Pending Israel Copyright Amendment to Address Internet Piracy of Audio Visual Works

May 8, 2018

pirate bay

Oh, better far to live and die
Under the brave black flag I fly,
Than play a sanctimonious part,
With a pirate head and a pirate heart.
Away to the cheating world go you,
Where pirates all are well-to-do;
But I’ll be true to the song I sing,
And live and die a Pirate King.

Pirates of Penzance Gilbert & Sullivan

From 2006 to 2014, we have noted that Israel has been on the United States Special 301 priority watch list of countries having allegedly inadequate IP protection. The main criticism was the pharmaceutical extension regime in Israel which was believed to be too liberal to generic manufacturers. The amendment of the amendment was reamended and Israel’s status was upgraded.

A second criticism was that Israel’s copyright regime did not provide tools to hold Internet Service Providers (ISPs) responsible for preventing free access to copyright materials such as songs, movies and television series over the Internet. There are good arguments for and against making service providers responsible. They are not policemen and should not be. There is a perceived problem that without monetary compensation for their creative output, producers and artists will not create.

There is a new copyright bill pending legislation in Israel that addressed this issue, and a copy of which may be found here. The purpose of the bill is to try to reduce copyright piracy on the Internet, particularly of audio-visual works.

The following is an analysis of the proposed amendment. The bill contains four elements:

  1. An expansion of the concept of indirect infringement, to include websites that offer viewers access to unauthorized content such as movies and TV series. The indirect inclusion includes links to an offshore location in cases of actual or constructive knowledge of the act and intent to profit.
    This element will have utility to the extent that the Israeli courts can thereby obtain jurisdiction over the operators of the web site that aggregates the links. However, where this entity is not identified, then this part of the amendment won’t have much real world effect.
  2. Blocking Orders. While some courts have issued these in the past, other courts claim that without specific authorizing legislation they do not have authority to grant blocking orders. Hence the legislation.
    This element is likely to become the best tool for disrupting internet piracy. The proposal also clarifies that the cost of the blocking order will be borne by the applicant and not the Internet Service Provider (ISP). Apparently, there are actual costs in carrying out such blocking order.
  3. Discovery of the identities of up-loaders of infringing content.
  4. Enhanced criminal penalties.

The Tel Aviv Law School (Amnon Goldenberg Institute run by Professor Michael Birnhack) has published their comments on the bill, as have others, and it is scheduled to be debated by the Economics Committee of the Knesset on 21 May 2018.

ISP-1

The goal of the Ministry of Justice in formulating the bill was to find language that would be wide enough to catch pirates, but narrow enough to not cause any unwanted collateral damage. This goal was difficult to achieve in the proposed 48A.

Content developers and rights holders would prefer that the legislator err, if at all, on the side of over-protection, whereas the advocates of fair use and free speech prefer that the legislator err, if at all, on the side of under protection.

What is not included in the Bill, despite calls for such, is:

  • A codified “notice and takedown” type regime; and
  • WIPO style “technological protection measures” legislation.

The “notice and takedown” case-law seems to work, so why fix it? Although we have heard comments from legitimate web sites that a “safe harbour” might help them should 48A prove to broad in practice.

pirate dated

Currently, Israel does not have technical performance measures (TPM), something mandated by the 1996 WIPO treaties and intended for a different era, but which may have some unintended relevance in a world where content is no longer delivered on DVD, but rather through on-line subscription services. The Israel Justice Ministry does not have any a priori objection to either of these matters. However they are both incredibly complex to draft and if drafted improperly can have grave unintended consequences. For example, an overly broad TPM provision might have unintended consequences for tech companies and their developments.

The Justice Ministry considers that both of these issues are worthy of further study, but to move forward with them considers they should get the full legislative process by issuance of a proposal, requesting public comment, the drafting of a bill, and Knesset discussion, rather than a last-minute add-on to a pending bill.

The current bill is cautious and conservative, with the drafters having the perception that it is easier to add measures than to cope with overly broad powers and runaway judges.

 

Comment

The proposed legislation seems balanced and well-considered.

Certainly consumers of content should compensate the developers of the content for their efforts, and have little patience for those that download films and series, arguing that the developers don’t lose anything as they wouldn’t pay for it anyway. Traditionally, Jewish Law did not generally recognize non-tangible property rights, although entertainment, such as a dance, could have value and be used instead of a ring, for marriage purposes. The modern economy and civilization has moved on and IP rights are an essential development. Israel should be a light to the world in judicial matters. However, where there are widely accepted minimum standards of behaviour, it is important that Israeli legislation and private behaviour do not fall behind.  That said, I don’t think that there is any basis for assuming that people write songs or create films for revenue in 70 years’ time or for 50 years after death. The actuarial depreciation of such revenue streams to the time of writing results in such future profits as being negligible. I would prefer that:

  • laws on copyright infringement be coupled with the need to register copyright (as once required in the US, and required for trademarks, patents and designs
  • that the period of protection be significantly shortened to perhaps 10 or 15 years
  • that after initial launch in cinemas or as albums, movies and songs become available for reasonable cost over the Internet by legitimate streaming services, and that viewers can choose between premium advertisement-free access and sponsored access
  • there should be broad fair use exceptions
  • I am very put out that academic papers are developed by public universities and that access often requires payment. I want to see access for all with the universities sponsoring the publication rights, and more journals being exclusively on-line. Knowledge should be in the public domain, but authors should be recognized. There seems no place for commercial publishers of academic journals in the modern world.

A Balanced Temporary Injunction Against Rami Levy

April 19, 2018

This case concerns ‘minute steaks’ supplied by Rami Levy – a supermarket chain in own-brand packaging that has some similarity to that of Baladi, a brand that had introduced the product to the frozen meat freezers in Israel. Baladi sued Rami Levy for passing off, copyright infringement and unjust enrichment and tried to obtain a temporary injunction against Rami Levy at what is the start of the Israel barbecue season.

steaks

This case concerns ‘minute steaks’ supplied by Rami Levy – a supermarket chain in own-brand packaging that has some similarity to that of Baladi, a brand that had introduced the product to the frozen meat freezers in Israel. Baladi sued Rami Levy for passing off, copyright infringement and unjust enrichment and tried to obtain a temporary injunction against Rami Levy at what is the start of the Israel barbecue season.

baladi minute steak

The claims of passing off and copyright infringement were considered unlikely to prevail and thus not grounds for a temporary injunction. However, Judge Avrahami saw fit to grant a temporary injunction on the grounds of unjust enrichment. Rather than have Rami Levy’s product removed from the shelves and repackaged which could result in the meat being lost, she ruled that a sticker in a contrasting colour should be attached to the packages indicating that Maadaniya was Rami Levy’s own brand. Rami Levy was also advised to work towards introducing a more different package. The parties were invited to try to settle their differences without the court having to hear the case in its

Baladi makes meat products including minute steak which are thinly sliced steak that can be roasted in a frying pan in one minute. Baladi claims to have designed the packaging that they use for minute steaks.

Rami Levi is a public company that runs supermarkets across Israel. The company stocks known brands and also sells popular products packaged for them under their own label.

Rami Levi sells Baladi products. It also sells minute steaks under their only  own label “Rami Levi’s Sycamore Marketing Delicatessen”. Rami Levi’s own label minute steaks are packaged by TBone Veal.

In a preliminary ruling, Baladi claimed that minute steaks were not sold in supermarkets until they launched this product in November 2017 with a massive and expensive sales campaign. From the launch until 19 March 2018, the product sold well due to the marketing campaign. On 19 March 2018, suddenly, without notice, Rami Levi forbade Baladi to replenish supplies and blocked the product, and instead supplied minute steaks under their own label.

baladi logo

Baladi claims that the own-label brand is packaged in a copycat package of that of their product, and that this was a calculated, organized action of Rami Levi in bad faith, to ride on Baladi’s advertising campaign and product launch, benefiting from their investment. Baladi’s campaign has drawn customers to want to purchase their product. The customers go to the meat refrigerators and find the infringing product that is a copy of their package and are misled into believing that they are purchasing Baladi’s product.

Baladi considers that the case is particularly serious since Rami Levi is a retailer that can block their product whilst offering the competing own-label product. This is particularly problematic since Rami Levi’s product launch was just before Pesach and close to Independence Day which is the start of the Israel barbecue season when sales go up significantly.

In light of the above, on 22 March 2018, Baladi sued for passing off, unfair trade practices, copyright infringement in the product package and unjust enrichment. They filed their case in the Tel Aviv and Jaffa District Court. Baladi requested a permanent injunction, compensation and production of sales data. For the purpose of assessing the court fees, Baladi assess the damages at 2,750,000 Shekels.

Baladi also requested a temporary injunction on Rami Levi to prevent them using the product sold under their private label or at least to prevent them selling the product in the packaging used at the time of filing, and to cease from blocking Baladi’s products, and to enable their products to be sold on an equal basis with other frozen meat products. The Request was supported by an affidavit from Ms Irene Feldman, the VCFO of Baladi, and was filed as an ex-partes action for immediate attention since any delay will cause irreparable damage.

El gaucho minute steak

In response, Yossi Sabato, the VCEO of Rami Levy submitted an Affidavit claiming that Baladi was acting in extreme bad faith by not telling the court that they were conducting a parallel action against El Gaucho which is a label of TBone Veal in the Central District Court as 4347-01-18. In that instance, they made similar accusations which were rejected. This action, in a different court, against a different label, was a type of forum shopping that was indicative of bad faith and should be sufficient for the case to be thrown out. This was simply an attempt to corner the market and to prevent competition. The Ex-partes actions in both the El Gaucho case and in the present instance are cynical exploitations of the legal system designed to get free publicity, and the plaintiff was suing for extreme damages without having first contacted the supermarket chain, which is itself inequitable behavior for which the case should be thrown out.

monopoly

With regards to the complaint itself, Rami Levy claims that Baladi is trying to obtain a monopoly on minute steaks, which is a term known in Israel and abroad and which they did not coin. Baladi also tried to obtain a trademark for this generic term. Minute steaks have been advertised in Israel in the past and are available in restaurants and from butchers, and even from supermarkets. Baladi has not been in the market long enough for minute steaks to be identified with them to the extent that they deserve a monopoly on the term (acquired distinctiveness), and a reputation that is protectable, and even Baladi does not claim to have rights to minute steaks but only to the sound of the name.

Rami Levy

Rami Levy claims that their product package is completely different from Baladi’s, including writing and visual elements, and there is no likelihood of confusion. Baladi advertises their product with their trade-name Baladi clearly written thereon and, in the absence of this term, there is no likelihood of confusion. Rami Levy’s private label HaMaadaniya (literally the delicatessen) is well-known to Rami Levy’s customers as a low price brand, and there is no likelihood of confusion.

“Rami Levy” is written clearly on the front and back of the packaging, and is a super brand that does not need to ride on the reputation of Baladi or anyone else. The difference in price also prevents confusion, and all Rami Levy’s own branded products are clearly sold as such in their stores, and there are loads of examples of private labels being sold alongside branded goods and the public are not misled in any way that they are purchasing something other than the own label.

boycott

As to the issue of marketing Baladi’s products in Rami Levy’s stores, Rami Levy contends that they are under no obligation by general law (in rem) or by contract (in personam) with Baladi, to purchase any of Baladi’s products, including their meat products. Baladi’s goods are available in other chains. At present, Rami Levy stores DO stock Baladi’s minute steaks but, in view of the high price that Baladi dictates for their product, Rami Levy is under no obligation to replenish stocks of something much more

In answer to Rami Levy’s response, Baladi reiterated that their issue is NOT the name ‘minute steak’, but the packaging and the product blocking. On 26 March 2018. a long hearing was held. There were many attempts to bring the parties into an understanding, and the affidavits were reviewed and the parties summarized their arguments. After the hearing the parties still refused to come to an understanding, and so there is no alternative but to reach a verdict in this instance.

Relevant Considerations Regarding Temporary Injunctions

Principles-Governing-Issuance-of-Temporary-Injunction

It is known that the party requesting a temporary injunction has to convince the Court, on the basis of apparently convincing evidence, that there is grounds for the complaint and the Court then has to balance the ease of implementing the different actions, i.e. the damage to the complainant if a temporary restriction order is not issued, vs. the damage to defendant if a temporary restriction order is issued but if it later transpires should not have been. The Court has to ascertain whether the temporary injunction was requested in good faith, and if the injunction is just and fitting in the circumstances and does not unduly damage the defendant – See Regulation 363 of the Civil Procedures Regulation 1984.

interests

The main considerations for requesting a temporary injunction are the likelihood of prevailing and the balance of interests of the two parties, but where the Court considers that the likelihood of prevailing is greater, they will be less concerned about the balance of interests, and the opposite is also true.

When deciding on a temporary injunction, the court also has Read the rest of this entry »


Copyright in Numerology

December 12, 2017

numerologyNumerology is any belief in the divine, mystical relationship between a number and one or more coinciding events. It is also the study of the numerical value of the letters in words, names and ideas. It is often associated with the paranormal, alongside astrology and similar divinatory arts.

gamatriya chartIn gamatriya, each letter of the Hebrew Alphabet is assigned a corresponding number. the first nine letters are numbered 1 to 9, and the next nine are assigned the numbers 10, 20, 30, etc. The final four letters are assigned the values 100, 200, 300, 400.

The word alphabet comes from the Greek Alpha Beta, and the word gamatriya comes from Gamma – t(h)reeya. That said, the Greek alphabet was based on the Hebrew and Phoenician precedents. The Latin letters were derived from the Greek ones.

The issue in question here, is whether copying sections of verbal lectures and publishing them in writing is considered copyright infringement.

In coming to their verdict, the Supreme Court has reviewed the differences between the onld and new, law, what fixation is required and in what circumstnaes a publisher or distributor can be considered as innocently infringing.

The Case

Sharon Ron is a numerology lecturer. In 2002 Ela Shonia attended his numerology course at the Association for Promoting Awareness in Haifa. At the lectures, handouts and exercises were distributed by Ron. In 2003, Shonia and a fellow student called Sarah Vakhnin attended private lessons given by Ron at his home in Kfar Sava.

Numerology 3rd milleniumIn 2004, Shonia published a book titled “Numerology for the third millenium” which went to three editions, the last one in 2010. In 2010 Shonia published a second book titled Combined Numerology. Both books were published by Astrologue Publishing LTD.

Mishkal Publishing & Distribution LTD received the rights for both books in 2010, in a deal between Shonia, Astrologue and Mishkal dated 03/02/2010 [I am writing the date in numeric form as it may portend something – MF]. Ron sued Shonia, Astrologue and Mishkal in the Tel Aviv District Court in Appeal 8822/15, and counter Appeal 8822/15. [No doubt these file numbers have some mystical significance-MF].

On 20 March 2004 and on 3 February 2010, Shonia signed declarations Read the rest of this entry »


 Appeal Regarding Infanti Baby Seats Virtually identical to those of Fisher Price (Mattel)

September 19, 2017

fisher price swing seatBaby swing-seats that were made in China and are identical to Fisher Price swing seats, down to the image of a lion on the upholstery, were imported and sold in Israel under the brand Infanti. Fisher Price obtained an Anton Pillar injunction and seized 1830 seats from the Importers’ warehouse. However, the Nazareth District Court rejected all attempts to obtain compensation under copyright infringement of the lion design printed on the seat upholstery and in the instruction manual, trademark infringement for the Fisher Price logo shown in the illustrations of the instruction manual, the trade tort of Passing Off, and the catch-all Law Of Unjust Enrichment following A.Sh.I.R. The case was then referred to the High Court.

This ruling by a panel of Israel High Court judges considers whether copyright subsists for a product design or artwork printed on a product where no design was registered for the product and whether there are grounds for sanctions under the trade-law of Passing Off or under the Law of Unjust Enrichment. The legal advisor to the government filed an amicus brief clarifying the position of the government in such issues.

judge elyakim rubinstenThe main ruling was given by Vice President of the High Court, Judge Elyakim Rubinstein who first considered the basic relationship between design law and copyright. Then, he ruled whether part of something that could have been registered as a design is entitled to copyright protection, and if so, whether the lion character is copyright protected even if the swing chair could have been registered as a design. Are the respondents direct or indirect infringers of the Appellant’s copyright? Do they have the defense of being unaware? Does trademark infringement require intent? And finally is there Passing Off or Unjust Enrichment?

Essentially Judge Rubinstein and Fogelman found copyright infringement due to the lion character on the upholstery, and Judge Meltzer also found that there was passing off, due to the products being virtually identical. Judges Rubinstein and Fogelman rejected the claims of passing off since although Fisher Price clearly had a reputation, they did not necessarily have a reputation for the baby swing seat. Infanti’s copies, though virtually identical to those of Fisher Price, were packaged in different boxes and the boxes were clearly labelled Infanti. The product itself was also labeled with the Infanti brand.

The main ruling is given below, followed by additional comments by Judges Fogelman and Meltzer. Since this is an important ruling, I have translated it in full. At the end are some comments and criticisms.

Background

This is an appeal against ruling 39534-02-15 by Nazareth district Court judge, Ben Chamo which was given on 8 January 2015 and in which Fisher Price lost their claim regarding copyright infringement in a child’s swing seat.

The ruling addresses the relationship between copyright and registered design rights. Judge Rubinstein notes that in the modern consumer society, the design of consumer goods has an increasing importance, and that manufacturers invest heavily  Consequently, many goods are some combination of functionality and artistic expression which makes it difficult to classify such goods in a single IP category and raises difficult legal questions. This appeal relates to a list of such questions of which the relationship between design law and copyright is central.

The Appellant, Mattel Inc. is a US Company that owns Fisher Price which makes baby goods, etc. The Respondent, Dvaron Import-Export Co. Ltd, is a company that imports various baby products into Israel. They and their directors and share holders were sued.

infantiMattel / Fisher-Price learned through Sakal which imports their products into Israel, that the respondents have been distributing a baby swing seat manufactured in China and branded as Infanti, which is a copy of the Fisher-Price swing seat.  Read the rest of this entry »


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.


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.


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.