Maxi & Me, and Edmonton the Boundaries of Copyright Protection and Slander

מקסי ואניRon Guata submitted a play called Edmonton to a new talent competition organized by Beit Lissin in 2010.  Hillel Mittelpunkt, a playwright associated with Bet Lissin, launched a play called Maxi & Me. Both deal with real-estate issues and Guata sued Mittelpunkt and Bet Lissin for a million shekels for copyright infringement. In 2017, the District Court dismissed the charges (Civil Ruling 61624-12-13) and ruled 30,000 NIS costs to Mittelpunkt and a further 13000 Shekels in damages to Mittelpunkt’s reputation.

Both parties appealed. Guata claiming that court submissions could not be slander, and that there was copyright infringement, and Mittelpunkt appealed the low damages and legal fees.

The Appeal was partially accepted and the counter appeal was rejected.

HendelJudge Hendel ruled that ideas per se are not copyright protectable. Copyright only protects the expression of the idea.  There is, however, no clear demarcation between the idea and its expression. In our world, all ideas come in some kind of dressing. So the question is one of the similarity between the creations is one of both the simplified idea and of the elements used to implement the idea. Intermediate cases can raise difficult issues, and various tests may be required to ascertain if only the basic idea was lifted, or also elements of its expression. There are, however, also clear examples where all the tests lead to the same result. Sometimes the similarity between creations is in detailed and deep aspects. In other instances – and this is the case before us – There is no need for certain tests to prove that there is no real similarity between two creations, but merely a certain closeness in the ideas.

As a matter of legal policy it is not fitting for the court to be overly involved in nuances of the type raised by the Appellant. The Court of First Instance examined he issues carefully and detailed its conclusions, and its findings are accepted by the Supreme Court. The Appellant’s play does not close the door against other shows of the type written by the respondent and the case is not one of copyright infringement.

defamationAs to the charge of slander, disclosures made in the context of a legal proceeding may not serve as the basis of a tort for slander. The protection against being sued covers all stages of the legal proceeding, including preliminary steps such as Cease & Desist letters. In this instance, there wasn’t a formal Cease & Desist, but examination of the letters show that they were preliminary shots fired in this legal proceeding.

Since the preliminary letters are not formal legal submissions, their status regarding libel charges must be considered on a case specific basis. There is relevance in such questions of how many warning letters were sent, their content and the addressee. Here there were three letters, and they were sent to central figures in the theatre. They were to the point and laid out a factual argument that was later raised in the Statement of Case.  In these circumstances, the letters should be seen as part of the legal process as understood widely. To understand otherwise would limit access to the courts to settle legal disagreements.   This does not mean that insulting and slighting publications are allowed, so long as a civil tort is subsequently filed.

Appeal 7517/17 Guata vs. Mittelpunkt Ruling by Justice Hendel, with Justices Barak Erez and Kara concurrence, 11 November 2018

Categories: Copyright, infringement, Israel Copyright, Israel Court Ruling, Israel IP, Uncategorized, זכות יוצרים, קניין רוחני, קנין רוחני

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