Gernetic Cosmetics International, Ltd. v. Amir Avidan & Goren Productions, Civ.
App. 11988-02-10 (Dis. Ct. Tel Aviv) [28 Aug. 2012].
Factual Background
Appellant, a cosmetics manufacturer corp. who makes use of the phrase "GerneticMuch More than Cosmetics" (hereinafter: "the Phrase"), appealed Mag. Ct.'s decision
to dismiss its copyright infringement complaint against Amir Avidan and Goren
Productions (hereinafter: "Avidan" and "Goren", respectively). Appellant contracted
with Goren to create a radio advertisement using the Phrase. Goren, in turn,
contracted with Avidan that he create a tune for the Phrase for the purposes of radio
advertisement. Avidan created a tune for the Phrase (hereinafter: "the Tune") and
registered his rights on the tune in the books of the Israeli non-profit organization,
ACUM. Appellant sued in Mag. Ct. for infringement of its copyright of the Phrase
and the Tune. Appellant claimed that the Phrase is a development of one of its organs
and hence belongs to it. As for the Tune, Appellant acquired ownership of it through
Goren. Appellant claimed that it would never have contracted with Goren if it knew
that it would not have ownership over the actual tune. Avidan, on the other hand,
claimed that he merely licensed the Tune over to Goren, by means of a license
agreement, for radio advertisement purposes, but never intended to transfer full
ownership to Goren or Appellant (hereinafter: "the License Agreement"). Avidan
submitted a counter-claim against Goren and Appellant for 29 accounts of copyright
infringement.
Mag. Ct. dismissed both complaints on the grounds that the Phrase had no artistic or
creative nature and, hence, was not granted protection under Israeli copyright law. As
for the Tune, it belonged to the creator, Avidan, who indeed merely licensed it out to
Goren. Although the court found that Appellant indeed infringe Avidan's copyright
and breach the License Agreement, because Appellant may be seen as an "innocent
breacher", they was not held accountable.
Both Appellant and Avidan appealed to the Tel Aviv Dis. Ct.
Decision of the Court
Dis. Ct. upheld Mag. Ct.'s decision and dismissed both appeals. As for the Phrase,
Court found that the Phrase did not constitute a "literary creation" as defined in Sec.
35 of the 1935 Copyright Law (hereinafter: "the Copyright Law"). Relying on Israeli
legal practice that advertisements and propaganda may constitute "literary creations"
as long as they are not merely codes, Court concluded that the Phrase was merely a
code and can not be viewed as a "literary creation". See Aloni v. Delek Motors, Ltd.,
Civ. Act. 385-12-07 (Dis. Ct. Tel Aviv) [10 April 2010]. The Court added that even if
we were to assume that the Phrase was protected under the Copyright Law, the very
fact that it was registered on the name of Avidan would have only breached
Appellant's moral rights, but not his property rights.
As for the Tune, in accordance with Sec. 5 of the 1911 Copyright Law, the creator of
any work retains the copyright on that work so long as the work was not specially
ordered by someone else and agreed to in writing differently. An actual order of a
work shall be generally interpreted as the formation of a license agreement between
the one who ordered and the creator, not as a means to transfer actual ownership of
the work. Keeping in with this traditional limited scope interpretation of Sec. 5, the
Court found that Avidan did not transfer its ownership to Goren. It merely gave it a
limited license. However, the Court reversed Mag. Ct.'s assertion that Appellant
infringed on Avidan's copyright on the grounds that there was insufficient evidence to
show the scope of the limited license given to Appellant to use the Tune.
Court did dismissed Avidan's claim that Appellant infringed on his moral right.
Relying on Sec. 4a of the Copyright Ordinance, 1924, the Court asserted that the
moral right an author has is that his work undergoes no modification, that which
would be prejudicial to the author's honor or reputation. Avidan did not prove that the
changes done in the Tune by the Appellant were "prejudicial" to his honor.