Civil Case (Tel Aviv) 34457-02-24 Lounge Systems Ltd. v. Yedioth Ahronoth Ltd. - part 3

The creativity test , according to which the photograph is required to reflect the photographer's intellectual contribution or artistic choice.  The case law has determined that a small degree of creativity is sufficient to meet this threshold.

40. The originality of photography can be expressed in a variety of actions of the photographer, even if it is a documentary photograph of an existing reality. These include the choice of shooting angle, timing, lighting, distance from subject, focus, background selection, and arrangement of objects.  All of these create the "handprint" of the photographer in the photo.

(See: TADAM (Shalom Rishon Lezion) 20094-08-22 Bonnie Yankovich v. Inbar Kaminsky (December 17, 2023), Civil Case (Shalom Tel Aviv-Yafo) 31376/05 Weinberg Amir v. Weisshof-Eliezer (September 19, 2006), Civil Case (Tel Aviv Shalom) 25210-11-21 Shmuel Rachmani v. Yedioth Internet (Registered Partnership) (March 26, 2023), Tamir Apori Copyright Law (2012) | Chapter 1 Commentary.  Civil Case (Shalom J.M.) 7202-02-18 Hillel Meir v. Y.K.G.  Yoni Kahane Group in Tax Appeal (09.06.2020), TADAM (Shalom Bat Yam) 9605-10-23 Shmuel Rahmani v. Boaz Cohen (29.10.2024), Civil Case (Shalom Tel Aviv) 25775-12-20 Israel Bardugo v. Eyal Peretz Development and Real Estate 2011 in Tax Appeal (07.04.2024), Tony Greenman Copyright (2023) | Chapter 3 (Literary, artistic, dramatic and musical works).

41. In accordance with what is stated in sections 4-5 of the Copyright Law, and in view of the evidence brought before me, I have reached the conclusion that the photograph constitutes a protected work, while it meets the requirement of originality, and that  the photograph involves both investment and creativity to the extent required by law.
42. It was the photographer of defendant 2 who asked to take the picture, chose in fact to document the clock at a high altitude (whether by means of the drone or in some other way) and to arrive at an exact time that would be correct in terms of lighting and angles. He also considered and selected the particular lens and the location from which the photographic action would be performed.  All of these are combined together into a single work by the photographer, and as determined in the case law, a small degree of creativity is sufficient to meet this condition.  In addition, there is no doubt in my opinion that thought and investment were required in order to create the work.  Although the photography drone did not work, the defendant's photographer exercised discretion and thought about how he could realize the need to photograph the clock in an alternative way.  In addition, the defendant's photographer has proven skills as a professional for decades, and it seems that he also invested time in planning this photograph.
43. Therefore, the conditions for recognition of a work of art as a protected work of art in respect of which a copyright applies, are met, and my conclusion is that these are works of art in accordance with the law.
44. Ownership of the paintings belongs to the defendant
45. Once the conclusion is that we are dealing with an artistic work that entitles to copyright, the question arises to whom are the rights to photography?
46. Ownership of copyright in photography is determined by the identity of the creator, i.e., the person who designed the work and was the dominant factor in the creation of the original expression. Thus, a person who provided the equipment and also gave detailed instructions that include angles and on the day may be considered a creator, even if they did not physically press the camera button.  According to the legal literature and case law, when one person designs the photograph (determines the subject of the photograph, the angle, the lighting, and the speed of the photograph) and another person only performs the technical act of "pressing the button", the designer will be considered the creator of the work and the first owner of the copyright in it.  It seems, then, that physical pressure in itself does not confer ownership if it is devoid of independent creative judgment.  (See: Tony Greenman Copyright (2023) | Chapter 7 Initial Ownership of Copyright, Civil Case (Shalom Tel Aviv-Jaffa) 121130/01 Aloni Group Productions in Tax Appeal v. Smadar Sefi Yossi (Nevo, August 10, 2003)).
47. The copyright protects the original expression. In the event that the equipment owner provides detailed instructions, including an explanation of the required shooting angle and how to operate the camera and press the button, it is he who will pour the original and creative elements into the image, as he is the one who determines what the right composition is, how to focus and which lens to use.  The case law emphasizes that these foundations are the result of the artist's work and art, and in circumstances where the guidelines are very detailed, the creator is the facilitator and not the technical performer, so that he becomes the owner of the copyright.

(See also: Civil Case (District Court) 26485-09-11 Kfar Blum and Beit Hillel S.M. v. Manara Cliff in Tax Appeal (December 30, 2012).  Civil Case (Shalom Tel Aviv) 46445-01-20 Sharon Sarfati v. Anatoly Finkelstein (02.09.2024) [2]Civil Case (Tel Aviv District) 1879-07 Liav Uzan & Co. v. Winhelp in Tax Appeal (November 18, 2013)).

47. Indeed, according to the new copyright law, the mere ownership of the physical equipment (such as the camera) no longer automatically grants ownership of the copyright to the owner of the negative who is considered the creator. The new law states that ownership belongs to the person who carried out the substantive act of creation.  Therefore, the ownership of the facilitator will stem from the guidelines and artistic design, and not from the fact that the equipment belongs to him.
48. In this context, see the words of the Supreme Court regarding the influence of the photographer who expresses his taste, skills and investment through him, as cited in Civil Appeal 7774/09 Amir Weinberg v. Eliezer Weisshof (Nevo, August 28, 2012):

"... Indeed, more than what is in the photograph from the photograph – there is something in it from the photographer – who often invests in photography from his spirit, on his behalf and his skills; The person who invests in the photograph his senses and his unique perspective on reality.  The photograph reflects reality as it appears in the photographer's mind, and not only as it is perceived in the camera's eye.  One moment of photography is sometimes treasured in more than a whole world, one picture – everyone knows – is worth more than a thousand words.  The occurrence does not carry with it 'rights' to the creator of the entire country, but the spectrum in which reality is perceived creates the copyright."

49. If this is the case, then my conclusion is that the ownership of the photograph belongs to the defendant's photographer, Mr. Golan, and that the plaintiffs' demand to be recognized as the owner of the photograph is to be rejected.
50. I accept the defendant's version that the photographer on her behalf was the one who determined and predicted the photograph in his imagination, he was the one who arrived at the scene for the purpose of taking the photograph with the drone and the camera, he chose the appropriate time and angle of photography, and also took care of the variety of technical elements and professional guidance, including replacement, lens orientation and equipment calibration. Plaintiff No. 2 did not contradict these claims that he received professional instructions from the defendant's photographer and acted in accordance with them.
51. I am aware of the fact that according to paragraph 7 of the affidavit of plaintiff No. 2, it appears in one sentence that plaintiff No. 2 directed and instructed Susanna (the filmed watchmaker). However, the plaintiffs waived the examination of the declarants, and this choice is attributed to them in the evidentiary context.  From the totality of the photograph I accept the defendant's version in this matter, namely that the photographer on her behalf was the one who directed and gave photography instructions, inter alia: from the very fact that the plaintiff is not a photographer and this is not his occupation; that the plaintiff was not at all part of the previous incarnation of this proceeding; that the defendant's photographer has a reputation as a photographer for decades and that he has the knowledge, experience and skills to direct and direct the photography.
52. This conclusion is further sharpened in light of the importance of the subjective intention of those present at the time of the filming, and the fact that there was no agreement between the parties. As you may recall, the Copyright Law states that the first ownership belongs to the creator, unless otherwise agreed.  In a case where both parties subjectively understood that the rights remained with the photographer (the designer) and there was no intention to transfer them to the executor, then the intention test also strengthens the retention of ownership with the original photographer.  In the absence of a written document instructing the transfer of rights, and given that the performer is not the "creator", he has no legal basis to claim ownership.
53. In the case before me, I am of the opinion that there was no intention of either of the parties – neither Mr. Golan nor of plaintiff 2 – to grant plaintiff 2 any rights in the photograph as a result of the said assistance. My conclusion is that at the time of the incident and following the malfunction of the drone, the two reached a solution that ultimately gave rise to the image that was created, but the action taken by plaintiff 2 did not stem from the outset and did not raise an expectation that he would later be recognized as the owner of the photograph.  Not only that, but plaintiff No. 2's consent to take the photograph was given without reservation, without consideration and without being promised anything for his assistance.  Plaintiff No. 2 understood that this was a photograph that would be published in the defendant's newspaper and that there was no promise, compensation, consideration or right whatsoever.
54. Once it has been determined that the defendant is the owner of the rights in the photograph, there is no longer a need to further examine whether it is a copyright infringement.

• Rejection of the claim of a violation of moral right

55. As stated, the plaintiffs also demanded compensation due to the lack of credit and the lack of mention of plaintiff No. 2 as the person who took the photo.  In this context , it should be emphasized and clarified that a moral right is a personal right that only the creator himself may claim.  Therefore, it appears that only plaintiff No. 2 has this ground, and he is the only one who can claim a violation of his moral right.

"55. A claim for a violation of a moral right may be filed by the creator, and if the infringement was committed after his death – his relatives; In this regard, "relative" means a spouse, descendant, parent or sibling.  "

56. Indeed, the courts recognize that the publication of a work without giving credit constitutes a violation of the moral right to attribution, and award damages for it even in cases of good faith and immediate removal, although these circumstances will lead to a reduction in the amount of compensation to the lower threshold.
57. However, the moral right, which includes the right of attribution (credit) and the right to the perfection of the work, is granted by law only to the "creator" of the work. As discussed at length above, since the person who just pressed the button does not meet the definition of "creator" (since he did not contribute a dimension of originality or creativity to the work), he does not have a moral right.  The moral right is intended to protect the personal-spiritual connection between the creator and his creation, a connection that does not exist in the case of a technical performer (see, for example: Civil Case (Shalom Tel Aviv) 64177-05-23 Sivan In House in a Tax Appeal v. Wave All Digital in a Tax Appeal (Nevo 12.2.2025)).
58. Taking into account the circumstances of the case and my conclusion that the creator of the work is Mr. Golan and not defendant 2, I did not find it appropriate to accept the plaintiffs' claim of a violation of the moral right and I do not see fit to award damages in respect of it.

In conclusion

59. After considering the arguments of the parties and reviewing the totality of the evidence that was presented, I found it appropriate to prefer the defendant's version. The photograph that is the subject of the proceeding is a protected work whose ownership belongs to the defendant.  The plaintiffs' claims regarding their being the owners of the rights to the photographs are hereby rejected.
60. Given the evidence presented to me, I am convinced that the creator of the work is the photographer of the defendant and not plaintiff 2, and this, inter alia, in light of the fact that he has been a photographer for many years, and that the originality and creativity of the photograph are the product of his hand and thought. In addition, he is the one who is sent and ordered for the purpose of taking the photograph, he is the person who selected and considered all the elements that make up the finished product.  The photographer is the one who thought and planned how to shoot, which camera and lens to use, what time of day and from what direction it would be right to carry out the action, and what message he wants to convey in the photo.  Plaintiff 2 was only the perpetrator, and he was the one who executed the idea and the elements chosen by the defendant's photographer.
61. I am of the opinion that the action of plaintiff 2 is a technical action that does not establish a copyright, and that it was done only out of the goodwill of plaintiff 2 without any intention or desire to receive rights. I am of the opinion that at the time of the incident in question, both plaintiff 2 and the defendant's photographer understood that this was only technical assistance in light of the malfunction that was discovered, and that none of them thought that taking the photograph at height would transfer the right or buy plaintiff 2 anything in relation to the work.
62. This is strengthened when the previous lawsuit that was filed (and deleted) did not include plaintiff No. 2 as a party in the proceeding.
63. As a result, I am convinced that the defendant is the owner of the copyright in the photograph and that there was no transfer of the copyright to plaintiff 2. All the more so for plaintiff 1.  When the ownership of the copyright is in the hands of the defendant, there is no need to examine whether the copyright infringement has been committed, and even the need to consider and decide the amount of compensation is superfluous.
64. If this is the case, then the claim is dismissed.

Conclusion

65. The lawsuit is dismissed. As stated above, when the plaintiff waived the examinations of the witnesses and did not meet the burden of proof, and taking into account the evidence as a whole, the intention of the parties at that point in time and the picture presented to me, I found it appropriate to prefer the defendant's version and accept the argument that the copyright belongs to the defendant.
66. As for the expenses of the proceeding and attorney's fees – even though the claim is dismissed, I did not find room to award expenses to the plaintiffs , and I will explain.  The claim as a whole is not unfounded, and it appears that there was a statement by the defendant's photographer regarding the granting of credit to plaintiff No. 2, and the defendant even agreed to add the plaintiff's name to the publication.  In addition, there is no doubt that plaintiff No. 2 did indeed take part in the photographic incident, and that this was done out of his kindness and with a desire to help.  Not only that, but the defendant benefited from the technical assistance of plaintiff 2 and his activity provided the defendant with the benefit of the product.  Therefore, I did not find it necessary to order the payment of expenses and attorney's fees.
67. It seems that the plaintiffs' real grievances lie on a completely different level, namely defamation and damage to the plaintiff's reputation as the one who repaired the watch according to her claim, or the details of the media coverage. However, this lawsuit is not the right framework to discuss them.

Granted today, February 08, 2026, in the absence of the parties.