$22.5 Million Verdict In Copyright Registration Case Vacated Due To Fake Holocaust Memoir

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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SurvivingYesterday, the Massachusetts Appeals Court affirmed the vacature of a $22.5 million verdict in a matter that began fifteen years ago in part as a dispute over a duplicitous authorship claim in a copyright registration. The case concerned the fraudulent autobiography: Misha: A Memoir of the Holocaust Years, a.k.a. Surviving with Wolves.

Surviving With Wolves

In 1994, Massachusetts resident Jane Daniel heard Misha Defonseca describe her experiences during World War II. Born Misha Levy, Defonseca was seven years old when her Jewish parents were seized by the Nazis. During the years that followed, Defonseca experienced the Warsaw Ghetto, killed a Nazi soldier in self-defense and, most remarkably, hid in the forests for four years under the care and protection of a pack of wolves.

Daniel recognized the commercial potential of the story, and convinced Defonseca to write a memoir for Mt. Ivy Press, the fledgling publishing company Daniel was running out of her basement. Daniel enlisted Boston College Professor Vera Lee to act as co-author. In a written contract amongst the three women, Daniel agreed to list Defonseca and Lee as co-authors when she registered the work with the Copyright Office.

Daniel’s Fraud Revealed

However, as the Appeals Court later wrote, Daniel’s subsequent business practices left something to be desired. In an effort to maximize her profits, Daniel “began plotting to remove Lee from the project, falsely complaining” about the quality of her work. Daniel then executed a work-for-hire agreement with Mt. Ivy Press, “essentially a contract between Daniel and herself,” which was not disclosed to the co-authors and which purported to grant additional rights to Daniel. When Daniel registered the book with the Copyright Office, she listed Mt. Ivy Press as a co-author, in violation of the contract with Lee and Defonseca. Even worse, when the book was published in 1997, Daniel removed Lee’s name from the cover altogether. Lee threatened to sue, which caused Daniel to move Mt. Ivy’s assets to an offshore subsidiary, in what the Court found was an attempt to avoid paying royalties to both Lee and Defonseca.

In 1998, Lee brought claims against Daniel in state court for, among other things, breach of contract and unfair and deceptive practices under Chapter 93A, the Massachusetts Consumer Protection Act. Defonseca, who was also named as a defendant, filed cross claims against Daniel. A jury issued verdicts against Daniel which the judge trebled pursuant to Chapter 93A. This resulted in judgments of $9.9 million for Lee and $22.5 million for Defonseca.

Daniel appealed, arguing that all of the claims were preempted by the Copyright Act. But in 2005, Judge Marc Kantrowitz, writing for the Massachusetts Appeals Court, rejected this argument and affirmed the judgments.

Defonseca’s Fraud Revealed

While the appeal was pending, inconsistencies in Defonseca’s story began arousing the suspicions of journalists and forensic genealogists. Eventually, it was discovered that Defonseca was not born Misha Levy, but in fact was born Monica Ernestine Josephine De Wael, a non-Jewish Belgian whose father reportedly collaborated with the Gestapo. By early 2008, Defonseca had acknowledged that “every essential element of her autobiography [was] false,” and therefore that much of her testimony during the trial had been perjured.

Daniel, armed with these new revelations, filed a complaint pursuant to Rule 60 of the Massachusetts Rules of Civil Procedure, which allows a party to seek post-judgment relief where there has been a fraud on the court. Daniel’s complaint asked that the Superior Court set aside the previous judgments. The Superior Court refused and dismissed the Rule 60 complaint for failure to state a claim, on the grounds that the truth of the book was not central to the earlier case. In other words, the Superior Court stated, Daniel’s conduct was “not made any less egregious because of what we know now” about Defonseca.

But in 2010, in an opinion authored by Judge Gabrielle Wolohogian, the Appeals Court reversed in part. The Appeals Court agreed with the Superior Court that there was no reason to set aside the $9.9 million judgment in favor of Lee, who is not alleged to have done anything wrong. However, the $22.5 million judgment in favor of Defonseca was different. Daniel had “alleged an extraordinary fraud that touched every part of Defonseca’s case.” Although the authenticity of the book had not been on trial, the Court found that it was “implausible to suggest that the information [about the fraud], if presented to the jury, would not have affected” the parties’ substantive rights. Consequently, Daniel’s Rule 60 complaint was reinstated and remanded for further proceedings.

Hopefully the Final Chapter

On remand in 2012, the Superior Court found that Defonseca had committed a fraud on the court and set aside the $22.5 million verdict. Defonseca appealed and the matter once again ended up before a panel of the Appeals Court that included Judge Kantrowitz.

On April 29, 2014, in what he described as “the third, and hopefully the last” opinion in the matter, Judge Kantrowitz agreed that the real truth of Defonseca’s story would have made a significant difference in the jury’s deliberations, and affirmed the Superior Court’s decision to set aside the verdict. Judge Kantrowitz noted that Defonseca and Daniel had both acted “highly inappropriately,” and expressed the Court’s hope that “the saga has now come to an end.”

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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