Israel Supreme Court Overturns Ruling Forbidding Copying Fashion Designs

February 21, 2018


Back in December 2016 Israel fashion designer Gadi Elemelech sued Renuar, a chain selling women’s clothing, for selling clothing that was confusingly similar to his haute couture dress. The dress in question appeared in Elemelech’s 2013 collection, and in Renuar’s 2014 range. The legal grounds for the action were the Israel Trade Related Torts Act 1999. Judge Gidon Ginat ruled that a chain-store that copied a range of designer clothing should cease and desist, and that Renuar should pay damages of 55,000 Shekels and a further 35,000 Shekels legal costs.  Civil Tort 5366-12-14 Elimelech vs. Renuar Ruling by Gidon Ginat, 22 December 2016.

The ruling was appealed to the Israel Supreme Court which overturned it, canceling Judge Ginat’s ruling without costs to either side. Instead of a long detailed ruling, the three judge panel ruling is barely two lines, and simply states that simply copying a product is not enough to obtain a legal sanction against the copier, with a reference to paragraph 18 and citations of the Apropos 945/06 General-Mills vs Meshubach ruling(Bugles).


This ruling essentially means that non-registered designs are in the public domain and cheap copies of various articles, from food snacks to fashion clothing can’t be litigated unless the design is registered, apart perhaps from specific cases where there is some additional issue (A.Sh.I.R.).

Israel Supreme Court Mediates a Settlement between Authors on Plagiarism, But leaves the Law Unclear

November 11, 2013

Naomi Ragen

In a strange development concerning copyright law, on hearing an Appeal to the Israel Supreme Court, rather than ruling on the matter, the honorable triumvirate of judges who heard the case, engineered a compromise between the parties, Ms naomi Ragen and Ms Sarah Shapira,  under which the decision states that:

(1) the District Court ruling is passé

(2) the Apellant, Ms Naomi Ragen, agrees to uphold the requirement of the Court of First Instance, and remove a couple of pages from her novel Tamar’s Sacrifice, that the defendant of this appeal (and the original plaintiff) Ms Sarah Shapiro, alleged were plagiarized from her earlier novel.

(3) Of the NIS 233,000 original damages and legal fees awarded to her, Ms Shapiro was required to donate NIS 97,000 of either Yad Sarah – a philanthropic organization that lends out medical equipment such as crutches, wheelchairs, baby cots, breast pumps for nursing mothers and the like, or to Yad Aliezer, which provides food relief and runs soup kitchens to the poor.

(4) This brings all outstanding issues to a close.

Appeal 4958/12  Ruling 6 November 2013, Ragen vs. Sphapiro, Judge Chayet and two others.


Ms Shapira and Ms Ragen have both been busy publishing press releases to the effect that they have been vindicated, and so the Honorable Supreme Court have increased peace and happiness in the world, following in the footsteps of Aharon the Peace Maker.

My problem is that this is what mediation and maybe arbitration is for. In my opinion, the Supreme Court’s job is to follow in the footsteps of Moses and is supposed to teach and clarify the Law.


The evidence here is clear. There are 2 or 3 pages of dialogue in a thousand page novel that bear some similarity to dialogue in an earlier author’s novel. The second author certainly had read the earlier author’s novel. There is no evidence of intentional copying. There are also some other similarities, such as a house-keeper character in both books.

My Legal Analysis

I don’t think that there is a substantive portion of the earlier book that was copied, nor do I think that the section in question is a substantial element of the later book. By substantial I include both quantitative and qualitative. In my understanding, there is fair use. Possibly, there is plagiarism that may be intentional or unintentional, but there is no copyright infringement. I don’t believe that the sections contributed to the success of the second book and so do not see anything that can be considered Unjust Enrichment

My legal analysis above, has not changed since I criticized the original decision by Shapira, who also got design and trademark law wrong.  Now Ms Ragen is critical of certain aspects of the Hareidi (Ultra Orthodox) lifestyle. In particular, she was critical of attempts to have women sit at the back of the bus and demeaning to women. Together with other co-plaintiffs, she appealed this to the Supreme Court sitting as a Court of Justice, and won. Several of her novels criticize certain Hassidic and Hareidi excesses and so certain circles have had a field day with this case. Ironically, these revelers have been known to ignore the finer points of IP and find it difficult to come to terms with copyright infringement being a crime and a sin, since it is not discussed in the classical religious sources that predate printing in Europe. After earlier posts on this topic, I have been criticized for backing such a worthless sinner.

I do not feel vindicated by this ‘decision’. I also don’t feel corrected by it. I don’t see that there is a decision at all. I find this unsatisfactory. I want the Supreme Court to clarify matters of Law that are brought to it on appeal.

Judge Schapira who presided over the  the Court of First Instance is now the State Comptroller. Perhaps out of deference to him, the Judges refrained from overturning his decision. I don’t think that this is a valid reason.

In a trademark case a couple of years ago, see here, I witnessed similar behaviour of the Israel Supreme Court judges who forced a compromise instead of issuing a ruling. In fairness, over the past couple of millennia, Rabbinic Courts acted in this manner, so there is a tradition for it. Nevertheless, I want the Supreme Court of Appeals to Clarify the Law. They have failed to do so.

I don’t think that the judges have exonerated Ragen from plagiarism or affirmed Shapiro’s allegations that there was anything more than fair use. All very unsatisfactory.

Furthermore, readers of this blog will note that on occasion I have criticized copyright decisions of District Court judges as being wrong. On occasion, embarrassingly so. I have also advocated specialist IP courts or at least IP judges. Anyone is entitled to challenge my analysis of this case or of any other. My opinions are not binding on anyone. However, Supreme Court decisions are binding. The Supreme Court should hear and rule on IP cases brought before it to guide the District Court judges. That is the primary function of Supreme Court judges. Their failing to use this case to issue clear guidelines makes a mockery of the system.

Alternative Dispute Resolution

June 11, 2013

ADR logomore ADR

I’ve just been to a most enjoyable, informative and stimulating one day mini-conference on 6 June 2013, on the topic of Alternative Dispute Resolution that was hosted by the Hebrew University, in Bet Mayersdorf, on their Mount Scopus campus. The event was cosponsored by WIPO and the Israel Patent Office.

The conference was organized by Dr Guy Pessach, and kicked off with welcome remarks from Professor Yuval Shany, the Dean of the Law Faculty.

asa kling (cropped)The Commissioner, Assa Kling, then spoke. He rather confusingly kept relating to the Patent Office, which seemed a little unfair after all the effort exerted by his predecessor to change the name of the the Israel Patent Office to Israel Patent Agency. Then again, it makes me feel more comfortable since I sometimes make the same mistake in this blog!

We note that both Professor Shany and Dr Pessach were comfortably informal in shirt sleeves, whereas the Commissioner, Assa Kling, wore a suit and tie. His deputy, Ms Jaqueline Bracha and the third arbitrator at the patent office, Ms Yaara Shoshani Caspi both were black pants-suits. I am not sure if the formal dress adopted by the arbitrators of the patent office was indicative of their elevated statuses, or whether academics on their home ground are generally more comfortable.  In shabby contrast to the senior patent office staff, the two male stajers were looking scruffier than even by my standards, wearing rugby shirts, jeans and three days of stubble, so there doesn’t seem to be a patent office uniform, per se.

I’d never actually met the Deputy Commissioner, Ms Jaqueline Bracha before. I found myself sitting next to her, and when the commissioner, Assa Kling, went up to give his words of welcome, quipped that he was going to speak in Klingon. She giggled. When she later swapped smart phone messages with the Commissioner, realized my indiscretion.

wichard.jpg_1271692375 (2)The first keynote lecture was given by Mr Johannes Christian Wichard, the Deputy Director General of the Global Issues Sector of WIPO. Mr Wichard gave a very interesting overview of WIPO’s mediation and arbitration mechanisms. He wowed the audience with impressive statistics concerning the number of domain name conflicts WIPO manages to resolve, and then spoke in more detail about what, to me, was the more interesting topic of patent dispute resolution by mediation and arbitration, giving real life examples, but with names of parties withheld, and the costs involved. Of course the costs to WIPO and the mediator are NOT the full costs, as generally the parties are represented by legal counsel.  Nevertheless, the talk provided food for thought as an alternative approach to solving conflicts, particularly where the parties are involved in an ongoing relationship, such as where a patent dispute arises between a supplier and the customer.

Dan Or-HofAfter a coffee break, in which food for thought was discussed over danish pastries and a fruit platter, Adv. Dan Or-Hof of PCZL gave a comprehensive review of the Domain Name Dispute Resolution before the organization that administers domain names in Israel. The speed and efficiency of the system seems admirable, with the full procedure taking less than two months. Nevertheless, it appears that ICCOS only hears about 4 cases a year.

I was somewhat surprised that someone from PCZL (Pearl Cohen Zedek Latzer) would advocate alternative dispute resolution. I have a personal dispute with that law office since I was not paid for the work I performed in good faith for their clients during the period I worked there at the beginning of last year. My several and various requests for some sort of arbitration or mediation have been ignored, as have my requests for an explanation of their behaviour. No doubt Mark Cohen – the partner I was working under – and Zeev Pearl have some counter-claims against me, but I don’t know what they are, so cannot address them. Pearl has threatened me not to sue, but doesn’t really leave me much choice. If the Israel Association of Patent Attorneys was more active, perhaps they could arbitrate or mediate in cases like this. As it is, I have no option but to go to court, which will presumably end up more costly for both sides.

The next lecture was given by Adv. Ms Yaara Shoshani-Caspi, a judicial officer of the patent office who spoke about whether mediation or arbitration by the patent office adjudicators could supplement the formal in partes opposition and cancellation procedures. After presenting some background and statistics, she made some very interesting observations and finished with reference to UK Patent Office practice, where mediation and arbitration is more established.

Adv. Shoshani-Caspi preceded here substantive comments with a disclaimer that the views expressed were hers alone, and not representative of the patent office. The conference was conducted in English, and Ms Caspi therefore chose to read her presentation, which she read eloquently and confidently. Nevertheless, the fact that it was a read speech gave it a feeling of it being an official position paper, which perhaps, a more informal slide based presentation would have avoided.  Apart from guest speaker Johannes Christian Wichard, who could have been given the paper to read himself, I think every one else present would have been at least as comfortable listening to the talk in Hebrew.  After the presentation, the commissioner reiterated that the views expressed by Ms Shoshani-Caspi were hers alone and did not reflect patent office policy. This was particularly the case since there was no legal basis for the patent office to meet the parties early on, less formally, to try to determine the actual points of contention and to resolve them more efficiently. We note that he seems less cavalier than his predecessor with regard to making the system more efficient by innovative practices not supported by the regulations.  Hearing the statistics regarding the number of cases the three patent office adjudicators manage each year, I was impressed with their efficiency and workload. I sometimes disagree with the odd decisions, but it is usually a question of nuance.

The fact that Ms Shoshani-Caspi read her talk made it a little more difficult to concentrate, but we note that the audience did seem very attentive. Being easily distracted I noted how much luxurious hair she had, hanging loosely around her face. Whereas she had let her hair down, this contrasted nicely with the distinguishingly balding commissioner who seemed more to be let down by his hair.

I asked Dr Guy Pessach if the lunch was for all participants or just speakers. He said that they were catering for 20, and kindly invited me along. I thus found myself lunching with the opposition, sitting between Commissioner Kling and Ms Shoshani-Caspi, with Deputy Commissioner Jaqueline Bracha and the head of the trademark department Ms Anat Levy sitting opposite.  I would have quite happily paid for my lunch, but leaving Bet Meyersdorf to find a canteen and to find my way back through the rat’s maze of the Mount Scopus campus is daunting. (I did my PhD on the architecturally less interesting but more user friendly Givat Ram campus).  I note that the number of participants in the morning session significantly outnumbered those who returned for the afternoon, and suspect that the catering arrangements contributed to this. The fact that the afternoon session was more copyright and less patent oriented, may, also have resulted in some of the patent attorneys leaving early. Perhaps the solution is to provide a lunch for all participants, for a reasonable fee, which the cost per head in universities and the like, is generally reasonably from my experience organizing similar events, but to provide free tickets to speakers and VIPs?

In the afternoon there were two presentations on collecting societies and alternative dispute resolution.

yorik_ben_david_bThe first speaker,  Mr Yorik Ben David (No relation to my former partner, Jeremy M Ben-David, as far as I know) is the CEO of Israel Copyright Collecting Society, ACUM, who started his presentation by informing us that he’d just flown in from Washington via New York, was jet-lagged, and therefore apologized in advance if he didn’t recognize any of the somewhat familiar faces in the audience. Alas, Poor Yorik, he knew them well…

It seems that AKUM’s collection strategy is to first invite people to pay a reasonable license, then threaten them, then invite them to arbitration and only as a last resort, to sue. About a decade ago whilst I was working for Seligsohn and Gabrieli, I remember that the firm used to sue copyright infringers left, right and center on behalf of the collecting society, and apparently the change of strategy is due to AKUM being recognized as a monopoly, following their bullying tactics against the Israeli radio station Galei Zahal.

Mr Ben David also described AKUM’s internal arbitration mechanism for dealing with cases of alleged plagiarism, seen as coming under copyright law, and arbitrated by retired Supreme Court Justice Theodore Ohr. He noted that the fee structure used was based on that of the courts – which seemed a little like plagiarism to this blogger…

Reuven BeharAdv. Reuven Behar, senior partner of Fischer, Behar, Chen Weil Orion & Co. who had apparently represented Cable provider HOT against AKUM, gave an alternative perspective.  He noted that there was a proliferation of rights collecting societies, some of whom had broken away from others, but all wanted a bigger piece of the pie. He was critical that royalty calculations were generally made on the basis of income rather than profit. We were impressed with Adv. Behar’s presentation, which was fluent and interesting. We were further impressed that, despite him being an attorney, and in flagrant copyright infringement, Adv. Behar was dressed identically to Mr Ben-David, wearing a blue button down shirt over a white teeshirt. It seems that in the interest of comfortableness,  Adv. Behar is willing to forgo the comfort blanket of black suit and tie that other attorneys seem to require as a badge of their profession.

Dr Orna RabinowichDr Orna Rabinovich-Einy of Haifa University gave the final lecture. Dr Pessach introduced her as Israel’s leading expert on Alternative Dispute Resolution. Her presentation was very fluent, very animated and very informative. She spoke a lot with her hands and didn’t use slides. The talk was peppered with references to various ADR theorists and models. I didn’t have the background to follow everything she was saying, at the pace she was saying it, and suspect that that was true of others in the audience as well. I was convinced that she was indeed at least one of the leading experts and a competent and experienced lecturer. I would have preferred ideas to be developed a little more. Particularly as the talk was after lunch and to the end of a fairly heavy program.

Alternative Dispute Resolution is becoming more popular. The IP Watchdog has just posted an article on the topic. See here 

guy pessachDr Pessach is to be congratulated for organizing a thought provoking and stimulating conference. It is a shame that the turnout was a little low, and we suspect that poor publicity and generally late announcing of the event, was a contributory factor to this. There have also been three other conferences in as many weeks, Bar-Ilan and Colb (which I missed as I was in China but which apparently was also poorly attended), Shaarei Mishpat + patent office on design law, and Kim Lindy’s best practices, which was aimed mostly at in-house counsel, who one would have thought would be an ideal audience for today’s proceedings. Maybe cosponsoring with LES, AIPPI or IPR would be a good way to advertise the event a little more widely?

Sotah – Naomi Ragen drinks the bitter waters of plagiarism

January 9, 2012

Naomi Ragen, Israel’s best-selling writer was accused of plagiarism by three separate authors. She was vindicated by the Israel Supreme Court last week regarding her book The Ghost of Hanna Mendes and it’s alleged similarity to The Lion and the Cross. Ragen was, however, found guilty by Judge Yosef Shapira of the Jerusalem District Court concerning the similarity of some dialogue in her novel Sotah, to a book Growing With My Children: A Jewish Mother’s Diary by Sara Shapiro. Plagiarism is not a crime on the statute books. Ragen was found guilty of Copyright Infringement, Unjust Enrichment, Negligence and Theft.

The Case

Shapiro published a non-fiction, largely autobiographical work, called Growing With My Children: A Jewish Mother’s Diary which was published in 1990 by Targum Press. The book was a daily journal from the years 1986 to 1989, focusing on the author’s participation in an ongoing parenting workshop, and the ups and downs she experienced along the way to becoming a more skilled and patient parent.

There is one conversation, between the author and her mentor, Rabbi Simcha, that is closely paralleled by a conversation in Ragen’s  novel Sotah between the central character, Dina, and her husband, Yaakov. Furthermore, Shapiro takes on a secular home-help, Sonia, and Ragen’s protagonist gets exiled from her extreme ultra-orthodox community and sent to America to work as a home-help for a secular woman, Joan.

Ragen has argued that she had indeed read Shapiro’s book, and subconsciously may have used elements as inspiration for her novel. Simply groats for her mill. It is difficult to prove otherwise. The similarities are sufficient to raise questions, but there are differences as well. The dialogue is rewritten. It is not identical.

Ragen’s attorneys pointed out that the conversation attributed to Rabbi Simcha by Shapiro were not her creation and not her copyright. The authoress’ response in the dialogue are less insightful, less memorable and weaken the case of copyright infringement still further.

To find Ragen guilty, Judge Joseph Shapira performed legal gymnastics to have the case admitted at all, since there were strong grounds for dismissing the case altogether under the Statute of Limitations, as seven years had passed since Shapiro became aware of the similarity. He took the position that the ongoing sale of Ragen’s book made copyright infringement an actionable tort on an ongoing basis. Such a position makes some sense if Ragen was selling bootleg copies of Shapiro’s book, but that is not the case here.

Shapira’s opening paragraphs establishing the facts of the case refer to the Ragen as having copied sections of Shapiro’s book, indicating that he had prejudged the issue. He also relates to the Michal Tal case mentioned above, which he also heard. But this should have been inadmissible since it was not the case under trial. That said, since some witnesses were heard simultaneously in both cases, with consent of both parties, it may be considered admissible. That as may be, as noted above, Ragen was subsequently vindicated in the Tal case.

Where there is copyright infringement, there are no grounds to rule on grounds of Unjust Enrichment, which is applicable only where there is no statutory tort, such as in the A.Sh.I.R. case. Thus finding under both counts seems wrong. Finally, what’s theft? Since when is literary theft a separate tort?

Shapiro’s book is a non-fictional, somewhat autobiographical guide to making a marriage work, about adjusting oneself to one’s surroundings. Ragen’s story is about getting out of a situation that’s wrong, about taking control of one’s life. I think that a fair use defense is appropriate. Furthermore, to the extent that Ragen’s work was inspired by Shapiro’s I think that a satire defence is possible –  although difficult under Israel Law. We also note that Shapiro did not create the idea of employing a home- help. These have been employed by countless young mothers under stress. (I believe that my mother employed an au-pair when I was a baby. That wasn’t plagiarism either).

I accept that copyright covers all literary work, regardless of quality.  A couple of pages of dialogue may therefore by covered by copyright law. Nevertheless, the text in question is not memorable in its own right. We are not discussing a witty aphorism but simply a conversation. My main criticism of the ruling is that it places the bar for literary novelty simply too high. It is bad policy to consider copyright infringement in a case where two pages of dialogue in one book bear a similarity to a couple of pages of dialogue in a different book. This is counter-productive to the aim of copyright law which is to enrich by promoting creativity, not to stifle authors. Koheleth son of David (Ecclesiastes) was right on one level that there is nothing new under the sun.  The similarities between Shapiro’s book and Ragen’s novel warrant a footnote in a critical edition of Ragen’s book or an academic paper. Nothing more.

For those interested, the concept in Jewish Law (Halacha) analogous to fair use is “זה נהנה וזה לא חסר ”  lit. “this one benefits but that one does not lose out.” (T. B. Baba Kama 20:1 – 21:1, Shulhan Aruckh, Hoshen Mishpat Chap. 363: 1).

The plaintiff sued for NIS 1,000,000. Although the judgement finds Ragen guilty of copyright infringement, unjust enrichment negligence and theft, it does not award damages but gives the parties an opportunity to negotiate a settlement. It seems highly unlikely that the conversation in question helped Ragen sell books, or that Ragen’s novel adversely affected Ms Shapiro’s sales. Under the relevant copyright law which is the old 1922 Copyright Ordinance, not the new 2007 Copyright Law, the statutory damages are limited at NIS 10,000.  A fair settlement would seem, therefore to be loose change. Indeed, from a financial perspective it is difficult to see how any award that will stand legal scrutiny can possibly recover legal costs.  but what both sides are looking for seems to be moral vindication rather than damages.

The case: 9430/07 Sarah Shapiro vs. Naomi Ragen, by Judge Yosef Shapira, Jerusalem District Court 11 December 2011


The ruling is a 92 page whopper, which is why this took me a month to post.

Shapiro’s account in her own words was published in Cross-Currents, an ultra-orthodox discussion group here.

I first covered the Michal Tal case here. See also naomi-ragen-fights-back for details of all three plagiarism suits against Ragen, and Naomi Ragen Accused of Plagiarism – Again for details of a third case filed by Cynthia Rosengarten concerning the Sacrifice of Tamar.

An account of the Supreme Court Ruling concerning dismissal of the case brought by Michal Tal is to be found here: haAretz version and Jerusalem Post version. Ragen’s reporting is here.

For newspaper accounts of the District Court decision against Ragen see haaretz

Additional Comments

In Jephte’s Daughter, another novel by Ragen, the story relates to the daughter of a Rabbi growing up in New York. When I read it, I was reminded of Chaim Potok’s novel The Chosen. There was a scene where the girl and two of her friends experimented with make up in the girl’s bedroom. This reminded me of a scene in the 1980 hit movie Grease. I have no doubt that Ragen has read the Chosen and seen Grease. Whether these influenced her consciously or not, there is no case of copyright infringement or plagiarism.  (Note, I also believe that the Warner Bros character Bugs Bunny was inspired by Groucho Marx, although I’ve never seen any reference to this in print).

It is worth noting that the plagiarism cases against Ragen were filed around the time that Naomi Ragen challenged segregated seating on bus routes serving the ultra-Orthodox community by filing a suit to the Supreme Court on grounds of gender discrimination. A lot of the flack Ragen’s been under for alleged plagiarism seems to be driven by ultra-Orthodox opposition to the position she has taken on this issue which some see as threatening their life-style.  Many of her books are sympathetic to some aspects of the ultra-Orthodox lifestyle and critical of other aspects of the same. Some members of the Ultra-Orthodox do not take kindly to criticism, and may find her novels offensive.

Personally, I see social criticism as positive and believe that Ragen has raised issues that should be addressed. I think that every Jabotinsky was correct in his analysis published in “the War and the Jew”, that every nation needs its Jews; a visible, different looking population to hate. Unfortunately, in Israel, the Ultra Orthodox seem to fill this position for some secular Israelis. (The secular Israelis fulfill a need for the ultra-Orthodox that goyim fulfilled in Eastern Europe, so everyone benefits from the situation, but it keeps the Messiah from coming). However, Ragen has not written the sort of anti-ultra-Orthodox diatribe that the mainstream (secular) papers sometimes publish; where one can substitute the word black, ultra-Orthodox or Hareidi with the word Jew, Kike or Yid, and the piece looks like something that could have been published in Nazi Germany. Rather, Ragen has criticized anti-social behavior exhibited by some members of the ultra-Orthodox camp and cultural norms in some circles that she sees as having negative ramifications. She hasn’t attacked the population. In this regard, she is like Bruria admonishing her husband Rabbi Meir to pray for sin to be removed by sinners repenting, not for sinners to be removed (Talmud Babli Brakhot 11).

In my opinion, as outlined above, this ruling established the facts of the case, but gets the law wrong. I believe it should be reversed on appeal.

The Biblical Sotah from which Ragen plagiarized her title,  is discussed in Numbers 5: 11-31. She is a woman accused by her husband of having been inpregnated by another. In a trial by ordeal, the sotah drinks bitter waters, and, if guilty, swells up, and dies. If innocent, she and her husband are able to put this issue behind them and she is blessed with offspring.  Ragen may have been impregnated by exposure to Shapiro’s book, but her work is an original literary creation, and is admitted as such by Judge Shapiro. I believe that she deserves to be blessed with (literary) fruit for being wrongfully accused.

HaTikvah – A Hopeless Copyright Case

August 3, 2011

“Hatikvah” הַתִּקְוָה‎‎,  literally, The Hope is the national Anthem of Israel. Written by Naphtali Herz Imber, a galician Jew, who moved to the Land of Israel in the early 1880s. The anthem’s theme revolves around the nearly 2000-year-old hope of the Jews to be a free and sovereign nation in the Land  of Israel.

Franky Perez, a French singer, producer and songwriter, released a version of Hatikvah, Israel’s National Anthem, in February 2008, for Israel’s 60th Anniverary Celebration in 2008. In May that year, El Al, Israel’s national air carrier, produced a version of the Hatikvah for use as an advertisement.

Perez sent El Al his version before they produced their advertisement. Claiming that El Al had copied his version, Perez claimed copyright infringement and sued for damages and for production of sales receipts.

The similarity, according to the statement of case, lay in a list of elements including, inter alia, the rhythm, beat, tone, use of a black choir, a black soloist, a rap rhythm, the Israel flag, the camera angles, the halos of the singers, the almost identical clothing of the choir, fading to black, various lighting effects including flares, similar clothing worn by the singers, etc.

The plaintiff did acknowledge that the words themselves, and the music, were in the public domain and withdrew charges that the idea was copyright protected.

Perez produced evidence of having given a copy of the clip to an El Al employee, Ms Michelle Richie, who forwarded it to Mr Zacharia, the Head of Marketing at El Al. This was not denied by El Al who admitted having been shown Perez’ clip, but considered it indicative of what they didn’t want. They claimed to have been working on the HaTikvah advert concept prior to receiving the clip, but admitted to only starting filming afterwards.

Presiding Judge Hadas Ovadia listened to the expert witnesses of both sides and also watched and listened to the recordings. She concluded that as would be expected with orchestrations and videos of the same words and melody, there were some common elements, but the recordings, taken as a whole, were substantially different, and dismissed the charges.

She cited extensively from the cross-examination of the expert witness of the complainant, who was apparently inadequately prepped, and admitted that there were a lot of significant differences and who stated that the expert witness of the defendant was an authority.

For good measure, she ruled that the original production was a work for hire produced by Peretz for a company called Blast Production, now defunct, and consequently Perez had failed to establish ownership of the creation and legal standing.

Finally, she related to the clips holistically, and explained that Peretz’ version was a rap, produced by Broadway singers, that featured African-American gospel singers in cassocks, and had a universalist theme. In contradistinction, the El Al advertisement invoked the ingathering of the exiles, and featured Jewish singers from different countries singing in different styles, the Russians in operatic style and Oriental Jews in Mizrachi (Arabesque) style. The black singers in the El Al advert were Ethiopian in traditional white gowns and were featured as a self tribute to EL Al’s role in Operation Moses and Solomon where all records for the number of passengers that could be crammed into a Boeing 747 were broken. Judge Ovadia also noted that El Al had stayed faithful to the words, whereas Perez had included additional lyrics in English and made some other changes.

In addition to dismissing the charges, she ruled NIS 12,000 costs to El Al.

Peretz’ version is found here:

El Al’s version is found here:

There are some similarities and lots of differences. Readers are invited to judge for themselves.

 T.A. 6471/08 Franky vs. El Al Israel Airways LTD.

ת”א 6471-08 פרנקי נ’ אל על נתיבי תעופה לישראל בע”מ


I think this judgment is correct. I don’t think there is copyright infringement here. I don’t think El Al plagiarized Peretz’ version. I don’t even think it was inspired by it.

I can imagine that those of a politically correct persuasion might be offended by the underlying assumption in comparing Afro-American gospel singers with Ethiopians, that all blacks look the same. Factually this is not true and Peretz’ singers do not look Ethiopian, whereas El Al’s clearly do. One wonders if a similarity between renditions such as Caucasian men would have been claimed.

Personally, I think the Israel Anthem should be Psalm 126 set to Imber’s music, but then again who cares what I think?

Whilst tracking down the links, I ran into various other renditions of the Hatikvah. The most moving was a BBC Radio broadcast from 1945 that includes a rendition of Hatikvah from the end of the first Friday Night Service held at the newly liberated concentration camp Bergen-Belsen. Note the variant words to Hatikvah. The service was conducted by the Late (Great) Reverend Leslie Hardman, then British Army Chaplain.

I have fond memories of Reverend Hardman Zt”l. I was a congregant in Hendon United Synagogue, London where he ministered until his retirement, and where he continued to preside over the Annual Jewish Ex Servicemen Shabbat for many years afterwards, as much an institution as Dame Vera Lynn.

A link to the BBC radio broadcast may be found here:  Those who knew him will recognize Rev Hardman’s voice at the end of the clip.

Naked Cow-people Bring Tiff to Court

July 23, 2010

In addition to the more formal entertainments on offer in and around Times Square, New York, there are three scantily dressed buskers. One who calls himself the Naked Cowboy and a further two, each of which calls herself the Naked Cowgirl.

These entertainers wear cowboy hats and boots and sing to the accompaniment of their guitars.

The Naked Cowboy, Robert John Burck, was born on December 23, 1970 in Cincinnati, Ohio.  He can be viewed on his website: In his performances,  he wears a pair of y-fronts, and holds the guitar sufficiently low to conceal the garment, giving the impression that he is nude – hence the name.

Louisa Holmlund, wears a micro-skirt and a pair of little mirrors on her nipples. Both earn tips by crooning the crowds and by providing photo-shoots. Apparently, she pays royalties of $500 a month or $5000 a year to the Naked Cowboy. She can be seen on her website here:

There is now a second Naked Cowgirl; Sandra Brodsky who calls herself Sandy Kane. She  wears a starred and striped bikini and matching cowboy hat and refuses to pay a franchise fee.   She is in her 50s.

It seems that the Naked Cowboy is the original act, that inspired or was plagiarized by the Naked Cowgirls. Both have been somewhat lapse with their trademarking, with the Naked Cowboy’s mark lapsing and being refiled, and the Naked Cowgirl’s mark also lapsing.

As the Naked Cowgirl Kane has refused to take out a ‘francise’ from the Naked Cowboy – what I suppose would be called ‘protection money’, the Naked Cowboy has sued for infringement of his IP rights.

According to Burck, Kane is ripping off his intellectual property, he also claims her act is “un-American” and makes a “mockery of the system and the trademark infringement laws.”

Having entered the silly season (onat hamalafafonim – the “cucumber season” in Hebrew), this epic battle of the sexes has been picked up by the various newspapers as well as the IP Blogs – including our friends, the IPKAT.  With a dirth of real IP stories to discuss, and with the Israel Courts in recess, I have decided to analyze this case. Noone seems to have actually commented on the legal issues. So here goes.

I don’t think that being un American is a crime, even in Time Square. The issue of trademark infringement is something that can sensibly be discussed however. I thing that both trademark registrations are limited to the combination of Naked Cow+boy and Naked Cow+girl. Both marks are somewhat descriptive, perhaps the naked cowgirl with udders on show, is even more so.

I don’t think either mark should be interpreted to give wider protection than exact copying.  In other words, the fact that both use he words Naked and Cow does not imply copyright infringement or passing off. the words Boy and Girl are opposites.

For the same reason that North Face is not infringed by South Butt, I don’t believe that the word mark Naked Cowboy is infringed by Naked Cowgirl.  I don’t think that there is a likelihood of confusion either. Male body builders look different than female strippers. It’s probably something biological.

That said, and although perhaps aiming largely at a different segment of the crowd, with the Naked Cowboy getting tips from women tourists and homosexual men, and the Naked Cowgirl attracting heterosexual men, one could argue that there is a problem in setting up a competing business on someone else’s patch.  This raises various issues. For example, does a busker, who does not invest capital in premises but who clearly invests time and energy in becoming a tourist attraction in his own right, create rights?

Ms Kane seems a little past her prime. It could be that she does have a negative impact on the trade. Is this a crime?

In Jewish Law, one cannot simply open a business opposite a competitor. the issue seems to be more one of drawing away trade than passing off. However, this halachah is not the law in New York. It seems that the State does allow one to open up souvenir shops, coffee shops, restaurants and hotels opposite similar establishments, and I am skeptical that merely because Times Square is the Naked Cowboy’s patch, that other buskers can’t perform there.

Arguably, all the cowpeople are part of the scene that keeps tourists visiting Time Square.  I don’t believe that the newspaper and postcard vendors that benefit from the buskers attracting the crowds should pay them, nor do I think that the buskers should pay the theatres for bringing the crowds.

The franchise issue is an interesting one, but I would argue that noone would assume that there is a franchise for buskers and one does not order their services, but simply tips the individual if entertained. The tip is generated by the behavior of the individual at the time that the tip is made. It is not something related to the chain.

A waitress working in a chain of restaurants would not be expected to share her tips, so why should a busker?

Singing songs created by Burck would be copyright infringement. The combination of a cowboy hat, boots and underwear is not.  As is often the case, there is a confusion between an idea and the expression of the idea. Dance steps, routines, songs and the like can be protected with copyright. I don’t think the basic idea of the act can be.

Burke claims that Kane’s performances have caused “confusion” with the public and may put “a potentially permanent devaluation on a real American Brand and Icon.”

It is not the first time that Burke has gone to court to protect his trademark. In February 2008 he sued Mars Inc. in federal court in Manhattan, alleging that a blue M&M character, dressed in underpants and boots that appeared in the candy’s advertisements, violated his trademark. That suit was resolved in November that year. Neither party gave a reason for the dismissal with prejudice, which prevented Burck from re-filing his lawsuit.

The M&M advertisment was one of a series, which included an M&M dressed as the Statue of Liberty and an M&M as King Kong climbing the Empire State Building.

U.S. District Judge Denny Chin, who presided over the earlier lawsuit, ruled that Mars had to face Burck’s false- endorsement claim,wherein he claimed that there was a potential for consumers to believe Burck supported the ads. However, Burke’s right-of-publicity claim against M&M was refused.

Louise Holmlund had a stronger case of claiming trademark infringement as she’d held a mark for Naked Cowgirl. Unfortunately, however, it died in 2007.

Likelihood of confusion with Burke, not convincing. His second claim seems to be one of dilution. Here he may have a point. I think the case should be thrown out. Both sides will probably gain from the publicity in the meantime though.

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