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.


Israel Supreme Court Overturns Ruling Concerning Unjust Enrichment

September 16, 2014
Reversed Challa Cover!

Reversed Challa Cover!

Back in January 2012, then Jerusalem District Court Judge Yaakov Shapira issued a permanent injunction against a Merkaz Matanot 2006, a competitor and former client of the plaintiff, Karshi, prohibiting them from importing, exporting or otherwise trading in ceremonial ritual challah cloths that had a similar general design to those that produced and distributed by Karshi. Their client, Ami Motzrei Noi LTD and their owner were also injuncted and they were See here for more details.

Essentially Judge Shapira who is now the State Comptroller ruled that there was Unjust Enrichment, breach of contract and passing off. I was very critical of the decision, and particularly that Shapira gave a world-wide injunction which seemed to have been beyond his judicial competence.

I am pleased to announce that the Israel Supreme Court has now reversed the ruling.

Essentially, Karshi ordered these ritual cloths having the words ‘שבת קודש’ – ‘Holy Shabbat’ in a fairly standard font embroidered on a piece of chiffon with a more solid fabric border from China.

Judge Chayot ruled that since Merkaz HaMatanot labeled their cloths with a tag stating that the supplier was Merkaz HaMatanot, there was no case of passing off. Merkaz HaMatanot was a retail customer of Karshi as wholesaler and not an agent of theirs, there was no contractual relationship and thus no breach of contract.

Karshi made no attempt to register the design and there was no additional consideration to imply that Karshi had rights in the design. There was no case of inequitable behaviour to answer for so there was no grounds for sanctions under the Law of Unjust Enrichment.

Case: Civil Appeal 1898/12 Merkaz Matanot 2006 LTD vs. Karshi Intenrational LTD. before Judges Solberg, Natyot and Chayot.  Hearing 25/6/2013, decision, August 2014.

COMMENTS

It seems that A.Sh.I.R. is still good case-law, but the judges want some real indication beyond competition to rule Unjust Enrichment.

The cloths in question were variations on a well-known theme. It is suprising how many of these are sold. I suspect that a lot of ritual Judaica (probably including mezuzot and tefilin) are made in China. Being an importer does not create a monopoly. The original decision was wrong (as were decisions by Shapira concerning the Hallel wine trademark and concerning alleged copyright infringement by Naomi Ragen. I am pleased he no longer rules on IP issues. Whether or not he will be a good state comptroller is beyond the scope of this blog, and beyond my competence to comment on.

 


Invitation to the PCTea Party!

September 4, 2014

PC TeabagssewProfessor Phillips at a PCTea Party at the British Houses of Parliamentcinema city

To celebrate 10 years as an owner or partner in my own firm (including the partnership JMB, Factor & Co. circ a 2008-2011), and, a decade of this blog, the readers of IP Factor are cordially invited to toast in the Jewish New Year at a PCTea Party to be held in Cinema City Glilot, Ramat HaSharon. In addition to food, there will be food for thought provided by the preeminent Professor Jeremy Phillips, who will provide some insights on recent world-wide IP Developments, taking his title from Kohelet (Ecclesiastes):

“A time to sow and a time to reap”.

The event will be a party, not a sales pitch. We won’t be giving out literature (and request that competitors don’t either). I won’t even blow my own trombone.

When? 4 PM – 6 PM on October 1, 2014,

Where? Cinema City, Glilot

Academics and associates, competitors, colleagues, commissioners and clients, friends and family, lawyers and litigators, examiners and judges are all welcome.  However, we do need an idea of numbers, both for refreshment quantities and so that we select the appropriate cinema theatre (movie theater for those requiring translation), so we do request that people register here.


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.


Franchisee for Sports Broadcasting Fails to Uphold Rights Against Restaurant Screening Matches

June 25, 2014

Football on TV

Charlton LTD claims to be the franchisee with exclusive rights to license the broadcasting of sporting events and sports channels to satellite and cable distributors in Israel. E.M.T. Gormet LTD is a restaurant that screened sports events for benefit of their patrons. Charlton sued the restaurant and its owners for Copyright Infringement, claiming 85,000 Shekels in statutory damages.

Judge Hadassah Assif of the Hadeira Magistrate’s Court threw the case out and ruled costs of 1500 Shekels against the plaintiff.

The Ruling

Citing Appeal to Supreme Court 2173/94 Tele-Event vs. Golden Channels 55 (5) 529, Judge Hadassah Assif  accepted that there was copyright in sports events. Such copyright belongs to the producers or to licensees. In this case, Charlton was not the producer, but claimed to be a licensee. However, Charlton did not provide evidence of having any contract with producers covering the period of alleged infringement.  Thus despite proving that the restaurant had shown sporting events, Charlton could not prove that they had rights to the copyright. Claims of Unjust Enrichment were similarly dismissed.

As to the owners of the company, the court ruled that companies always have owners and actions of companies are generally performed by people. However, company law distances the owners from actions by the company, and one has to show good reason for raising the mask provided by the company as a legal entity.

It was considered insufficient to merely show court rulings and a licensing agreement from a period three years before the alleged infringement and to claim that the legal circumstances were the same. No evidence to the effect that the existing agreement was automatically renewed was produced.  In the absence of a contract clause or a general principle of law, Charlton failed to establish that they had rights in the sporting event.


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