing the amount of research and creative work that went into it and minimizing its
importance as a source on this particular Holocaust rescue story. Witterick has also falsely stated
that the descendants of the rescuers do not appear in the Work and have passed away. All of this
has caused the Applicants to question whether she might be trying to detract attention from the
Work, given that it appears to be the only source of any historically factual elements in the
Book.
72. The publication and aggressive promotion of the infringing Book have effectively
interfered with, expropriated and destroyed any opportunity for the Applicants to publish a book
version of their Work. The decision as to whether the Work should be turned into a book and
the right to do so belonged solely to the Applicants. The infringing activity by the Respondents
has effectively foreclosed any such decision and opportunity by appropriating substantial parts of
the Applicants’ Work into the Book that was and remains unauthorized by the Applicants.
73. The distortion and mutilation of the Work, insofar as the Book falsely portrays Maltz’s
great-grandfather as an alcoholic who died of alcoholism, along with the inevitable inference on
the part of the public that Maltz has somehow been involved in or approved of the writing and
publication of the Book, have caused considerable distress to Maltz and her family, who are
readily recognizable by anyone who reads the Book and has seen the Work. The fact is that
Maltz’s great-grandfather was murdered in a Nazi death camp.
74. The Respondent Witterick has earned profits from revenues received from the
Respondent Penguin Canada and iUniverse in an amount known to her but unknown to the
Applicants.
75. The Respondent Penguin Canada has earned profits from sales of the Book in an amount
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76. The Respondents Witterick and Penguin Canada have authorized and licensed third
parties in Canada and other countries to earn profits as their licensees and/or agents from the
reproduction, communication to the public by telecommunication, distribution and other
exploitation of the Book, which infringes copyright in Canada. Witterick and Penguin are
responsible to account for and to disgorge these profits to the Applicants.
a. Sections 2, 3(1), 14.1, 28.1, 27(1), 27(2), 34 (1) to 34(7), 34.1, 35, 38, 38.1 of the
Copyright Act, R.S.C. 1985, Ch. C-42 as amended; and
b. Rules 61, 153 to 160, and 300 of the Federal Courts Rules.
RESPECTFULLY SUBMITTED and dated at Ottawa, this 27th day of February, 2014.
__________________________________
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APPENDIX “A”
CANADIAN COPYRIGHT REGISTRATION 1107763
No. 4 Street of Our Lady
32
33
34
APPENDIX “B”
SYNOPSES COMPARISON
APPENDIX “C”
ACKNOWLEDGEMENTS PAGES FROM iUniverse Edition of
“MY MOTHER’S SECRET”
36
37
38
39
40
APPENDIX “D”
SOME EXAMPLES OF PASSAGES FROM APPLICANTS’ WORK COPIED
VERBATIM OR NEARLY VERBATIM IN BOOK
41
Appendix “D”: Passages from Work copied verbatim or nearly verbatim in Book
APPENDIX “E”
COPYRIGHT PAGE OF CANADIAN PENGUIN EDITION OF WITTERICK’S BOOK
(HIGHLIGHT ADDED)
62
63
APPENDIX “F”
COPYRIGHT PAGE OF AMERICAN PENGUIN EDITION OF WITTERICK’S BOOK
(HIGHLIGHT ADDED)
64
65
66
APPENDIX “G”
COPYRIGHT PAGE OF iUNIVERSE EDITION OF WITTERICK’S BOOK
(HIGHLIGHT ADDED)
67