Vanunu’s hand

learned hand

Zoom 77 A. Sh. LTD has sued Buzz Television LTD for copyright infringement in that Buzz Television broadcast the well known photograph of Israeli traitor Mordechai Vanunu’s hand pressed against the van Uno car window, with the information that he was abducted in Rome by Israel’s Secret Service.

Instead of arguing for informational, non-profitable purposes, de minimis fair use, I am not reproducing the offending image here. Those interested in it can type Vanunu hand into their search engines.

Buzz Television LTD included the image (Vanunu’s Hand, not Learned Hand) in a documentary called the Israel Connection that was produced for Israel’s Educational Television channel. They did not receive permission to include the image and Israel’s Education Television was sued and obliged to pay compensation. See Civil Case 9260-09-12 Zoom 77 A. Sh. LTD vs. Israel Educational Television, 16 January 2014.

(ת”א (מחוזי י-ם) 9260-09-12 זום 77 א.ש (2002) בע”מ נ’ הטלוויזיה החינוכית הישראלית (16.1.2014
Buzz Television LTD used a clip including the image on their website as well, also without permission and without indicating the copyright owner. This second usage is the basis of the current law suit in which Zoom 77 claimed 80,000 NIS compulsory compensation without proof of damage under Section 56 of the Israel Copyright Act 2007.
Buzz Television LTD accepted that the image was owned by Zoom and that displaying it on Buzz’ website was an infringing use. The point of contention was the appropriate compensation in the circumstances.

Section 56b of the Law brings various relevant considerations for setting the compensation including the scope of infringement, its longevity, its seriousness, actual damages, profits to the infringer, the defendant’s activities, the relationship between plaintiff and defendant and inequitable behaviour.

In the present instance, Judge Gideon Gidoni of the Jerusalem Magistrate’s Court noted that the photograph has significant journalistic value and was used to market and promote the defendant’s activities. On the other hand, no evidence was given by the plaintiff regarding the traffic to the website in general and the clip in particular. The Defendant claimed that the clip was a minor component on the website and hardly watched.

No evidence was provided as to how long the image was displayed, but one can assume that the defendant was involved in the case against Israel Educational Television 18 months earlier, and could and should have taken down the clip. Buzz Television is a production company working in the media industry and should be aware of copyright issues and should consequently be highly aware of other’s creative rights. The cost of licensed use of the image was 1600 Shekels.

Judge Gidoni noted the damages paid by Israel Educational Television 18,000 Shekels for first infringement and then 50,000 Shekels for a second infringement last year, and that this was a repeat, albeit indirect infringement of the same product.

He also related to third parties reproducing other news images, including Rachmani v. Israel News 2011 (15000 Shekels for an iconic news image)  the learned, but perhaps not very analytic judge ruled compensation of 25000 Shekels. Civil Appeal Basketball League Management vs. Rachmani (the famous Tal Brody lifting the European trophy “we are on the tablecloth map” where 18000 Shekels was ruled and Kfar Blum Kayaks vs. Manara Cliff 2012, where 75000 Shekels was awarded for moral rights infringed by not mentioning the name of the photographer of the tourist attraction.

In another recent case, Zoom sued Tratkover and was awarded 22000 Shekels.

Judge Gidoni ruled 25000 Shekels compensation, 1000 Shekels costs and 3000 Shekels legal fees.

Sh-14-02-30214-730 Zoom 7 vs.Buzz television re Vanunu’s hnad photo, Judge Gidoni, Jerusalem Magistrates Court, 8 April 2015.

COMMENT

Vanunu set up the picture. The handwriting, font and content of the writing on his hand is his copyright. He was also responsible for positioning his hand on the car window and for his posture. Perhaps he deserves royalties as much as he is deserved his jail sentence?  The journalists that caught the image did very little artistic creation, and arguably whoever crops the image for insertion into a newspaper deserves as much credit and name recognition.

There is certainly a value in fidelity of the law, and levels of compensation for similar infringing acts by different parties should, perhaps, be similar. I would, however, like to feel that judges can analyze and reach sophisticated conclusions and not merely bean count.

I believe that there are iconic images, film clips, sound tracks and the like that have a place in any documentary or dramatization of significant history. I think it ridiculous that a birthday party in a film won’t include children singing Happy Birthday. A film of Martin Luther King couldn’t reproduce his “I have a dream” speech.

In Israel, Holocaust Memorial Day starts this evening. When looking for two rapper versions of Israel’s National ANthem, Hatikveh that were the basis of a copyright infringement proceedings, I discovered a BBC radio clip of the first Friday night Kabbalat Shabbat Service from Bergen Belsen after the camp was liberated. After singing the Hatikveh, one clearly hears the then British Chaplain, the Late Reverend Hardman announcing that the people of Israel live. I sent the clip to his grandson, Danny Verbov who thanked me, and told me that he;s sent the clip about one a month. He kindly sent me a copy of Rev Hardman’s sermons that he’d edited. (I am ashamed to say that I used to go out to play during the sermons).

Now, Danny (and presumably the BBC) could have sued me for downloading and copying or linking to copyright material. At one suing a month Danny would solve the problem of spam email and have a nice sideline. Thankfully he is a mensch and has more sense.

I’d like to see standard reproduction royalties for usage of these literary and artistic creations.

I have illustrated this post with a picture of the US judge who detailed the various considerations regarding compensation for patent infringement in Georgia Pacific vs. American Plywood. The reason for referencing this is not just that he found 15 Factors of relevance, which sounds like an extended family seder, or even that the judge is called Learned Hand. I think his analysis is of relevance when calculated copyright royalties as well as patent royalties.

As always, comments and feedback are welcome.

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