Madonna’s Apples

April 28, 2015

Madonna's apples

CNN broke a story over the weekend about a woman who has  had to copyright her breasts in response to revenge porn.

It seems that she enjoyed a long distance relationship and sent her significant other ‘selfies’ that would perhaps be best described as compromising. When the relationship petered out, she was aghast to discover that her significant other had uploaded the pictures to the Internet and they had gone viral.

Apparently, the constitutional right of ‘Freedom of Speech’ under the US Constitution may over-ride rights to privacy. The legal advice she got was to copyright the images.

Now, as the photographer of the selfies, she has rights in the image. If her boyfriend had photographed her, she would not have these rights. Copyright is automatic under International treaty, but to enforce in the US, registration is required. She dutifully, uploaded a hundred or so images to the Library of Congress, where apparently, the images are catalogued but restricted, so only one filing clerk there has seen the images.

Here is the problem. Let’s assume that Ms ‘Hozer B’Tzniyut’ discovers a compromising image on a website. She get’s a lawyer to send a Cease & Desist letter. The site owner may request proof, and will then be sent the full book of pictures. Now, whereas the individual image may come down, the others may be posted elsewhere. Very difficult to work out who has uploaded and to where. Oh, and there are video clips as well.

Madonna, who has an interest in Kabbala, has published a retelling of a story by the Hassidic Master, the Baal Shem Tov, comparing retracting libel and slander with ripping open a pillow on a hill top on  a blustery day, and then trying to collect all the feathers. If Esther Madonna ever decides to try to remove compromising pictures of herself from the Internet, she will discover that the problems are similar.

There is probably a moral in this story somewhere….

Talking of modesty, I was somewhat appalled to hear the opening item on the Mid Day News on Israel National Remembrance Day that a headmaster of a Convent School  Ulpana had invited ex-students now serving in the army to attend the school’s remembrance ceremony, and since they turned up in uniform, wearing trousers, that he asked them not to attend. This story was worrying for a number of reasons. The fact that it got on the news means that the headmaster was set up, and should have known better. The girl soldiers could, however, have worn a skirt uniform. That said, the impressionable school girls are presumably aware both of the school’s policy and of the fact that after leaving school, some girls young women may, nevertheless, wear slacks.

Travelling home for the Independence Day Celebrations, just after hearing this storm in a tea-cup, I picked up a hitch-hiker by Eli. the hitch-hiker teaches in the religious, pre-army program in Eli. He felt that the headmaster was right and and that there was an issue of modesty. I countered that it was an issue of fashion. He noted that one can see the shape a woman’s lower anatomy if she is wearing slacks. I was tempted to point out that he was wearing trousers and one could see the shape of his lower anatomy as well.  He could, of course, wear the dishdash (also referred to as dish-dasha or even gandoora, gandurah or even tawb or taub), the long white robe favoured by our Moslem cousins in the villages around Eli, or Begged Ivri, the style of dress of 2000 years ago, worn by actors playing Jews in films about Masada and the Crucifixion, like Ben Hur, Life of Brian, etc. In other words, clothing is far more about fashion than modesty.

Proverbs 30: 18-19:  “There are three things which are too wonderful for me, Four which I do not understand: The way of an eagle in the sky, The way of a serpent on a rock, The way of a ship in the middle of the sea, And the way of a man with a maid“.

What these verses mean, is that there are things that don’t leave a trace.

In the picture of Madonna above, with her sheitel like haircut and long sleeves, she looks more like a balabusta than like a Sem girl Like a Virgin.

Whilst watching the Ceremony distributing the Israel Prize to notable worthies the following day, I noted that the one female honoree, and also the President of the Supreme Court, Miriam Naor, in her official capacity, representing the Israel Legal System, both chose to wear slacks. This is fairly conclusive proof that slacks for women are an issue of fashion and not modesty.

Then again, bugger it! As the Honorable Miriam Naor walked away from the camera, I remembered, Mr Bumble’s famous saying, “the Law is an Ass.”


So Israel took his journey with all that he had, and came to Beersheba (Genesis 46)

April 14, 2015

park Carusso

Yesterday I enjoyed a pleasant trip down South to attend the WIPO Roving Seminar in Beer Sheva. The drive was pleasant. Negev is very verdant and the ornithology was good, with a lot of storks and black kites and the odd short-toed eagle in evidence. The event started at 9:30, and, with considerably less congestion getting into Beer Sheva than into Tel Aviv, I arrived at 9:15 am at the Carusso Science Park.

Moshe Lemberg, the Senior Program Officer at WIPO who organized the event introduced himself to me and hoped that I would blog about the refreshments. I thought this was a little surprising as the rogelach and burekas were fairly standard fayre but did make a welcome breakfast. Unfortunately however, the 3 litre hot water urn was inadequate to the task and I was unable to make myself a coffee. That had an adverse affect on my concentration during the first part of the program, and I noted that after Dr Daniel Ben Oliel presented the prize for Excelling Academic thesis in various fields of IP [sic] there were three or four competitors who presented brief talks on their papers for the Israel Patent Office Competition, but have no idea what they talked about. The chairs were too comfortable, I’d left home at 7 am and I was too far away from the screen. My neighbor kept nudging me. I suspect I was snoring a little. I went to the bathroom, washed my face and had a coffee (botz, using water from the now refilled urn), and went back in sitting closer to the front. This was a great improvement and I found the sessions interesting, stimulating and enjoyable.

Those wanting a review of the early sessions are respectfully referred to the IPKAT where the Doyen of IP Bloggers, Professor Jeremy Phillips has some insightful and relevant comments. See here.  For inciteful and irrelevant ones, read on!

Professor Phillips notes that there were 98 registrants. He was sitting in the back corner and was better situated to count heads than I was. I do try to keep tally on these events however, and did a head count on three occasions throughout the day. I noted 60 in the audience. With 5 rovers from WIPO and a large contingent from the patent office, this was less than impressive. I hope that the Haifa event on Tuesday is better attended, and as the program is largely the same, can highly recommend it.

PCT

PC Tea

PC Tea

Mr Matthew Bryan, the director of the PCT Legal Division gave a brief review of the PCT system and recent developments, and the amicable and helpful Dr Michael Bart who heads up the Israel Receiving Office spke about recent changes there. The local Beer Sheva (actually Omer – but who’se counting?) Mukhtar Patent Attorney, Dr Kfir Luzzatto joined Matthew and Michael, and gave some thoughts on the PCT, how Israel joining the system had affected the profession, and how he views International Search Reports from the Israel Patent Office.

Trademarks and Designs

Ms Debbie Roenning, Director of the Legal Division Madrid Register, Brands and Designs Section (BDS) spoke on Madrid system for trademark registration and then on the Hague system for Design Registration.  As well as showing which countries had signed up, she showed which countries were in the process of signing up which was useful. She also had some tips regarding tailoring goods for different jurisdictions, translating the list of goods into Hebrew, adding countries to an existing application and varying classes per country that were very informative.

Ms Anat Levi Sofer spoke briefly about trademarks and Madrid from the perspective of the Israel Patent Office and considered Israel joining Madrid a great success. Ms Ronit Bazik Sofer, head of trademarks at Reinhold Cohn represented the private sector and noted that she had been apprehensive of Israel joining Madrid and indeed, there had been a drop off in work since Israel joined, but with increased prosecution, things had evened out.

Knowing the official figures regarding trademarks filed directly into Israel and via Madrid, and Madrid marks originating in Israel, I think that both Ms Anat Levi Sofer and Ms Ronit Bazik Sofer were being less than objective. (Reinhold Cohn has too large a market segment for their practice not to follow the official statistics). Israel is very good at creating technology, but is less successful at launching international brands. Madrid has not been widely used by Israeli companies. It is possible that with additional prosecution resulting from more trademark applications designating Israel, workers in the trademark office and in private practice feel that they are busy. However, without the lucrative filing and with renewals handled centrally or by bucket shops, the revenues generated are lower that revenues once were. This is true of both patent office revenue and income to IP firms.

There was an opportunity to ask questions. In her first slide, Ms Roenning had shown various recent Israel trademarks filed by Israelis. The slide also included WIPO’s logo. It was tempting to ask why they had chosen what look’s like a roll of toilet paper, but I decided that it would unnecessarily cheapen the event.

Wipe-o

WIPE-O !

WIPO’s Arbitration and Mediation Center

Mr Matthew Bryan gave a presentation regarding WIPO’s arbitration and mediation services.  It was certainly worthwhile reminding those present that there are alternative methods of dispute resolution, and that going to court is not the only option.

Databases

Mr. Yoshiyuki Takagi spoke about WIPO’s databases such as WIPO Green and WIPO Re:Search. This brought some useful online tools to the attention of participants.

Lunch

ravioli

We were pleasantly surprised that WIPO / Patent Office had laid on a sumptuous buffet of ravioli, pizza, macaroni, cheese rolls, garlic bread, quiches, cheeses and salads. Had this been a couple of days after Shavuot (Pentacost) this may have seemed more of the same, but after a week of Pesach, noone passed over the opportunity to dine on hametz.

Copyright 

real life

Mr. Paolo Lanteri, the Legal Officer, Copyright Law Division, Culture and Creative Industries Sector, WIPO spoke about the gaming industry. It seems that I was far from the only participant who wasn’t a gamer. I put this down to a combination of the audience being middle aged nerds.

It was fascinating to learn that the gaming industry is more significant financially than feature films and music combined. Happily people still read.

It seems that protecting IP in games is a complicated issue. The talk was very informative.

Questions were solicited and I made a case for moving over to registration of copyright and shorter periods of protection since I consider the system as broken. Jeremy Phillips took issue with my position and argued that most people in practice can do most of what they want and that the system does give redress for abuses. We continued arguing in the car back to Jerusalem.

Closing session

men in suits

The WIPO representatives and the Commissioner got on stage together as a panel. It was reassuring with INTA coming up, to note that my charcoal suit is apparently in fashion for IP events.

Dr Luzzatto took the opportunity to ask about Arab countries boycotting Israel, giving the example of Jordan that, despite a peace agreement, in practice the legal profession there won’t represent Israelis.

Mr Matthew Bryan first dodged the question by noting that Jordan was not a signatory to the PCT. As Kfir would not let things go at that, he rather sensibly pointed out that WIPO strongly condemns Arab countries discriminating against Israel, and writes strongly worded letters noting that such countries are not living up to their international obligations. He did, however, point out WIPO does not have enforcement police and their influence is very limited.

The Commissioner noted that Israel could theoretically refuse to allow applications originating from countries that don’t accept Israeli trademark or patent applications, but that the Israel Patent Office decided not to adopt this policy.

Retired US patent attorney Bruce Lilling noted that Taiwan, an important industrial nation was kicked out of the PCT mechanism at China’s request.

Recommendation

For those who missed the Beer Sheva event yesterday, I recommend trying to attend the largely parallel but slightly shorter program in Haifa tomorrow. See here.

Gratuitous Political Rambling Digression (its my blog so I can do what I like)

I note that Ms Debbie Roenning (who also wore a trouser suit, but not a tie) is the head of the Brands and Designs Section which shares the unfortunate acronym of BDS, the ‘Boycott, Divestment and Sanctions’ Movement, the allegedly pro Palestinian, but actually notoriously hypocritical and anti-Semitic international movement.

On the way to the conference, I noted Sodastream’s new factory in Beer Sheva. They moved from the Industrial Area by Maale Adumim (a satellite town of Jerusalem on the road towards Jericho) in response to vicious propaganda abroad. In the Maale Adumim factory, Sodastream provided jobs to West Bank Arabs and was a model of co-existence. Forced to relocate, the primary sufferers are the West Bank Arabs.
WIPO is one of the least anti-Israel organs of the UN. I think it might have been very worthwhile for them to have invited Jordanian, Palestinian and Egyptian IP professionals, both government and private, to the event. I am on good terms with professional colleagues in all these jurisdictions, and with others in Lebanon, Saudi Arabia and elsewhere, who read this blog, and chat amicably with me at INTA, AIPPI and other international conferences. Peace is made by trade.

Of course, Israel is not the only country to have been boycotted. To advance U.S. foreign policy and national security objectives, the U.S. maintains laws and regulations that impose economic sanctions against certain countries, individuals, and entities (the “U.S. Sanctions Program”).  31 C.F.R. § 501 et seq.  The Office of Foreign Asset Control (“OFAC”) at the Department of the Treasury manages the U.S. Sanctions Program.  The U.S. Sanctions Program prohibits U.S. nationals and U.S. companies from doing business in embargoed or sanctioned countries and from doing business with individuals or entities subject to U.S. sanctions laws and regulations.  At various times, the US has forbidden their nationals to register trademarks in Cuba and has also failed to uphold Cuban trademarks. Whether or not human rights are more mistreated by Castro’s regime in Cuba or by the US in the Guantanamo Bay prison camp is not clear.


Sony Clamps Down on Pirate Computer Games

March 26, 2015

Pirate
Sony Entertainment sued Azam Gever claiming copyright infringement and unjust enrichment, alleging that Gever’s computer shop “McKan Computers” on the main road through Osefiya sold fake disks with games for the Sony Playstation console.
In his defense, Gever claimed to be ignorant of the fact that the disks he was selling were not originals. If Gever could successfully convince that he was unwittingly distributing fake disks, he would not be held responsible. If, however, this defense collapsed, he would be held responsible for damages.
Sony claimed to have copyright in the Playstation and Playstation 2, and in software for the Playstation. They also claimed to own trademarks 95025 and 95026 for Playstation. Sony Entertainment Europe was responsible for distributing in Europe, the Middle East, Africa and the Pacific Rim and franchised distribution rights for the software within those territories, including Israel.
Playstation programs can only be played using the Playstation interface due to special encryption. Any copying, burning to disk of a Playstation game will, inter alia, include copying of the encryption which is copyright infringement of Sony’s copyright. Sony claimed that they are in a perpetual war to prevent their software from being pirated, and that they have spent enormous sums in advertising and promoting the console, They have copyright notices on the disks, on the packages, and appearing on screen.
The defendant did not deny selling pirate CDs but denied knowing that they were pirate copies. Sony sent a private investigator to the shop to see what was being sold. The private investigator and his son testified that they were both independently told that the programs were copies, and that the owner had shown a box of bundles of 50 disks, containing 3 or 4 copies of each game. The private investigator testified that he bought five different games at 10 shekels ($2.50) each, paid 50 Shekels and received a tax invoice for 50 Shekels that indicated thatit was for Sony II disks. The private investigator filmed the visit and submitted the footage as an exhibit. The games purchased included Beyond Good and Evil, Dragon’s Quest, God’s hand, Spy Hunter, and Fifa 2013.
The Plaintiff alleged that inspection of the disks showed clearly that they were fakes that infringed Sony’s Copyright since they were not in cardboard packages with shrink-wrapped cellophane or new DVD boxes and did not include instruction booklets. Unlike the originals, the disks did not have pictures on them and were not stamped with Sony’s logo and copyright notice. Sony sent a Cease & Desist letter and asked for the pirated disks to be handed over and for accounts to be produced for calculating profits and infringement revenue. The parties were, however, unable to come to an amicable settlement and so this case was filed. In the statement of case, Gever was accused of copying or creating fraudulent copies, selling or offering to sell these in the course of his business, offering to sell and holding fake copies thereby infringing the copyright, without permission of Sony and without compensating Sony.
In addition to the copyright charges, Sony alleged unjust enrichment under the law of Unjust Enrichment 1979 and various trade related torts for damaging Sony’s reputation.
Sony sued for compulsory damages of 100,000 Shekels per infringement under Section 56a of the Copyright Law 2007. Claiming years of fraud, Sony requested increased damages of 150,000 Shekels and also applied for an injunction against Gever to prevent him from selling fake disks directly or indirectly.
Gever laconically acknowledged ownership of the shop and that he’d sold programs against the tax invoice, but denied selling or trading in fake software. Gever further alleged that he’d bring expert witness that the software was genuine.
In the preliminary hearing, Gever repeated that the disks were genuine and that he was unaware of “the material”. In a second preliminary hearing he again requested to examine the disks. After the parties held a brief discussion, the attorney for the plaintiff stated that the defendant claims that he sells computers, disks is a mere sideline that produces at most, 1% of income and that if it should transpire that the disks are indeed fake, he was unaware of this. In Gever’s own statement under cross-examination, he complained that he wasn’t warned, that he only sells a handful of disks each month and never claimed that they were originals. His lawyer clarified that the intention was to state that his client was unaware that the disks were not real. Meanwhile, the private investigator testified that there were a number of disks with the name of the program marked in permanent ink and that when discussing Playstation 3, the vendor had stated that copying it was problematic. Gever claimed that there weren’t more than 30 disks and that this wasn’t a commercial number. He admitted selling computers for 13 years and that he had sold Playstations for at least a decade, but claimed to sell very little software.
Under cross-examination, Gever claimed to obtain and sell original software on a request basis and to sell a handful of fakes each month. Some his brother supplied, some a friend, not sure from where, some he’d copied himself. He denied selling 60 a year, or 600 over the decade. He considered this non-commercial as he had a limited range of maybe 20 games.
The plaintiff requested to correct the statement of case to request 250,000 Shekels damages, alleging that even at the rate of 5 disks a month, this adds up to hundreds of disks over a decade. (I feel a lawyer joke coming on. It seems that neither the judge, not the attorneys were able to do the calculation).
The defendant objected to the sum being corrected. He also alleged that for sales prior to the new copyright law coming into effect in 2008, the maximum statutory damage is 10,000 Shekels (or 20,000 Shekels for willful infringement.

RULING
Despite Regulation 92 of the Civil Court Procedures 1984 allowing extensive corrections to the statement of case to enable the point of contention to be clarified, correcting the sum after the hearing and before ruling is not allowed as it does nothing to clarify the legal issues and will merely protract the proceedings. The plaintiffs alleged that Gever had sold tens if not hundreds of fakes over a period of years and nothing had changed, so the maximum sum claimed remains 150,000 Shekels.
Judge Weinstein ruled that merely selling fake disks was insufficient to be responsible, but the seller had to be aware that they were fakes. In this instance, some he’d scanned himself, others were supplied from an unknown source so it seems clear that he was aware. Furthermore, a computer seller would be expected to be able to differentiate between originals and fakes. The price of 10 Shekels a game was also a fair indication that they were fake.
The private investigator’s footage showed boxes of 50 or more games, and this was a commercial number. The private investigator’s testimony was sufficient to indicate that the vendor was aware that the goods were fake. However, the issue is moot as during cross-examination he admitted copying some of the programs himself.
The problem, was, as always, the burden of proof required. After humming and hawing about the need to warn others not to copy, the admitted sales of small amounts over time and the evidence of 5 separate games, Ms Weinstein ruled damages of 50,000 Shekels and costs of 10,000 Shekels.
52260-01-14 Sony vs. Gever, Ruling Judge Weinstein 16 March 2015

COMMENT
The disks were sold in Osefiya by Shfaram. In the past, a DVD copying factory was discovered in Kiryat Ata.
Personally, I am inclined to believe that Gever sold very little software. Why should anyone not picky about purchasing originals pay 10 shekels if blank DVDs cost half a shekel and everyone has a disk burner?
Not allowing the sum claimed to be increased is one thing, but I think that on the burden of evidence and not requiring actual damages, but statutory damages, Ms Weinstein had sufficient evidence to rule the 150,000 Shekels damages. Not unreasonable for a sideline operating 10 years.


YES!

February 18, 2015
Yes!

Yes!

DBS Satellite Services 1988 LTD provides satellite television services in Israel that are branded as YES. The Service is licensed by the Communications Ministry.

DBS Satellite Services 1988 LTD sued the brothers Ahmed and Amar Hamuda for trademark and copyright infringement and damages, requesting the following sanctions:

  1. A permanent injunction against the defendants to prevent them from distributing, marketing of selling pirate transmission of the Plaintiff, to cease using the plaintiff’s trademarks, including in third party publications. They requested an injunction against them using the plaintiff’s equipment, or equipment supplied by the plaintiff to their customers, for any but personal use, and to cease any non-personal use immediately.
  2. An order to the defendants or to the receiver to destroy all equipment that enables copyright infringement and all material carrying the YES logo.
  3. An injunction to remove YES’ registered trademarks from the FACEBOOK page for Acre Satellites and from all other publications.
  4. A request to reveal accounts going back seven years.
  5. Statutory damages of 700,000 Shekels under Section 56a of the Copyright Act and Statutory Damages of 100,000 Shekels for trademark infringements (claiming single infringements merely to reduce the court fees) and double costs as a punishment for willful infringement.
  6. Alternatively, compensation of 1,900,000 Shekels for Unjust Enrichment,  (the figures capped to reduce the court fees).

These injunctions were granted by Judge Zernkin, and following the Anton Pillar injunction, equipment and computer records were seized and a summary report was filed to the court by the receiver.

The injunctions were kept in force until the end of proceedings, and for the purposes of the hearing, an order to produce documents and to fill out questionnaires was issued.  This happened in the presence of the defendants who then failed to respond. Consequently, using powers under Section 122 of the Civil Court Procedure 1984, the court ruled that the statement of defense be struck from the record. It is noted that the statement of defense was a mere denial without any explanations.

In a ruling of 27 December 2014, Judge Orit Weinstein requested that the Prosecution supply evidence to substantiate their case and on 15 January 2015 they submitted evidence and affidavits of private detectives, by the VP (Engineering) of YES and the Head of Development at YES.

Based of the evidence submitted, Judge Weinstein ruled that there was sufficient grounds for a judgment against the defendants:

The Defendants broke the security encryption of the satellite transmissions and created a pirate industry, marketing and selling YES’ transmissions piratically, without paying YES, and by undercutting YES’ prices, free-riding on YES. YES’ copyright was infringed by the packaging of the transmission channels and the content, and YES’ trademarks were infringed by being used without permission and illegally.

Consequently, Judge Weinstein ruled that the temporary injunctions would become permanent injunctions, that all equipment be destroyed, following the receiver declaring that he was not holding any assets, there was no need to issue an order against him. The FACEBOOK page should be amended and so should all other publications so as not to include the trademarks of the plaintiff. Judge Weinstein further ruled statutory damages of 700,000 Shekels for copyright infringement and of 100,000 Shekels for trademark infringement, 10,000 Shekels expenses and 40,000 Shekels legal costs.

Civil Proceedings 111147-10-13 DBS Satellite Services (1998) LTD vs. Ahmed and Amar Hamuda.

COMMENTS
I have no sympathy for the defendants in this case. Nevertheless, although the ruling seems very reasonable and the defendants didn’t exactly defend themselves, in the hands of a good lawyer, they could have raised a number of interesting questions. Free riding is not a crime. YES probably does not own very much of the copyright in their transmissions and creating a copyright in a package of channels is stretching things a little. In a recent Supreme Court Ruling concerning parallel imported Tommy Hilfiger shirts here, the Supreme Court allowed the parallel importer to advertise that it was selling Tommy Hilfiger shirts, but not to claim that it was a registered supplier, and to inform customers that they were not entitled to warranties from the official suppliers.  Can one really prevent someone from using the word ‘yes’ on their facebook page or in advertisements?

pirate

Piracy is the crime of boarding shipping on the high seas that is punishable under international maritime law by requiring the pirate to walk the plank.

Arguably with regular TV transmissions, there is a case for Ministry of Communications regulation to divide the radio frequencies into separate bands and to prevent channels interfering with each other. I am not sure that for digital signals sent by satellite this is the case. Certainly government tenders have been abused. The tender for commercial radio that then Govt. Minister Shulamit Aloni put together was designed to prevent Arutz 7 from obtaining a license. The same politicians who called the Arutz 7 team pirates and warned about pirate radios risking plane crashes lauded the late peace activist Abu Natan and his pirate radio ship the Voice of Peace and nominated him for a Nobel Prize. When the Supreme Court voted en banc against Arutz 7, without a dissenting voice even mentioning the value of free speech, it was clear that things have deteriorated a long way since Agranat’s deicison re Kol HaAm.


Nespresso sues Espresso Club for using Clooney look-alike in advertisement

January 21, 2015

david siegal

Espresso Club aired an advertisement in December 2014 that uses a George Clooney look-alike actor called David Siegal. The actor leaves a shop selling coffee machines with a paper bag in hand.

Nespresso, who has an international campaign for their coffee capsules that features George Clooney sued to obtain a preliminary injunction against Espresso Club. The charges included well-known and egistered trademark infringement, unjust enrichment, encroachment, copyright infringement, passing off, interfering with fair trade and unreasonable behavior.

The judge, Magen Oltavia threw out the request, arguing that the chances of Nespresso eventually prevailing were slight. At worse, this was a strong hint and parody against the competitor with the intent of producing a more popular low brow competing product. There was neither copyright nor trademark infringement.

In the advertisement the graying actor wears a suit and sunglasses and makes purchases in a shop selling coffee machines, but during most of the advertisement, the words “The actor is not George Clooney” appear in the top left hand corner fo the screen.

Clooney is not a brand. Real people are not protected characters and are not copyright protected. None of Nespresso’s marks include a likeness to Clooney. The judge did not consider that the actor had even a resemblance to Clooney, a man in an white open necked shirt, suit and sunglasses would not necessarily be associated with Clooney and the words “the actor is not George Clooney” is sufficient to avoid any possibility of confusion. Clooney promotes different goods over time and the CEO of Nespresso in Israel concurred the brand is Nespresso and not Clooney.

The Judge accepted that the actor was intended to recall Clooney and was providing a broad hint parodying Nespresso’s campaign, but this was far from copyright infringement or trademark infringement. The defendant claimed to be parodying Nesspresso by offering a cheaper less elitist alternative where the machine is provided for free and one only buys the capsules. The advertising campaign was designed to promote a legitimate competing product.

The grounds of passing off and copyright infringement were also rejected. Judge Oltavia stressed that Clooney plays himself in the advertisement, not a character created by Nespresso and protectable under copyright.  Clooney would be unlikely to transfer rights in himself to Nespresso giving them lifetime +70 years rights to himself.

The advertisement was not based on a specific Nespresso advertisement. Using attractive looking people for product branding is standard practice in advertising and not the monopoly of Nespresso.

Nesspresso does not have rights in this case that override the right to free speech and creativity of Espresso Club.

Civil case: 451922-12-14 Nespresso vs. Espresso Club, before Judge Magen Oltavia, 19 Jan 2015 

COMMENTS

Selling machines cheaply or giving them away and then charging through the nose for consumerables such as ink or toner cartridges or coffee capsules is an established business model.

Courts do not necessarily enforce registered designs for the compatible cartridges as there is a retrofit clause that prevents machine manufacturers from forcing customers to purchase original replacement parts at any price. This is a matter of public policy. In general, Israel is pro-competition so this ruling is not surprising.

 


Meretz Found Guilty of Moral Rights Infringement

January 14, 2015

Meretz

Amir Peretz views military exercise (c) Ephraim Shrir

Amir Peretz views military exercise
(c) Ephraim Shrir

Some readers may consider this blog as having political leanings. After all, I’ve reported on copyright infringements by the Likud Party (here) and by Shas (here) in previous election campaigns, and have also reported on copyright infringement by the Hebrew University Student Society affiliated to the Labour Party.

Just in case anyone thinks I am politically motivated to expose Labor, Likud and Shas shortcomings, I am now reporting on a just published decision of moral rights infringement by the Meretz party which has what some might call a ‘politically correct’ manifesto.

On 16 December 2012, Ephraim Shrir sued Meretz for 70,000 Shekels for copyright infringement by posting Shrir’s iconic picture of Amir Peretz peering intelligently through a lens capped pair of binoculars whilst ‘observing’ a military exercise on 21 February 2007, in the elections for the 19th Knesset.

Ephraim Shrir is a photo-journalist. Meretz used the photo on their website, posters and advertising in their political campaign and also photo-montaged parts of the image onto other candidates. Shrir alleged that his economic and moral rights were infringed by Meretz failing to get permission and failing to acknowledge the photographer’s identity. He muscled in on Meretz, suing for 70,000 Shekels. Furthermore, Shrir’s lawyers sent a Cease & Desist letter which was ignored, and thus Meretz cannot claim that they were unaware.

Meretz claimed that Shrir had not proved that he had rights in the image. Shrir countered that the commercial rights were owned by the daily paper Idiot Acharonot, but, citing Section 34 of the Copyight Act 2007, he nevertheless held the moral rights.

Meretz claimed that as the picture was taken in 2007, before the Copyright Act 2007 entered into force, the case should be thrown out. They also claimed that the picture was never reproduced as is, but was always part of a photo-montage with other members of Yzippy Livni’s party Hatnua. Since the photo-montage was a new image that wasn’t significantly based on Shrir’s photo, it was a derivative work and could not be considered as illegitimate under Section 11 of the Law. Alternatively, the Court could accept that Section 11 was infringed, but due to Section 19 allowing critical review and brief citation, the usage should be declared legitimate.

Meretz further claimed to have taken down the image from their Facebook page sometime between 5december 2012 and 7 December 2012, prior to and independently of receiving the Cease & Desist letter. Meretz denied using the image in posters and flyers and maintained that usage was limited to their Facebook page. Since Meretz is not a profit making organization, it denied that its usage could be considered commercial.

In summary, even if there was an infringement, the short time that the image was on Facebook, the lack of political profit, the fact that the use was non-commercial and that it was there to create critical public thought combine to create a situation that the damages are negligible.

The case was brought in the Afula District Court before Judge Shaden Nashaf Abu Achmed.

The Ruling

Judge Abu Achmed noted that Section 78a of the Copyright Law states clearly that the new Law applies to creations that precede it coming into effect apart from the duration of rights and the ownership issue which are covered by the Copyright Ordinance 1911. She considered that as far as the general economic rights were concerned, Shrir’s photograph was work for hire, and was owned by Idiot Acharonot and he had no standing as a plaintiff. However, as far as moral rights were concerned, these are non-transferable and so Shrir was entitled to sue. She also dismissed Shrir’s allegations that addressing the issue of copyright ownership was a broadening of Meretz’ defence. I was rather impressed that she quoted the underlining principle of Hebrew Law: Babylonian Talmud Baba Kama 46:1 that “the onus is on the plaintiff to prove his case”.

Shrir’s dismissed the fair use defenses. Judge Abu Achmed accepted that Shrir’s moral rights were compromised and then ascertained the damage and compensation.

Of interest, Judge Abu Achmed considered that the moral rights were not only that of being identified as the photographer, but also accepted that the photo-editing, which included the image being laterally inverted and Peretz’ arms and the binoculars being photo-shopped onto the bodies of other politicians was also an infringement of his moral rights. She also accepted his concerns that the picture could compromise him by causing him to be identified with the political party and their agenda.

In assessing the damages and compensation Judge Abu Achmed noted that the relevant law provides up to 100,000 Shekels without proof of damages, but provides the court with considerable leeway in ruling lower sums. The judge considered the extent of the usage, the time period, the actual damage caused and the need to deter similar infringements. She seems to have been impressed that the Facebook post garnered 100 ‘likes’. Ultimately, however, there was one image that was posted once on one Facebook page which was shared once. This can only be considered as one infringement. Although the photographer did not accept the time-frame, the judge felt that defendant was correct that the image was in use for a few days. The photographer himself testified that where Idiot Acharonot allowed him to resell a picture, the going rate was 100 – 150 Shekels. Then again, in this instance, the defendant is a political party which helps legislate laws. Meretz has legal advisors and they claim to have procedures for obtaining permission to use copyright material. No satisfactory explanation was given why these procedures were not used in this case. It was difficult to show that Meretz actually gained or lost Knesset seats as a result of usage of the image. The judge did not accept significant inequitable behaviour as the image was taken down and wasn’t reused. Taking into account all these aspects, the judge ruled that Meretz should compensate Shrir 14,000 Shekels and a further 3000 Shekels legal expenses.

282 63-12-12 Shrir vs. Meretz Afula Magistrate’s Court, Judge Shadan Nashef Abu-Achmed, 30 December 2014.

COMMENT

Section 46 (2) of the Copyright Law 2007 states that moral rights provides that no distortion shall be made of a work, nor mutilation or other modification, or any other derogatory act in relation to the work, where any aforesaid act would be prejudicial to creator’s honor or reputation.

The Fair Use exception of Section 19 only states that “Fair use of a work is permitted for purposes such as: private study, research, criticism, review, journalistic reporting, quotation, or instruction and examination by an educational institution.

The critical review defense raised by Meretz had as much chance of flying as pigs have. The correct defense was satire. This is not listed in Section 19, but the list of fair use exceptions is open-ended. In the US, Europe and elsewhere, satirical use is considered fair use. (In Europe, the Judge apparently has to find it amusing, and with most Israeli judges appearing to be aligned with Meretz, one wonders how that would play out here.

Different creations have different degrees of creativity. In journalistic images the creativity is not supposed to be in directing those photographed to pose in a certain manner (although many iconic images of the Arab-Israel conflict are staged).

Shrir is not the creator of Amir Peretz peering through binoculars with the lens caps on any more than he is responsible for Peretz’ iconic caterpillar mustache.

To the extent that Shrir has rights, these are in the angle, lighting, and the like. There may be moral rights preventing an image being edited, but I don’t think these are significant. If Yediot had cropped the image or altered the contrast, I don’t think Shrir could have claimed that his moral rights were compromised.

I don’t think that satirical usage is derogatory or prejudicial to the original creator’s honor or reputation. I don’t accept that the photographer’s right to integrity in an image should extend to satire, and positioning Peretz’ hands on a different politician is simply that. I think the original picture is well-known and having Peretz blindly looking to the (political) right is also satire (albeit too subtle for Israeli politics) and should be allowable. Indeed, I am not sure that these changes don’t over-ride the moral rights of the photographer completely since the creative aspects of the image such as the lighting and angle are immaterial. I also do not accept that use of a well-known image of this nature identifies the photographer with the political party using the image. There is a world of difference between a popular song and singer being used in a political campaign which may imply that the singer / songwriter supports the agenda, and a photograph of an event five years earlier, which does not imply an endorsement by the photographer.

It seems that Meretz rather stupidly raised the fair use defense that their material was a review. In my opinion, more germane to the case, and rather more interesting is the defense that the usage of the image was satirical. Clearly their using Peretz in their campaign was satirical. I don’t know if this defense is sufficient, but it is what the case should have been about and there is a need for a ruling on the subject. As Meretz’ lawyers didn’t raise the issue, I don’t think the judge could fairly have addressed it.

I am also highly skeptical of Meretz’ argument that the use was non-commercial. I accept that political parties all have agendas for furthering the public good as they see it. I am less convinced that politicians are motivated by altruistic motives. That as may be, parties are allocated public funds and raise donations. Even if we ignore the alarmingly large extent that non-elected officials are selected due to their political affiliations, we can agree that party officials and certainly city mayors, Knesset members and ministers are paid employees so Meretz, like other parties, should be considered as being a commercial entity.

Ironically, Israel may be one of the very few countries in the Middle East where an Arab woman could be appointed a court judge.

I find troubling Meretz’ claim that the date by which an image is created and not the date of infringement is the date that determines whether the Israel Copyright Act or the Copyright Ordinance is the applicable law applies. This position, though creative, is untenable and one would assume that legislators would have more sensitivity to the fine points of the law.

I have posted the picture before when Shrir sued Walla, however, the photo is such a good one, I am reposting. It would be amusing except that people have been killed in actions that resulted from Hizbolla and Hamas assuming that Israel’s defense is in the hands of incompetents.


Likud Party fined for Copyright Infringement

December 29, 2014

Rchmani railway lines

No, you haven’t missed the campaign broadcasts. Mercifully those haven’t started yet. This decision relates to propaganda a Party Political Broadcast from the last election campaign.

Shmuel Rachmani a veteran photo-journalist has sued the Likud – the National Liberal Party for infringing his moral rights by not attributing him as the photographer of a couple of still photos of the double-decker train and the new train lines. The images were shown in campaign broadcasts showing how the Likud (like Mussolini?) had managed to get trains running on time.

After weighing up the fact that the copyright use was not contested, and dismissing as irrelevant the argument that in the heat of the election, corners were cut, but noting that the images were broadcast only briefly, the Tel Aviv District Court eventually ruled 20,000 NIS in statutory damages.

תא (י-ם) 40707-04-13  שמואל רחמני נ’ מפלגת הליכוד-תנועה לאומית ליברלית

Civil Case 40707-04-13, Shmuel Rachmani vs. Likud – Nationalist Liberal Party, Jerusalem District Court Ruling by Rafael Jacobi, 14 December 2014

COMMENTS

This is not the first time that copyright issues have come up in party political broadcasts. In the 2009 election, an Israeli photographer sued SHAS, the Sephardi Torah Guardians party for using a copyright photograph.

 

Chabad successfully obtained an injunction against a parody of their weekly Parsha sheet being used in a Tel Aviv Municipality election.

bob the builder

The problem is not restricted to Israel.  Obama was sued for copyright infringement in his election campaign. However, Rumours that Bob the Builder is suing Obama for trademark dilution regarding illicit usage of Bob’s famous catch phrase “Can we fix it? Yes we can”, are apparently unfounded.

Also in 2009, French president Sarkozy’s UMP party (Union pour un Mouvement Populaire) was sued for using Indie group MGMT’s  song ‘Kids’ at party rallies without  permission.

We realize that copyright infringements are of minor relevance when choosing leaders. Currently the head of one party is a released felon who served time for corruption. We have a would be Prime Minister running at the Head of the Labour party who invoked the right to stay silence to avoid being prosecuted for fictitious non-profit organizations that made contributions to Labour Party’s election campaign and to direct Election of Labour Leader Barak. Their parties see no reason not to allow these to lead their parties. And, Israel Beteinu seems to be have a bunch of members under suspicion of corruption.

salah shabati

In the past I have criticized our Association of Israel Patent Attorneys for their undemocratic election practices. I am wondering if I expect too much of my colleagues? Why should they conform to the best of Western democratic tradition if they are used to Israel style elections, where every reform since the system went wrong in 1977 (by the people erring in their choice of leader), was adopted by incumbents if it was seen likely to further the chances of their preferred candidates. Ironically, and somewhat typically, such changes generally backfired.


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