Copyright in Photographs from Old Newspapers Shown in History Programs

Shmuel Rachmani is a photographer who was affiliated with the Ma’ariv newspaper. Some of the time he was a freelance photographer and some of the time he was an employee. Rachmani’s contract with Ma’ariv left the copyright in all the photos with him.

In a documentary series called “This week previously,” The Israel News Company Ltd. related to important events that had occurred in the same seven-day period in previous years. Included in their coverage were images from the archives of the Ma’ariv newspaper at Bet Ariela.

Rachmani claimed copyright in 11 such images, of which 10 credited the archives rather than him.

The TV channel claimed the defences of no copyright in images of events,  and that where a newspaper has cropped an image, the copyright is lost. They also claimed defences of fair use, education and newspaper exception and incidental inclusion of the images in the program.

Judge Arnon Darel dismissed the claim of no copyright outright, and also the cropped image argument.

Having established that there was copyright in the image, Judge Darel would have contemplated the various fair use arguments if the identity of the photographer had been acknowledged, thereby preserving his moral right, but ruled that the channel could and should have clarified and acknowledged the identity of the photographer. Since they didn’t he ruled 7 separate counts of copyright infringement, ruling NIS 15,000 a time, as a compromise between the minimum and maximum statutory damages under the old law, and a further NIS 20,000 for moral rights.

The 7 counts were arrived at by dismissing one case where the identity of the photographer was acknowledged and treating two cases where more than one photograph of the same event was shown as being single infringements.

He went on to rule NIS 25,000 legal costs.

The Case: T.A. 7036/09 Rachmani vs. The News Company LTD., Judge Arnon Darel, Jerusalem Magistrate’s Court, 9 October 2011.

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