Amir Weinberg v. Eliezer Weishoff, Civ. App. 7774/09 (Sup. Ct. Jer.) [28 August
2012]
Facts and Overview.
Respondent, a well known Israeli artist and sculpture, was hired by the Royal
Norwegian Mint to create a medal carrying a portrait of the late Prime Minister
Yitzchak Rabin ("the Medal"). To accomplish this, Leah Rabin, wife of Yitzchak
Rabin, gave Respondent a picture of Yitzchak Rabin that was photographed by
Appellant in 1991 ("the Picture") and Respondent designed and created the medal
based on the Picture.
Appellant brought suit against Respondent for, inter alia, breach of copyright of the
Picture. The Magistrate Court ruled in favor on Appellant and Respondent timely
appealed to the District Court which overturned Magistrate Court's decision,
concluding that the scope of protection given to documentary photography is limited
much more than fine-art photography. District Court found that a photographer of a
documentary photograph can not claim rights to the subject of the portrait and
therefore Respondent did not violate any copyrights of Appellant.
Appellant moved for appeal to the Supreme Court and was granted permission.
Decision of the Supreme Court, Delivered by Rivlin, J.
Court overturned District Court's decision and upheld that of the Magistrate Court,
with certain revisions.
Court found that a documentary photography falls with in the gambit of copyright law
in general and, specifically, the Copyright Law, 1911, which recognizes the
copyrights of the photographer in his picture. Sec. 35(1) of the Copyright Law, 1911.
Court concludes that a documentary photograph fulfills the two conditions that merit
protection, originality and creativity. The choice of the lens to use, the angle, the
subject, the timing, and the place all constitute originality and creativity of the artist.
In addition, as a matter of judicial and public policy, society has an interest in
protecting the rights of documentary photography as an incentive for photographers
and artists alike to continue to develop their works.
As for District Court's distinction between documentary photography and fine-art
photography, Court cites U.S. Circuit Judge Richard Posner in Gracen writing
"Judges can make fools of themselves pronouncing on aesthetic matters". Gracen v.
Bradford Exch., 698 F.2d. 300, 304 (7th Cir. 1983).
After concluding that documentary photography merits copyright protection, Court
moves on to determine what constitutes a breach of that right, namely has there been a
proper "copy". Court finds that copying a substantial part of a work will constitute a
breach ("Substantial Copying"). Relying on Almagor, Court finds that Substantial
Copying may be determined either by circumstantial evidence, such as the actual
exposure of the "copier" to the work of art, or by the similarities between the two
pieces of art. Almagor v. Gudik, Civ. App. 559/69, PD 24(1) 825, 830 (1970). Court
clarifies that the copyright protects the Picture, not the actual event or circumstances
of the taking of the Picture. The photographer has no monopoly on the original source
of a picture. Quoting U.S. Supreme Court Justice Holmes in Bleistein, Court sums up
this point by saying "Others are free to copy the original, they are not free to copy the
copy". Bleistein v. Donaldson Lithographing Company, 118 U.S. 239, 250 (1903).
Court determines that the Medal is substantially identical to the Picture and hence
violates the copyrights of Appellant, while giving weight to the fact that Respondent
was exposed to the Picture.
Regarding the violation of the moral rights of the Appellant, Court found that
Respondent violated the Appellant's right to attribution while reversing Magistrate
Court's opinion that Respondent violated Appellant's right to the integrity of the
Picture. Sec. 4a of the Copyright Ordinance, 1924, stipulates that:
(1)
an author has the right that his work is attributed to his name […]
(2)
an author has the right that his work undergoes no distortion,
mutilation or any other modification or other derogatory action in
relation to the said work which would prejudicial to the author's honor
or reputation ("Sub-Section 2 Moral Right").
Court rules, setting down interpretive precedent, that "prejudicial to the author's honor
or reputation" applies to the whole sub-section 2, including "any other modification".
In other words, in order to violate a Sub-Section 2 Moral Right, the modification must
be "prejudicial to the author's honor or reputation". Therefore, as in the present case,
Respondent violated Appellant's right to attribution but, as there was no prejudice "to
the author's honor or reputation". Court mentions that this interpretation is not an
issue in the new Israeli law, the Copyright Law, 5768-1997 as sec. 46 of that
legislation clearly requires a "modification" to entail damage to the author's honor or
reputation.