The Questions in Dispute
Did Yehezkel Panyan infringe the copyright of Aharon Amram’s song “A Tear in the Eye”? To answer this question, we have to look at the claims raised by the defendant which allege that the plaintiff has no rights in the song since the words and melody is that of a folk song that is part of historic Yemenite culture and is in the public domain.
It is noted in light of the questions and personnel involved, that this case raises many emotions and it is extends beyond the boundaries of a regular Intellectual Property dispute, where the judge has to determine if rights were infringed or not. The defense raised the claim that this is not the only creation that the plaintiff is trying to monopolize and that there are a number of songs that are under arbitration by A.K.U.M., the collection society for performers’ rights. During the proceeding, the plaintiff was accused of kidnapping Yemenite songs, and there were various requests for evidence, some of which were thrown out as explained below. Judge Chana Plinner who heard the case decided not to go beyond the narrow Intellectual Property issues relating to the song, whether they were infringed, and an assessment of the damage, if required. The ruling is based on the evidence submitted and the judicial weight given to that evidence based on IP Laws and the burden of proof required in Civil actions. The claims of the parties are now brought:
Amram’s Version of Events
Aharon Amram claims to be the lyricist and composer of “Tear in the Eye” which he wrote and composed in 1958 or thereabouts, and is an original creation. Amrami recorded his rights in the AKUM database in 1978 (see pages 28 and 29 of the evidence submitted by the plaintiff, a copy of the registration appended as appendix 1, an affidavit and a report to AKUM).
The original creation was published in 1961 or thereabouts, in a record that included the plaintiff’s recording of ‘A Tear in the Eye” and “A Barrel and One”. A copy of the record jacket was appended as appendix 3.
Over the years, the plaintiff allowed covers and variations to be made, including Ofra Haza’s song “Galbi” that was released in 1984. However, when Yizhar Cohen took the song without permission in 1972, and published the song “Illusions”, the plaintiff sued Cohen and the recording studio CBS. The plaintiff claims that that proceeding established his rights to the song and forbade any covers. A copy of the decision from 1976 was appended as appendix 8.
The plaintiff claims that the defendant, who is an artist and composer, and a member of A.K.U.M. (a copyright collecting society for Israeli performing artists), knowingly and wrongfully took the original creation without permission and copied the melody and two verses in Yemenite and added a couple of verses in Persian that the defendant had written, and created a new song that he called Galbi. Yehezkel Panyan recorded this song and produced it together with Zion Golan, and had it played on various platforms including YOUTUBE that is now the main distribution channel for music in Israel and Worldwide. Panyan even registered his version as a variant of Galbi.
After Amram (Amrami) learned about the infringing creation, via his son Shahar Amram he approached Pannyan and requested that he stop infringing. The defendant ignored him. On 5 May 12015 the plaintiff contacted YOUTUBE and requested that the infringing song be removed and it was taken down soon after.
Amrami claims that in response to his approach to Youtube, Panyan sent a letter to AKUM claiming that the song Tear in the Eye was not written by Amrami, but was actually a traditional Yemenite song called “The Woman’s Song” and was written in the female grammatical form. The letter (which was appended) is long and detailed and includes apparent evidence to support the defendant’s contention, and refers to other performers, different versions, to the literature and to different databases. The plaintiff responded angrily and aggressively, and addressed the issues raised. See letter to A.K.U.M. dated 2 July 2015.
On 27 July 2015, Amrami sent a Cease & Desist letter prior to taking legal action, which the defendant ignored and started a smear campaign against the plaintiff, on Facebook and other platforms. The defendant claims that this campaign continued during the trial, and submitted evidence to support this contention.
As the plaintiff’s complaint was not responded to, Amram filed the present complaint and sued for 200,000 Shekels. In Section 16 of the Statement of Case, the Plaintiff details the basis of the claim, which included copying the original melody, copying original lyrics, adding lyrics to a song without permission, making a variation of an original melody, not crediting the original song and infringing the moral rights of Amrami. The plaintiff referred to section 1, 15, 47 and 48 of the Copyright Law 2007 and requested the maximum statutory compensation without proof of damages of 100,000 Shequels under Section 56 of the Law for infringement of copright, and a second similar sum for the infringement of his moral rights.
To support his allegations, Amram submitted his affidavit, one from Moshe Yidai, one from Mordechai Yizhari and one from Ms Dina Butal. In his summations, the plaintiff alleged that the defendant admitted the infringement in his Statement of Defense and referred to paragraphs 8 and 10 of the Statement of the Defense. The plaintiff alleged that in such cases where the defendant admits to taking some of the lyrics and the tune, and the entire case relies on the defense that the song is in the public domain, the defendant ‘admits and denies’ and so the burden of proof is on the defendant to prove that the song is indeed a folksong and that the plaintiff does not have rights to it.
The plaintiff alleges that the defendant failed to reach this requirement and refers to the evidence that he was indeed the original composer, including the first recording, the registration with A.K.U.M. and the ruling from 1976. The plaintiff alleges that the testimony brought by the defendant, which is detailed below, was tendentious, unreliable, and that the defendant’s witnesses collaborated in preparing their stories. Amrami noted that the defendant referred to all sorts of evidence in his summations that the court had not allowed into the record, see for example, the interim decision of 26 November 2017, and even stealthy introduced new evidence into the summations. The plaintiff claims that the complain should be accepted in its entirety and costs should be awarded against the defendant for the way he managed the case.
The Defendants’ Version of Events
It is noted that Panyan was represented by Adv. Binamin Malka at the start of the proceeding, and who presented the Statement of Defense. In the Statement of Defense it was stated that that the plaintiff ganders about in feathers that are not his. After the Complaint was filed, the defendant researched the song and learned that the defendant was monopolizing a cultural property that was part of the historic Yemenite culture. After the Complaint was filed, Panyan approached archives of Yemenite Culture and “these appointed Mr Itamar Pinchas who serves as the manager of the Institute for Protecting Yemenite Sounds, a researcher and recorder of Yemenite culture and an owner of a Youtube chanel for protecting Yemenite Culture.
As far as infringing the creation, the defendant relates to paragraph 8 of his statement and denies part of what he was accused of. He admits writing some Persian lyrics, but claims that this was totally innocent. He denies making any commercial usage of the song, and on receiving the Complaint, took down all recordings from Youtube, etc. Panyan claims to have credited Amram and notes that he had only performed the song once in public. In paragraph 13 of the Statement of Defense he claims that he initiated contact with the plaintiff when the song was published and wanted to complement him, and the approach to Shahar followed this contact. Originally the plaintiff only requested 50,000 Shekels and Panyan refused, but offered that royalties for the song, including those for the Persian verses, by transferred to the plaintiff. The plaintiff rejected this generous offer and dragged the parties to the courts. The defendant denies the alleged damage and refers to the relevant binding legal precedents (see paragraph 26 of the Statement of the Defense.
In the framework of his evidence, the defendent submitted his affidavit, one by Dr Moshe Nachum, one by Ms Sara Catafi, one by Ms Reuma Abas, one by Ms Tzviya Bar Avranel, one by Abraham Habib, one by Ms Ora Zabari and one by Pinchas. The court notes that Pinchas’ affidavit needed a judicial determination as to whether it is to be considered (regular) witness testimony or constitutes an expert opinion, and in the interim ruling of 15 May 2017 the court ruled that it was a regular witness testimony and not that of an expert witness. Mr Levi Saadia, and Mr Levi Nissim testified in court with permission of the court, but without affidavits.
In his summation, the defendant repeated his claim that the song in question was a wrongful monopolization of a Yermenite folksong, and was one of many suvh misappropriations by the plaintiff. The defendant claimed that as a result of his actions, the plaintiff had had to contact A.K.U.M. to amend the registrations of a dozen songs that were (wrongfully) registered in his name and that A.K.U.M. was arbitrating many other songs. The defendant claimed that the plaintiff lied about his age and tried to fit the timeline to suit his purposes. The defendant noted that the plaintiff’s first recording was in 1963, and that of Tsabri was in 1962 as admitted to A.K.U.M. The defendant claimed that from the authentic and accurate evidence he’d brought, the melody was a folk melody that Yemenite women had sung many years previously, prior to the Yemenite Aliyah (immigration). In his summations, the court was referred to much evidence, some of which was appended to Pinchas’ testimony, and all was appended to the summations.
In this regard, see the protests of the plaintiff to the counter-summations, alleging that the defendant was introducing new evidence and evidence whose inclusion had been prohibited by the court, see paragraphs 12 and 13 of the summations of the defense.
Burden of Proof
As established, the general principle of “admitting and dismissing” applies where the defendant does not disagree with the main facts that give rise to the tort: “the situation of ‘admitting and dismissing’ occurs whether the defendant accepts the main charges as true, but brings additional claims that could result in the case being dismissed…” See Appeal 3592/01 Siman Tov Menashe vs. A. Aharonov, p.dy. 55(5) (2003) and 11100/02 Civil Action Hazor vs. Dotan. The result of applying the general principle of “admitting and dismissing” is a reversing of the burden of proof. It is noted that the tactic is generally useful prior to the evidence stage, since if successful, the defendant becomes the party submitting evidence. A further effect of the tactic being successful is that the burden of proof subsequently lies with the defendant.
In the current instance, the claim of “admitting and dismissing” was not raised prior to the evidence stage and the plaintiff was the party first providing evidence. Furthermore, Judge Plinner is not sure that the defendant can be considered as admitting the main facts in this instance. The defendant denies the main basis of the charges against him: that the plaintiff has copyright in the song. So Judge Plinner does not consider it appropriate to apply the principle of “admitting and dismissing”.
Nevertheless, and alongside the burden of persuasion, it should be remembered that the burden of proof requires the parties to substantiate their claims with evidence, See Appeal 1436/90 Giora Adar Management Company vs. the Director of VAT, p.d. 46(5) (1992); Civil Action 4612/95 Matityahu vs. Shil, p.d. 51(4) (1997); Civil Action 78/04 HaMagen Insurance Company vs. Shalom Gershon Movers (2006), Judge Amit in 808/03 Tefachot Mortgage Bank vs. Adv. Avivi Garry (2007), Judge Amit in 710/03 Shrapi vs. Abu Moch (2007), Judge Avrahami in 14528/03 Masuot Yitzhak Partnership Village of the Mizrachi Workers Union vs. Omer Cattle Marketing ltd. (2008).
In light of the above, the Plaintiff has the burden of proof that he is the creator of an original work and the defendant has to prove that the work is in the public domain. The term “burden of proof” serves to describe two different concepts. The first is the burden of persuasion, and the second is the burden of supporting the argued case with evidence. The burden of persuasion expresses the basic obligation of the plaintiff to prove his case against the opposing party at the level required in civil legislation which is the balance of likelihood. This burden is generally fixed and does not switch from side to side through the proceeding. Where one is referring to the burden of evidence, the obligation is to bring sufficient evidence to tip the balance, whereas the defendant has to bring evidence to destroy the plaintiff’s evidence. This burden is dynamic and typically switches back and forth, see: Yaakov Kedmi On Evidence, Volume 3 pages 1505-1506 (2003); and Civil Case 6160/99 Drukman vs. Laniado Hospital, p.d. 55(3) 117, 124 (2001).
Application of these Principles to the Current Case
As stated previously, the plaintiff has to bring sufficient evidence to support his claim that he is the copyright owner of an original creation. The plaintiff appended evidence to his Statement of Case and to his affidavit that substantiates his claims, and these include a print-out of the bibliography from A.K.U.M.s database and a photograph of the original record sleeve, a copy of Ofra Haza’s recording, a copy of a court ruling and the words of the song. In addition, the plaintiff brought witnesses to support his version of events, that he’d composed the melody and written the lyrics.
On the other hand, the defendant submitted affidavits by a number of witnesses to substantiate his claim that the melody was a folk tune, including an affidavit from Pinchas who Judge Plinner decided was not an expert witness. This affidavit had many appendices that required the judge to decide whether they were acceptable as evidence. Since the case hinges on the determination of this evidence and the judge’s impression of the witnesses, Judge Plinner saw fit to summarize the testimony of each and every witness.
The plaintiff’s witnesses
The plaintiff’s witnesses impressed Judge Plinner with their veracity within the limits of human memory, and so she accepted their evidence. Yizhari, aged 87 testified that he had researched Yemenite music for his personal benefit and knew the original creation. When asked if he recognized the melody he responded “I think so”. He testified that the plaintiff had sung it even prior to recording it in 1959-1960. Yizhari testified that his book did not include songs by the plaintiff, and so the song was not mentioned, but he summarized that “everyone was singing Amram”.
Yedai testified that he was a collector of Yemenite music, and remembered that the plaintiff had performed his original creation in Ashkelon in the winter of 1956-7. Yedai stressed that Zion Golan learned from the plaintiff. Butal also testified that he heard the song for the first time when performed by the plaintiff. These witnesses supported the plaintiff’s own testimony that he was now 80 years old and had immigrated into Israel in 1950, and that ‘A Tear in the Eye’ and Galbi are the same song. Under cross-examination, Amram testified that the recording was made in 1959/1960. Judge Plinner notes that under cross-examination and in the summation, the defendant noted contradictions between the age of the plaintiff, when he immigrated into Israel and when the recording was made. As to the first point, the defendant’s witnesses were also not able to state how old they were and when they had immigrated (see testimonies of Nahum, Abas and Bar). It is important to note that most of the witnesses are about 80 and the certification regarding date of birth and immigration is lacking. Judge Plinner did not consider the so-called contradictions of any of the witnesses regarding their age and year of immigration as significant.
As to the year of the recording, the plaintiff explained that he’s provided a period rather than a specific date since a single was first released and then an album. Judge Plinner does not think that the exact date of release should be the deciding factor. The record sleeve was submitted as evidence and the record itself was brought to the hearing. However, no other recording was submitted that dates to an earlier time, by the author or anyone else (Catafi’s recording will be discussed below). Although the Defendant built a barrage of assumptions, claimed as facts, but which were not supported by evidence; for example, the date of Golan’s recording, but all the claims regarding earlier recordings remained assumptions.
In summary, the plaintiff provided objective documentation and testimony summarized above, to the effect that he had written the lyrics and melody of an original creative work. No one disputes the fact that in 1978 the plaintiff registered the rights in his name with A.K.U.M., and from then until now, no one has challenged this registration. Pinchas testified about himself that in 2004 he established the Institute for Preserving the Sounds of Yemenite Jews and in the nineties he showed his collection of recordings to the National Library; he knows the plaintiff since 1960 and helped him transfer his songs to compact disks and to upload them to YouTube.
Additionally, the plaintiff fought a legal battle against Yizhar Cohen regarding this work in 1972. The plaintiff showed that that trial was widely covered by the press. The protocol of the proceeding was appended to this case, as was a write up in an Israel music magazine “Lehiton”, where the representative of Yizhar Cohen stated “At this time I state on behalf of the defendants no. 2 that he sees the plaintiff as the author and composer of the words and melody under discussion in this proceeding.” Based on this statement and the understanding that the parties reached, a ruling was given on 23 July 1976 that prohibited Yizhar Cohen and the CBS Records ltd from performing or marketing the song “A Tear in the Eye”.
Judge Plinner ruled that the plaintiff has reached the basic requirement for proving intellectual property rights in the song, since for at least the past 40 years, the registration of the song in his name was a matter of public record that had received a stamp of approval from the Israel Courts. This is not challenged by the fact proven before her by the defendant’s witnesses that over the years various people registered Yemenite songs and could easily determine the rights to the song and who claims them. At this stage, the burden of proof is transferred to the defendant to show that the record is wrong and the song is a folk-song.
The Defendant’s Evidence
The defendant did not deny that he’d copied parts of the plaintiff’s song and had added two verses in Persian. The defendant even claims to have given credit to the plaintiff, i.e. that he was aware of at least his moral right and that the song was an original work. In his testimony he repeated that he know that the song was the plaintiff’s and only later “heard whisperings that the song was not his”.
It appears that in this state of affairs there is no need to determine whether the defendant had copied the plaintiff’s melody and lyrics, since this has been admitted. But to complete the picture it is noted that adding a couple of verses to an existing work and using the original words and melody is sufficient to establish that there is infringement, and if this is to be considered as a derivative work, one has to obtain permission from the rights holder.
So, the issue is whether the song is actually a folk-song that predates the plaintiff and if so, that the copyright is not the plaintiff’s. The judge notes that the defendant made this allegation in a noisy way, accusing the plaintiff of kidnapping Yemenite songs (see testimony of Pinchas on behalf of defendant (page 179 line 170). [MF-the term kidnapping here is intentional and significant. Following Operation Magic Carpet and Operation Wings of Eagles in the early 1950s, wherein the Yemenite community was airlifted to Israel, a number of children disappeared. Typically sick children were taken to hospital and the families were told that they had died. There was poor registration in the early days and poor communication between the Jewish Agency and the immigrants who were housed in tents and transit camps, and there were language differences and massive cultural differences. At the time, there were large numbers of Holocaust survivors who had lost their families, and due to their suffering many could not have children of their own. Rumours persist that Yemenite babies were separated from their mothers who were told that they had died, and were given to Ashkenazi families to bring up. The establishment denies these rumours and there have been various inquiries. It is one of the most devisive issues in modern Israeli history].
To prove the claim of the melody being a ‘folk song”, the defendant brought testimonies of Nachum, Catafi, Abas, Zvia Bar, Habib, Zabari and verbal testimony from Saadia and Nissim Levy. The testimony of Pinchas was submitted as expert witness, but the Judge refused to accept this status in her interim ruling of 15 May 2017.
Before dissecting these testimonies, Judge Plinner notes that in general she felt that these testimonies were biased, inconsistent and poorly arranged. In some instances they appeared to be driven by personal issues and the settling of old scores, and they were insufficient to discredit the plaintiff’s evidence and the assumption that the A.K.U.M. registration and other evidence including the recording and the court ruling that was presented by the plaintiff was correct. As to the burden of proof on the defendant to overcome an assumption of ownership based on registration, see Civil Action 8393/96 Mifal HaPayis vs. The Roy Export Company, p.dy 54(1) on page 584.
As to the testimony itself. Saadia Levy testified without an affidavit after he admitted that Pinchas had asked him to testify (page 41 line 25 of the protocol). Abas is Nachum’s sister who claims that they made Aliyah (immigrated) in 1943, whereas he claims that they made Aliyah a year earlier. Judge Plinner did not consider this critical due to the age of the witnesses, except that the defendant had argued that inconsistencies regarding the age and Aliyah date of the plaintiff were significant. He has thereby discounted the testimony of his own witnesses as per the Talmudic dictum “כל הפוסל פסול ואינו מדבר בשבחא לעולם, ואמר שמואל: במומו פוסל” T.B. Qidushin, page 70b).
Abas claims that she remembers the song from Yemen, when she was 10. Her brother Nachum claims that he heard the song Galbi at the Masud family during the period 1946-1952 and this led to a long discussion regarding who the Masud family was, “The Chaflot were with Masud when he died”, and “they were all Masud’s in our street”.
Habib testified that he was born in 1932 and that his mother sang the song in Yemen. He claimed it was a women’s song, but he admitted hearing the plaintiff singing the song in Rosh HaAyin through loud speakers.
Ora Tsabri testified that she had given material to Pinchas, that she was born in 1943 in a village near Tsaana and was the wife of Moshe Tsabri who was a good friend of the plaintiff, and that they had appeared together, with Moshe Tsabri drumming for Amram. At this stage of the proceedings it transpired that the witness was fed up with the plaintiff, and that he’d accused her husband of stealing his songs and this had hurt and wounded her. Tsabri acknowledged that “she was very cross with the Amram family” and that the two were competing singers. Tsabri testified that she’d first heard the song in 1959 or 1960 but could not hum it. She summed up that “there is no monopoly in Yemenite songs.”
Bar also testified that she was fed up with the plaintiff. She admitted that she’s uploaded posts to Facebook calling the plaintiff a bald-faced swindler. There was an inconsistency regarding when Bar made Aliyah (which Judge Plinner would not otherwise have noted were it not for the defendant making an issue regarding the plaintiff’s inconsistencies).
During Bar’s testimony it transpired that she had researched women activists and that it was important for her to respect the folklore of their country of origin. Bar claimed to know the song Galbi form her mother and this answer was volunteered. Under the following cross-examination it transpired that her mother was from Raada in South East Yemen, which has a number of provinces, whereas the other witnesses claim to have heard the song in Saana. It also transpired that Pinchas had contacted her and she also felt it necessary to relate to the Yemenite children incident “It is because the Yemenites are quiet. Not alert. They need to be awoken. This is also true regarding their heritage, otherwise it will be obliterated” Bar claimed that the song was the heritage of Yemenite women.
The defendant asked for Catafi’s testimony to be given significant weight, and tried to add additional evidence (see interim ruling of 15 June 2017). The main disagreement between the parties focused on a recording of Catafi performing the song prior to the release of the record. Under cross-examination it transpired that this witness was recruited by Pinchas and that she is eighty. Catafi acknowledged knowing Amram since the fifties. As to the song, she claimed it was a folk song “it is all from Yemen” and “only from the sources”. As to her own recording, she was unable to give a clear answer as to when it was made and it transpired that she’d actually recorded a different song “Ya Habib”. In further testimony Catafi admitted that Galbi was something else.
When Pinchas was cross-examined, it transpired that he was the initiator of the defendant’s defense. “I am fully involved in this proceeding”. Pinchas researches Yemenite songs, partly through non-profit organizations that he established, but these are private entities – see Page 159 and Exhibit 6. Pinchas got involved in the proceeding following the Statement of Case being filed, and he claimed that this opened a Pandora’s box when he saw the playlist that Amram had registered with A.K.U.M. as his creations. Pinchas researched further and examined the facts, interviewed different people (some of whom were brought as witnesses in this proceeding) and came to the conclusion that this was a “kidnapping of the songs of Yemen”. He stated “Do you understand? Songs that our fathers sang, I have to pay A.K.U.M. royalties so that they will forward these to someone that registered these songs in his name? This is absurd! It is not royalties, but a protection racket! Pinchas appended various pieces of evidence which caused a strong disagreement between the opposing counsels.
On pages 1-10 of his appendices, Pinchas presents his personal research about the plaintiff, interviews of witnesses, some of whom appeared before Judge Plinner in this instance, details his authority to serve as a researcher, listed other songs that the plaintiff claimed to own, and detailed the system used by Amram to hoodwink A.K.U.M. Pinchas related to the song Galbi on page 38 onwards. Firstly, he discusses various recordings that he alleges include this song, and the diameter of the records, gramophone, LP, single, etc. and the period when such records were in use. On page 44 onwards, Pinchas analyzes the verses of Galbi and references literature and witnesses that he’d interviewed, and phrases like “familiar to Zvia Croani from Yemen”, “known to Nissim Levy”, etc.
Judge Plinner got the impression that Pinchas had an ongoing feud with the plaintiff. He sees himself as an expert on Yemenite songs, as did Yizhari when testifying about himself. There is no doubt that Pinchas has knowledge of the field and is active in it, but for determining this case, his testimony does not carry more weight than the testimony of other witnesses. Judge Plinner got the impression that Pinchas saw himself as a judge who heard testimonies, analyzed evidence and wrote his verdict (he is the researcher and the advocate). Judge Plinner considered that the superfluity of motivation undermines Pinchas’ credibility since he is a highly non-objective witness. Other witnesses were first-hand witnesses testifying to their own experiences, such as Nissim Levy, Saadia Levy and Catafi.
Furthermore, and from examination of the ‘evidence’ appended to the affidavit, Judge Plineer ruled that there is insufficient basis to tilt the balance and declare that Amram is not the composer and lyricist. The appendices and summations included theories and assumptions that were not substantiated by objective experts, including the period of use of the various recording media. Artists that recorded the song or whose albums included the song such as the Azulai brothers and Zion Golan) were not brought as witnesses.
The “research” itself carried out by Pinchas indicates that a line from the song apparently appears in another song but there was no complete source that the lyrics or melody of the song was wholly or significantly copied from.
As to the originality of the song, the defendant himself did not do himself any favours, since he admitted that he’d used Pinchas “Thank the Lord for Itamar Pinchas”. However the defendant admitted that he’d copied two stanzas and the melody, see also the wrapper of the single and the screen-catch of the Plaintiff’s affidavit, where the defendant himself notes that the melody and the Yemenite words are of the plaintiff’s, and the Persian lyrics were his. The defendant stated that only after he’d produced the song, he’d realized that the infringed song was not actually the plaintiff’s, thus in real time he’d knowingly copied a song that he’d considered as being the plaintiff’s and which the plaintiff considered as his own.
In summary, the defendant’s witnesses gave the impression that they were fighting a world war over the rights of the infringed song which was nothing to do with the specific song, but was rather a general assessment of the plaintiff as monopolizing Yemenite songs which has no relevant to the present case. Some of the defendant’s witnesses were settling old scores and others were not even aware which song was under discussion in this instance. These testimonies are insufficient to raise the burden of proof by the defendant that this is a folk song. In addition, we note the long delay; that the plaintiff has been claiming these rights for over 40 years and the court ruling of 1976. Pinchas claims to have been researching this subject for years and could have turned to A.K.U.M. or files a legal proceeding himself with the hard claims that he has raised in this proceeding. So, Judge Plinner felt she had no choice but to reject the defendant’s defense and rule that the Plaintiff’s copyright in an original work is infringed.
The Plaintiff sued for 200,000 Shekels compensation based on the standard court fees and the maximum statutory award without proof of damages of 100,000 Shekels for both copyright infringement and for moral right infringement under Section 56 of the Law. The plaintiff has also requested a permanent injunction and real costs to cover his legal expenses.
The defendant notes that he’d taken down the infringing song from the various platforms, and accepted the permanent injunction, had agreed to give the plaintiff royalties from the Persian song. He denies having infringed the moral rights of the plaintiff, since he was given credit for both the melody and the words in Yemenite. The defendant notes that the plaintiff had dragged the case to the courts for a long and unnecessary proceeding by demanding an exorbitant 50,000 Shekels in damages.
Before relating to the amount of damages and expenses, Judge Plinner ruled that the moral rights were not infringed and referred to paragraphs 9 and 10 of the plaintiff’s affidavit where he had noted that the defendant had explicitly acknowledged the plaintiff as author of the Yemenite words and melody. Furthermore, Judge Plinner does not accept the plaintiff’s argument that there were a number of infringements. This is a copyright infringement of a single work and that is the matter that determines the compensation and not the number of infringing acts – see paragraph 9 of Appeal 4184/09 A.K.U.M. the Association of Composers, Authors and Performers of Music ltd. vs. Yom Tov (Tuvia) Hadad, 30 July 2009.
There is room to award compensation for copyright infringement. However, it stopped soon after being discovered when the plaintiff himself took steps to have the work taken down from Youtube, and according to the defendant, he was willing to both take down the work from all hosting sites and to pay royalties, but was not cross-examined on this with the subsequent ramifications.
As to the considerations for ruling statutory compensation without consideration of damages, see Civil Appeal 592/88 Sagi vs. Estate of the Late Abraham Nonio, p.d. 46(2) 254, 270 (1992) on page 257 there:
“Different considerations are likely to be considered when determining compensation, based on the basic trends mentioned above. The scale of the infringement, the number of infringements and the period over which they took place, the type of creative work and the guilt of the infringer, the nature and size of the infringing entity and so on… when determining compensation without proof of damages, the court tries to consider the two trends in copyright law. The first is that of compensating the owner of the work and the second is to deter the infringer and potential infringers. On one hand the first consideration requires not ignoring the actual damage and not allowing the defend or plaintiff to be unjustly enriched. In cases where the plaintiff generally receives compensation by allowing others to license his work, the compensation can reasonably follow the rates of compensation the plaintiff would receive as royalties. On the other hand, the second trend justifies consideration of the state of mind of the defendant and to increase compensation awarded where the defendant is brazen, and to diminish it where he innocently copied the work.“
See also Civil Proceeding 1007/10 Mazal Cohen vs. Yair Malchah et al (17 February 2013):
We find that both the law and the case-law provide the courts with the discretionary right to determine appropriate compensation. The courts are expected to rule compensation that is commensurate with the infringement and not to allow the plaintiff to be enriched at the expense of the defendant. This consideration finds support in Section 56 of the new Law which allows the courts to rule damages of up to 100,000 Shekels, based on the discretion of the court and the considerations mentioned in the Law.
From examination of the case-law it is seen that the range of compensations is wide, and is largely based on the type of infringement and the behavior of the parties in real time. The court does not hurry to award the maximum damages where there is no proof of real damages or even any evidence of real damage being caused. See Civil Appeal 12/17 Ephraim Shrir vs. Nirit Seeds ltd, et al. (28 March 2017) where the Supreme Court awarded 1800 Shekels for moral damages in a case where the Court of First Instance did not see fitting to award anything. See also Civil Proceeding 1007/10 Mazal Cohen vs. Yair Malchah et al (17 February 2013) where the Supreme Court upheld the 20,000 Shekel award altthough the plaintiff had claimed 400,000 Shekels. See Civil Proceeding 1057/17 Action Ethical Investments ltd. Vs. Data Pro (25 July 2017) where the Supreme Court reached a compromise under Section 79a and ruled 12,000 Shekels. However, in Appeal 4760/8 Li Dan Agencies ltd. vs. Hasbro International Inc. (3 June 2010) the maximum award was upheld. However, this reflected the fact that the defendant had previously undertaken not to market infringing games.
In the case before us, we are dealing with an infringement that did not last for a long time , and was the first infringement between the parties, and in real time, long before this developed into a legal proceeding, the defendant was willing to reach an agreement, and things lost a sense of proportion during exchanges with A.K.U.M. that requested compensation together with a written undertaking not to infringe. No evidence was brought of any financial losses to the plaintiff due to the infringement rather than from the ensuing witch hunt. Nevertheless, the defendant was aware of the copyright in the melody and in two verses which he used without permission. Based on these considerations, the defendant is obliged to pay 20,000 Shekels compensation despite no proof of damage and an injunction against further infringement is given.
As to the costs of the proceeding, as discussed at the beginning, there is no doubt that this case lost all proportion, involved emotions and the consequences for both parties goes well beyond the alleged infringement. With that, Judge Plinner considers that it was mutual ego wars that resulted in the size of the file. The plaintiff requested generous compensation before filing his statement of case and chose the judicial forum. The defendant preferred to take advisors who free-rode on the case, turning it into a fight over Yemenite heritage, while an arbitration proceeding is being held in parallel with A.K.U.M. over tens of other songs.
Nevertheless, there is no doubt that the plaintiff, having won the case, is entitled to costs. In this instance, and bearing in mind that stated above, there is no justification to award real costs, and an award of 15000 Shekels is made.
The defendant has 30 days to make the payment.
4383-09-15 Aharon Amram vs. Yehezkel Panyan regarding Tear in Her Eye, ruling by Judge Plinner, 31 December 2018.
Personally, I am familiar with European music based on the octave and major and minor scales. I have little understanding of Yemenite music, and it all sounds similar to me!
As has been proven countless times, with Himber’s HaTikveh – the Israel National Anthem, Naomi Shemer’s Jerusalem of Gold, George Harrison’s My Sweet Lord, etc. tunes may get recycled, often unintentionally and unwittingly be composers. It is likely that Tear in the Eye has at least some similarity to an older Yemenite tune. However, the burden on the party making such a claim is to provide evidence. As time passes, this becomes more difficult. If during the earlier court case this claim was not raised and no one suggested this, the defendant does have to provide clear and compelling proof for the allegation, and Judge Plinner has found the evidence lacking.
She is correct that the odd line or bar in an earlier work is insufficient to render a piece not copyright protectable. One is reminded that Tchaikovsky’s Swan Lake very clearly plays tribute to Beethoven’s fifth symphony with the drum beat for the dying swan being the signature ‘death at the door’ beat.
Personally, I find life of author + 70 years far too long a period for a song to remain copyright protected. I have previously discussed the problem that at almost every wedding, Psalm 126 sang on Shabbat and festivals before the Grace After Meals is also sang at weddings and Bar Mitzvas. The most popular tune was composed by Yossele Rosenblatt and so was copyright protected until 2003. Bands at weddings are paid performances. Presumably his family were entitled to royalties. I don’t think I’ve ever attended a Jewish wedding without at least one Carlebach melody, and here we have the same problem. I’ve also discussed Yair Rosenblum’s stirring melody for Unetaneh Tokef, written after the Yom Kippur War and which is ubiquitously sang throughout Israel for the High Holiday liturgy. With people paying for a seat in synagogue, this is also arguably a paid performance. In other words, I’d be happy if the law allowed someone to record and add verses to a song fifty years after it was written. However, if covers require permission, so be it.
It is noted that Judge Plinner considers the moral rights of the creator as satisfied by acknowledgement, and does not see compensation as required where a song is altered as in this case where extra verses are added in a different language. This goes against some rulings in other countries regarding changes to created works.