Over the past few months rulings have been handed down that indicate tendency of courts to rigorously enforce moral rights of creators by awarding monetary compensation on a scale of hundreds of thousands of shekels for violating this right.
In a case known as Dotan Israel v. Twist Animation Ltd. the author’s name, Dotan Israel, was removed from a list of multimedia creators credited for an animated series broadcast on YouTube. Dotan created a composition used in the introduction and ending of the animated series intended for children aged two-to-three, and further made an adaptation for three musical compositions used in the series. The series aired on YouTube in English, Russian, Japanese, Chinese, French, Italian, Arabic, Turkish, Spanish, Thai, German and Portuguese.
According to the agreement between the creator and the producers, copyrights in the works were transferred to the producers, but the producers were obligated to give the creator credit in each episode to the degree and extent appropriate under the circumstances.
At first the creator’s name was listed during the credits at the end of each episode of the series, but at a certain point the producers removed the creator’s credit and it after the creator had drawn it to their attention the credit was re-installed, although in a different format – by adding a “tag” (a pop-up) on the animated videos, not as an integral part of them.
The court held that by refraining to assign credit in the original format, as an integral part of the videos, the producers failed to meet the conditions of granting credit “to the degree and extent appropriate under the circumstances” since, in the amended format, the credit appeared in such a way that the viewer could remove it.
As such, the court ruled that the creator’s moral right had been violated, and examined the question of damages . In this case the creator chose not to prove its damages and demanded compensation without proof of damages in accordance with Israeli copyright law, which sets a limit of ILS 100,000 on such restitution.
The court held that as a result of violation of its moral right the claimant would receive compensation on the scale of the maximum amount permissible by law – ILS 400,000 on four counts: violation of its moral right to receive credit for being a creator of the musical composition of the opening tune, and for each infringement of its right as the arranger of the musical compositions heard in the series (three compositions). In addition, the claimant was awarded ILS 400,000 in compensation for the economic right in its works after the defendants had resumed using the creator’s musical works even though it had sent a notice of termination of the agreement responsible for transferring the rights of its works over to them.
A compensation in the maximum amount of ILS 100,000 for breach of each moral right is considered high, since typically such compensations do not exceed a few thousand shekels.
The reasons for such sizeable amount of damages may be inferred from the considerations the court took into account: (1) actual contribution of the musical compositions to the series – it was established that each episode in the animated series lasted about three minutes with two of its main components being the animation and the music accompanying each video, where the video has no text other than the repeated musical lyrics in each video; (2) the wide viewership of the series – it was determined that the credit was removed from 260 episodes in the series, which were broadcast on 12 channels and in various languages, where the series got over a billion views; (3) the defendants’ good faith – the court was inclined not to accept the defendants’ claim that the credit’s omission was made unintentionally.
Also, the district court reinforced the Supreme Court’s ruling handed down at the beginning of the year in Sharir v. Nirit Seeds Ltd., where a creator’s moral right was based on the credit received for its works and where the court held that violation of a moral right is tantamount to infringement of a copyright. The case concerned a famous picture of then-defense minister Amir Peretz looking through a pair of binoculars with their caps on attempting to observe a military exercise. The picture was published as part of an advertisement of a seed development company titled “What he saw with closed binoculars you did not see with open eyes,” without credit given. Following various proceedings between the parties before the magistrates’ court and the district court, the matter was brought before the Supreme Court, which ruled that there is indeed difficulty in the district court’s ruling that the creator’s moral right to receive credit had been violated since he had not received any compensatory damages for the infringement. The Supreme Court in said case emphasized the value of moral rights and ruled that giving credit to a creator for his works is important “not only for respecting the connection between him and his work but also because it acts as a propellant in building his reputation and his future earnings”. It was also observed that a particular practice in the advertising industry not to give credit to a creator in certain instances, to the extent such practice exists, does not deny the creators’ moral right in their works. However, as to the compensatory amount for the violation, the Supreme Court recommended that the parties agree to a symbolic payment of only ILS 1800.
The district court’s ruling, and the large amount of compensation awarded in it is indeed unusual; it would be interesting to see how and whether this ruling will impact damages awarded for violations of moral rights in future cases.