Civil Case 43860-02-24 Matti Caspi v. Avraham Salma - part 2

12-34-56-78 Chekhov v.  State of Israel, P.D.  51 (2)The plaintiff submitted his summaries and argued in them, in summary, as follows:

11. The plaintiff, who created and composed the song "Good Reason" (according to the words of the late Ehud Manor), has copyright and moral right to the work. The defendant, who ran in the elections for mayor of Netanya, used the melody of the song in his election campaign in various videos, without permission or credit to the plaintiff.  The videos were posted on social networks and reached wide distribution.  The defendant even changed the lyrics of the song, which harmed the integrity of the work, and the political use of the song damaged the reputation of the work and the creator.
12. The plaintiff claimed that he had contacted the defendant with warning letters, but the defendant responded only after a while (to the plaintiff's position, with the intention of continuing to use the videos in the campaign for several more months), and in practice did not deny the infringing use. The defendant claimed that he contacted ACUM and allegedly received approval from the organization's representative, but the plaintiff emphasizes that no proof of this approval was presented.  The plaintiff claims that ACUM does not "acquire" rights to works, but only collects royalties, and that he never authorized ACUM to trade his works privately.
13. The defendant claimed that he was entitled to the defense of an "innocent infringer" because he did not know of the existence of copyrights. The plaintiff rejects this claim and claims that the defendant knew about the existence of the rights, since he himself contacted ACUM and that he admitted that the song was an "iron sheep asset", which testifies to his familiarity with the work and its value.
14. As to the moral right, it was argued that the defendant also violated his moral right by not giving him credit as the composer of the melody and changing the lyrics of the song, and that the political use of the melody forced the plaintiff to have a political affiliation that was contrary to his views and damaged his image as a person who is far from politics. It was further argued that changing the words also harms the integrity of the work.
15. As for the amount of the claim, the plaintiff is seeking statutory compensation in the amount of ILS 100,000 for each violation, without proof of damage. According to him, the defendant committed a number of separate violations: 1.  Unauthorized use of the melody in the various videos; 2.  violation of moral right due to non-credit award;3.  Violation of moral right due to the change of words and political usage.  In total, the plaintiff is demanding compensation of ILS 300,000.  For the sake of comparison, the plaintiff referred to a similar case in which another mayoral candidate sued for the use of the same song, in which he was awarded compensation of ILS 110,000, and mentioned another case in which he was awarded damages of ILS 45,000 for an economic violation and ILS 40,000 for a moral violation.

In the defendant's summaries, on the other hand, it was argued, in summary, as follows:

16. The defendant asks the court to dismiss the lawsuit with all its heads and components. His main arguments are:
17. Dismissal in limine due to lack of rivalry - the plaintiff apparently transferred all the material (economic) copyrights in the work to ACUM, or at least assign it the rights to sue for their alleged infringement. The plaintiff did not present his agreements with ACUM, and since he did not add this entity to the lawsuit, contrary to the provisions of section 54(b) of the Copyright Law, the defendant may be exposed to an additional claim by ACUM ("double charge").  The only right that ostensibly remains in the hands of the plaintiff is the moral right.
18. Copy from Nevolack of intention to infringe and good faith (defense claim under section 47(a) of the Copyright Law and alternatively the defense of "innocent infringement" under section 58). The defendant acted in complete good faith.  Prior to use, the defendant's election headquarters contacted ACUM in advance and in an orderly manner regarding the performance of a cover version of the song "Good Reason" (in new text) for the purposes of his election campaign for mayor of NetanyiH.  A senior ACUM official (Mr. Ohad Nativ) replied to the text message that he was "already taking care of" the matter, and on the basis of this clear representation, the defendant approved uploading the version of the coverage to the social network.  The defendant ordered the song to be removed immediately (within about two hours) upon receiving the plaintiff's request on December 18, 2023, after the song was available between September 5, 2023 and December 18, 2023.  The actual use was even shorter, since the election campaign was halted on 7 October 2023 with the outbreak of the war.
19. Alternatively - reduction of compensation (section 56(b) of the Copyright Law): Even if, despite the aforesaid, the defendant is found liable, he must be compensated with minimal compensation due to his clear good faith, in light of the fact that the actual period of use was very short (about 30 days), and since this is not a serious infringement and the defendant did not suffer economic gain or damage to the plaintiff. The court is asked to issue an equal sentence from similar rulings in which low damages were awarded (between ILS 3,000 and ILS 55,000).
20. The defendant further denied receiving previous letters from the plaintiff's attorney. According to his version, the first contact that reached him and proved it was via WhatsApp on December 18, 2023, which he dealt with immediately.
21. He further argued that contrary to the plaintiff's position, his use of the work was a single set of acts and not different and distinct violations. He warns against creating "a situation in which this sum will be demanded in endless multiples." The use was in one specific processing, for a specific and social purpose, and not commercially.
22. As for the claim of political identification and moral harm to the plaintiff, it was argued that it is doubtful whether the average listener knows that the plaintiff composed the specific work or associates it with any political camp. It was precisely the failure to mention the plaintiff's name (which is the alleged violation of the moral right) that benefited the plaintiff, because it blurred the connection to the defendant and his political positions.
23. The defendant also referred to the plaintiff's arguments regarding a previous ruling, and sought to postpone the comparison that was made in relation to a previous lawsuit by the plaintiff against a contestant in Ariel (the Novoselsky case (civil case 67249-01-19), since there the defendant did not try to regulate the use and did not contact ACUM; He denied the plaintiff's copyright and conducted a full evidentiary process; ignored ACUM's inquiries and showed complete indifference and contempt.

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24. 0The plaintiff submitted, as agreed, summaries of the reply. In some of them, he responded to the defendant's arguments, and sometimes he repeatedly referred to the arguments presented in the statement of claim and in his previous summaries.
25. In the summaries of the reply, the plaintiff sought to reject the defendant's claim that he had sold his rights in the work to ACUM. It was argued that this was a vague claim, since ACUM does not "purchase" works, but rather constitutes an association for collecting creators' royalties.  The plaintiff declared that he was the composer and arranger of the work and that he had all the rights to the composition and arrangement.  The plaintiff attached a certificate from ACUM (which, according to him, constitutes an institutional record) proving that he has the economic and moral rights in the work.
26. The plaintiff rejects the defendant's claim that the use was made "in good faith" and relied on a "clear representation" by a senior ACUM representative. According to him, the response of the ACUM representative ("handler") in the WhatsApp text message does not constitute a "clear representation" at all, and that the representative does not "hold a senior position." It was claimed that the defendant concealed from the court the continuation of the correspondence between him and the ACUM representative and did not attach any documentation proving that he had received a certificate that if he had been - he would have presented it (or submitted a third-party notice against ACUM).
27. Since it has been proven that the defendant infringed the rights on his own initiative, he is also deprived of the "innocent infringer" defense.
28. As for the defendant's other claims, the claim that he performed a cover version ("cover") of a song in another performance (Arik Sinai or Itay Levy) "definitively and completely eliminated his defense." The plaintiff recalls that in an identical previous lawsuit against Robert Siboni (Civil Case 67408-01-19), a similar baseless defense claim was made (cover of the performance of "another infringer") and the claim was accepted as part of a settlement in the amount of ILS 110,000. Israeli law does not validate the claim that "one who steals from a thief is exempt."
29. As for the duration of the violation: The plaintiff claims that even if the defendant did not receive previous warning letters, this does not change the fact that the violations were displayed on social media for three months. As to the economic gain and social use: the plaintiff attacks the defendant's claims that he did not derive economic profit because of the events of October 7, 2010, or that the use was "social".  The plaintiff argues that the events of October 7 did not prevent the exposure and access to the infringing use, especially since the municipal elections were held months later.
30. With regard to the amount of compensation and the claim that it was a single set of acts, the plaintiff claimed that the publication on different platforms constituted different violations that were published on different dates. The plaintiff claims that the defendant does not meet the criteria for the provision of section 56(c) of the law (which stipulates that one set of acts will be considered a single violation).

Discussion and Decision