Compensation for Copyright and moral Rights Infringement

smashed up phoneA professional photographer, Israel Cohen, took a rare photograph of Rabbi Chaim Kanievsky at home, participating in a ceremony destroying mobile phones with a hammer.

The defendant, Kav Religious Newspapers, is the publisher of various weekly local free newspapers distributed to the ultra-Orthodox community. The plaintiff claims that the defendant published the picture in one of its papers without permission and without accreditation.

Cohen asked for the photo to be removed and for him to be compensated. This request was ignored. Consequently Cohen sued Kav Newspapers for 120,000 Shekels claiming copyright infringement and moral right infringement.

kav

Kav Newspapers did not deny having published the photograph. Rather, the defendant claimed that the picture is a portrait of the Rabbi that was ordered by him or by his followers and so Rabbi Kanievsky is the copyright owner under Section 3 of the Copyright Law 2007.

Rabbi Chaim Kanievsky by מוישימי [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)%5D

The defendant claimed that Rabbi Kanievsky supplied the picture and is the copyright owner because he only allows photography within his home on condition that copyright in all images taken there are assigned to himself. In addition, the defendant claims the defense of an innocent infringer under Section 58 of the Law.

Before ruling on the case, Judge Amir Witzenblit made the following observations:

Firstly, the defendant has produced no evidence to support their defense. The parties were interviewed orally and the prosecutor represented himself. The defense submitted a notice that stated that they would be represented by two witnesses: Rabbi Avi Greensweig who was the editor-in-chief at the time the photo was published, and  Mr. Shmulik Wolf who claimed that he was the personal assistant of Rabbi Kanievsky, who would testify regarding visits and photographs in Rabbi Kanievsky’s house and events held there. (Notice from 19 May 2019.) The defendant did not subpoena the witnesses and the court was not requested to invite them. Two days before the evidence stage the defendant asked to delay the hearing because of a personal matter concerning Mr. Wolf due to which he would not be able to attend the hearing (request from 24 June 2019). This request was denied and interested parties are referred to the interim ruling. Mr. Wolf did not attend the hearing and the defendant announced that they were giving up on his testimony (see page 14 line 3 of the protocol of 25 June 2019). Thus the defendant did not produce a witness from the Rabbi’s intimate circle to provide evidence that Rabbi Kanievsky had ordered the photograph, or any conditions that the Rabbi had imposed on photographers entering his home, permission given to the defendant or the like.

shrug

Furthermore, Mr. Greensweig’s evidence [after introducing him as a Rabbi, the judge refers to Greensweig as mister so I am following suit. This is not to be taken that I question his rabbinical credentials, but he is acting as an editor here, not as a clergyman – MF] indicated that the photograph was sent to him by a writer, but that writer did not come to testify about how he came to have a copy of the photograph and why he considered he was authorized to publish it. Mr. Greensweig testified that the writer in question worked extensively opposite Rabbi Kanievsky and his followers and so was a significant and relevant witness. Mr. Greensweig testified that he himself did not have any evidence as to the relationship between the photographer and the Rabbi’s household “I do not know how to explain the relationship between the photographer and the household”.

exhibits

Exhibits

Similarly, the defendant did not submit a file of exhibits, and did not produce any written evidence, despite Mr. Greensweig’s testimony indicating that there should have been some relevant records, such as authorization from the Rabbi and his followers to Mr. Greensweig allowing him to use photographs from the Rabbi’s house. The photo was apparently an email attachment but no such email was submitted in evidence.

In summary, the main claims of the defense are unsubstantiated statements that are not supported by any evidence and evidence that the defense should have had possession of was not submitted.

Secondly, there is no evidence of when the photograph was published in the defendant’s newspaper.

Thirdly, there is a lack of clarity regarding whether the photograph was only published in the printed newspapers or also on the defendant’s website. In the statement of defense it was stated that the picture was published on the website of the defendant, and the language includes Internet publication, by relating to uploading of the picture, and to the picture being submitted in accordance with the policy of the website. Furthermore, in the pretrial hearing the defendant stated that the newspaper is on the website. In the Cease & Desist letter to the defendant, the photographer claims that the picture was published on the Internet (paragraph 2 of the letter of 10 May 2018). The witness for the defense, Mr. Greensweig, testified that a scan of the newspaper is published on the internet. However, in their summary, the defendant made some unclear statements on the subject.

The following are the subjects that are related to in order to issue a decision.

  1. Does the plaintiff have copyright and moral rights in the photograph?
  2. If the plaintiff (photographer) does have rights, were these rights infringed?
  3. Does the defendant have a legal defense against the plaintiff?
  4. If necessary, what is the appropriate compensation that the plaintiff is entitled to?

As to Copyright and Moral Rights, the defendant clams that these rights are not held by the photographer at all since Rabbi Kanievsky holds the rights himself, as this is a portrait made on request. Section 35b of the Copyright Law states:

(b) in a creative work that is a portrait or a photograph of a family event, or other private event, made on request, the first owner of the copyright is the one ordering the photograph, unless otherwise agreed.

Focusing on this condition that the work is created by order, the defendant did not bring any evidence to support this contention. Furthermore, the defendant gave up on the testimony of Mr. Wolf, the Rabbi’s carer personal secretary assistant. The defendant also failed to bring evidence supporting the claim that that the condition for entering and photographing the Rabbi in his home is that the resulting images remain the property of the Rabbi (as claimed in paragraph 23 of the Statement of the Defense). Additional evidence, such as written material showing that the writer had submitted the photo, or an email showing that the writer had sent the photograph to the editor-in-chief was not forthcoming. So the defense remains unsubstantiated.

The plaintiff denies that the photograph was work-to-order, and denies that he was invited to the phone-trashing ceremony by Rabbi Kanievsky or his representative. Although not required to, the photographer stated that he was not paid to take the photograph.  Judge Amir Witzenblit notes that he found the plaintiff’s testimony convincing. It was consistent throughout the proceeding, and so the defense that the photograph was work ordered is rejected.

In light of the fact that no evidence was submitted to prove the claim that the picture was ordered, there is no need to address the question of whether the picture is a ‘portrait’ or not (it being noted that the defendant chose the defense of a portrait and not the alternative defense of a “private event”, and the claim of this alternative was raised in an attempt to broaden the front in the pretrial hearing, see Section 11 of the Statement of the Defense and page 1 lines 30-32 of the protocol of the hearing of 4 March 2019. However, in light of the fact that there is no evidence that the photograph was ordered, there is no need to relate to this.

cross examination 2In the cross-examination of the plaintiff, the defendant asked many questions to clarify that the plaintiff had indeed taken the picture.  Judge Witzenblit did not see fit to accept the defendant’s position in this regard. Examination of the Statement of the Defense shows that it does not directly claim that that the plaintiff was not the photographer of the photograph in question. Thus, for example, in Section 2 of the Statement of Claims the plaintiff claims, inter alia, that the lawsuit is concerned with a photograph which he had taken, and in the Statement of the Defense regarding this Section, there was a general denial and also a referral to fair use under the Law (the defendant stated “Paragraph 2 is denied in regards to everything concerning the defendant, since usage of the photograph was fair use under the Copyright Law.”  The remaining references in the Statement of the Defense regarding this were just generalities. For example, the plaintiff claimed copyright in the photo and the defense was very laconic. When the counsel of the defense was challenged on this, he stated “As far as I can remember, I did not claim this in the Statement of the Defense, I did claim that the rights weren’t his, on grounds of portraiture”. Afterwards, the defendant added ambiguously “I do not deny that he took the photo or not, I say that I do not know”. In contradistinction, under cross-examination the plaintiff responded that he had evidence that he had taken the picture and could produce the chain of photographs taken at the event, and had the original files. The plaintiff offered to submit these as evidence but the defendant waived the need for so doing.

As ruled in the case-law, the purpose of the statement of case is to “place the issues on record so that the parties know what the charges are and that there are no surprises”. Civil Appeal 135/67 Tax Clerk. Tel Aviv 4 vs. Porat p.d. 21(2) 411 (1967).

The defendant’s denial that the plaintiff had taken the photograph and that it was taken by a third party should have been alleged directly and not hinted at in a general manner. This is so that the plaintiff be made aware that this is a point of contention and has the opportunity to bring evidence to substantiate his case, and in this regard the plaintiff does indeed claim to have such evidence to support his claim to being the photographer, and out-of-the hat surprises is no way to run a civil dispute.

Furthermore, Judge Witzenblit noted that he was impressed with the consistency and fidelity of the plaintiff’s testimony that he was the photographer. Furthermore, in his testimony the plaintiff himself suggested that he put his evidence on record, and it was the defendant who objects to this. This raises questions. Thus substantively Judge Witzenblit was convinced that the plaintiff was the photographer and thus has both copyright and moral rights in the picture.

Having established copyright and moral rights in the picture, the second issue is whether these rights were infringed. The answer to this question is “Yes”. The publication of the image was done without the plaintiff’s permission and authorization. The defendant claims to have had Rabbi Kamnietzky’s permission to have published the picture but this is irrelevant since the copyright belongs to the plaintiff and even the alleged permission from the rabbi was not supported by any evidence. The photographer’s  moral rights were also infringed, since he was not accredited near the photo (see Section 46(1) of the Copyright Law and Appeal 12/17 Shrir vs. Nirit Zeraim ltd, 28 February 2017.

In light of the above, the third question becomes relevant. Is the defendant entitled to any defense under the Law.?  The defendant claims to be an “innocent offender” under section 58 of the Copyright Law.

Section 58 states:

If a copyright or moral right is infringed, but the infringer did not know and was not to know that there is copyright in the creation, he will not be required to pay compensation for the act of infringement.

As ruled, the nature of this defense is that the infringer was not to know that there was copyright or moral rights in the photograph. See Appeal 7774/09 Weinberg vs. Wisshof paragraph 23 (28 August 2012.

The defense of the innocent offender is available to someone who does not know and did not suspect that there was any copyright in the creation.

Only a misconception that has a reasonable basis that there is not copyright in a piece of work may serve the infringer as defense, but some amorphous assumption that there is permission or that there is no copying is not a defense. See Civil Action (Tel Aviv District Court) 22999-02-11 Ganor vs. Walla! Communications ltd. paragraph 27 (4 July 2013). It is noted that the burden of proof is on the one claiming the defense (See Tony Greenman Copyright 804, second edition 2008). Tamir Afori explained this in his book “The Copyright Law” page 262, (2012):

The exception does not relate to knowing the legal nature of actions that infringe or other relevant facts such as the identity of the Copyright Owner. The language of the clause indicates that the mistake that can serve as a defense is “whether there is copyright” and not other facts. In general, the practical application of the defense is for cases where there is a reasonable doubt such as old creative works that can reasonably be assumed to now be in the public domain.

So this defense is not relevant to this instance. Since the defendant did not consider that the picture was copyright free, but rather claimed that the copyright was owned by another who had granted permission to use the picture. In this regard Tony Greenman’s words are helpful: “Public relations people, printers and media entities will be challenged to use the defense of ‘innocent infringement’ since by virtue of their employment they should be aware of the copyright in creations.”

Wise monkeys

Although superfluous, the Judge notes that the defendant did not convince him that they were acting innocently. They did not provide any evidence to support their claim that they believed that the Rabbi was the copyright owner. Under cross-examination of the Editor-in-Chief, it transpired that there was a written record showing how the photo came to be in the hands of the newspaper but the paper chose not to submit this as evidence. The photo was submitted by a writer but the writer was not brought forward as a witness to testify how the picture came into his hands and the factual background that the defendants allege gave rise

In their defense, the defendant laconically claimed that use of the picture was allowed and fair. The defendant did not detail this assertion. Due to the laconic way that the defendant raised the issue, the Judge does not see it necessary to respond at length. Furthermore, it seems that the issue was abandoned in the summation, beyond a general request for defenses under the law to be considered. That as may be, it has been ruled that in places where the creator is not acknowledged, in general fair use claims are rejected, and minimally to be taken into account when ruling on the issue. See 3590/09 Reuveini vs. Mapa – Cartography Publications ltd, 6 January 2011 and Civil Action (Jerusalem Magistrate’s Court) 46569-07-15 Milner vs. Yediot Achronot, paragraph 70 (10 November 2016) and appendices [Chanan Porat at Sebastia – MF].

Finally, it is doubtful whether the defense of ‘fair use’ is applicable in cases where a media outlet uses a photograph about the subject matter photographed, as opposed to cases where the photograph is the subject matter. See Greenman 422-444, and compare with Civil Action (Rishon Magistrate’s Court) 48263-11-13 Ronen vs. Let the Animals Live, paragraphs 21-31, (5 January 2016).

In light of the above, it is necessary to examine the fourth consideration, which is the appropriate compensation due to the plaintiff. Section 56a of the Copyright Law states that for copyright infringement or moral right infringement, the court can award up to 100,000 Shekels without proof of damages being brought. Section 56b lists the various factors to be taken into consideration when awarding statutory damages and these include the extent of the infringement, the period over which it took place, the seriousness of the infringement, the damage to the plaintiff, the profits made by the defendant from the infringement and the characteristics of the defendant’s actions, the relationship between the parties and the good faith or lack of it.

It is possible to learn reasonable and acceptable damages from the various court rulings given in similar circumstances, despite each case being different and specific. It is, of course, important to concentrate on recent case law since the limit to statutory damages was raised. See for example, Civil Action Zoom 77 A.sh. (2002) ltd vs. Israel Educational Television from 2 April 2015,concerning a picture published on a news program and on the Internet website [Vanunu’s hand  MF] and where on appeal, the damages awarded were increased from 27,000 Shekels to 50,000 Shekels due to the fact that this was a repeated infringement, see also re Reuben where a ruling of 35,000 Shekels was made to one plaintiff and 12000 Shekels to another for a number of photographs in a book; see Civil Complaint (District Court Tel Aviv) 61107-10-10 The Management of the Premier Men’s Basketball  League (2002) ltd. vs. Ranchman, 10 January 2011, where damages of 28,000 Shekels were awarded for displaying sports photographs in an exhibition and a catalogue. Civil Action (Jerusalem District Court 45542-12-11 Ranchman vs. Aljazeera International ltd. 19 January 2014, where 50,000 Shekels was awarded for an infringement concerning two photographs, and where the court noted that the award was less than the statutory damages available under the law.  See also Civil Action (District Court Tel Aviv) 70225-07-17 YYMM Security led vs. Flash 90 ltd 6 December 2017 where a where a ruling of 80,000 Shekels for use of two photos on the Internet was upheld, and Civil Complaint (Magistrate’s Court of Rishon l’Zion) 32595-07-16 Flash 90 ltd vs. Monitor of Israel Academia, 10 December 2018 where damages of 28,000 Shekels were ruled for using a photograph without permission;  Civil Complaint (Magistrate’s Court of Rishon l’Zion) 20811-06-16 Flash 90 ltd vs. Sharif, 10 December 2018 where damages of 30,000 Shekels were ruled for using a photograph on a news website without permission;  and Small Claims Court Had era 12313-05-11 Gil vs. White on White ltd, 24 April 2012 where damages of 25,000 Shekels were awarded for suing a photograph in a weekend supplement. Each case is individual but they do give an indication of the going rate for typical reasonable damage rulings.

In this instance, there are some mitigating circumstances and some reasons to be strict when assessing the appropriate compensation.

Content of the Picture

The photograph captures a unique moment and the Judge finds the photographer’s explanation that he’d immortalized a rare event concerning an important personage in the Ultra-Orthodox world. The picture shows artistic skill and is from a specific angle, and is somewhat ironic in that the lens of a mobile phone has captured a respected Rabbi trashing mobile phones. The uniqueness of the photo, its artistic value, its specific and unusual subject matter and the important personage photographed make the content of the photo more newsworthy and increases its value both economically and morally.

The Defendant

The defendant is a media producer who is expected to take seriously the copyrights of others. The profession of the defendant justifies increasing the compensation to warn other media entities.

The Extent of the Infringement

From Mr. Greensweig’s testimony it transpires that the paper was published in thousands of copies, and that the publisher publishes 7 papers and a total of 200,000 copies – see page 8 lines 18-19 of the protocol). As mentioned above, there is some ambiguity as to whether the picture was also published on the website.

The Defendant’s Behavior Prior to Publication of the Picture

The defendant did not produce any evidence that they had attempted to identify the copyright owner. They did not indicate how they received a copy of the picture and whether they were misled by some third party or the like. The defendant failed to establish having acted in good faith, based on any chain of events, including mistaken ones.

The Defendant’s Behavior After the Photographer Contacted Them in Writing

The Plaintiff sent the defendant a letter stating that his statutory rights were infringed. The defendant did not respond in writing. Under cross-examination of Mr. Greensweig, a chain of events was suggested by which the there were oral discussions with the plaintiff after the Cease and Desist letter was sent, but later he stated that the oral discussions were not with him, and so this is simply unsubstantiated hearsay. That as may be, the defendant did nothing to minimize the damage, such as to publish a clarification – even belatedly, to the effect that the rights to the photograph belonged to the photographer.

It is noted that in the summations, the defendant claimed that at first the plaintiff had not contacted them about the issue, and had he done so, they would have done what they could do put it right. After being reminded that the plaintiff had in fact contacted them, the defendant justified not publishing a correction due to the time that had passed from when the photograph was published to when they were sent the Cease & Desist (the publication dates are expected to be known by the defendant). Even if this is the case, the Judge thinks that a notification could have (should have?) been published.

The Defendant’s Behavior in Court

The Judge considers that the behavior of the defendant during the proceedings should be taken into account. During the pre-trial hearing, a worker who had no knowledge about the publication represented the defendant. During the evidence hearing, not a single employee or representative of the defendant was present (Mr. Greensweig was no longer an employee). The defendant did not invite his witnesses. Two days before the hearing, the defendant made a laconic submission to delay the hearing, and the request of the court to provide clarifications about the delay were ignored.

The defendant did not submit any evidence in writing, despite the witness indicating that there were records. The feeling that this gives rise to is that the defendant holds the plaintiff, the proceeding and the court in contempt.

The Nature of the Infringement

One has to take into account the fact that both the economic rights and the moral rights of the photographer were infringed. It is noted that the award reflects both rights.

There are, however, a few mitigating circumstances.

The Size of the Photograph and its Position

It is a mitigating factor that the photo was published in a small size in an inner page of the newspaper.

The Extent of the Infringement

The defendant acknowledges that the paper was published in tens of thousands of copies. However, the newspaper is locally distributed and not nationally, and there is a mitigating factor.

The claim that the defendant is a systematic infringer of copyright and moral rights

There was no evidential basis for the claim that the defendant was a systematic infringer, as claimed by the plaintiff. There were other photos on the same page that were not accredited, but the witness for the defendant was able to explain this as the pictures being public relations images. The plaintiff claims that the defendant was entangled in another copyright infringement case but this claim was unsubstantiated, and even if there is another court case that does not make the infringer a habitual offender.

The Plaintiff’s Profession

The plaintiff’s claim to be one of the leading and most noted photographers in the country was not substantiated.

Conclusion

The Defendant will pay the plaintiff 32,500 Shekels. In addition, the defendant will pay a further 7500 Shekels in legal fees.  Although the plaintiff has requested that the picture be taken down, as this was not part of the original statement of case but was first mentioned in the summations, this request is not ruled on.

SH-18-07-37165-446 Israel Cohen vs. KAV Religious Newspapers, ruling by Judge Amir Weisenblit of the Herzliya Magistrate’s Court, 7 July 2019.

Comment

Wombles-burrow-2-GCR_7788.JPG

With only minor disrespect to the nonagenarian, for some reason, I found myself thinking of Great Uncle Bulgaria, the spiritual leader of a group of environmentalists in the Seventies who recycled stuff other folks left behind.

Smashing up mobile phones is an act of wastage. It also leads to gross hypocrisy where I have ultra-Orthodox clients that I can contact by texting at certain hours, but not others.

Sure, mobile phones can be used for gossip, libel and slander, and smart phones for watching pornography, but you can’t stop technological progress. William Ludd could not and nor can Rabbi Kanievsky.



Categories: Copyright, inequitable behaviour, Intellectual Property, Internet, Israel Copyright, Israel Court Ruling, Israel IP, license, Licensing, royalties, royalty, telecommunication, telecommunications, Uncategorized, בית משפט, החלטת בית משפט, זכות יוצרים, קניין רוחני, קנין רוחני

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