Nathan Gavish is a landscape architect who specializes in illumination. On walking through Tel Aviv’s Gan Yehoshua park, he had an idea to illuminate the fountain for night-time enjoyment of passersby.
According to Gavish, on 9th March 2008, he set up a meeting with Mr Ronen, the CEO of the Park, and showed him a presentation detailing his idea which, in his words, included angles of illumination, specific alternating colours of magenta, blue and green, and specific intensities.
The meeting finished with Mr Ronen requesting a quotation.
The quotation related to costs for static and for flashing lights and included a section for the work in design and optimization of the illumination scheme. Mr Ronen didn’t bother to acknowledge the quotation and didn’t return Mr Gavish’s calls.
Some months later, on 14 October 2010, Mr Gavish crossed the park once more, and was shocked to see the fountain illuminated in accordance with his creation. He claimed moral rights and copyrights and requested NIS 80,000. When this money wasn’t forthcoming, he sued for NIS 100,000 statutory damages without proof of damage.
Judge Dr Shaul Avinor rejected the charges, ruling that the quotation, which included different options and was laconic, could not create copyright in the idea. Indeed there is no copyright in the idea. He went on to rule that illumination schemes are known and not copyright protectable. A different illumination specialist, Mr Teichmann, implemented the illumination. Even if Gavish had thought of illuminating the fountain, this did not create copyright in what was simply an idea.
COMMENT
It appears that the Judge, Dr Shaul Avinor is a Magistrate Court Judge in Herzliya. Under Israel Law, copyright cases should be heard by the District Court as the Court of First Instance. Avinor did not have Judicial Competence to rule on the case, and should not have heard it. Presumably neither side complained and so the issue is moot.
Judge Avinor is of the opinion that use of regular objects for the purpose intended, specifically outdoor lighting solutions does not have the creativity required for copyright protection.
In copyright for works of art, originality is required, but in contradistinction to Judge Avinor’s ruling, in Israeli Law there is no requirement for non-obviousness. In the US, a design patent does require aesthetic non-obviousness and interestingly, in re Hubry (153 USPQ 61 (CCPA 1967) the US Court accepted that a water fountain patent was acceptable for registration as a design patent, accepting thereby, both novelty and inventiveness in the transient nature of the cascading water.
It is the appearance of the fountain under illumination that is copyright protectable, not the combination of lighting elements. conventional Sculptures may be created from stone or cast iron. It is not the choise of material or technique that is copyright protected, but the end result. As the present case relates to a one-off illumination project, not intended for mass production, there is no need under Israel Law for Gavish to have filed a design registration. I disagree with the judge, and believe that fountain illuminations can be considered as works of art, thereby being protectable by copyright.
Furthermore, I can quite understand why an artist who optimizes a design would show a simulation but not include the details in a design quotation so as to make it difficult for the potential customer to go elsewhere.
Not having been present in court, I cannot comment on whether the plaintiff presented sufficient evidence to show what his design was and whether the illumination put up was identical or not. However, it seems to me that were the plaintiff to be able to produce a dated computer presentation of his illumination concept that could be authenticated as predating the order from the parks or from the Tel Aviv Municipality, I think this should be considered copyright infringement.
I don’t find the ruminations of the learned judge regarding TRIPS, his reference to Interlego – which looked into whether Lego bricks could be considered copyright protected once the design rights expired, and his reference to the Premier League decision – which considers whether copyright resides in computer generated match fixtures, the least bit relevant.
I was also unimpressed with Ronen arguing that the Park was not the correct plaintiff, but that the Tel Aviv Municipality was.
The moral right to be credited as the artist of an illumination project is interesting. Presumably the fountain creator also has moral rights and could complain that illumination changes the appearance of the fountain.
T.A. 13440-2-08 Ayalon Natan Gavish vs. Ganei Yehoshua LTD (Magistrate’s Court, Shaul Avinor) 12 April 2011.
Posted by Dr Michael Factor 
