Summary of the plaintiffs' arguments
- First, the plaintiffs state that they played a major and inseparable part in the clock repair event in the city of Jaffa, an event following which the photograph that is the subject of the lawsuit was taken.
- The article and the photo at the basis of the proceeding were published on December 31, 2021 in the Friday newspaper, with unprecedented prominence regarding the repair of the clock, on half a page of the enlarged issue. The "product" on the sheet is the property of the plaintiffs and their exclusion from the credit was done intentionally or by way of turning a blind eye. According to the plaintiffs, the defendant is supposed to be considered an example and model for others with regard to adherence to copyrights, so in this case she should be awarded the highest compensation for the infringement.
- The Ottoman Settlement [Old Version] 1916In addition to the publication in the printed issue, publications were made on other platforms – the newspaper's Facebook page, the Ynet website, the "Mina Data" website, and the Facebook page of the publicist Ran Rahav. The plaintiffs claim that the additional publications are widely distributed and viewed on a national scale. In their summaries, the defendants add that the publications were madein different locations and on different platforms, and that this is not a single set but a number of different violations.
- 12-34-56-78 Chekhov v. State of Israel, Pis. D. 51 (2)The plaintiffs further add that the publications were not immediately removed, the physical publication in the newspaper was not denied, and no amendment was published in the printed edition. The subject is of great news importance and is sensational and attractive in its essence.
- According to the plaintiffs, plaintiff 1 and plaintiff 2 are the national experts in watch matters, and as such the violation against them is significant in the specific industry in which they work. The plaintiffs' property rights over the photograph and the moral right that connects the photograph to the plaintiffs' field of professionalism are very important from their point of view, since the plaintiff is the leading company in Israel in its field.
- As for the photograph itself, it was argued that it was the result of the work of plaintiff 2 that could not have been done by the defendant, in light of the malfunction of the drone and in light of the fact that the defendant's photographer did not have the ability to climb to such a high altitude and photograph the photographs with the quality and exactly as they were photographed. Even if the drone could have been operated, the quality of the photography and the control of the photography capabilities would not have been similar to the ability of plaintiff No. 2 as someone who rose to a height and photographed up close and accurate. If it were not for plaintiff 2, there would have been no photograph at all.
- According to the plaintiffs, the uniqueness of photography at height is what allows for optimal photography, so it is the photographer's abilities that led to the unique creation.
- In response to the defendant's claims, the plaintiffs argue that their moral and proprietary right to the photograph is proven and clear. There is no relevance to the question of ownership of the camera or equipment.
- According to the plaintiffs' position, compensation should be determined at a very high rate both in light of the location of the publication in the Friday newspaper and the scope of the publication, part of which has not been removed to date, both because it is a clock that is famous in the country and is located in an area of historical and special value, and in view of the identity of the defendant as the leading body in the country and as someone who must adhere to and protect copyrights.
Summary of the defendant's arguments
- According to the defendant, the real dispute in this case has nothing to do with copyright law, but rather is between the plaintiff and the watchmaker Susanna, since the latter garnered all the fame for repairing the clock in Jaffa. The defendant insists that this is a claim that is essentially defamation, and that it "disguises" itself as a copyright claim.
- The defendant submits that there is no rivalry with plaintiff 1 at all. As is well known, the copyright belongs to the employee, unless the photograph was taken for the purpose of his work and during it. In our case, the photograph was taken by plaintiff No. 2 during his work, but no claim was raised in the statement of claim that the photograph was taken for the purpose of his work. The plaintiffs' arguments indicate that the photograph actually harmed the employer, by glorifying and glorifying his business competitor.
- Copied from Nevothe defendant insists thatplaintiff 1 has no right to the photograph, in the absence of cause and in the absence of adversity. As for plaintiff No. 2, the defendant claims that he has no interest in the existence of the proceeding, and the proof of this is that he was not added as a party at all in the original proceeding that was opened in the Haifa court.
- The defendant further argues that the plaintiffs have no copyright in the photograph. In a work of the type of photograph, the copyright does not stem from clicking on the camera, but rather from a variety of preliminary actions performed by the newspaper's photographer, Mr. Golan. Subsequently, in order for a work to be protected, it must pass the test of creativity. The act of clicking alone is not enough, especially when plaintiff 2 is not a photographer at all. Plaintiff No. 2 does not dispute that Mr. Golan was responsible for the choice of subject, the choice of scene, the choice of photography technique, the day of the composition, the choice of angle, the preparation of the camera, the direction of the aperture , etc.
- The person who performed the various actions that gave creativity to the photograph was the defendant's photographer, while plaintiff 2 actually served as the photographer's long hand and he acted according to his instructions and made the click on the camera button. All the actions that require creativity were carried out by Mr. Golan, who is a professional photographer with decades of experience.
- According to the defendant, the photograph of the face of the watchmaker Susanna constitutes a portrait, so that in accordance with section 35(b) of the Law, the owner of the right to a portrait work is the commissioner – the defendant. The plaintiffs did not present any reference to any other agreement, and therefore the default according to which the copyright belongs to the ordering defendant applies.
- It was further claimed that the plaintiffs granted the defendant a license to use it, and they even admit this in their affidavits. Even if plaintiff 2 had a copyright, the defendant received implied permission from him to use the photographs. The photographs taken by plaintiff No. 2 were made as technical assistance to Mr. Golan with the knowledge and purpose of being published by the defendant, therefore, the defendant received permission to publish them.
- According to the defendant's position, the burden of proof required to prove the identity of the party responsible for the creativity applies to the plaintiffs, and this burden has not been lifted. It is appropriate to determine that the mere consent of a passerby to assist the photographer with the defendant's camera embodies implied authorization, and that this is a case of volunteering to assist the defendant's photographer.
- The plaintiffs' claims regarding the infringement of the right to credit are an argument that is not on the level of proprietary copyright, but on the level of moral right. The defendant emphasizes that immediately upon receipt of the plaintiffs' request, she acted in order to add credit and the alleged breach was promptly and efficiently corrected. The defendant further notes that a moral right is personal to the creator himself and cannot be transferred, so that defendant 1 as an employer does not and cannot have a moral right.
- The defendant insists that this is a single set of violations, since the publications were made at the same time, on the same matter and in the same article.
Discussion and Decision
- After reviewing the pleadings submitted by the parties, hearing their testimonies in the course of the hearing before me, and considering the circumstances of the matter and the entirety of the picture presented to the court, I reached the conclusion that the claim should be dismissed.
- In the framework of the judgment, I will discuss the issue of photography as a legally protected work, I will examine the parties' claims regarding ownership of the photograph, and finally I will present and explain the reasons that were the basis of my decision according to which the defendant did not infringe copyright and should not be required to pay compensation for the alleged infringement.
- First, and in order to clarify and clarify the dispute that is the subject of the proceeding, it should be remembered and emphasized that this claim was filed as a claim that arose from copyright infringement. As a result, the court must examine whether the plaintiffs have a copyright in the work and whether the defendant violated this right. Claims or arguments that originate from an erroneous or biased publication in the newspaper regarding the party that repaired the watch that is the subject of the lawsuit are claims on the level of defamation law (or other laws) and not on the level of copyright.
- I will note and mention that after a conciliation hearing between the parties was unsuccessful, the plaintiff submitted a notice to the court in which she stated that she was waiving the examination of the witnesses and was seeking to rely on the evidence in the case in order to decide the proceeding. In these circumstances, there was no evidentiary proceeding in the case, and this is the duty of the plaintiffs, who, as is well known, have the burden on their shoulders.
- As is well known, a copyright lawsuit focuses on the unauthorized use of the work and the failure to give credit to the creator or photographer, while a defamation lawsuit focuses on the content of the article that is inaccurate and the potential damage to the good name and professional image of the victim as a result of the publication.
- In the case before me, it seems that what lies at the basis of the plaintiffs' arguments and what is actually inherent in the filing of the lawsuit, is not necessarily the lack of credit to the plaintiffs for the photograph taken by plaintiff No. 2, but rather the lack of credit for the repair of the watch, and the manner in which the picture can be interpreted as if it was Mrs. Susanna who carried out the repair, even though this was not the case in practice.
- Once these things have been said, it is possible to go through and examine whether this is a photograph that meets the requirements of the law so that it should be considered a protected work.
- The photograph is a legally protected work
The Requirement of Originality – Investment and Creativity in Photography
- Photography becomes a work when it fulfills two cumulative requirements: the requirement of fixation (physical or digital documentation) and the requirement of originality, which includes a minimum level of investment and creativity that expresses the photographer's "eye print". According to the Copyright Law, photography is defined as an "artistic work". This definition is broad and includes photographs of all kinds: planned artistic photography, documentary, news, commercial photography, and even random family photography.
- 00When photographing an inanimate object (like a clock), originality can be expressed in the choice of shooting angle, lighting, distance from the subject, focus of the image, choice of background and composition. Photographing a commercial product or a common object can also be considered a protected work if effort and talent have been invested in it that indicate the uniqueness, work, or character of the photographer.
- 0Originality is in fact the most essential requirement and it is examined on two levels:
The investment test, according to which it is required that the creator has invested minimal labor, time or talent in the creation.