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.
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.
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 compensation under Copyright Infringement, and her claim should be thrown out. It transpires that when the case was filed in 2010, Ms Rosengarten requested and obtained a discount on the court fees, claiming poverty. Ms Ragen pointed out that Ms Shapiro was a co-plaintiff and had assets, but Ms Rosengarten argued that she was the effective plaintiff and Ms Shapiro was only formally listed as a plaintiff. This statement, coupled with the lack of paying of the fee which Ms Shapiro wasn’t entitled to, was held to estoppel claims to copyright infringement since these rights belonged to Ms Shapiro who wasn’t entitled to compensation as she did not pay the court fees.
Although Copyright can be transferred, Moral rights, including the right to integrity in a work cannot. Judge Shacham therefore ruled that Ms Rosengarten is entitled to compensation for infringement to her moral rights.
The copyright and moral rights asserted relate to Chapter 24 of Ragen’s novel which deals with a mother’s thoughts about a potential match for her son.
Ms Rosengarten claimed that the content and the characters of the shidduch (matchmaking) chapter, the language, linguistic style and phrases that she had used were copied and reworked in Naomi Ragen’s novel, thereby concealing the fact that they were copied.
Ragen countered that the books and genres are very different, Ms Rosengarten wrote a 15 page short story and Ragen’s novel is 442 pages. She pointed out that there are only so many ways one can discuss a hareidi shidduch from the groom’s mother’s perspective. The age of the bride, her thoughts and considerations and those of the mother-in-law, together with terminology and syntax are dictated by the circumstances and so similarities will inevitably occur.
Both side produced expert literary witnesses to support their contentions.
Judge Shacham found copyright infringement due to a long list of similarities: In both stories the mothers are stressed by the idea of marrying off the son, but the boy is ready to get married. The girl is not yet 17 and this is her first potential match. the father of the girl meets the boy and tests him on his Talmudic ability. The father of the girl and the boy seem to be mutually appreciative of each other. The boy wants the match settled so that he can return to his Talmudic studies. The mother visits the girl Friday night. The groom’s mother finds the girl childish. The girl is quiet and her parents try to get her to speak up. The groom’s mother is irritated and uncomfortable and wants to leave the girl’s house. In both books there is a meeting of the groom’s parents with the bride. The boy is impatient with his mother. The boy intends to meet the girl. The mother meets the girl again and her views haven’t changed. The young couple meet and overcome their bashfulness.
In both books the match-maker phones up the groom’s mother to update her and in both cases, the bride’s mother phones the matchmaker to say that the girl isn’t ready. In both books the matchmaker makes further efforts, when the first match does not seem to be going smoothly.
In both books the son goes abroad for the high holidays and a relative suggests a possible match. The son asks him to continue with this and asks that one of his parents come. In both works, the mother is described on the plane and the weather is clear and hot. A meeting with the girl is arranged for Sunday and in both cases the mother is warmly welcomed by the girl and her sisters but nevertheless feels rejected by the son. In both cases the mother has a discussion with herself and in both cases the mother points out the boy’s conditions as to where he should live and that he should continue his studies and in both cases the girl and her parents were not aware of these conditions. In both cases the girl rejects the Hareidi lifestyle and the mother contacts the father to discuss.
The judge sums up that in each work there is a commonality in that the first matchmaking attempt does not work, but the second one does. The chain of events and the details are similar and so the judge comes to the conclusion that Ragen’s book infringes on Ms Rosengarten’s story.
As to Ms Ragen’s arguments that shidduchim in the Hareidi world follow a pattern, the judge accepts that this is the case, but considers the two accounts are more than generic accounts of Ultra Orthodox arranged marriages. They are very similar accounts of attempts to marry off the son from his mother’s perspective and add colour and life into the matchmaking process in a manner that is neither technical or generic.
The judge accepts that arranged marriages follow a pattern, but each community, each family and each case is different, whilst the similarities are superficial. The similarities between the account of the matchmaking in The Sacrifice of Tamar and that of A Marriage Made in Heaven far outweigh the similarities between the matchmaking in The Sacrifice of Tamar and match-making described in other books by Ragen.
In Ms Rosengarten’s story we find:
“As soon as Eliezer gets home, the matchmaker is on the phone[…] But a few minutes later the phone rings again. It’s Mrs. Schwartzman. She’s hemming and hawing. Finally she gets to the point. “I should have mentioned it earlier” she begins in apology. “But we thought it was a childishness of Rachel’s part that would pass. When we first spoke to Rachel about marriage she would not hear of it […] Actually, Mrs Schwartzman says with a deep sigh…”Rachel isn’t even seventeen”. “Why should I get married so young? She told me […] she sees that a woman’s life is not so easy. But don’t get me wrong. She just isn’t ready to commit herself at this point […] When I reported the conversation to Eliezer, he is greatly upset. But he has no intention of waiting around for the girl to grow up either.
In Chapter 24 of Ragen’s novel:
The phone rang. It was the matchmaker. […] Aaron arrived.[. ..] But then moments later the phone rang agains. It was Mrs Engel. “I’m very embarrassed. But Fruma Devorah…” she hesitated. “She kept saying she didn’t want to get married. That she was not even seventeen, and what does she need it for? She sees how hard married women work… We thought it was nareshkeit, that it would pass […] But she doesn’t want. She doesn’t want. It’s nothing personal, believe me. She says she feels too young. Aaron was devastated [….] Well, I have no intention of waiting around for her to grow up”.
Another example from Rosengarten’s story is:
The day after he leaves, a letter arrives from Uncle Chaim in Brooklyn. A shadchan there has proposed Reb Asher Falig’s daughter for Eliezer. Reuven is very interested. “Now that’s a match” he exclaims. “Reb Asher Falig is a real scholar. A man whom you will find in shul at five in the morning, and again after work, till it closed at twelve. A wise man. A generous man. There aren’t many like him in all of Tolin”
In Ragen’s book:
Three weeks later, Josh came home early, his face beaming. “I got a letter from Reb Asher Lehman, one of my old classmates who now lives in Bnai Brak. He has found the perfect shidduch for Aaron. Her name is Gitta Chana Klienman. Her father is the mashgiach of Lonovitch.!” […] I have heard of Reb Kleinman. A real tzaddik. A man who wakes up at four every morning and walks to the Kotel to pray. A man who is in the Beit Medrash learning until midnight every night. Wise, compassionate, generous.
Judge Shoham sees a similarity in language that he thinks cannot be coincidental and which he considers as proving plagiarism. He notes that both passages are written from the narrator’s viewpoint and then the boy’s father speaks. The chain of events is identical. The period of time that passes is given. The father announces receiving a letter. The girl’s father is described in a similar manner as getting up early to pray and as studying until midnight. The similarities are in structure and content. Similar descriptions, similes and metaphors are used. Other passages are similarly reworked. The ‘fingerprints’ of the author of Marriage Made in Heaven are all over this chapter of Ragen’s book. The two are not identical but there is clear evidence of copying.
The secondary characters in the two accounts are identical. Both have an anonymous matchmaker. The second potential bride has married sisters who are welcoming to the boy and his mother. Not only the characters, but also their interactions are similar.
Ms Ragen admits that she had access to various accounts of matchmaking including Ms Rosengarten’s story which was on her bookshelf when she wrote The Sacrifice of Tamar. She claims to have used it as a source reference of the Hareidi world, to counter charges that she wrote libelously about the Hareidi world.
Nevertheless Judge Shacham noted that there were differences. One story is set in a Hassidic background and the other against a Lithuanian non-Hassidic Hareidi background. In one book the son goes to Brooklyn whilst in the other he goes to Bnei Brak. In Rosengarten’s story a Rabbi mediates between the girl and the mother-in-law to be, whereas this is absent in Ragen’s book. There are different objections regarding whether the son should continue learning indefinitely or should eventually work. In Ragen’s book, the mother traveling to New York brings up associations of her New York past and the rape, which are absent in Rosengarten’s story.
On balance, Judge Shacham ruled that the use by Ragen of Ms Rosengarten’s story went beyond inspiration and reference and constituted significant copying and plagiarism despite the fact that the material was somewhat reworked to fit into Ragen’s over all plot.
Ragen’s literary expert considers that to construct a scene it is acceptable to take inspiration from the work of others and all authors do this. Judge Shacham considers this to be true, but considers that Ragen went beyond this and copied Rosengarten’s work which is not acceptable in literary circles. Additionally, Ragen’s expert considers the usage trivial and limited, but Judge Schacham dismissed this and considers it significant.
Judge Shacham does, however accept that the contribution of passages taken from Ms Rosengarten’s work are insignificant to Ms Ragen’s work. He ruled, however, that that is not the issue since a significant part Ms Rosengarten’s work was taken and reused.
Similarly, Judge Shacham notes that the genres are dissimilar. However, he does not consider this distinction as redeeming. The judge does not find the argument that the copying was subconscious and unintentional as being plausible.
As to fair use, the Judge acknowledged that the list of fair use exceptions is an open one, and that the intent and scope of copying had to be taken into account, but considered that Ms Rosengarten’s story was copied in a way that was very different from research, reviewing, study or teaching in that it was worked into a commercialized novel. He considered that Ms Ragen should have sought and obtained permission to use Ms Rosengarten’s story and should, as an experienced novelist, have known this.
It transpires that Ms Ragen did not ask permission as she did not expect to get it as her book was critical of the Hassidic lifestyle. Furthermore, she did not acknowledge Ms Rosengarten as she had assumed that she would not want to be associated with a novel that was critical of what she held dear. The judge ruled that it is difficult to interpret this behaviour as compatible with fair use.
The judge also considered that Ragen’s reediting and use of similes to hide the similarities is not compatible with fair use. Another issue discussed is that of transformation. Ms Ragen claimed that her use was to be considered transformative in that the material that was taken was reworked. Judge Shacham accepted that the material was tailored to fit into the larger novel and was tweaked about to fit into the new context but considered that it was, nevertheless, still being copied. Judge Shacham did, however, acknowledge that Ms Rosengarten’s market was not hurt by Ms Ragen’s reworking, but did not consider this to be an issue.
Regarding compensation, Ms Rosengarten claimed that there was a continuous period where the work is being sold that overlapped the period of the new law and thus she was entitled to 100,000 Shekels in statutory damages. This should be doubled as the infringement was wilful. Judge Shacham considered that for most of the period the damages were 10-20,000 Shekels, and only in the last couple of years before the case was filed was the damages 100,000 Shekels. He considered that the book was on continuous sale over a long period and wished to prevent Ms Ragen and the publishing house of similar plagiarism in future.
Judge Shacham further noted that Ms Rosengarten did not suffer material loss due to the infringement and he found the claim that her creativity was adversely affected tenuous and not convincing. He also did not believe that Ms Ragen had profited from the copying as the copied material was only a small part of her novel. Were he to rule copyright damages, Judge Shacham would have ruled 35,000 NIS (about $10,000) in damages. Since the copyright was transferred to Ms Shapiro and she hadn’t paid the fee, this was moot.
Due to the passage of time and the relatively small amount of the book that was plagiarized, Judge Shacham did not see fit to prohibit further publishing or to rule that future copies should have the copied passages amended, although it is technically possible to do so. Ragen’s book was on the market for too long already for future sales to be significant and the work in reediting was therefore considered unjustified.
As to moral rights, since these are non-transferable, judge Shacham could not accept that these were sold to Ms Shapiro. He felt that there was a deep connection between an author and her work, and having it distorted to provide a message that she does not subscribe to was, in a very real sense, an infringement of her right to integrity in her work. Israel’s copyright ordinance was amended to conform it to the Bern Convention which states (Section 6a):
Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work which would be prejudicial to his honor or reputation.
Citing Jerusalem District Court ruling 6157/04 Dvash vs. Adler, Chomski and Warshawski (7/11/06), which relates to a sing about trust in God being used in an advertisement for insurance, Judge Shacham noted that a transformation and reuse that distorts religious messages damages the moral rights of the author. He found similar rulings in the case law of other countries as well.
The current reuse was a distortion or perversion that was detrimental to the plaintiff. Chapter 24 was largely based on A Marriage Made in Heaven but was used in a work that had contradictory messages and values to those that Ms Rosengarten ascribed to. Whereas Ragen’s book was critical of Hareidi norms, Ms Rosengarten upheld that lifestyle. The two works are at polar extremes in their perspective on the Hareidi lifestyle and so Ms Rossengarten’s honour was potentially damaged. Judge Shacham did, however, note that the Ms Rosengarten’s identity was not acknowledged in Ms Ragen’s book and cosmetic changes hid the source of the chapter in question.
Ms Rosengarten further claims that her not being credited as the author of the chapter was, itself a moral slight. The Judge acknowledges this but argues that she would not want to have been connected with the book due to the distortions and cannot have it both ways.
In summary, considering the period that Ms Ragen’s book was on sale and that she knowingly copied from Ms Rosengarten’s work and incorporated it into a work that Ms Rosengarten would find offensive, and noting that for most of the period prior to charges being brought the copyright law had a cap of 20,000 NIS, but the new law had a cap of 200,000 Shekels for statutory damages for willful infringement, Judge Shacham ruled 60,000 NIS damages against Ms Ragen and Keter Publishing House,, and 9000 NIS legal expenses, 10% of the cost for Ms Rosengarten’s legal expert and 1700 NIS in direct costs.
Civil Case 9467-05-10 Rosengarten vs. Ragen et al., Judge Shacham, Jerusalem District Court 11 November 2014.
Somewhat appropriately, the ruling issued during the week of the Torah reading Chayei Sara which is about Abraham sending Eliezer to find a bride for his son Isaac. Arranged marriages have a long history in Judaism, as do love matches such as Jacob and Rachel. There are certainly common aspects to the dating and match-making games that cross cultures. In Hassidic circles, there are trends and scenes that are somewhat repetitive and predictable to insiders, which give Ragen’s novel an authenticity.
In the past, we’ve reported a number of copyright cases where best-selling Israeli Author Ms Naomi Ragen has been sued by various lesser known authors for copyright infringement.
We note that the attorney for the plaintiffs Mr Gilad Corinaldi has been suing Ms Ragen on a periodic basis on behalf of a number of authoresses on similar charges of copyright. Ms Ragen considers his as having a personal vendetta and as hounding her.
I am not sure that I would base a transfer of copyright from Ms Rosengarten to Ms Shapiro solely on the copyright statement in the book. Particularly where Ms Rosengarten has stated that she is the rights owner.
The chapter in question is not central to the plot of Ragen’s book and I don’t think it constitutes a major part of Ragen’s novel. It does, however, appear to be a major part of Ms Rosengarten’s short story. Based on Supreme court Precedent 559/69 Almagor vs. Butnick 825 (1) 1970, the issue is quality not quantity and the question is how many similarities are there between the two works. The judge considers that the issue is to be decided, not quantitatively, but rather by the feeling of the judge on comparing the two works. Nevertheless, he presents a long list of similarities.
It seems that Ragen’s book may be considered as being an original piece of work, but it includes reworked sections of, and appears to plagiarize Ms Rosengarten’s more modest literary contribution. I can certainly understand Ms Rosengarten’s frustrations that an honest, autobiographical account of her feelings about her son’s marriage options and a potential sixteen year old bride is apparently reworked into a novel that paints Hareidi society in a less positive light.
Ms Rosengarten’s title is certainly not original. It has been used dozen’s of times, probably the best known novel being by Barbara Cartland.
Judge Shacham dismissed claims that the copying was subconscious. I don’t think this actually matters from a legal point of view. In 1976, an American court found that George Harrison’s “My Sweet Lord” had infringed the copyright on “He’s So Fine” by the Chiffons, which was a hit in 1963. One critic went so far as to observe that the refrain “Hare Krishna” essentially copied the refrain “Doo-lang,” in “He’s So Fine.” Harrison ended up paying five hundred and eighty-seven thousand dollars, despite convincing the judge that he would not intentionally have copied someone else’s melody.
The judge also considered that Ragen’s reediting and use of similes to hide the similarities is not compatible with fair use. I find this argument difficult. I would expect that once written, the book would be edited and amended. Words would change throughout, and particularly in a section that was not original, if only because Ragen would naturally rework into her own style.
This opens the question is to what extent can a piece such as Ms Rosengarten’s be reworked and reused without her consent in a manner that may be considered fair use and non-plagiarizing. Where is the line? It is clear that the central idea behind her piece, i.e. a mother’s thoughts regarding her son’s marriage options are not owned by Ms Rosengarten, even if she was the first person to right such material. Ragen’s argues that the age of the girl and other details are dictated by circumstance and there are only a limited number of ways this can be written. This argument is not wholly without merit.
There are, of course, reoccurring motifs in literature. Shalom Aleichem’s Tevye’s Daughters (Fiddler on the Roof) discusses matchmaking from the view of the parents of the girl. Harper Lee and others have dealt with black alleged rapists.
There are many questions regarding the statute of limitations that may well be appealed. It seems that the plaintiff did know about the infringement years earlier. Although backed by case law, I do not find the judge’s decision that the present case should be considered as being an ongoing infringement convincing. The infringement was a specific action of plagiarism that occurred in a specific time frame. It was known to the plaintiff who did not act within a reasonable time frame. However, the judge ruled that you need a very level of evidence to conclude that a case has been abandoned.
Can one assert moral rights five years after learning that one’s work has been modified and reused? The judge thinks yes. I am less convinced.
Rather tellingly, in discussing whether Ms Rosengarten had given up on the claim, she claims not to have acted promptly in 2006 to rumours that her work was plagiarized by Ragen since finding the similar passages was “like hunting in a pile of straw”. I am concerned that similar but non-identical paragraphs that have been modified and reused may be a legitimate writing process if even the original author has to painstakingly wade through the novel and find the similar passages. It means that the work is not simply copied. Ragen’s writing reworks Rosengarten’s in a way that even Ms Rosengarten could not apparently easily find the similar passages.