Copyright Issues in Photomontage

Tratkover on white

This ruling looks at whether Gross, the printer of a montage poster by Tratkover entitled “The Declaration”, can be considered as having copyright in the pictures if he had a role in the selection of various background images that appear in the background layer of the poster.

The Judge determined that, at best, Gross’ contribution could be considered that of providing the idea, but did not consider him having made an artistic contribution. The concepts of derivative works and joint works were also considered, but Gross was not considered entitled to copyright on these grounds either. His claims were dismissed.

The poster itself is rather bombastically entitled ”The Declaration”, presumably to show that it is on a par with Ben Gurion’s Declaration of a State in 1948. It consists of two layers and is considered Tratkover’s copyright protected work, despite the fact that the most striking layer is an iconic photo by another; yet the idea of printing and the actual printing of these two layers on a third layer, that may also be itself a copyright protected image of a third party, such as architects’ plans of a known property, was not considered as being an artistic contribution. Nor was it considered to be copyright infringing.

Tratkover’s copyright in the image was not in question. His work was not considered a joint work or a derivative work, despite it consisting of an iconic photo by Govt Press photographer Ilan Brenner, of Yitzchak Rabin, Uzi Narkis and Moshe Dayan marching into the Old City of Jerusalem in 1967 with the addition pf Tratkover’s  original and artistic contribution of a green line painted across the image, three red crosses over the green line, and some fairly banal text about 1967-1997 – 30 years since the Occupation which was apparently the title of a conference held in 1997 for which Tratkover had produced the work, and so even this is not original to him.

Essentially therefore, the works in question are three or more layer montages consisting of an iconic photograph of known authorship, one or more semi-random, semi-selected backgrounds such as an architect’s plan of a known building project where the draftsman and the architect of which could be traced fairly easily ,or images accompanying a Holocaust survivor’s memoirs,  and a green line and three red crosses and some factual and non-creative text by Tratkover. Despite this layer being by far the simplest and least memorable layer, it was sufficient to render Tratkover the sole copyright owner despite it being clearly noted that printing or drawing simple geometric shapes onto a medium does not create copyright.

Tratkover’s simple graphical elements that turned the iconic photograph into a political poster against the occupation was considered sufficient to imbue “The Declaration” with his copyright. The issue of whether Ilan Brenner, who took  the original photo, had the moral right to be attributed, should own this derivative work, has moral rights to have the photograph acknowledged,  whether he or perhaps the Government Press Office is owner of the original photo and should have a say in the satirical political reuse of the image, whether the government or the photographer were copyright owners at all, let alone the prime copyright owners, whether Tratkover’s work could be considered a derived work or a joint work with the photographer were questions that the Judge did not deem worthy of discussion.

However, from the arguments brought in the ruling, one wonders why anything beyond the green line, red crosses and text itself should be considered as belonging to Tratkover.

Whether there is or should be a satire exception to copyright infringement in Israel, such as that exists explicitly in the US Law, was not discussed. This is a shame, as it may well be in the public interest to allow iconic photographs and portraits of leaders to be satirized (so long as the message is politically correct of course, otherwise, to do so is deemed incitement).

We suspect that were the image to have had a different political message, it would not have been referred to as art. That the work “The Declaration” should have been exhibited at all and obtained critical acclaim is more due to the political message falling on favorable ears than to any intrinsic artistic value. In fact, had someone with a more nationalistic right-wing agenda, printed a picture of Rabin with a red cross over him, he would probably have been tried for incitement. (In fact Tratkover produced an image after Rabin’s assassination, consisting of a 9mm pistol with the text Happy New Fear. I have no doubt that had an artist identified with the nationalist camp produced the same image, he or she would have been accused of incitement.

In the present ruling, using Holocaust images as background was considered acceptable, since they create a ‘dialogue’ with the overlying print. The political montage in question apparently has artistic merit and a strong left-wing agenda, making it politically correct. This is very different from showing Rabin in an SS uniform which makes a statement that is incitement and is used to crucify the settlement movement to this day, despite Rabin having been assassinated by someone from Herzliya, and the images originating with the secret service that reported to then Prime Minister Rabin.

Of course, the Holocaust is not the exclusive property of any survivor or political position, but the images used in the present work were part of the memoirs of a survivor. It would have been possible to review the records of the print-shop, to identify and ask that survivor for permission to reuse his or her work. It may or may not have been given.

One can argue that Judge Barkai had no reason to address the rights of Govt Press Office or of photographer Ilan Brenner, or of the holocaust survivor or of the architect or draftsman whose images were taken and incorporated into this work. However, she took it upon herself to address a slew of related issues such as derivative works and joint copyright ownership between Gross and Tratkover who each had some responsibility for the background and foreground images. It is actually the middle ground image which is iconic.

Israeli politics is deeply divided, and it is therefore good that the courts are there to inform us which satirical images are high art and which ones are incitement, which political views are desirable and which are acceptable, and to vet candidates and manifestos prior to elections in the best democratic tradition of free elections, where everyone is equal, but some are more equal than others.

As it happens, the Jerusalem District Court has ruled in a case where this artist has used a famous image, that the moral rights of the photographer should have been recognized. See CC (Jer) 19114-08-13 Michael Tsarfati v. David Tratkover (July 20, 2015).

The Case

In 2017, Zeev Gross applied for a permanent injunction to prevent Mr. David Tratkover from directly or indirectly copying, publicizing or presenting in public or making any infringing use of Zeev Gross’ creations.

This includes removing Gross’ creations from collections of books, removing them from Tratkover’s website, and removing film clips that use Gross’ creations, unless permission is obtained.

Furthermore, the requested injunction requires Tratkover to return to Gross his creations that were taken without permission; to provide details of use and accounts, and to oblige Tratkover to pay NIS 300,000 to Gross for alleged infringement or NIS 100,000 per infringement.

The artwork in question is a montage, mostly photomontage, created by printing one image on top of another. This technique has often been used to make political statements. See here.

Background to the Case

Two of Israel’s better known far-left graphic artists are David Tratkover and Zeev Gross. In an exhibition in Tel Aviv Museum that was held between June and October 2016 that was dedicated to Tractover’s work, a dispute arose. According to Gross, when visiting Tratkover’s exhibition, he was surprised to find three of his own works exhibited as Tratkover’s. Gross claimed that Tratkover took the work without permission and exhibited it as his own work, thereby infringing the copyright of Gross and also his moral right to be identified as the artist.

Soon after becoming aware of the alleged infringement, Gross approached Tratkover and requested credit for the displayed work. Following this approach, Tratkover requested that the stickers under each work be replaced with ones stating “With the participation of Zeev Gross”. Gross was unsatisfied with this and these were then replaced with stickers stating “created with the Artist Zeev Gross”. Gross sees this as an admission from Tratkover that the work was a joint creation, although Gross himself sees the work as solely his, and not a joint creation.

Following this event, Gross made further inquiries and allegedly discovered that Tratkover had infringed his rights on other occasions as well; for example his eponymous book “Tratkover” included pictures of ten works that Gross claimed were his, and which Gross had never authorised Tratkover to use – See Appendix 19 of Gross’ Affidavit that is included as section 33 of this Ruling and Gross’ testimony on page 163 of the protocol. The three creations that were displayed in the Tel Aviv Museum Exhibition are among the 10 works included in the book. Furthermore Gross claims that Tratkover added explanations to these works in another exhibition from 2010, where he claimed the works were his. (Appendix 8 of the Statement of Case). These creations were shown on Tratkover’s website (Appendix 10 of the Statement of Case) and in the film Tratkover, (Appendix 9 of the Statement of Case), which was shown on various media outlets including YouTube, and was also exhibited as Tratkover’s work, without giving Gross credit as the artist.

For an attempt to provide an overview of the Political Background to the Case see hereGetting back to the copyright issue…

The facts that are not in Dispute

Gross worked in the 90s as a printer in the “Eli Meir” printing house. In parallel, Gross had worked for years as an artist and exhibited his work several times. He was a graduate of the Avni Institute of Art.  His work includes the Israel Wants Change logo.  His work can be seen here.

David Tratkover is a well-known artist and lecturer who won the Israel Prize in 2002. He is particularly well known for graphic design of notices, posters and political logos, including that of the left-wing pressure group Peace Now. His work can be seen here.

In 1997 Tractover approached the printing house where Gross worked, to print a design he had prepared for an exhibition related to a Conference titled “30 Years of Occupation” to be held at the Tsavta Club in Tel Aviv which is devoted to promoting left-wing progressive art and theatre.

Tratkover on white

The work in question is a public notice which included the iconic image by Govt Press photographer Ilan Brenner, showing the three generals, Yitzchak Rabin, Uzi Narkis and Moshe Dayan marching into the Old City of Jerusalem in 1967. Onto the photograph Tratkover added artistic elements of his creation comprising three Xs in red and a green line, and below, the following text was printed in Hebrew and English “30 Years of Occupation 1967-1997”.

The parties agree that this image on a white background is a protected copyright image belonging to Tractover. The Poster is shown alongside.

As stated above, the works that were challenged in court included 10 images, three of which were included in Tratkover’s exhibition in the Tel Aviv Museum of Art. All ten were included in a book of Tractover’s artwork as described above.

The works in question are montages consisting of this image by Tractover, printed on top of other layers. These other layers are rolls of scrap papers used by printing houses to set the colours and to calibrate the printer prior to printing images as ordered. The rolls in question are run through the printer between orders, before a print run, to clean remains of print-jobs, to set the colour and to ensure a single tone. The page of the sheets used for this purpose are generally reused, and so may include layers of printing for other customers.

Gross’ Version of Events

Gross presented himself as an artist, who had created many works of art over the years, using various media, and in parallel worked in the offset printing house Eli Meir.  Gross claims that over the years he worked for the printing house, from the 1980s onwards, he collected these draft sheets and used them for creating his artwork.

Gross explained that when setting up the printing machine for printing an order, he carefully examined the draft sheets for images that interested him artistically, and he considers this to be a repository of creativity that can be used in “dialogues” for exhibitions he intended to create on the topic of the Occupation.

Gross claimed that all the draft sheets were collected by him for this purpose and were not simply draft sheets used for stabilizing the colour of the offset printer, but were made, collected and separately stored as part of his creative preparations.

Gross pointed to the architect’s maps that showed the Jerusalem Boulevard and Moshe Dayan Boulevard; to images from the Ghetto and stories of Holocaust survivors, and to various images from the Six Day War, all of which he considered as having potential to be included into his artwork.

According to Gross, in 1997 Tractover contacted the printers to print the poster he had designed for the conference titled 30 Years of Occupation as described above. Gross claims that whilst preparing to print Tratkover’s image onto a white background, he had the idea to print it onto the scrap images he had previously collected. He obtained Tratkover’s permission to overprint his image onto these background prints that he had collected and made the composite montages, and taught the technique to Tratkover. Following receiving Tratkover’s approval, Gross took rough print images from his collection that he thought were appropriate as backgrounds for Tratkover’s image and printed Tratkover’s image onto them.

Thus, in the same meeting, Tratkover’s image was printed onto a white background, as per Tratkover’s original request, and in addition, some 100-150 further images were created by printing Tratkover’s artwork onto different scraps of printed material in various combinations. Thus the final montage images were Gross’ work, created with permission from Tratkover to print his poster design onto these backgrounds. Gross claimed that Tratkover liked the results and invited him to exhibit them at Tzavta.

Gross reiterated that the works consisting of Tratkover’s poster design on rough backgrounds that Gross had collected were Gross’ creative work.

Indeed, close to that meeting at the printers, there was a conference at Tzavta on the subject of 30 Years of Occupation. At that conference, Tratkover exhibited his poster as printed against a white background, and alongside Gross claimed his creations, were shown, consisting of Tratkover’s image on various background prints, that Gross had collected, sorted, and carefully chosen, as stated above. In his testimony, Gross stated that shortly after the conference at Tzavta, Tratkover asked for examples of Gross’ work, and when he visited Tratkover at home, he brought with him 3 or 4 pieces of his own work (Posters of Tratkover printed on printed backgrounds).

Gross did not indicate which creations out of those exhibited by Tratkover he had given to him, but did note that he had certainly given to Tratkover one creation that was exhibited at Tsavta, which was Tratkover’s image printed over an earlier printing that included a car’s registration number, but this was not included in the artwork that was the basis of this law-suit.

Gross also could not link the work exhibited in Tzavta with work held by Tratkover and shown in Tratkover’s book. It appears that these are different works, apart from one image showing “The Declaration” printed over an architect’s plan. Although Gross claimed to have made 100-150 of these images, only one remained with him, and the others were lost.

Tratkover’s Version of Events

Tratkover claimed that Gross should not be considered as the creator and copyright owner of the works that were printed at the printing shop by Gross. Tratkover claimed he went to the printing shop to have his work printed and then met Gross, who was employed there as a printer. Tratkover claimed in his affidavit that. whilst visiting the print-shop, he himself had the idea of printing the poster onto scraps that had previously had other work printed on them, in addition to printing onto white, and that this was a technique he had previously used.

Tratkover claimed that the purpose of the montage was to show how the Occupation had leached into all areas of life, and this was expressed by printing the poster onto the plan of a building on the corner of Moshe Dayan and Jerusalem Boulevard and a further layer of memories of a ghetto from a Holocaust survivor – this being an image from Tratkover’s collection.

Tratkover claimed that the works were his alone, and Gross was merely a printer working at the print shop used.

As to Gross’ claims that he had made a creative input by pairing the background prints with the poster, Tratkover claimed that the backgrounds were random images that were randomly obtained and should therefore not be considered as being works of art.

Tratkover claimed that he had never agreed that Gross could use his poster for new works. He asserted that the works exhibited at Tzavta in the 1997 conference were subsequently  exhibited on numerous occasions thereafter, at exhibitions, in journals, books, newspapers and so on, and they had thus become well-known to both the community of art and culture appreciation and to the wider public as examples of Tratkover’s work.

Tratkover further noted that during this entire period from when the work was printed by the print-shop where Gross worked and for nearly two decades, he did not hear from Gross or anyone representing him, any claim that Gross had rights in the image.

No one denies that the first time that Gross made his allegations was in the summer of 2016 when Tratkover’s images were exhibited in the Tel Aviv Museum, and it was those allegations that led to the current law-suit. The way that Gross made his approaches during the exhibition and his brazen request to have his name added as a creator was threatening, and so Tratkover consented to having Gross’ name added.

Tratkover, denied that his consenting to Gross’ name appearing at the Tel Aviv Museum was an acknowledgement that Gross was indeed a creator, and Tratkover was the sole creator, who had added Gross’ name only because he felt threatened by Gross.

The Contentious Questions 

The main contentious questions are:

  1. Can rough print paper with images that are used as backgrounds for a poster be considered as having copyright protection?
  2. Are the images in question derived creations that are protected separately from Tratkover’s poster that is printed thereon?
  3. If the montage is protected, does it belong to Gross? or to Tratkover?
  4. Did Gross obtain Tratkover’s permission to create derived works from his poster image, including a statement that the copyright of these images belonged to Gross alone?
  5. Are these joint works?
  6. If it should be determined that the work belongs to Gross, did Gross receive his employer’s consent that it would be recognized as being his creative work?
  7. If it should be determined that the copyright belongs to Gross, can Tratkover be considered as being an innocent infringer?

Discussion

The discussion in this instance raises legal disputes that go to the heart of copyright, and particularly whether the images being litigated over are independent creations; derived creations from Tratkover’s poster and, considering the originality of the artist, who owns the rights?

The parties have a significant disagreement about the facts, including how the works being litigated came about, and how they came to be in the hands of Tratkover. Are these Gross’ work that Tratkover took without permission? Or are these Tratkover’s work that Gross simply printed in a technical capacity, without a creative input onto various background print scraps, this being Gross’  idea? Tratkover’s idea? Maybe it is a joint work or a derived work?

The time lapse since the printing occurred may have resulted with the parties having forgotten the exact chain of events that lead to the works being printed and subsequent developments.

Before diving into the facts, Judge Rachel Barkai saw fit to review the legal considerations that the case raises.

The Normative Framework

As stated above, the claimed infringement relates to an exhibition in Tel Aviv Museum of Art where Tratkover claimed authorship of three of the ten images covered in this law-suit, that Gross claims are his intellectual property. Alongside this, there are additional claimed infringements relating to a book, video and the Internet.

According to Section 77 of the Law of Copyright 2007, that law applies in full to creative works made within six months of its publication in May 2008.

This Law canceled, for later works, the application of the 1911 Copyright Ordinance in Israel, which was the 1911 British Act extended to the British Mandate in 1924 (apart from Sections 4c to 3h) – henceforth, the Previous Law.

Section 78 of the (new) Law states that it also applies to earlier creations but with various limitations including (b), that one can apply the law to earlier work if it was protected under the previous law.

From this, to apply the new law, a plaintiff has to show that there is infringement under both the old and new laws.

What is Copyright?

What is Copyright?

Section 1 of the old act recognized copyright in: Original literary, dramatic, musical and artistic works,…

Under artisitic works are included drawings, paintings, sculpture, engravings, lithography, maps, diagrams, architectural creations, photographs and artistic creations, including typefaces.

Section 4 of the law states that:

Copyright subsists in these:
(1) An original creation which may be a literary work, an artistic work, a dramatic or a musical work, that is fixed in any manner…

Originality is the basis for copyright protection. The requirement for copyright protection is a basic requirement for copyright in a work even before the new law, and is apparently self explanatory since, without originality, there is no copyright protection. See Civil Appeal 513/89 Interlego vs. Exin Lines Bros S.A., p.d. 44 (48) (4) 133, 164 (1994); see also Michael Bernhack “The Originality Requirement in Copyright and Cultural Management”, Alei Mishpat B 347, (2002); Civil Case 7996/11 Safecom vs. Ofer Raviv (18 November 2013)Civil Case 8485/08 The F.A. Premier League vs. the Counsel for Organizing Sports Gambling, 14 March 2010 and Civil case Fisher Price Inc. Vs. Doron Import Export Ltd, 31 August 2017.

From these rulings it translates that one can see artistic works as protected work under both the old law and the new law.

Recognition of Copyright is dependent on two requirements given in Section 4(a)1 of the law as cited previously: originality and fixing.

Regarding the originality requirement, Judge Rubinstein stated in Fisher Price that:

The requirement for originality is the main requirement for obtaining copyright protection” it is “the heart of Copyright Law (re Interlego page 169); this is obvious. If there is no originality what is the basis of the right?

The originality requirement is considered in light of three tests taken together. The investment, the creativity and the source. These tests were first stated by Judge Danciger in Safecom. These tests do not make up for each other, in the sense that one cannot compensate for a lack of creativity by investment and the opposite.

The investment test requires considering if the creator exerted some effort. In this regard it has been ruled that the minimum exertion of one or other of time, effort, skill, knowledge and so on is sufficient to show investment. However, this is not enough if there is no creativity.

In re Interlego, Judge Shamgar ruled that:

Intellectual property is an umbrella that is a pillow for fulfilling human aspirations, but it is also an area where intentions and future horizons are developed. So there is significance in not only rewarding effort, but also in the amount of limitations that it drags behind.

Thus, the main test is that of creativity, since the amount of investment required is minimal.

The second test is that of creativity – this considers whether the work contributes to the social aims that are at the base of copyright, which is the enrichment of the creative world. This test considers the quality, the richness of the investment and not its amount (see Interlego and also the Sports Council Ruling).

However, the creativity required is not particularly high. It has to be minimal. The creativity does not need to be innovative when compared to other works, and it is enough for the creativity to be slight or even valueless for the creativity requirement to be fulfilled (se re Safecom paragraph 13 and Interlego page 173). A further aspect that the courts have considered that can contribute to the creativity test does not consider the finished product but rather the process of the creation, and considers the amount of creativity that the author or curator has exerted in putting the work together (Judge Jubrin in re Sports Council).

The third test is that of originality, which states that “the source of the creation is with creator and that it not be based on another creative work” (see Safecom paragraph 12) and as ruled in “Original, i.e. independent” (see Judge Danziger paragraph 13) citing Judge Rubinstein Civil Ruling 3422/03 Krone AG vs Inbar Armored Plastic, p.d. 59(4) 2005.

The above tests do not set a high bar for applications to attain to obtain protection for their creative works. The investment requirement needs for a minimum investment of some human activity, however, this is not enough. In Interlego, the massive investment in effort did not compensate for the lack of creativity and the charges of

The test of creativity and originality are more complex and there is no simple single expression of what is required.  As stated above, the requirement of creativity does not set a high standard and sometimes it is enough for the creativity to be minimal and even worthless (see Safecom). Nevertheless, some creativity is required.

The Supreme Court (Judge Jubrin) stated in the Sports Gambling Council ruling that:

“From the case law it transpires that work should be original and not a copy but this is not enough for it to be protected, even if the author or creator is the source of the work, it is possible that the creativity requirement will not be met. Thus, a creation that used just general elements and is not based on earlier creations will pass the creativity requirement relatively easily. However, the work is required to have some kind of stamp on it, even if minor, representing the author or the curator/compiler. It has to be the intellectual (maybe spiritual?) toil of the creator. See Interlego and also the “Lowest Level of Self Expression” – 2687/92 Geva vs. Walt Disney, p.d. 48(1) 1993, and Civil Case 2790/93 Eisenman vs. Kimron, p.d. 44(3) (2000).

In other words, copyright protection is not provided for works that are not copied, if the final creator uses self-evident elements that are in the public domain, such as a circle or simple line (Interlego, page 171).

We can summarize and state that the creativity requirement and the investment requirement are essential conditions for copyright, but neither is itself sufficient to show that both are present.  In principle, since the investment test does not generally raise problems in being overcome, the creativity and originality tests generally indicate if a work is to be considered copyright protected or not.

There is no protection for an idea

Another basic idea regarding copyright protection relates to the difference between an idea and an expression of an idea. The basic principle is that the idea behind a creation is not protected and that copyright only protects the expression of the idea.

This is expressed in Section 5 that states that:

Copyright in a creative work as defined in Section 4 will not apply to any of these, but only to their expression:
(1) an idea….

The difference between an idea and its expression was expressed by Judge Aharon Barak in Civil Ruling Hershko vs. Oerbach 43 (3) 749 as follows:

When do we say that an idea is copied, and when do we say that the application of the idea is copied? In my opinion, one should not nail down in advance when something is an idea and when it is an application, but everything depends on circumstances. The same factual chain of events can be considered for one purpose as being an idea and for another purpose as being an application of an idea. From a broad perspective there is nothing new, but every invention or ‘idea’ is a development of earlier ideas; the question in each case is whether the individual added something original of his own to the’ idea’ or to the earlier ‘application’ in which case, his work will be protected, even if the basis of his work draws on another source, or does he blatantly copy that which someone else has created, without creating something original of his own. When we consider a creative work for which copyright is claimed, the question is just that: is the work an expression of an idea or a copy of an idea that appeared elsewhere? The amount of originality that is required to obtain protection is for a creative work under the Law of Copyright changes from case to case and can be small or even valueless as in Lithographing co (1903) [10] 250 at Bleistein v. Donaldson. Where Judge Holmes states that “Personality always contains something unique. It expresses” its singularity even in handwriting, and a very modest Man’s alone. That something he may copyright unless there is grade of art has in it something irreducible which is one.” a restriction in awards of the act.

This difference that the case-law has focused on over time is based on the concept that were protection to be available for ideas, it would undermine a purpose of copyright law which is to promote creativity and to leave enough raw material in the public domain – see Tony Greenman, Copyright, volume 1 page 75, 2008.

The general approach of not providing protection for ideas but only for their expression is also related to the idea that facts are not protected. We can summarize this section and state that when determining that copyright exists in a matter, there is great importance in differentiating between the idea and its expression and this also touches on the originality of the basis of the protection for works using copyright.

This general rule also finds expression when considering anthologies (collections) where the protection extends merely to the arrangement of the material and not to the material itself, and there has to be something creative in the arrangement for copyright to subsist therein.

And, as stated by Section 4b of the Law:

As to Subsection (a) the originality of a collection and the determination that protected occurs only if the selection and arrangement of the material

This law, that is included in the new Law did not create new rules with the aspect of ‘choice’. In practice the courts recognized creativity in the choice of information and Judge Jubrin stated in the Council for Sports Gambling:

This section is not a restriction to the originality requirement. Creativity regarding facts is an alternative and not a further condition to the requirement of originality in the arrangement of facts (see the explanations for the TRIPS amendment of 2005, pages 1120 with reference to Section 2(10).

The case-law that related to this issue prior to the legislation of the new law considered that despite the content of the compilation not being protected – since it contains ideas, facts, news, and so on, that are available for all to use, that does not mean that there is no protection for the work, to the extent that it is original – see Kimron where it is stated that:

“The fact that the building blocks that are material in the hands of the craftsman are in the public domain, is irrelevant to the question of whether there is copyright in the work itself.”

Copyright protection is provided in these cases for the processing of the articles that are gathered together and the way they are displayed, and not for the items themselves. The fulfillment of the originality clause in the case-law is expressed by the external characteristics of the compilation and the way that facts are selected, arranged and displayed.

“Although it is known that there is no protection for an idea per se. there may be copyright in the way that the idea is edited or presented…and it is irrelevant that the blocks are in the public domain”. See Achiman page 261.

We have seen that assembly and editing may be considered as a “literary creation” as defined under the law, and the question of copyright in the creation is considered by the amount of originality in it.

In the Kimron case, the court dealt with the issue of deciphering an ancient scroll by assembling it, positioning and arranging the hundred or so pieces, filling in the gaps and solving the content written therein acquires to the one doing this work copyright for the completed text. The ruling focused on the originality of the deciphering of the scroll, and stated that the recovery of the text could have been done in different ways, and the filling in of the gaps uses the imagination and creativity of the scholar and the result obtained is not a necessary result from the parts that were available.

The parameters that the court used to establish creativity was the experience, expertise and imagination of the scholar-compiler and they ruled that:

One should not detach the layers of creativity from each other, and should see the result as a single creative work. The work in its entirety may be considered a single creative work, that shows originality and creativity that cannot be discounted. Kimron’s work was not something that is merely technical ‘mechanical’ such as simple labor, where the result can be known in advance. His spirit, the additional soul [this is a Kabbalistic term that is quite odd in this context – MF] that he gave the scraps and made them a living text, was not something that can be considered as merely the application of toil in the sense of the sweat of one’s brow, but these were the fruits of a process wherein Kimron used his knowledge, expertise and imagination, and applied consideration to selecting from different alternatives.

However, it is fitting to emphasize that toil is insufficient to prove originality, and there is the need to show creativity. One has to conclude that some compilations, anthologies, assemblies or collections are not original enough to be protected by copyright. See the Sports Gambling Council, paragraphs 51-54.

Joint Creations

Section 1 of the Copyright Law provides additional alternatives for including the work in question:

‘joint creative work’ -a creative work that is the result of several artists working together where the contribution of each to the creative work cannot be separated.

Derived Creation

Section 16 of the Law defines a derived creation as follows:

Making a derived creation is the making of an original work that is significantly based on another work, such as a translation or variation.

The right to create derivative works and complex works including an original work belong to the original right owner, under Section 11(6) of the new Law and under Section 27 of the original act:

The creation of a new artistic work that is a partial copy of an earlier work or that is a derivative work based on an earlier artistic work, and any use of the new creative work, is allowed to the original creator, even if he is not the copyright owner thereof, so long as the new work is not a repeat of the main thing of the original work or a copy thereof….See Orit Fishman Aphori Derived Creations in Copyright Law 2005 pages 192-200.

Applying the Legal Discussion to the Present Case

Having considered the nature of the originality requirement in Israel Law, and considered the tests of creativity and investment in creative works that gives rise to copyright protection, particularly in assemblages and compilations, we now turn to the present case and consider the contribution of Gross to the creative work, since Gross claims to have fulfilled the requirements of ‘creativity’ and ‘effort/investment’, when considering the relative weight of both Gross and Tratkover when considering a complex work that is a poster that is Tratkover’s creation that is printed onto various backgrounds, that are generally collections of images of others, even if some or all of the background elements are not themselves protected, who owns the copyright in the new works?

To simplify matters, it appears relevant to reproduce the works.

Tratkover on white

The first work is the Tratkover poster printed over little scraps of earlier work.

Picture2

The second work consists of Tratkover’s poster printed over a layer of architects plans and a layer of images from the Holocaust.

Picture3

The third work consists of Tratkover’s poster printed over scraps of images from the establishment of the State.

The fourth work consists of Tratkover’s poster printed over a layer of architects plans, a layer of text and a layer of pictures. The fifth, sixth and 9th pieces of work consists of Tratkover’s poster against a number of underlying layers of architects plans and images.

The seventh and eighth works consist of the montage printed on top of a page of the newspaper “Transport Lines’ and various images.

The tenth image has so many layers that Tratkover’s text is obscured, as is the green line and one and a half crosses.

Gross, in his testimony before the Judge and in his statement of case, claims that he has copyright in the print sheets, due to his work, having exerted thought and time in collecting and sorting the background print sheets with the intention of doing something creative with them in the future. He claimed that the combination of these backgrounds with Tratkover’s creation (the poster), is the fruit of his creative thinking and his investment in printing onto these backgrounds so that the background printed images and tests create a dialogue with the poster. Tratkover having authorized the combination of the background layers with his poster resulted in new artwork that Gross is the creator of, and which have originality, uniqueness and artistic value, and are thus protected by his copyright.

As described above, Tratkover came to the printers to have his creation “The Declaration” printed for the exhibition, and nothing more. Whether the idea of printing “The Declaration” on scrap rolls put to one side was his or whether Gross had the idea, Gross printed a large number of copies of “The Declaration” on different background images, in addition to printing on plain white media.

Gross claims that Tratkover allowed him to use “The Declaration” for his creation, and then and there 100 to 150 version were printed.

Do the background images that “The Declaration” was printed onto comprise a creative work? What is the artistic creative contribution, if at all, of Gross in the background images, or in the resultant montages?

The court has to decide the question that are based on fact and law, as to whether Gross had any creative contribution in the printed media that served as a background for Tratkover’s “The Declaration”, even if we accept that Gross had sorted and collected them. This determination is made on the basis of the sides and their versions of events regarding the creation., including consideration of the artisitic work that resulted and the relevant legal considerations.

The Creativity Claim by Gross

One cannot ignore the fact that Gross himself had trouble defining his creative contribution. At the beginning he claimed that he had curated the background images and had intended to use them for his own creative works. (see sections 7-10 of the Statement of Case) and of Gross’ testimony from 8 October 2018 pages 51-53, and the testimony from 23 October 2018, page 101 where he claims to have invested a lot of thought and creativity in collecting and arranging the background images.

Afterwards, he claimed that the background images themselves were creations and claimed that the creativity came into being by the dialogue with “The Declaration” when printed thereover, and the ability to choose the right background image was his artistic contribution (see page 91 of the protocol from 23 October 2018).

Alongside this, Gross acknowledged that the printer in a print shop does not acquire copyright in images printed for clients, and so he did not have copyright in any of the single layers which remained the property of the customers.

He then claimed that the processing involving printing onto the background layers is an indication of creativity.

“The Declaration” as a single layer on a background

As clarified above, the background images are sheets of paper that are essentially rough or waste whose intended purpose is to prepare the printing machine for a new print run, by obtaining the right color tone and by absorbing remaining ink from earlier print runs.

In principle, the client who brings his work to the printer has copyright in the work, thus an architect having offset printing of his plans owns copyright to the plans. This is also true of the illustrator for children and of the photographer who takes pictures of an event unless proved to the contrary.

Thus when talking about an image that consists of a single printed layer, a single image (such as a building plan) as shown in the second and third images above, one should say that the creator is the customer of the print-shop and he owns the copyright of the image on the waste stock, even if it is scrap or rough paper, and the printer at the print shop does not have a creative input in such a background.

From here it is a short distance to conclude that printing “The Declaration” on a single layer of background is not a creative work.

If it was the idea of Gross to include or to match a specific background scrap image to “The Declaration”, this idea does not become an artistic creation beyond the idea itself, since the scrap material that has one layer of print which serves as the background for “The Declaration” and creativity.

Is the printing of the “The Declaration” on several layers of scrap print images a creative work?

In Gross’ words:

There is a computer, and in it there are drawers where these scrap images are kept, and I kept about 100 of these images, and when Tratkover came, I printed his work, as part of the work, I used these scrap images. I did a print run to see if it achieved a correct colour shade on a white background that the print shop provided for the purpose. In addition, I printed onto a number of scrap images that were not part of his creation, and then I had the idea of combining the symbol of the Occupation with three generals, with the background scrap images that show the banality of the daily life, after requesting permission from Tratkover and receiving it by him saying “No Problem”; I explained my intention to him, and after running the scrap backgrounds, i.e. his work, I added the scrap backgrounds; taking out old scrap backgrounds.( Protocol 8 October 2018, page 42 lines 16-27).

“Only very specific background scrap images are very different from ones I selected and I could not hold things up or start sorting whilst working with the background scrap images. These are things that I have prepared and given considerable thought to and even within a number of months to print as I also intended –

Judge: “So tell us, how did things occur, you simply took the rough images and run them through the printer?”

Gross:  “Correct, I took the images I had saved and ran them through the printer and they were supposed to be solely mine, I placed them.”

Judge: randomly, not by selection.

Answer: “The selection I’d made much earlier.”

Judge: “You made the selection earlier?“

Answer: “Much earlier.”

Judge: “But at this session you ran everything?”

Answer: “All the rough images I had.”

Judge: “Randomly?”

Answer: “Yes, I saw that it created a dialogue with the image and so I wan them and put them on the table. There was a bundle. A pile like this…”

Discussion – 23 October 2018, page 111 lines 15 to page 112 line 6.

Gross repeatedly explained that he had run the scrap images that he had, which he considered created a dialogue with “The Declaration”, in a random manner (see page 137 of the Protocol).

Printing in this manner on scrap image backgrounds is at best a concept from Gross’ perspective and as such, cannot be protected. This is a printing of Tratkover’s creation on different backgrounds of layers of print on background scrap material in a random manner which lacks any element of creativity.

As Tratkover, the expert stated:

There is some background that results from using already printed on scrap that is totally random, afterwards there is intentional work that is printed thereon.

The final layer is the intended one, and all underlying layers are alternatives. We are talking here about a series, where the main motif is not the background – discussion 23 October 2018 pages 134 to 136.

Thus Gross’ contribution was that of the idea that allowed Tratkover to print “The Declaration” on backgrounds that created a dialogue with the Tratkover’s image, but Gross’ idea is not a creative input. From here, the printing of “The Declaration” on a series of different background scraps as happened here, without investing any creativity in creating the background scraps cannot be considered as giving Gross any protection or in seeing the product as being Gross’ creation.

This is a derivative work of the main work and the copyright therein is Tratkover’s under Section 16 of the Law.

Looking at the work in question strengthens this conclusion, that the backgrounds were randomly selected and that the earlier layers were from different previous customers and were not intentionally selected.

Even if some of the backgrounds which were used as backgrounds for “The Declaration” create a dialogue with the “The Declaration”,  and even if the printing of one layer on top of another was partially planned by Gross, as he claimed, and that he had combined architects’ plans with pictures of a Holocaust survivor to ’dialogue’ with the message of “The Declaration”, this is not creative. It is not the “lofty idealism” that the court referred to in re Kimron, but is a merely a technical mechanical work that implements an idea, and no more. There was nothing in the printing of the scrap background images in question, anything that could be considered designing or creative endeavor.

Since the background images do not fulfill the creativity requirement, no one has copyright for printing layers onto these background images and certainly not the print-shop which does not have copyright in any of the image that were printed as a montage.

This was certainly an original idea, even if it was Gross’ idea, but this idea without any creativity cannot give Gross copyright protection in the idea. The combination of “The Declaration” of Tratkover with background images that are related to it does fulfill the definition of a derivative creation and the copyright of these derivative images belongs to Tratkoer the creator of “The Declaration”.

The issue is different from that which Gross testifies to, that the production of the background images was his investment in thought and creative planning by the making of background images on the scrap backgrounds.

Thus, were he to prove that he had done some processing in printing “The Declaration” on the backgrounds, such that his contribution were to be considered a creative contribution to a new result that is considered a creation; a derived creation. The random printing of layers of print, even if one engages in a dialogue with another, lacks a creativity beyond the idea.

To emphasize this point, Judge Rachel Barkai saw fit to bring three examples of Gross’ artwork that he’d appended to his affidavit. These CAN be considered as creative with regards to Gross’ contribution.

It can be seen that these creations of photo montage on scrap images have an artistic aspect due to the positioning on the background. The layers of print are arranged in a creative process of prints on the background media, in the sense that there is a creative contribution in the design of the prints, the angles, the cuttings, etc. The creativity in this work is noted in the editing of the layers and is not merely random printing on background scraps.

In Summary

Judge Barkai can only conclude that the work in question does not include a creative contribution by Gross. Even if Gross had the idea to print “The Declaration” not only on a white background but also on various printed scraps that are capable of adding an additional message to the work, this may have been an original idea but it lacks the creativity required to give it copyright protection.

The simple idea by itself does not have legal protection and so Gross cannot be considered as having any creative contribution and certainly Gross cannot be considered the creator of the works in question.

Once it is established that Gross did not invest any creative thought in making the background images that served as backgrounds for the series of works in question, and it turns out that they were the result merely of random printing on scrap images, there is no alternative but to dismiss Gross’ claims.

Gross’ claim that Tratkover took his creations from the printers without permission for so doing does not concur with the testimonies before the Judge, particularly with the phone conversation wherein Tractover notes that after printing they divided the images and Gross does not disagree with that. This is strengthened by the fact that over the years, and particularly after the printing, that 30 images that Tgratkover holds today simply disappeared.

Furthermore, although not necessary to do so, the Judge wonders how an artist can print 100 to 150 works as Gross claims to have done and simply lose them? (see paragraph 23 of his affidavit).

Is this a collaborative work?

Gross did not claim that he was a partner in the work and repeatedly claimed it was his work alone. However, although not claimed, the Judge saw it as fitting to consider this option.

Regarding collaborative work it is stated:

For a work to be considered as a collaborative work, it is not necessary that each creator makes an equal contribution. It is enough that the creative input is significant, even if less so than that of the other(s). However, in general, the contribution has to be of the nature of an expression or part of an expression and not an idea. See Tony Greenman, Copright, edition 2, page 475.

In the present instance, where Gross did not create the images on the background scraps, one cannot consider the work as being a co-production of Gross and Tratkover. This is Tratkover’s creation ‘The Declaration” – printed on various backgrounds that Gross had not made a creative contribution to. Gross’ idea to print onto scrap images that were randomly selected without any creative contribution is insufficient to be considered a creative contribution at all, and certainly not one that is protected.

For a work to be considered a co-production, it is necessary for the image to be created intentionally by collaboration between the artists.

As Greenman states on page 476 of his book:

Where two artists collaborate in a creative work, there is generally no argument that the work is a co-production. Arguments generally arise where one artist asks for help from another, or where one adds a contribution to a work by another and ownership is temporarily with the other copyright owner. In both the English and the US law, in such cases, even if the other makes a defendable contribution, this is insufficient for the work to be considered a joint work. What is also required is the intention of the two parties. Without this joint intention, the later contributor is not considered a creator and a joint copyright owner in the work, no matter how important his contribution is.

As stated, Gross did not make a creative contribution and at best suggested an idea that Tratkover adopted and the works are totally Tratkover’s. Having made this ruling, there is no weight to the fact that Tratkover was willing to acknowledge Gross’ contribution in the three works displayed in the Tel Aviv Museum.

Is this a derivative work?

As stated above Section 16 of the Law states that:

Creating a derived work is the making of an original work that is largely based on another work, such as a translation or reworking.

Section 37 of the law states that:

Creating an new artistic work that is a partial copy of earlier works is a derived work from an earlier artistic work, and similarly any use of the new work is allowed to the creator of the original work, even if he is not the owner of the copyright, since the new work is not a repetition of the principle of the earlier work or a copy thereof.

Thus one can consider the creations that are litigated herein as derivative works of “The Declaration” and the copyright of these derived works is completely reserved for the owners of the copyright of the work that these are considered as being derivatives of, unless the owner of the first work, Tratkover, agrees to these derived works being owned by the second artist. Even if the derived work were to attain a high level of originality, i.e. if it were to include independent layers of original creations having originality and creativity, even then, their elements would be the property of the second artist and not of the original creator.

As Tony Greenman stated in his book Copyright, on page212:

Copyright in a derived work only subsists in the elements that are original therein, and do not damage existing copyrights, if these still exist, in the earlier work.

In the present instance, having ruled that the layers of background print in the work in question do not make a creative contribution to the new works, Gross does not have derivative rights and the copyright is solely Tratkover’s and only his.

Therefore, it is superfluous to consider if Tratkover had given his permission to Gross to make derivative works of “The Declaration”, since without a creative input in the new images, beyond the idea to print “The Declaration” on different backgrounds from plain white, these are not derived images that Gross has given copyright in. However, as Gross showed in his exhibit file, he has, in practice, done something creative with the Tratkover’s “The Declaration”.

It is also superfluous to consider the question of whether Tratkover gave his permission to Gross to create derivative images of “The Declaration”, since without a creative input in the new works, beyond the idea of printing “The Declaration” on non-white backgrounds, these are not derivative works that Gross has copyright in. However, as Gross has included them in his portfolio, he has made apparent creative use of Tratkover’s work.

Judge Rachel Lavie Barkai saw fit to relate to picture 2 of appendix 9 to Gross’ exhibits. Gross considers that this image records “The Declaration” as displayted at the Savta Conference.

From this image it can be seen that “The Declaration” at the center is Tratkover’s printed on a background with a newspaper reduced and rotated.

See also Figure 1 of appendix 10 of Gross which shows “The Declaration” printed over a front page of Maariv, reduced and rotated to an angle.

Regarding these images, one can state that even if they are derivative works of Tratkover’s “The Declaration”, unlike those that were part of the litigation, these do have a creative element of Gross in that they were planned and there is some forethought.

From here, one concludes that even if Gross received Tratkover’s permission to make use of “The Declaration” for art-work of the type of the two images shown here, these are derivative works that Gross has copyright in, but Gross did not sue regarding these images.

Tratkover’s claims against Gross for Copyright Infringement

Despite the issue not being raised, the Judge considered it appropriate to note that Gross infringes Tratkover’s copyright with these two images, to prevent the parties raising the issue at some future time. However, she concludes that Tratkover had allowed the images to be made by Gross for the Savta conference and did not complain or sue close to that event, so it appears to have been permitted.

Are Gross’ Derivative Images His, or His Employers?

Section 34 of the Law of Copyright states that the employer is the first copyright owner of work made by employees for their work as part of their work during the course of their work, unless agreed to the contrary.

This rule is stated in Section 5 of the Law of Copyright 1911 which was in effect when Gross worked at the print-shop.  Despite not being required to do so, since these derivative works are not under litigation, the Judge sees it fitting to note in an afterward, that she was convinced from the the testimony before her, by Michael Bar and Gross,  that Gross was allowed by the print shop to make personal artistic prints. Although, the testimony of Mr Bar was hearsay, since the owner of the print-shop is no longer with us, it cannot be dismissed, even if given only minor weight. This also accords well with the fact that Gross did a lot o private work at the print-shop.

This is not relevant of course, but is noted to bring the discussion between the parties to an end.

Return of Work

As stated, Tratkover’s work done in the print-shop, is his and he has copyright therein. Gross, being an employee of the print-shop, does not have any righgts of legal basis for owning these works that were printed in the print-shop for Tratkover at Tratkover’s request. Without evidence to the contrary, the images are wholly owned by Tratkover.

Conclusion

Gross does not have copyright in the backgrounds that Tratkover used and did not make a creative contribution. These works cannot be considered derivative works of Gross, since he did not have any creative input in what was random printing onto backgrounds by the print-shop. The works cannot be considered as being joint works as they lack all artistic contribution from Gross.

Having reached this conclusion, there is no reason to relate to the issue of Unjust Enrichment.  Nor is there a need to address Tratkover’s counter-claims of Gross infringing his copyright.

It is reasonable to assume that the parties, not being lawyers, find it difficult to determine the boundary between a creative input and a creative idea, and so divided the results between them after the printing. However, when the issue arose years later, there was a need to rule on the topic.

Having reached this conclusion, the various defenses do not need to be addressed.

In light of the above, the charges are rejected. The Judge considered ruling real costs but, bearing in mind the issues in question, ruled that Gross s is only required to pay NIS 25,000 costs.

Civil Ruling 60077-01-17 Ruling re Gross vs. Tratkover by Judge Rachel Lavie Barkai of 29 May 2019.



Categories: Copyright, Fair Use, Intellectual Property, Israel, Israel Copyright, Israel Court Ruling, Israel IP, passing off, plagiarism, Uncategorized, החלטת בית משפט, זכות יוצרים

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: