Naomi Ragen, Israel’s best-selling writer was accused of plagiarism by three separate authors. She was vindicated by the Israel Supreme Court last week regarding her book The Ghost of Hanna Mendes and it’s alleged similarity to The Lion and the Cross. Ragen was, however, found guilty by Judge Yosef Shapira of the Jerusalem District Court concerning the similarity of some dialogue in her novel Sotah, to a book Growing With My Children: A Jewish Mother’s Diary by Sara Shapiro. Plagiarism is not a crime on the statute books. Ragen was found guilty of Copyright Infringement, Unjust Enrichment, Negligence and Theft.
The Case
Shapiro published a non-fiction, largely autobiographical work, called Growing With My Children: A Jewish Mother’s Diary which was published in 1990 by Targum Press. The book was a daily journal from the years 1986 to 1989, focusing on the author’s participation in an ongoing parenting workshop, and the ups and downs she experienced along the way to becoming a more skilled and patient parent.
There is one conversation, between the author and her mentor, Rabbi Simcha, that is closely paralleled by a conversation in Ragen’s novel Sotah between the central character, Dina, and her husband, Yaakov. Furthermore, Shapiro takes on a secular home-help, Sonia, and Ragen’s protagonist gets exiled from her extreme ultra-orthodox community and sent to America to work as a home-help for a secular woman, Joan.
Ragen has argued that she had indeed read Shapiro’s book, and subconsciously may have used elements as inspiration for her novel. Simply groats for her mill. It is difficult to prove otherwise. The similarities are sufficient to raise questions, but there are differences as well. The dialogue is rewritten. It is not identical.
Ragen’s attorneys pointed out that the conversation attributed to Rabbi Simcha by Shapiro were not her creation and not her copyright. The authoress’ response in the dialogue are less insightful, less memorable and weaken the case of copyright infringement still further.
To find Ragen guilty, Judge Joseph Shapira performed legal gymnastics to have the case admitted at all, since there were strong grounds for dismissing the case altogether under the Statute of Limitations, as seven years had passed since Shapiro became aware of the similarity. He took the position that the ongoing sale of Ragen’s book made copyright infringement an actionable tort on an ongoing basis. Such a position makes some sense if Ragen was selling bootleg copies of Shapiro’s book, but that is not the case here.
Shapira’s opening paragraphs establishing the facts of the case refer to the Ragen as having copied sections of Shapiro’s book, indicating that he had prejudged the issue. He also relates to the Michal Tal case mentioned above, which he also heard. But this should have been inadmissible since it was not the case under trial. That said, since some witnesses were heard simultaneously in both cases, with consent of both parties, it may be considered admissible. That as may be, as noted above, Ragen was subsequently vindicated in the Tal case.
Where there is copyright infringement, there are no grounds to rule on grounds of Unjust Enrichment, which is applicable only where there is no statutory tort, such as in the A.Sh.I.R. case. Thus finding under both counts seems wrong. Finally, what’s theft? Since when is literary theft a separate tort?
Shapiro’s book is a non-fictional, somewhat autobiographical guide to making a marriage work, about adjusting oneself to one’s surroundings. Ragen’s story is about getting out of a situation that’s wrong, about taking control of one’s life. I think that a fair use defense is appropriate. Furthermore, to the extent that Ragen’s work was inspired by Shapiro’s I think that a satire defence is possible – although difficult under Israel Law. We also note that Shapiro did not create the idea of employing a home- help. These have been employed by countless young mothers under stress. (I believe that my mother employed an au-pair when I was a baby. That wasn’t plagiarism either).
I accept that copyright covers all literary work, regardless of quality. A couple of pages of dialogue may therefore by covered by copyright law. Nevertheless, the text in question is not memorable in its own right. We are not discussing a witty aphorism but simply a conversation. My main criticism of the ruling is that it places the bar for literary novelty simply too high. It is bad policy to consider copyright infringement in a case where two pages of dialogue in one book bear a similarity to a couple of pages of dialogue in a different book. This is counter-productive to the aim of copyright law which is to enrich by promoting creativity, not to stifle authors. Koheleth son of David (Ecclesiastes) was right on one level that there is nothing new under the sun. The similarities between Shapiro’s book and Ragen’s novel warrant a footnote in a critical edition of Ragen’s book or an academic paper. Nothing more.
For those interested, the concept in Jewish Law (Halacha) analogous to fair use is “זה נהנה וזה לא חסר ” lit. “this one benefits but that one does not lose out.” (T. B. Baba Kama 20:1 – 21:1, Shulhan Aruckh, Hoshen Mishpat Chap. 363: 1).
The plaintiff sued for NIS 1,000,000. Although the judgement finds Ragen guilty of copyright infringement, unjust enrichment negligence and theft, it does not award damages but gives the parties an opportunity to negotiate a settlement. It seems highly unlikely that the conversation in question helped Ragen sell books, or that Ragen’s novel adversely affected Ms Shapiro’s sales. Under the relevant copyright law which is the old 1922 Copyright Ordinance, not the new 2007 Copyright Law, the statutory damages are limited at NIS 10,000. A fair settlement would seem, therefore to be loose change. Indeed, from a financial perspective it is difficult to see how any award that will stand legal scrutiny can possibly recover legal costs. but what both sides are looking for seems to be moral vindication rather than damages.
The case: 9430/07 Sarah Shapiro vs. Naomi Ragen, by Judge Yosef Shapira, Jerusalem District Court 11 December 2011
Comments
The ruling is a 92 page whopper, which is why this took me a month to post.
Shapiro’s account in her own words was published in Cross-Currents, an ultra-orthodox discussion group here.
I first covered the Michal Tal case here. See also naomi-ragen-fights-back for details of all three plagiarism suits against Ragen, and Naomi Ragen Accused of Plagiarism – Again for details of a third case filed by Cynthia Rosengarten concerning the Sacrifice of Tamar.
An account of the Supreme Court Ruling concerning dismissal of the case brought by Michal Tal is to be found here: haAretz version and Jerusalem Post version. Ragen’s reporting is here.
For newspaper accounts of the District Court decision against Ragen see haaretz
Additional Comments
In Jephte’s Daughter, another novel by Ragen, the story relates to the daughter of a Rabbi growing up in New York. When I read it, I was reminded of Chaim Potok’s novel The Chosen. There was a scene where the girl and two of her friends experimented with make up in the girl’s bedroom. This reminded me of a scene in the 1980 hit movie Grease. I have no doubt that Ragen has read the Chosen and seen Grease. Whether these influenced her consciously or not, there is no case of copyright infringement or plagiarism. (Note, I also believe that the Warner Bros character Bugs Bunny was inspired by Groucho Marx, although I’ve never seen any reference to this in print).
It is worth noting that the plagiarism cases against Ragen were filed around the time that Naomi Ragen challenged segregated seating on bus routes serving the ultra-Orthodox community by filing a suit to the Supreme Court on grounds of gender discrimination. A lot of the flack Ragen’s been under for alleged plagiarism seems to be driven by ultra-Orthodox opposition to the position she has taken on this issue which some see as threatening their life-style. Many of her books are sympathetic to some aspects of the ultra-Orthodox lifestyle and critical of other aspects of the same. Some members of the Ultra-Orthodox do not take kindly to criticism, and may find her novels offensive.
Personally, I see social criticism as positive and believe that Ragen has raised issues that should be addressed. I think that every Jabotinsky was correct in his analysis published in “the War and the Jew”, that every nation needs its Jews; a visible, different looking population to hate. Unfortunately, in Israel, the Ultra Orthodox seem to fill this position for some secular Israelis. (The secular Israelis fulfill a need for the ultra-Orthodox that goyim fulfilled in Eastern Europe, so everyone benefits from the situation, but it keeps the Messiah from coming). However, Ragen has not written the sort of anti-ultra-Orthodox diatribe that the mainstream (secular) papers sometimes publish; where one can substitute the word black, ultra-Orthodox or Hareidi with the word Jew, Kike or Yid, and the piece looks like something that could have been published in Nazi Germany. Rather, Ragen has criticized anti-social behavior exhibited by some members of the ultra-Orthodox camp and cultural norms in some circles that she sees as having negative ramifications. She hasn’t attacked the population. In this regard, she is like Bruria admonishing her husband Rabbi Meir to pray for sin to be removed by sinners repenting, not for sinners to be removed (Talmud Babli Brakhot 11).
In my opinion, as outlined above, this ruling established the facts of the case, but gets the law wrong. I believe it should be reversed on appeal.
The Biblical Sotah from which Ragen plagiarized her title, is discussed in Numbers 5: 11-31. She is a woman accused by her husband of having been inpregnated by another. In a trial by ordeal, the sotah drinks bitter waters, and, if guilty, swells up, and dies. If innocent, she and her husband are able to put this issue behind them and she is blessed with offspring. Ragen may have been impregnated by exposure to Shapiro’s book, but her work is an original literary creation, and is admitted as such by Judge Shapiro. I believe that she deserves to be blessed with (literary) fruit for being wrongfully accused.
It is the Chinese New Year. We wish all our Chinese clients, colleagues and readers the appropriate season’s greetings (which I suspect is the funny angular brush strokes after the English greeting in the image.
Posted by Dr Michael Factor 
