Alternative Dispute Resolution Copyright in an Ark Curtain

parochet cloth.JPG

Haggit Weingarten is a talented graphic designer. She designed a parochet (curtain for ornamenting the Ark of the Synagogue) where she and her family pray in Petach Tikveh. After finalizing the design with the Synagogue, Ms Weingarten approached a company that did computerized embroidery that specializes in similar ritual items and paid them to fabricate a parochet with her design which is a stylized arrangement of a well known phrase found in Isiah 52:8. The curtain is more modern that the dark velvet or satin curtains that include Stars of David, lions, the Menorah or Ten Commandments that are ultra conservative, but it is not overly modern. The resultant curtain is shown alongside having in her Synagogue. The embroidery company were very complimentary of her design.

parochet-laviSome months later, a member of her community spent a weekend in a Kibbutz Hotel and was surprised to see a curtain with the identical design hanging in the Synagogue of the hotel. Ms Weingarten was rather annoyed about this, and after a little bit of research discovered that the embroidery company was offering the curtain in their catalogue of designs and on their website. Now furious, she got her attorney-in-law husband to write a cease and desist letter requiring that the design be removed from the catalogue and from the website and that the company pay 5000 Shekels compensation.

The company argued that graphic designers made nowhere near that amount for designing embroidery and made a counter-offer of a velvet bag for the husband to store his ritual prayer shawl in.

Dr Ben Spungin who is a patent attorney at IP Factor, prays in the same Syngagogue. The Weingartens contacted him and we decided to help. I was near the Kibbutz one day that summer and took a photograph of the curtain, which by that stage was a three piece suite set including  a cover for the Bima – the central table used for reading from the Torah, and a smaller cloth for the lectern.

The problem was that court proceedings could take 2-3 years and the total award would be unlikely to cover the legal costs which was why the embroidery company could take such a cavalier attitude to their infringement.

We prepared a Statement of Case and noted that under copyright law, the graphic artist was entitled to (up to) 100,000 Shekels compensation for copyright infringement, and a further 100,000 Shekels for infringement of her moral rights to be identified as the artist. In case the embroiderers would argue that this was a design for manufacture and not a work of art, we noted that under the A.Sh.I.R. ruling, the artist was entitled to up to 100,000 Shekels compensation under the Law of Unjust Enrichment.

We sent a copy of the Statement of Case to the embroiderers. Their lawyer got the embroidery company to take the curtain off their website and out of their catalogue, and  then contacted us to negotiate a settlement.

Now whilst the law provides grounds to sue for up to 200,000 Shekels, followers of this blog will note that court rulings vary widely from 2000 Shekels to maybe 50,000 Shekels for copyright infringement of this nature. Ms Weingarten did not include her name as the designer on the original curtain for her Synagogue. Nor would she be expected to. Arguably however, this puts a zero value on her moral rights to be recognized as the artist. More significantly, the original Cease & Desist letter from her husband valued the infringement at 5000 Shekels. Still, the curtain had now gone forth and multiplied into a family of three embroidered cloths. With both lawyers phoning their clients and a little haggling, a settlement was agreed that was more than the Weingartens had originally asked for and even after paying us a small commission, was still more than they would have received.  Justice was served in that the embroiderers ended up paying more than they would have otherwise, not including their own legal expenses. The issue was settled in less than three months.

It should be appreciated that mediation and arbitration are faster alternatives to court proceedings. As this was not a court ruling in the public domain I am not naming the infringing company, but in court rulings, the parties are identified. To avoid adverse publicity it is often in the parties’ interest to avoid going to court.

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