and a person performs, by way of occupation, an action that is capable of facilitating the public's access to a work that has been violated or expanding the public's access to it; In order to derive a profit from doing such an action and from the existence of access to the work that has been infringed , the defendant is a well-known and well-known printing house that makes use of the postings in the database. The defendant is the one who operates and manages the entire website. The defendant uses the envelopes available in the database for their publication and presentation, and then works to print them on various products. Thus, in fact, it was the body that provided the infrastructure for the infringement and it was it that exposed the plaintiff's works to the entire public, even if the direct activity of uploading was carried out by the soldiers. By the very existence of a database in which there are paintings that are not owned by the defendant but are copyrighted therein, the defendant expanded the circle of advertising and exposure, all for the purpose of its business as a printing house. I was convinced that sending the works on WhatsApp to potential customers, presenting the products on Instagram, which is open to everyone, and uploading the drawings to the defendant's database, were intended to make a profit from the advertising and in order to increase the number of the defendant's customers and to give a platform to its work. I will note that there is no requirement that a profit be actually generated as a result of the action, but rather that the action be carried out with the aim of generating a profit.
At the time of carrying out the action, he knew or should have known that the work was infringed - the defendant is familiar with the plaintiff's business and is well aware of its uniqueness and style, since she or her agents have been following the plaintiff's Instagram account for years. The defendant became acquainted with the plaintiff's works and contacted him in the past, through representatives on its behalf, in order to promote cooperation between theparties. The plaintiff refused, including with regard to the presence of his drawings in the database of drawings that the defendant is establishing (see Appendix G to the plaintiff's affidavits). This fact, with regard to attempts at cooperation (which are not in dispute), undermines the defendant's arguments regarding the lack of knowledge of the need to obtain permission from the plaintiff. Moreover, it is not only a matter of not knowing or not obtaining consent for the purpose of using the drawings and uploading graphics to the database or granting others access to the drawings, but it is also a clear refusal not to make any use of the works. At this point, it seems that there is no longer any doubt as to the fact that the plaintiff knew or should have known that the work was made available to the public by way of infringement, and that no permission was given by the owner of the right.
- Therefore, the conditions set forth in the law with respect to the defendant's indirect breach are fully met, as detailed and reasoned above.
- With regard to the issue of contributory infringement, this is in fact a doctrine developed in case law, and it is intended for situations in which even a person who does not directly infringe a copyright can be held liable, in light of his behavior and involvement in the case of infringement. The indirect violator is the one who allows or encourages the violation to be committed by the other party.
- In the matter of Civil Appeal 5977/07 The Hebrew University of Jerusalem v. Schocken House Publishing Ltd., 66(3) 740 (2011), three cumulative conditions were established for the application of a contributory infringement: (1) the actual existence of a direct infringement; (2) The contributing infringer's knowledge of the direct violation committed; (3) The existence of a significant, substantial, and real contribution of the infringer who contributes to the commission of the violation.
- From the totality of the picture that was presented to me, I have come to the conclusion that the cumulative conditions are fully met. The first condition regarding the existence of an actual infringement is fulfilled, when protected works belonging to the plaintiff have been uploaded to the Instagram network and the defendant's website, despite his refusal and without his consent. The direct perpetrators were IDF soldiers, and they were the ones who actually acted to realize the violation of the right, even if they did not know about it or did not understand that they did not have the right to do so. The second condition regarding the infringer's knowledge of the direct infringement that was committed is met, since it has already been determined that the defendant knew, or at least should have known, that the copyright belonged to the plaintiff. The third condition is also met. The defendant was the one who provided the infrastructure for carrying out the infringement and uploading the images to the Internet database, and it was she who did not act in order to give the plaintiff credit for his creation. The defendant was the one who printed the protected works on the shirts and approached other parties in order to market these works and offer them to customers. Once all the conditions have been met, the defendant should also be regarded as a contributing violator.
- In this context, see the words of the Honorable Court in the judgment in the matter of the University mentioned above:
"Infringement contributes to a copyright, relates - as a rule - to a situation in which even a person who does not directly infringe a copyright is liable for it, against the background of his behavior and involvement in the circumstances of the case. These are usually circumstances in which one party does not commit the infringement itself, but it allows and permits the infringing activity of another party, or even assists and encourages the same activity. The doctrine of contributory infringement has not yet been fully recognized in Israeli law, whether in the provisions of the Copyright Law or in case law, so that in the current situation - the contributory infringer will be held liable, despite his significant contribution to the commission of the infringement, while the direct infringer will bear sole responsibility for its commission. Copyright law is based on a number of purposes, which together create a "web of interests", both public and private. One of the concepts underlying the recognition of copyright emphasizes the public interest in promoting collective creation. However, alongside the public interest in promoting collective knowledge, copyright law also relies on the desire to protect the private interests of the creator. The concept is that the creator should be rewarded for the effort and resources he invested in the production of the work, and his right to enjoy the fruits of his labor. An examination of these considerations, in the case before us, indicates that there is no place to allow an entity that has contributed significantly to the existence of the infringing action, and may even benefit from the use of the work, to evade liability. It is right to recognize the contributing violation in order to reward the creator for the effort he invested in the work; Enable adequate copyright protection in the age of anonymous users; and to provide the necessary incentives for the continued production of new works..."
- In this context, I will also refer to the judgment of the Honorable Judge Carmela Haft inCell (Tel Aviv) 57140-06-22 ZIRA (Internet Copyright) in Tax Appeal v. David Ervan, (September 27, 2024, Nevo).
- Violation of Moral Right:
- As to the violation of the plaintiff's moral right and the lack of credit, I am not required to go into the thick of the matter and decide this dispute, since the defendant bases its defense in this matter on the plaintiff's failure to take active steps in order to protect his right and ownership. I have reached the conclusion that even if the defendant's full defense arguments regarding the plaintiff's contributory fault had been accepted, by way of lack of notice and failure to take steps to protect the copyright, these claims would have been validated after June 2023, when the plaintiff explicitly announced and stated openly and clearly to everyone that the works belonged to him. Therefore, even if this is not a violation in relation to the collection of paintings in the database, at least 3 works were published without giving credit to the plaintiff.
- Rejection of the claim of permissible incidental use and rejection of the claim of "innocent infringer"
- I do not find room to accept the defendant's arguments as to permissible incidental use. The defendant does not manufacture or sew shirts. The shirt is a finished product that the defendant (apparently) purchases in a ready-made and complete manner, and her job is in fact to print the finished drawing on the finished shirt. If there was no painting to print, then the defendant would have no role.
- Not only that, but the defendant's argument is based on the incidental use stipulated in section 22 of the Law, which states as follows:
"22. Incidental use of the work by way of its inclusion in a work of photography, a cinematic work or a record, as well as use of a work in which such work was included, is permitted; In this regard, the intentional inclusion of a musical work, including its accompanying lyrics, or of a record in which it is embedded, in another work, shall not be considered incidental use.
- Incidental use of a work is its inclusion in a work of photography, a cinematic work or a record, and it is permitted when the protected work is inserted into the background of the new work randomly or marginally, without the new creator directly or indirectly controlling it, and it does not constitute the subject of the photograph. When we are dealing with a deliberate generalization of the work, or when the use of the work is not random or marginal, but rather central, deliberate, and significant to the new work, then it is not a matter of permitted incidental use. In addition, fair use or incidental use requires at least credit to be given to the creator of the work, and as a rule, in order for a user of the work to be able to claim fair use, he must mention the name of the owner of the work and indicate that he is the owner of the rights Civil Case (Jerusalem District) 32932-05-12 Shmuel Rachmani v. Israel Educational Television (Nevo 26.3.2014). Civil Appeal 53689-10-17 Israel Bardugo v. Eitan / R. Lahav-Rig Architects and Urban Planners in a Tax Appeal (Nevo, August 16, 2020).
- Therefore, I am not convinced that this is an incidental use that is permitted by law.
- As to the defendant's claim that she is an "innocent violator" -
- The defendant herself referred to section 58 of the law and noted that if it is decided that there was a violation, she is exempt from paying compensation because she is an innocent violator. I do not see fit to accept this argument. Section 58 of the Law states as follows:
"58. A copyright or moral right has been infringed, but the infringer did not know and should not have known, at the time of the infringement, that there is a copyright in the work, he will not be obligated to pay compensation for the infringement."
- The "innocent infringer" defense can exempt a direct infringer from paying damages if at the time of the infringement he did not know and should not have known that a copyright existed in the work. This protection is limited to exceptional cases only, in which the protection of the copyright in the work is reasonably questionable. The burden of proof of the existence of this defense is on the defendant and it is high. (See: Civil Appeal (Jerusalem District) 58547-05-23 The Center for Educational Technology v. Ali Tamimi [Nevo] (August 3, 2023) [2] Civil Appeal 1248/15 Fisher Price Inc. Devron - Import and Export in Tax Appeal [Nevo] (August 31, 2017) Civil Appeal 2312/02 Arnold Druck v. Sonia Danziger [Nevo] (March 23, 2005)).
- The responsibility for uploading infringing illustrations to an Internet database may apply to the direct uploader, as well as to the owner or operator of the database with contributory or indirect liability, if he knew or should have known about the violation and contributed significantly to it.
- A printing house that prints infringing works is considered a direct infringer, and the protection of an "innocent infringer" that may exempt it from compensation is limited and requires proof that it did not know and should not have known about the existence of a copyright in the work at all. In the case of uploading illustrations to an internet database, the person who actually uploaded the illustrations without permission is the direct violator. However, the owner of a website or an online database, even if he did not upload the infringing content himself, may be held liable for the infringement in a contributory manner. Contributory liability lies with the person who provides the means to commit the infringement and encourages its existence, if he knew in a real and concrete manner about the commission of a copyright infringement that actually occurred, and contributed significantly and significantly to its execution. These cumulative conditions include the actual existence of a direct infringement, the infringer-contributor's knowledge of the infringement, and a real and substantial contribution to it.
See: Civil Case (Tel Aviv District) 2696-10-19 Haaretz Newspaper Publishing in Tax Appeal v. Rotter.net in Tax Appeal [Nevo] (November 22, 2024); Civil Appeal 9183/09 The Football Association Premier League Limited v. Anonymous [Nevo] (May 13, 2012); Additional Civil Hearing 5004/11 Schocken House Publishing in a Tax Appeal v. The Hebrew University of Jerusalem [Nevo] (September 11, 2011); Tony Greenman Copyright (2023) | 11.4 Secondary Liability for Copyright Infringement; Civil Case (Jerusalem District) 6306/04 Schocken House Publishing in Tax Appeal v. Israel Labor Party [Nevo] (May 17, 2007)).
- The rule is that copyright infringement is an absolute liability and does not require a mental element of knowledge of the infringement. In other words, there is no need to prove that the printer knew about the existence of the copyright or that his action constituted an infringement (see: Tamir Ofori, Copyright Law (2012) a. "Mental Element" in Copyright Infringement, 462; Civil Case (Hai District) 15824-10-12 Tal Rinkov v. Karni Tzur Klein [Nevo] (October 13, 2014)).
- The defense of the innocent violator could (perhaps) have been a good defense argument for the soldiers themselves, those who directly uploaded the paintings to the Internet database, and those who genuinely believed that it was a work that belonged to them. The responsibility for the existence of the database and the contents contained therein is a responsibility placed on the defendant's shoulders, including the quality of the paintings and the copyrights contained therein, by virtue of her being the owner of the database.
- And to put it to heart, we have before us a defendant whose main occupation for decades has been the printing of stencils, embossings, inscriptions or figures on various products. A printing house that is engaged day and night in taking a roll or a mold - and printing or copying it into any other product, must be responsible for the violations committed in and through it. The printer's field of practice is an important consideration in examining his knowledge, since the legislature considers the printer to be engaged in an activity that creates many risks and must take precautionary measures (see in this context: Civil Case (Shalom Tel Aviv-Jaffa) 69995/04 Shlomo Arad v. Mishkal Publishing and Distribution in a Tax Appeal [Nevo] (April 27, 2008)).
- As this is the case, I find it appropriate to reject the defendant's claim that she is an innocent infringer.
Conclusion so far
- The paintings that are the subject of the proceeding are protected works whose ownership belongs to the plaintiff. Even if there was room to accept the soldiers' claim that they were the owners of the paintings since they were the commissioners and this was the implied intention - this argument no longer stands after the plaintiff's explicit announcement regarding his ownership of the works. The defendant in its conduct infringed the plaintiff's copyright, including by way of significant contributory infringement and indirect infringement. The defendant is not covered by the protections set forth in the law of the protection of the innocent infringer and the protection of fair use. Therefore, the defendant is required to pay the plaintiff compensation for the infringement of his copyright.
- It is now necessary to examine and consider the relief that should be granted to the plaintiff, all in accordance with the criteria set out in the case law.
- The Remedy - Considerations in Determining the Compensation
- Since I have determined that the defendant infringed the plaintiff's copyright, the amount of appropriate compensation must be discussed in the circumstances of the case. I will note at this point that at the basis of the claim is section 56 of the Law, which provides for compensation without proof of damage. Therefore, the defendant's arguments regarding the lack of proof of real damage are irrelevant to the award of the amount of compensation.
- Section 56 of the Law authorizes the court to award the plaintiff the compensation to which he is entitled, all based on the considerations presented in the law. After considering these considerations, and examining the circumstances of the case, I found it appropriate to award the plaintiff damages in the sum of ILS 70,000, as detailed below:
- The scope of the infringement and the duration of the infringement: There is no dispute that at least 12 drawings of the plaintiff appeared in the defendant's database, against his consent. There is also no dispute that paintings or photographs of the works were published on a number of marketing platforms, both on Instagram and in the database of paintings on the defendant's website. In addition, the defendant's agents sent drawings to potential customers through the WhatsApp application. It seems that this is not a single and one-time infringement, and that we are dealing with a considerable number of paintings in which the copyright was infringed. Not only that, but no credit was given to the plaintiff for his works, at any stage of the publication or marketing of the works. However, since it can be argued that only after June 2023 was there certainty as to the ownership of the paintings, these are only 3-4 paintings in which the right was violated. It appears that with the plaintiff's demand to remove his works from the database, the defendant acted as required and removed the infringing works from its website. At the same time, even at a later stage, a few works by the plaintiff remained in the database in which the infringement continued to exist.
- The severity of the infringement, the defendant's characteristics and her good faith: As stated at length, I am convinced that the defendant knew that the copyright belonged to the plaintiff, as evidenced by past attempts to create collaborations with him and the plaintiff's explicit statement regarding the lack of authorization to make use of or transfer the right to another. Not only that, but the defendant is a veteran and successful printing house, which has many years of knowledge and reputation in the field. I cannot close my eyes to a situation in which a printing house is not sufficiently aware and does not act for the protection of copyright, when this is the natural environment in which it operates and these are its areas of expertise. It is not appropriate to hide behind the knowledge or intention of the soldiers at the time of the purchase of the painting, and this is innocence that has no place. The control and ownership of the database belongs to the defendant, as well as the violations that are committed within the framework of it. At the same time, it should be said that I also considered that the defendant was not the one who actively and initiated the drawings to the database, but only allowed them to be uploaded by third parties. I am also aware that the defendant immediately removed the photographs upon receipt of the plaintiff's demand, and that these are not 80 different works as initially stated in the statement of claim.
- An analysis of the evidence and a full consideration of the picture, given the above, led me to the conclusion that compensation in the amount of ILS 70,000 should be awarded in favor of the plaintiff.
Conclusion
- The claim is accepted.
- The defendant will compensate the plaintiff for the infringement of his copyright in the total amount of ILS 70,000.
- The defendant will bear responsibility for the database of paintings managed on its website and will not receive drawings to the database automatically, unless the copyright in them has been examined. The defendant's agents and representatives will not send any third party drawings or photographs created by the plaintiff without his explicit consent and approval.
- In addition, the defendant will pay the plaintiff legal expenses and attorney's fees in the amount of ILS 30,000.
Payment will be made within 45 days.