Walla Sued for Not Acknowledging Photographer of Iconic Image of Peretz

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.

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