Super-heroes get statutory damages under the wrong law

The new Israel Copyright Law 2007 entered the Statute books on 25 November 2007 and came into effect six months later in May 2008.

Prior to May 2008, the Copyright Ordinance of 1911, inherited from the British Mandate, was the copyright regime in effect in Israel. The Ordinance underwent some amendments over time and there have also been some creative case-law.

Under the Copyright Ordinance of 1911, statutory damages were limited to NIS 10,000 per infringing event. For willful infringement, double damages of NIS 20,000 could be awarded.

Under the new law however, damages of up to NIS 100,000 per infringing event may be awarded. According to the transition provisions (Clauses 78 to 79) the new law may be enforced for creative works predating its entering into effect  if the infringing act took place after the law came into effect. Thus an act that took place in 2005 or 2006 that was the cause of a suit filed in 2009 or 2010 would be tried under the old act. The statutory damages, per infringement are limited to NIS 10,000 to NIS 20,000.

Or so we thought…

Two cases regarding the manufacture of children’s watches were filed in 2008 and combined and tried by the Tel Aviv Magistrate’s Court. The watches feature Marvel and DC Comic Book characters including Spiderman, Superman and Batman. Because the events took place in 2006 the authorized licensees for the characters and the comic book publishers sued for statutory damages of NIS 10,000 to NIS 20,000 under the 1911 copyright ordinance.

(It should be noted that the plaintiffs sued, as an alternative grounds for damages, the statutory damages under fair trading laws, but it is clear that where there is a specific statutory damage, as for copyright infringement, this is the grounds for damages that apply).

In her ruling, Presiding Judge Channa Inon acknowledged that the correct law to apply depends on when the infringing actions took place. What is surprising is that after deciding that there were three infringing events per plaintiff, and not enough evidence to assess actual damages, she awarded damages of 3 x NIS 100,000 under the new copyright law, i.e. NIS 300,000 (almost $87,000) each, to Marvel and to DC Comics.

Perhaps the plaintiffs were awarded Super damages as befits superheroes?

The cases: T.A. 35389/08 DC Comics vs. Polo Publicity and Trade LTD. and T.A. 35390/08 Marvel Comics vs. Polo Publicity and Trade LTD.

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