The IP Factor

Molly Cohen, an artist living in Jerusalem’s trendy Nachlaot area, discovered that a Solomon Suissa who she had contracted to sell her paintings, had deleted her name and inserted his own, before trying to sell prints thereof via Yair Medina’s website, Jerusalem Artistic Prints LTD. Cohen sued Suissa, Medina and the company. Suissa’s version of the events weren’t heard, as he didn’t defend herself.

Ms. Cohen was unable to prove any damages, since it was not clear that any prints were sold. Nevertheless, the judge awarded statutory copyright and moral right damages to Ms. Cohen for the display of the goods on the website, ruling that the display was one infringement, noting that the hosting company, Jerusalem Fine Art Prints LTD., had taken the pictures down immediately that the alleged fraud was brought to his attention.

The judge ruled 20,000 NIS damages (the maximum allowable under the 1911 Copyright Law in force at the time of the infringement) and a further 18000 NIS legal costs, which is not bad considering that the plaintiff was not represented.  The judge ruled that the posting of all Cohen’s paintings attributed to Suissa should be considered as one infringement of her moral rights. As they were displayed only for a short period of time however, and none sold, there was no financial losses. 

The website is to be found at http://www.jerusalem-arts.com

The case is a strange one in that there is a lot of conjecture as to whether the gallery had grounds to suspect that the paintings were not by Suissa. Indeed, the whole case reeks of unproved suspicions.

Notably, Ms. Cohen represented herself. With a market price of $300 per painting and none sold, it seems that Ms Cohen is more successful at representing herself in court than as an artist.

There are some interesting aspects of the case however. 

Firstly, it is not clear from the ruling how the fine is to be divided between the defendants.

Under the Copyright Ordinance of 1024, Section 4A, Ms Cohen clearly has moral rights that are infringed if a painting that she has made has her name replaced by someone else. However, under Section  6(3)a of the 1911 Copyright Act that is the relevant Law for infringement prior to the 2007 Copyright Law coming into effect, “if a name purporting to be that of the author for the work is printed or otherwise indicated thereon in the usual manner, the person whose name is so printed or indicated shall, unless contrary is proved, be presumed to be the author of the work.”

Where an artist brings a series of paintings to a gallery for sale on commission, and the paintings bear his name, the owner of the gallery can reasonably assume that the paintings are those of the signed artist unless proven otherwise. The judge in this case has placed a huge burden on gallery owners to be check that artists bringing in work are the true artists. Posting photos of pictures to be sold, on a website that sells pictures does seem to be fair use.

The ruling, by District Judge Yoef Shapira, claims that the fact that the Internet gallery owner immediately took down the pictures when Ms Cohen contacted him is indicative that he was suspicious. I find this hard to accept. I can see a reasonable person taking down pictures from his website when such an issue is raised, pending investigation. Furthermore, since the subject matter was Christian, and the alleged artist, Suissa, was apparently a religious Jew, Judge Shapira ruled that Medina should have been suspicious. But if Medina was convinced that Suissa was religious, he would presumably not suspect that he was passing off someone elses pictures as his own.

I am thus not convinced that there is a reasonable case against Yair Medina, the gallery owner.

The case: 9080/07 molly Cohen vs. Suissa, Medina and Jerusalem Artistic Prints LTD.