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.


Naomi Ragen Found Guilty of Plagiarism Again

November 17, 2014

Sacrifice   marriage made in heaven

On 11 November 2014, Judge Oded Shacham found Ms Naomi Ragen not guilty of Copyright infringement on a technicality, but nevertheless guilty of infringing the moral rights of another author in a book that she wrote that was ruled as plagiarizing a short story by the other author, a Ms Cynthia Rosengarten (now aged 82). The request for an injunction was denied. The damages awarded were 60,000 Shekels, which was rather less than the 2.5 million shekels requested in the statement of case.

Background

The plaintiff, Ms Cynthia Rosengarten published a short story entitled “A Marriage Made in Heaven” in an anthology of short stories written by various Hareidi (Ultra-Orthodox) women, that is titled: “Our Lives, An Anthology of Jewish Women’s Writing” which was published in 1991. The anthology was edited by Sara Shapiro.

Ms Rosengarten claims that the story is autobiographical and relates to the marriage match of her eldest son. The story is a 15 page personal account of her dealing with match-makers, and how, as a mother, she felt when a girl from Boro Park was suggested as a suitable match for her 18 year old son. On one hand she is aware of the need for her son to get married, but on the other hand, she considers all the potential brides inadequate. The story reflects reality in the Hassidic world.

Ms Rosengarten sued Ms Naomi Ragen and Keter Publishing LTD, claiming that Ragen’s best-seller “the Sacrifice of Tamar” which was published in 1997 includes elements from “A Marriage Made in Heaven” and infringes both commercial and moral rights therein. Ms Shapiro was mentioned as a formal plaintiff.

The Sacrifice of Tamar tells the story of Tamar Feingold, who grew up in an Ultra-Orthodox neighborhood of New York, and relates her internal conflicts with the community in which she lives.  Two years after getting married, Tamar Feingold is raped by a black (that is, African American – not Hareidi) rapist whilst staying with her sister. Later that night, Ms Feingold sleeps with her husband and hides the trauma she went through. She becomes pregnant and is unsure which is the father of the child. Chapters 1 to 22 of the book relate to the feelings of Tamar through the pregnancy, where eventually a white skinned child is born.

In Chapter 23, the son asks his mother to help him find a life match.  The son gets married and a year later his wife has a black skinned baby. The son accuses her of unfaithfulness and Tamar has to come clean about the rape. The son’s marriage dissolves and Tamar, the grandmother, adopts the grandson and leaves the Hareidi fold.

According to the Statement of case, Ms Ragen used parts of “A Marriage Made in Heaven” in Chapter 24 of her novel, thus violating the Copyright and Moral rights of the plaintiffs. They claimed damages and also requested an injunction.

Ruling

Because of the time-line, the ruling was given under the old Copyright Regulation of 1911 and not under the new Copyright Act 2008, but, considering the infringement as on-going, eventual damages took into account the statutory damage regimes under both law.

In the ruling there is a lot of discussion as to whether the copyright was actually transferred by Ms Rosengarten to Ms Shapiro and that it wasn’t transferred to the printing house. No assignment document was forthcoming. It was alluded to and was probably filed somewhere but was not produced.

Judge Shacham ruled that the copyright in “A Marriage Made in Heaven” belongs to Ms Shapiro and consequently the plaintiff Ms Rosengarten does not have grounds for financial Read the rest of this entry »


Astrologist Successfully Sued for Copyright Infringement of New Card Designs – She didn’t see it coming

October 20, 2014

Astrological cards

Zur-Klein is  an astrologist. Tal Rinkov is an artist who created 37 cards for the Astrologist in accordance with an agreement between them which, inter alia, related to the copyright ownership.  (Ms Rinkov was also the kindergarten teacher of Ms Zur Klein’s daughter, which is how they met (some would say it was fate).

Ms Zur-Klein ordered 40 card designs for a payment  of 5000 Shekels.  The cards were to be mass-produced and distributed with an instruction manual and a teaching movie. The parties entered an agreement on 5 September 2014 that established several principles:

  1. The original artwork and the copyright of the artwork was to remain that of the artist.
  2. The artist would not be entitled to royalties for packs of cards and other goods itemized in the agreement
  3. The Astrologist would only be entitled to use the images on specific listed items
  4. All internet images  would be reproduced at a low resolution only
  5. All pictures would carry Ms Rinkov,’s signature, her name, website and contact details

Ms Rinkov was hospitalized in November of that year and only delivered 37 designs, and the last three were completed by another artist. (For reasons not apparent, the medium missed this eventuality). The images were transferred to a graphic artist who made various graphical changes to make the images more suitable for printing.

After various commercial entities expressed interest in the images, Ms Zur-Klein contacted Ms Rinkov to try to negotiate a transfer of copyright but due to a difference of opinion, no agreement to transfer the copyright issued.

Ms Zur-Klein  publicized the images in various internet sites including her own and other people’s, in her blog, Facebook page and elsewhere.  In all reproductions of the cards on the Internet, the artist’s signature appeared, but her name and contact details were not given. Indeed, on some websites, Ms Zur-Klein presented herself as the creator of the card (the term יוצרת הקלפים is used, which is both creator and manufacturer so the term is somewhat ambiguous). Furthermore, Ms Zur-Klein allowed other astrologists to use the designs without giving any credit to Ms Rinkov. There was also a newspaper article featuringMs Zur-Klein that was illustrated with one of the card designs that was also not credited.

On 6 June 2012, Ms Rinkov sent Ms Zur Klein a Cease & Desist letter.

The basis of the ensuing court case was the agreement signed by the parties. It is translated below:

Tal prepares for Carni 39 pictures, which together with the picture already executed, provides a set of 40 pictures for cards and other purposes – payment 5000 Shekels.

Apart from the payment for the work, there will be no other royalties for selling packs of cards, books, CDs and other astrological items depicting the images of Tal Rinkov.

The astrological products that Karni is allowed to use the pictures on are: packs of cards, books, audio CDs, video for watching, a banner for a website, business cards and other articles on authorization from the creator. Karni may not manufacture or distribute artistic works such as pictures, mugs, key-rings and the like.

All material displayed on the Internet are at low pixel count.

The name, website and contact details of Tal Rinkov will appear on all products, including future products.

The pictures on the cards and elsewhere will include the artist’s signature.

The original artwork and copyright remains the exclusive property of Tal Rinkov.

Pictures and associated artistic products (that are not astrological) will be produced and distributed exclusively by Tal Rinkov.

Any deal that Karni creates for Tal will generate a 20% commission for Karni.

When Tal sells a product (book, CD, cards and the like) she will profit 20%. Tal will receive a present of a pack of cards.

 According to the plaintiff, the defendant wrote the contract after the negotiations. The defendant claims, however, that the contract was the plaintiff’s idea, and that the plaintiff had written most of the clauses to the detriment of the defendant, such as her not getting benefit from sale of the cards. However, the defendant agreed that she had printed out the agreement.

The defendant claimed that she was entitled to the status of co-creator in the cards as although Ms Rinkov executed the artwork, it was to her, Ms Zur Klein’s specification regarding the symbolism, colors and charms. The plaintiff considered this a change of direction in the defence and objected to it on principle.  The judge ruled that the claim that the defendant hand guided the artist appears in clause 31 of the defence, but is more a factual than a legal defence and so she was willing to contemplate it. The plaintiff countered that Carni Zur-Klein had not, in fact, instructed her, but that she herself had researched the elements and colours.  Both sides supported their contentions with emails and other evidence. It does seem that the astrologer gave guidelines for the design, but these are by way of astrological knowledge rather than artistic input.

RULING

In this instance, Judge Lemelstrich  did not consider that under section 1 of the Copyright Law 2007, the two parties could be considered co-owners of a joint creation. Section 64 creates a rebuttable assumption that the artist is the creator and each card design was signed by Ms Ronkov as the artist.

Section 5 of the Copyright Law notes that the idea, way to implement and facts are not copyright protected, only the  artwork itself is. According to Section 35a of the Copyright Law, a work for hire is the property of the artist in the first instance, unless otherwise agreed implicitly or explicitly. In this instance, both the Copyright Law and the contract  support the artist as owner of the copyright.

In the packs of cards, Ms Rinkov is acknowledged as the artist and Ms Zur-Klein is credited as an astrologer.

The parties agree that Ms Zur-Klein conceived the project, but the copyright in the images remain the property of Ms Rinkov.

Ms Zur-Klein apparently sold some 80 packs at 190 Shekels a pack.

the main issue sees to be the internet reproductions which do not provide the details of Ms Zur-Klein.

The ruling now relates to various astrological websites. Since I find this subject matter morally, ethically and religiously abhorrent, I am refraining from reproducing the links.

The important thing is that Judge Lemelstrich considers that the artist’s moral and financial rights were compromised in numerous infringements in various websites and internet campaigns. That said, the pictures on the Internet were not reproduced at a quality to enable them to be printed and used as playing quality cards.

The changes to the designs for subsequent printing by a graphic artist under the direction of Ms Zur-Klein were minor. These were considered insufficient to create a change to the copyright, in that the original work could not be considered defaced or the artist’s moral rights compromised. Nor did the amendments constitute a copyright protectable creation.

Ms Rinkov claimed 100,000 Shekels in statutory damages for copyright infringement and a further 100,000 Shekels for moral rights infringement, particularly noting the long and arduous legal proceedings and the multiple infringements.

Judge Lemelstrich noted that despite entering a clear contractual relationship to the contrary, Ms Zur-Klein acted as if the creations were hers to do what she liked with. She ruled 35,000 Shekels damages for infringing the moral rights, 15000 Shekels for infringing the material rights and a further 5000 Shekels for an article published after the Cease and Desist letter.

Judge Lemelstrich of the Haifa District Court ruled a permanent injunction against Ms Zur-Klein, her delegates, substitutes and others from performing any action that violates the September 2011 agreement or other rights as per the statement of case.

Ms Zur Klein will compensate Ms Rinkov 55,000 Shekels for copyright infringement, an also will pay 15000 Shekels legal fees. The money will be paid within 30 days.

Civil Ruling 15824-10-12 Tal Rinkov vs. Carni Zur-Klein, Haifa Court before Judge R. Lemelstrich, Ruling 13 October 2014

 

 


Walla Sued for Not Acknowledging Photographer of Iconic Image of Peretz

October 14, 2014
Amir Peretz views military exercise (c) Ephraim Shrir

Amir Peretz views military exercise
(c) Ephraim Shrir

Ephraim Shrir was the photographer who captured then Defense Minister Cluseau Amir Peretz watching a military exercise in the Golan through a pair of military binoculars with the dust caps on.

On 12 July 2011 and five years after the Second Israel-Lebanon War, Tiltul Communications who run the Walla news and current affairs site showed an image from the Lebanese newspaper El Akhbar which showed the photo under the headline “In Lebanon they are scoffing at Peretz, Halutz and Olmert ” (then Minister of Defense, then Chief of Staff and then Prime Minister respectively). The Israel news-site showed a screen capture of the Lebanese newspaper which prominently featured Shrir’s well-known photograph.  Neither the Lebanese paper nor Walla received permission to show the image, nor did they credit the photographer.

Shrir requested that the picture be taken down from the Walla site which it was, but Walla rejected all claims against them, and subsequently Shrir sued for 50,000 Shekels statutory damages for both his financial copyright and moral rights under the Israel Copyright Act of 2007.

Martians and anyone else not familiar with the photo in question can view it by googling Amir Peretz or by following this link. http://www.nbcnews.com/id/17294091/ns/world_news-mideast_n_africa/t/israeli-defense-chief-makes-lens-cap-gaffe/#.VDuMuxtxmUk

PLAINTIFF’S ARGUMENTS

The plaintiff claimed that the reproduction of the image on Walla was of a commercial nature and infringed his copyright and legal rights in the photograph. Since Tiltul ran a commercial news site they should have known or at least inquired into the owner of the picture. The picture was made available to the public over a two year period on the website and via smart-phone applications. Since the damages claimed were statutory, there was no need to show any actual damage from the infringement. Furthermore, Shrir claimed that the fair-use doctrine was irrelevant here since clearly the Lebanese newspaper had no possibility of having obtained the photograph directly since there is a state of war between the two countries and so the photographer had to be an Israeli and Walla were obliged to ascertain who owned  copyright in the image.

According to the plaintiff, the fair use defence may have been good when the story was hot-news, but four years later, in 2011, that was not the case. Furthermore, due to the centrality of the image, the defendant could not fairly claim that they were copying the newspaper and the image was incidental to the article.

DEFENDANT’S CLAIMS

The defendant countered that they reproduced a Lebanese newspaper article that included the photo, and gave credit to the Lebanese paper, and thus neither infringed the copyright of moral rights of the photographer. Under Section 22 of the Israel Copyright Act, this should be considered incidental use since their article related to and quoted from the Lebanese article and did not relate to the picture itself.

The defendant also claimed that since they were reviewing another newspaper article, they were within the ambit of the fair use defence under Section 19a of the Copyright Law, and that this was a hot news item that was allowed under Section 19b. The photograph was incidental since the story in question related to how Lebanon saw Israel and not to the photograph in question (which presumably related to how then Defence Minister saw Lebanon? MF). There was no intention to profit from the photograph, merely to inform the Israeli public about its use. Furthermore, the defendant argued that the use of the picture neither increased income to the website nor decreased the value of the picture and that there was actually no competition between the website and commercial sales of the photograph and that the case-law considered these arguments critical when assessing damages.

Finally, journalistic norms required referencing the journal and not the individual photographer or journalist which would require unnecessary work for the journalist (and probably be unduly tiresome for the reader-MF).

The defendant argued that the claim of statutory damages should be thrown out since it was not in the original charges brought. Also the demand for the photograph was steady, both before and after Walla’s article, showing that the value of the image had not been affected.

THE RULING

The parties accepted that the dispute was legal and not factual, and authorized the judge to rule on the basis of the evidence without requiring sessions to prove their cases. Thus, both parties accepted that the photographer had absolute copyright and moral rights in the image. Additionally, there was no argument that the Lebanese article with the photograph was reproduced without the photographer’s permission.

The issue is one of whether the copyright and moral rights were infringed and whether the statutory defences applied.

Judge Zoabi ruled that the picture was copyright protected. Both sides agreed that the Lebanese newspaper had infringed the photographer’s rights, but disputed whether reproducing the article with its illustration infringed the photographer’s rights, and this should be addressed with reference to the content and appearance of the Lebanese article.

As to whether the picture was incidental or not, the court quoted from the Israel article “the picture that appears at the head of the article is that of the Defence Minister during the war, Amir Peretz, looking forwards via closed binoculars”. Further on, the article states “And what about Peretz? The author of the article mocks the former Defence Minister and tries, in his words, to hunt down all passers-by that cross his path, to persuade them to vote for him as the head of the Labour Party. “Peretz tries against to lead the collapsing Labour Party and tries to recruit all passers-by to vote for him is stingingly written about the campaign that the leader had been running in recent months to recruit voters”.

The Israel article is not only a review of the Lebanese one but also of the picture itself that was central to both articles. The Lebanese article featured the picture centrally and not incidentally-illustratively, since the picture is worth a thousand words. The court dismissed claims that the Israeli article merely reported on the Lebanese one. It argued that the article was about Peretz and the other political leaders at the time of the Lebanon War and that the Lebanese article was selected to illustrate the article primarily because of the picture. Indeed, were it not for the picture, the Lebanese newspaper article would not have been used to illustrate the Israeli article. Consequently, the Court considered that the picture was not incidental and thus copyright was infringed.

As to common practice, the court accepted that the Lebanese article was fully credited by the Walla article, but did not consider that Walla has satisfied the court that this was sufficient. Citing District Court ruling 1549-08-07 Maariv vs. Business Net , the court noted that to establish a norm, a party has to show that everyone continues to act the same way and that there is an understanding that this is the correct way to behave. In Maariv vs. Business Net the court rejected the concept that the norm was binding. Also in Danon PR Communications  vs Yachimovich the issue of binding norms was similarly addressed.

Critically, in the present case, unlike other cases brought as evidence by the defendant, the referenced (Lebanese) newspaper article did not credit the photographer. Furthermore the court noted that there was a trend to see copies of copies as infringing and the fact that the original picture was not copied is insufficient to have the case thrown out. In other words, there is no doctrine of exhaustion of copyright in this instance.

As to moral rights under Section 46, it is clear that the name of the photographer wasn’t referenced, and this is a right enshrined in Section 46, so the moral rights was infringed as well.

FAIR USE

Section 19a includes newspaper reports as a fair use exception. Shrir claimed that the case-law establishes that fair use requires acknowledging the photographer or author. The court accepted that this was generally the case, but noted exceptions where even though the photographer was not identified the fair use defence was accepted.

In this case, Judge Zoabi felt that the defendant could not claim equitable behaviour in reporting the Lebanese article since the photo was central to the article, this was not hot news. They should have assumed the photographer was Israeli, could easily have identified the photographer with minimal research on the Internet and should have credited him.

The court dismissed the defence that this was a review of other media since although the Lebanese article was paraphrased, the photo was reproduced in its entirety.

However, the court accepted that the report of the Lebanese article was hot news and that the Defences of Section 19a applied. Nevertheless, the picture was well known and from an earlier period and was reproduced in a large format and Walla is a commercial website.

Even if it is allowable to reproduce the image, the photographer should have been credited as fair use does not abrogate moral rights.

Claims that the photograph was incidentally included were likewise rejected.

The court upheld the charges of copyright infringement and moral right infringement, but considered the scope of the infringement to be minor. Interestingly, the court reasoned that it would be wrong to grant double statutory damages for both copyright and moral rights.

After considering that the real damages were negligible, the court ruled statutory damages of 6000 Shekels and that both parties should cover their own legal costs.

Civil Case 4384-12-13 Ephraim Shrir vs. Tiltul Telecommunications LTD. by Rajid Zoabi of Bet Shaan District Court 28 September 2014.

COMMENT

The legal issues here seem straight-forward. The ruling seems well reasoned. Although the damages awarded are low compared to those awarded in other cases, I think this is a good thing.

Shrir was in the right place at the right time, but the resulting photo could be described as iconic. Although the inquiry focused on the lack of preparedness of the military, this photo captures the Israeli feelings regarding the Second Lebanon War.  Furthermore, unlike Sharon with the photogenic head bandage, in this instance, the image is more authentic. I mean Peretz is an idiot, but I don’t think he did this intentionally. Still the moustache is impressive.

I have absolutely no sympathy with Amir Peretz’ politics. I think it was irresponsible to appoint him Minister of Defence merely because it was irresponsible to appoint a Trotskyite to the Finance Ministry. That said, I can’t help feel sorry him for getting photographed like this, despite the real damage it did to Israel’s deterrence against Hizb’Allah and indeed to Hamas.

I am an avid bird watcher but on more than one occasion have forgotten to take the dust caps of my binoculars. So long as one notices that something is wrong and looks for the problem, the mistake is understandable. Where one looks with interest and makes observations, it is a little reminiscent of a Hans Christian Anderson fable. In this case, according to the photographer, Peretz gazed through the capped binoculars three times, nodding as Ashkenazi explained what he was looking at.


Fair Use

July 9, 2014

Shelley-Yachimovich-Labor-Party

Shelly Yachimovich is a member of the Knesset. She used to be a journalist, and during the incidents in question, was the Head of Israel’s Labour Party.

Danon PR Communications publishes a local newspaper in Modiin –  an Israeli city.

On 6 October 2011, the local paper published an interview of a worker in Yachimovich’ headquarters, that was written by Channa Stern. Yachimovich posted this on her website, and the paper asked for it to be removed and for 40,000 Shekels compensation for copyright infringement. When this tactic didn’t work, the paper sued Yachimovich under Sections 11 and 34 of the 2007 Israel Copyright Act and under Section 1 of the Law Against Unjust Enrichment, claiming statutory damages of 100,000 Shekels and legal costs.

Yachimovich claimed that the article was posted under a section of the website devoted to newspaper articles and that the source was clearly marked. The article was posted by a volunteer, and, on the newspaper complaining, it was removed. Nevertheless, no guilt was admitted.

In her defense, Yachimovich claimed that the interview was in a question & answer format, and thus the copyright belonged to the interviewee and not to the interviewer. Furthermore, she claimed fair use under Section 19 of the Copyright Act. She argued that the article had no inherent value, no potential for resale and no way of monetizing, and that the reposting on her website only gave further coverage to the article and to the local paper to a fresh audience who would otherwise not have been aware of it.

Finally, the paper had used a publicity photo of Yachimovich without her permission. Although this was a PR picture, it had cost money. This raised equal and opposite copyright issues. To the extent that there were grounds for copyright compensation in the publication of the article, Yachimovich was entitled to equal compensation in use of her picture and the two payments should be offset. Attempts to reach a compromise failed, and the court was authorized to rule on the basis of the evidence submitted without cross-examination.

The first issue that the court grappled with was whether an interview is considered copyright of the interviewer, or if it is a list of answers attributed to the interviewee?

The court accepted that there was copyright in interviews if there was at least a minimum of creativity in the wording of the questions or their arrangement and editing. There was a cute reference to Peah 1: 1 which discusses minimum standards for various Biblical commandments, including visiting the Temple on pilgrim holidays, where the term for sighting the Temple, is identical to the term for interview.

The amount of creativity was at least that of tables and anthologies, and on the basis of the work-product definition, there was copyright in the publication.

Posting the article on the internet website, where some 20% of the interview was posted was considered republication.

The interviewer is more than merely a technician and has rights in the interview. The question of joint ownership of interviewer and interviewee is discussed at length, and the understanding developed is that of use of jointly owned real estate by one party.

Fair Use

Various decisions relating to summaries of newspapers has established that merely relating to copyright materials as being a review is not sufficient to create a fair use presumption. One paper cannot simply quote large chunks of another and claim fair use. On the other hand, there are no simple tests of quantity or quality, and the issue is one of context. In this instance, Yachimovich has created an anthology of newspaper articles and source was accredited. The use is non-commercial. There was no compelling reason for reproduction under the public’s right to know, but review purposes are also considered fair use. The article was not reproduced in its totality, but rather a selection was made. The reproduction neither damaged the circulation of the original paper, nor boosted Yachimovich’s website’s circulation. Yachimovich claimed that reproducing such articles was common practice, but didn’t provide evidence of this. Nevertheless, the claim of fair use was upheld.

Moral Rights

Although moral rights create separate grounds for claiming damages, in this instance, the source was attributed, so moral rights were not compromised.

Unjust Enrichment

Since Yachimovich did nothing underhand, did not profit herself, or prevent the plaintiff from profiting from the publication, it was considered unfitting to consider unjust enrichment beyond the copyright issue.

Statutory damages

Having established fair use, the question of statutory damages was moot. Nevertheless, the judge saw fit to expand a little.

The plaintiff claimed that Yachimovich had made “Political Gains” and since she was an ex-journalist herself and a Member of the Knesset, she should be an example to the public. The plaintiff further argued that with statutory damages, there was no requirement to estimate the actual damages. However the defendant argued that 100,000 Shekels was exaggerated and baseless in this case.

The court accepted that the plaintiff could save themselves the trouble of estimating and proving exact damages, but the court had the prerogative to rule less than maximum damages if it saw fit. In this case, the defendant had immediately removed the offending article, there was no damages and no claims of inequitable behaviour.

Shamgar from 592/88 Sagi vs. the Estate of Abraham Ninio (2) 254, 265 (1992), was cited and Judge Michal Agmon-Gonen in Zoom p. 601 was referred to, noting that when ruling damages one has to look at the damages caused and the warning effect.

In this instance, the case was taken down quickly. The creative piece was an interview of low inherent worth, and the plaintiff had no suffered any damages as the website was not a competitor to the local paper. The defendant’s profit was indirect and minor. The article was posted by a junior and there was nothing inequitable in the defendant’s behaviour. The bottom line is that there is copyright infringement. It is covered by the fair use exception and the damages are zero.

Regarding usage of the photo of Shelly Yachimovich, the copyright claim was only made by way of offset and not in its own right, so once the damages to be offset are zero, the issue is moot. Nevertheless, the picture is a PR photo that is supplied for use by papers. It is a creative work and is owned by Ms Yachimovich as it was work for hire, created for her. The paper, despite claiming to be a local non-profit publication had intentionally used this creative work.

The picture was used to add colour to the article and this is generally accepted use of publicity photos. Although the paper is given away free, it is a profit generating paper that lives off advertisements. Nevertheless, the article had newsworthiness and furthers free speech and other values leading to a conclusion of fair use. The photo was attributed to “Yachimovich PR” which indicates that there was no attempt to profit by it. The photo was a PR photo that was used for PR purposes, and this is fair use. Thus there was no grounds to grant damages to Yachimovich for using this photograph in this manner.

Since the defendant had raised counter claims, both parties had conducted themselves fairly, and related to the issues raised, the judge did not see fit to rule costs.

Civil Ruling 57588-05-12 Danon PR Telecommunications vs. Shelly Yachimovich, before Judge Ronit FinShuk Alt, 3 July 2014 

COMMENT

This seems to be a good decision. It is a timely one as well. Plaintiffs are too quick to sue claiming copyright infringement. There is and should be a robust fair use doctrine.


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