Kishkashta – A Prickly Copyright Ruling

‘Kishkashta’ is a well-known character that sings and dances from a television series called “Mah Pitom” (approx “What the heck?”) first broadcast on Israel Educational Television over 35 years ago.

The character is an animated Sabra, i.e. a prickly pear cactus, which was popular with juvenile viewers. For those not familiar with the series, to follow the ruling reported below, think of a central Muppet character, such as Kermit or Miss Piggy, or a Sesame Street character such as the Cookie Monster.

For their public relations campaign for the 2012 Olympics, the Israel Olympic Committee adopted a character called Shpitzik, which is also a prickly pear.

A further word of explanation is required. Israelis liken themselves to the prickly pear, which is notoriously prickly on the outside but sweet on the inside. (I understand from a Bedouin friend that this characteristic is also true of porcupines). This is somewhat ironic, since the prickly pear is native to the Western hemisphere, and was only introduced into Israel in the 19th Century.

Following Shpitzik’s debut on December 29, 2011, Israel Educational Television sued the Israel Olympic Committee on January 24, 2012, filing for an injunction.

Although the original series only ran from 1976 to 1981, generations of Israeli kids were brought up on the repeats, there are videos and DVDs of the series and recently, Kishkashta has become the main presenter on Educational Television, introducing the various programs over the 13 hours of the day where educational television broadcasts for children.

Furthermore, since the Israel Ministry of Education apparently prefers prickly pears to couch potatoes, they declared the educational theme of 2012 as “A Healthy Way of Life” and Kishkashta has been exercising heavily between introducing television programs.

Kishkashta has appeared on Israeli postage stamps and in campaigns for encouraging children to consume dairy products.

Kishkashta can be watched in vintage episodes of Mah Pitom at the following link: http://www.23tv.co.il/363-he/ma_pitom.aspx

On January 26, 2012, the Olympic Committee filed their response and claimed that the character Shpitzik was the result of a commission from a PR company called Publicis, ordered by Samsung who are sponsoring the games.

The defense was that the character was the result of collaboration between the art director Moran Kal and the creative director Ronny Schneider who documented their character’s creation, and how they improved the ‘cactusism’ of the character before unveiling to the public.

Although Kishkashta is a character protected by copyright, the concept of an animated prickly pear cactus is not anyone’s private property and there is room for other animated prickly pear cacti.

Moran Kal testified that although he was aware of the character, he had never watched Kishkashta and was oblivious to him when creating Shpitzik. Rather, the character was based on Japanese motifs. Other workers added feet and Olympic logo and that was how Shpitzik evolved.

A hearing was arranged.  To put it another way, and with apologies to Peter Piper:  “A prickly prosecution pertaining to the parallelism in pictures of the pair of prickly pears proceeded.”

After signing his affidavit, Moran Kal traveled abroad, absenting himself from the scheduled hearing, which made it impossible to cross-examine him. Consequently Judge Gideon Ginat gave little weight to his testimony.

The character was selected from various alternatives by an Internet survey. Israel Educational Television argued that regardless of what Kal claimed, the viewers identified with Shpitzik because of his similarity to much-loved Kishkashta

Citing the 2007 Copyright Act, Judge Ginat notes that copying a creation or a significant part of it, or a derived work was forbidden. Based on Tony Greenman’s book, he went on to rule that characters can be more valuable than the work in which they appear.

Since Shpitzik is so similar to Kishkashta, Judge Ginat ruled copyright infringement and copying in contravention to Sections 11 and 12 of the Israel Copyright Law 2007.

Furthermore, Judge Ginat ruled that Kishkashta could be considered a well-known mark, and Shpitzik was so similar, that the public could be misleaded into assuming that Kishkashta and Israel Educational Television were endorsing the Olympics.

Finally arguing the likelihood of third parties assuming false endorsement and basing himself on Sir Hugh Laddie’s ruling in Reckitt & Colman Products Ltd v Borden Inc [1990] RPC 341, Judge Ginat also found a case of Passing Off.

In summary, Judge Ginat accepted that animated cacti per se. may be fair use and beyond the scope of fair copyright protection. Whether or not the defendant copied the character the public would likely perceive that but felt that the public would consider Shprinzik confusingly similar to Kishkashta who is sufficiently well-known to be considered a well-known mark and to create a misconception of endorsement.

A permanent injunction was issued against the Israel Olympic Committee and costs of NIS 50,000 were awarded to Israel Educational Television.

The Case: T. A. 48048.01.12 Israel Educational Television vs. Israel Olympic Committee, Tel Aviv – Jaffa District Court, Judge Gideon Ginat, 5 February 2012.

Comments 

I think the judge got this wrong again. There are Sesame Street and Muppet talking cacti that predate Kishkashta.

Let’s assume that Moran Tal was inspired by Kishkashta. So what? Shpitzik is not Kitkashta.  At best, Shpitzik is a relative.

they have different ears and different eyes. The sabra or prickly pear makes a good logo for Israel’s Olympic squad and this is a derived use that I would consider fair use.

   

One wonders why, after the character Shprinzik was developed and it’s appropriateness as a logo for the Olympics was selected, that the Israel Olympic Committee didn’t simply do a deal with Israel Educational Television to license Kishkashta.

I think that on policy grounds it is ill-advised to interpret copyright infringement so widely. It limits cultural development.

Kishkashta is not a well-known mark. It is not a mark at all.  He’s not used as an indication of origin for branding purposes so that people buy a product.

I think that a short, intense Olympic campaign would have had the effect that people seeing Shpitzik would understand Olympic branding and not assume that Kishkashta was endorsing the goods. Unfortunately, one cannot get away from Olympic branding so easily.

I  note that the past 35 years seems to have been kinder on Kishkashta than on the rest of us. Although Shpitzik’s name comes from the Yiddish spitz meaning sharp or pointed, I suspect that the name intentionally recalls the great Jewish sportsman Mark Spitz, who debuted internationally in the Maccabean Games and went on to win 7 gold medals and to set seven world records at the 1972 Munich Olympics.

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