The author's right of attribution, namely that the work will bear a designation of the author's name, constitutes part of the author’s moral right in the work. Courts in recent years have deliberated on the question of whether the said right is absolute or may sometimes be ignored, depending on industry practice for each field. Indeed, for various advertisers/publishers, including newspapers, websites, advertising agencies and so on ,this question is one of great importance with respect to planning for the future.
A ruling recently handed down by a district court in Nazareth held that an author’s right to have his name designated on its published work is an absolute right, noting that application of the right may vary depending on, among others, the scope and extent of the publication; in other words, proof of market practice and custom cannot veer from the author’s moral right to attribution, but can at most affect the amount of damages awarded.
The photograph that has repeatedly come up in various instances and courts is the famous picture of Mr. Amir Peretz, Israel’s defense minister at the time, who was photographed holding binoculars with the lenses covered. The photograph gained much attraction and was even the subject of several legal proceedings, the outcomes of which varied widely based on the use and the context the photograph was used in.
The recent ruling of the Nazareth district court was issued in an appeal filed in the matter of Sharir v. Nirit Zeraim Ltd. It was held that a commercial entity using this photograph for an advertisement for purposes related to its business constitutes infringement of the photographer’s moral right of attribution. In this case Nirit Zeraim released a one-time advertisement in the Haaretz newspaper where the photograph was used without indicating the photographer’s name and alongside a banner saying: What he saw with closed binoculars, you did not see with open eyes. Nirit Zeraim, Nativ Haasara. The court held that not attributing the work to the photographer amounted to infringement of his moral right and that an accepted practice of not identifying the creator in published ads does not deny the photographer's moral right set forth by the law, a right which cannot be sacrificed as a result of this or that practice.
This ruling reversed the magistrates’ court decision, holding that failure to attribute did not give rise to infringement of a moral right in light of the ‘practice,’ since it was proven that it was not customary to attribute a work to a photographer in cases where a photograph was used in limited scope in a published ad. Interestingly, both the magistrates’ court and the district court did not award the photographer damages on the specific ground that it was a one-time advertisement and the fact that the photographer did not claim damages.
Notably, the Nazareth district court’s ruling, which did not take into account industry practice in respect of infringement of moral rights, does not align with the Central District Court’s ruling in Maariv v. TheMarker that examined the existing custom or practice of industry in order to decide whether the defendant could be excused from the obligation to assign a credit. In said case it was eventually ruled in favor of the plaintiff due to defendant's failure to prove a custom or practice, and held that as a rule attribution ought to be accorded to the author, aside from exceptional cases where attribution would be unreasonable and improper based on industry practice.
In another case relating to the Peretz photograph where the exact same photograph of Amir Peretz was used and where the author was not identified, the court held that the party using the photograph was obligated to pay ILS 14,000 to the photographer due to infringement of moral rights. In said case known as Sharir v. Meretz (Political) Party, the photographer filed suit against Meretz due to its using the photograph without attribution in violation of the photographer's rights, as the Meretz party used the photograph in a political setting, i.e. electioneering, cutting part of the photograph and combining it with a photograph of political images in one of its election posters. It was held that by using the picture to advance political messages of the party’s election campaign without mentioning the author’s name, Meretz has violated not only the parenthood rights but also the photographer’s right that the integrity of the work and the author's reputation be safeguarded, which is another prong of the so-called " moral right".
The Amir Peretz covered binoculars photograph starred in yet another suit brought by the active photographer, who complained that the website Walla! failed to assign him a credit in a post of that included a collage composed of the photograph in conjunction with a screenshot taken from a Lebanese electronic newspaper, without attributing it to the photographer. The court examined the industry practice and held that Walla! did not meet the burden resting on it to prove existence of a customary practice among the media.
From the above cases it can be seen that different courts have discussed in various ways the use of the exact same picture without attribution to its author, with some examining the market practice/custom to determine whether a moral right has been violated or not, and others holding that this is an absolute right that is in no way affected by industry practice. Businesses would be well advised to make sure that photographs they use would include a credit assigned to the author.