Israel Court Recognizes Copyright and Moral Rights in the Format of a TV Show

April 25, 2017

Background

Copyright protection is available for films, TV programs and other creative endeavors. The problem with TV formats is that ideas and concepts are not protected. The embodiment of the idea is, but a format that is ‘copied’ abroad will inevitably be re-shot and the content will change. A game show is scripted by its players. A quiz could conceivably have the same questions in different jurisdictions but the participants will answer differently. Much of the viewability of a TV program is related to the characters of the participants themselves. Different competitors in a song competition will sing differently. In a cookery program, the participants will cook differently. Different people look and act differently in game-show survival situations.

Until this ruling, it was not clear that formats of TV shows are copyright protected. The fact that they are bought and sold does not mean a court would recognize a rip-off program as being copyright infringing.

Upgrade

Armoza Productions Israel makes formats of TV programs that are successful abroad. Saar Brodsky and two partners created a format called “Upgrade” that was not successful in Israel, but which Armoza Productions managed to market abroad in 30 countries. In a groundbreaking ruling, the Israel District Court recognized copyright as subsiding in the format and thus ruled that the creators’ moral and financial copyright was infringed. It will be noted that the court could have ruled damages under the catch all tort of Unjust Enrichment.

Upgrade is a game show that goes into people’s homes and offers them a chance to upgrade their personal items for brand new ones! Each home can wager their belongings against their trivia skills. If they answer correctly, their homes will be upgraded… but there’s a catch! Wrong answers mean the items they own will be taken away. Are you ready to be left without a dishwasher, TV, or bedroom set?

In each episode the ‘Upgrade’ team will enter 2 households and play the game with them. It can be with a group of young bachelors or a big family in the middle of having their dinner – but no matter what, it is always by surprise and unexpected. Now on air in over 15 territories!

A link to the format that was posted on YouTube may be found here.

Saar Brodsky, Rodrigo Gonzales and Gili Golan created the format in 2008 and made a pilot episode for Israel’s Channel 10 that was eventually scrapped without being broadcast.

The ‘rights’ to the format were sold to ‘Tanin Productions’ which is owned by Golan (Tanin is a crocodile) and these were then transferred to Armoza Productions with a request that the three creators be credited with the concept.

Brodsky claimed that despite the significant worldwide success of the format his name was deleted from the credits in an attempt to prevent him benefiting from the copyright and profits. Judge Avnieli ruled that Armoza acted intentionally in bad faith despite knowing about his contribution to the format. Since Armoza Productions is a limited company with a single owner, the owner is personally responsible in this instance.

Judge Avnieli noted that Armoza claimed that Brodsky merely thought up the idea and discussed it with friends and did nothing to develop it further. She rejects this defense. The entertainment is the result of work by Brodsky, Gonzales and Golan which was embodied in a storyboard and presentation that was prepared for the filming of the pilot program, that was the result of deep contemplation regarding the details, the structure of the episodes, directions to the actors, choice of competitors, preparation of questions, activities and anchors that resulted in the specific end product.

The Judge noted that under cross-examination Armoza was asked to identify the creators of the format and whether the plaintiff was one of them, and Armoza’s response was that they didn’t know and that it wasn’t relevant. This was not compatible with the evidence submitted that clearly showed that Brodsky was the producer of the pilot. Judge Avnieli considers that each time Armoza claimed to be the creators of the format without attributing Brodsky and his partners, they were infringing Brodsksy’s moral rights. The Judge ruled that Brodsky and partners should be credited in each episode, that Armoza should refrain from describing themselves as the creators and fined Armoza 30,000 Shekels in legal expenses.  There is a parallel ongoing case for financial damages of 1.5 million shekels.

Armoza have vowed to appeal the decision.

COMMENT

It is almost embarrassing that Israel is developing a reputation for such programs.


Copyright in Multiple Choice Test Questions

January 20, 2017

multiple-choice-2In Israel, to obtain a driving license, the wannabee driver has to pass both theory and practice exams and then to drive with an experienced driver riding shot-gun.

Periodically, drivers have to do refresher courses, even if they don’t have points on their license for traffic offences.

The system is far from perfect in that annually there are plenty of traffic offences and people killed in traffic accidents. Israel is a Mediterranean country and this affects the attitude of drivers, but I digress.

Borsy is a Publishing House that has a monopolistic license from the government to generate and distribute driving theory multiple choice questions.

Derekh (Way) has a website that teaches driving theory.

multiple-choice-1

Borsy sued Derekh for copyright infringement claiming that it publicized multiple choice questions (known in Israel as American testing) cribbed from Borsy.

A magistrate’s court ruled that Derekh did indeed copy multiple choice questions, sometimes with minor changes in wording, or use of synonyms. It rejected a defense offered by Derekh that they were operating under an agreement with Borsy, and ordered Derekh to pay Borsy 85000 Shekels in compensation.

Comment

  • A few years ago, the Israel Supreme Court overturned a ruling for copyright infringement in grammar text bookscopyright infringement in grammar textbooks.  Frankly, I am not a great fan of either unique government licenses to make up tests of this nature, or to extend copyright to include synonyms and minor changes of wording.  There are a limited number of multiple choice questions that can be based on the highway code. Reproducing road signs may itself be copyright infringement. However, the real question is one of policy. Do we want monopolies in this area?

LES Event on Copyright for Software

January 17, 2017
Inline image
INVITATION TO A LES ISRAEL EVENT
LES Israel is hosting an event on Monday,January 30th, 2017, at IBM Israel Ltd., 94 Derech Em-Hamoshavot Petach-Tikva, at 09:00am.
 
The event will be dedicated to the topic “Rights in Software”
 
The topic will be presented, as follows:
 
Part A: Lectures
  • Ziv Glazberg, Patent Attorney and Advocate (Ziv Glazberg), a Partner atG&A Glazberg, Applebaum & Co., a law and patent firm, will speak on “Patent Protection for Software”;
  • Eran Bareket, Advocate (Eran Bareket), a Senior Partner at Gilat, Bareket & Co. of the Reinhold Cohn Group, a law and patent firm, will speak on “Copyright for Software – Protection and Exceptions”; 
  • Haim Ravia, Advocate (Haim Ravia), a Senior Partner, Chair of the Internet, Cyber & Copyright Group at Pearl Cohen Zedek Latzer Baratz, a law and patent firm, will speak on “Alternative Use of Copyrights in Software and Digital Content”
Part B: Panel
 
Moderator: Suzanne Erez, Patent Attorney and Advocate(Suzanne Erez), IPLaw Counsel, EMEA IPLaw – Israel, Research, IBM;
 
o   Einav Zilber, Patent Attorney and Advocate (Einav Zilber), Director, Global Law Department, Intellectual Property Counsel, Applied Materials Israel and Applied Materials India;
o   Yoav Alkalay, Patent Attorney and Advocate (Yoav Alkalay), Head of IP, Amdocs;
o   Ben Haklai, Advocate (Ben Haklai), Commercial (Legal) Lead, Microsoft Israel;
o   Hananel Kvatinsky, Patent Attorney (Hananel Kvatinsky), Director of Intellectual Property, Orbotech Ltd.;
o   Ori Buberman, Advocate (Ori Buberman), Head of Intellectual Property, Mobileye Ltd.;
 
The event is free to LES Israel members.
Non-members: NIS 50 charge.
 
Registration is by email to les_israel@yahoo.com.
 

Alternative Dispute Resolution Copyright in an Ark Curtain

January 9, 2017

parochet cloth.JPG

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

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

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

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

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

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

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

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

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


From Maimonides to Microsoft: the Jewish Law of Copyright Since the Birth of Print

December 18, 2016

from-maimonides-to-microsoftFrom Maimonides to Microsoft: the Jewish Law of Copyright Since the Birth of Print is a book written by Neil Weinstock Netanel, with Notes by David Nimmer Oxford University Press, 2016 ISBN 9780195371994, hard cover, 336 pp. Price: £65.00

I have written a formal review for the Oxford Journal of Intellectual Property Law and Practice. The review is available in text form here and as a PDF here.

I found the book a thoroughly interesting read and would recommend it is a Chanukah present for Intellectual Property academics and practitioners with an interest in Jewish Law.

 

 


Sebastia – an Iconic Image

November 14, 2016

sabastia

In addition to copyright, photographers also enjoy the moral right to have their photographs identified as being taken by them.

YNET, the Internet portal of Yediot Aharonot, used an archived photograph from 1975 of the attempt to establish a Jewish settlement in Sebastia. The photographer, Moshe Milner, was not attributed. He filed a complaint with the District Court and received compensation of 12000 Shekels, with the judge accusing Yediot Aharanot of being in that area between intent and innocence that is characterized by laziness, closing one’s eyes and acting rashly.

I believe the image concerned, is the one shown above. Showing Rabbis Hanan Porat (Z’L) and Moshe Levinger.


Statutory Damages for Reproducing Photographs

August 2, 2016

copyrightUnder the Israel Copyright Law 2007 there are statutory awards available for copyright infringement of up to 100,000 Shekels without proof of damage. There is a separate statutory award for damage to the moral right to be acknowledged as an author of a creative work that is up to an additional 100,000 Shekels .

Photographs are considered creative works and it is the photographer, not the subject of the photographer that owns the rights.

However, the would-be-plaintiff should be aware that although the courts can award up to 200,000 Shekels for copyright infringement by a photograph being reproduced without permission, they generally make much smaller awards.

Whether one sues under copyright infringement or under the Law of Unjust Enrichment the statutory damage despite lack-of-proof merely enables the court to grant compensation for estimated damages where the plaintiff has trouble proving the damage. Not every photograph is considered as automatically worth tens of thousands of shekels.

Here are four recent cases:

  • A website for an aluminium factory used an image taken from a competitor’s website without permission. The damages awarded were 3,500 Shekels.
  • A photographer took pictures of landscaped gardens, and the landscape architect reproduced these without permission. The name of the photographer was not mentioned. The compensation awarded for copyright and moral rights infringement was 10,000 Shekels.
  • A beautician and her husband sold cosmetics via eBay from a virtual shop. The cosmetics were made by Holyland Cosmetics. The beautician and her husband used photographs and text taken from  Holyland Cosmetics’ website and were fined 65,000 Shekels.
  • amir-peretzVery few photographs become iconic images. One that did was the famous picture of then Israel Defense Minister Amir Peretz looking interestedly at military maneuvers through binoculars without noticing that the lens caps were still in place. A journalist called Ephraim Shrir took the photo, and has since been busy suing every newspaper and media outlet that failed to acknowledge his moral rights to be recognized as the photographer, and that failed to pay him copyright compensation.  We have written about his claims in the past, see here and here, where both his copyright and moral rights were recognized by the courts. In a recent ruling however, Shrir sued HaAretz for reproducing the photograph, but they claimed that they had obtained the image legally from Associated Press (AP) who was acknowledged. The case was thrown out.