A procedure discussed at the Magistrate’s Court in Tel Aviv, before Judge Gad Mina. On 05/17/23 the verdict was given.
The parties: Plaintiff: Nathalie Homai; Defendant: Claudia Cohen.
The plaintiff is the owner of, among other things, a laser hair removal business. The plaintiff offers hair removal treatments using a “Venus” device.
The defendant owns a nail and laser hair removal business.
The facts: The plaintiff published several marketing publications on social networks in order to market the treatments she offers.
In April 2012, the defendant purchased a hair removal device from the “Venus” company. The representative of the Venus company drew the defendant’s attention to one of the plaintiff’s advertisements on social networks in connection with hair removal using the device of the “Venus” company.
After that, the defendant published publications on its behalf that are almost a complete copy of the plaintiff’s publications.
After sending a warning letter, the defendant removed the publications.
The plaintiff claimed that her publications constitute a literary work protected under the Copyright Law and that the copied publications constitute a blatant violation of Sections 11, 47(a) and 48(a) of the Copyright Law.
The plaintiff petitioned for financial compensation, without proof of damage, in the amount of 100,000 NIS by virtue of Section 65(a) of the Copyright Law, as well as any other remedy that the court deems correct and just under the circumstances of the matter.
The results of the procedure: the claim was dismissed. The court ordered the plaintiff to pay the defendant expenses and attorney’s fees in the total amount of NIS 10,000. In ruling on this amount, the court took into account, among other things, that no evidentiary hearing was held in the case, but on the other hand, two pre-trial meetings were held, affidavits of primary testimony and summaries were submitted.
Key points discussed in the procedure:
Copyright in advertising content
Section 4 of the Copyright Law establishes a closed list of works in which there is a copyright: “(a) Copyright shall be in these works: “(1) an original work which is a literary work, an artistic work, a dramatic work or a musical work, fixed in some form; (2) a record; Provided that one of the conditions stipulated in section 8 has been met with respect to the said works or that they have a copyright by virtue of an order according to section 9. (b) For the purposes of subsection (a), the originality of a compilation is the originality in the selection and arrangement of the works or the data in it.”
Section 1 of the law defines what a literary work is: “a literary work – including a work expressed in writing, a lecture, a table, a compilation, as well as a computer program.”
The plaintiff claimed that the publications constitute a literary work. The court explained that it was not clear from the plaintiff’s summaries whether she focused her claim only on a literary work of the “collection” type or also on a “written” work. Although the main claim of the plaintiff is for a “collection” type work, the court assumed that the claim is for both types of works.
An original work
Section 4(a)(1) of the Copyright Law states that a condition for copyright is that the work is “original”. The law does not define what originality is. In the ruling, three sub-components were formulated for proving originality: the source test, the investment test and the creativity test, when there is no one component alone for the purpose of proving originality.
The source test – this test requires that the origin of the work be in the creator and not in the work of another person.
The investment test – a large amount of investment in the creation is not required, but only a minimal investment of some human resource – time, effort, talent, money, knowledge, judgment, development, pain or personal taste… It is required that the creator’s investment pass a certain minimum, but this minimum is low Very much (A.A. 513/89 S/interlego a v. lines bros. S.a-exin P.D. Mah(4) 133, 173 (1994))
The creativity test – a degree of creativity is required on the part of the creator – leaving some mark, even if minimal. The work must be “the fruit of the spiritual labor of the creator” and reflect at the very least “a very low level of personal expression”. The creativity test does not focus on the finished product, but rather on the process of its preparation, and examines the degree of creativity of the author or collector in his work in its formative stages. That is, even if the final work is completely identical to another protected work or does not indicate any creativity or investment, it may be protected due to the contribution of the creator in the process of its formation (A.A. 8485/08 The FA Premier League Limited v. The Council for the Settlement of Betting in Sports (published Benevo, 14.3.10)). The work must reflect some kind of intellectual contribution of the creator. In the latest rulings, there is a trend to give great weight to creativity over the investment (Tamir Afori “Copyright Law 2012” on p. 95).
The investment test and the creativity test are cumulative and both must be met, although usually the decisive test is the creativity test because the investment test does not usually cause difficulties.
When it comes to a collection, as in this matter, Section 4(b) of the Copyright Law states that “the originality of a collection is the originality in the selection and arrangement of the works or the data in it”.
The investment and creativity tests examine two main characteristics in literary works of the collection type: the way the data is selected in the work and alternatively the way they are arranged and designed in it (Premier League matter).
Also, in the Premier League matter, the court examined whether the creator-collector performed any data filtering, whether the filtering reflects an actual expression of the spirit of the author-collector and whether the information is arranged in a trivial way.
In literary works of the collection type, the protection provided according to Section 4(b) of the copyright law is not for the content of the collection (which can also be considered public domain), but for the way it is presented.
The court made a comment regarding the evolution of the plaintiff’s claims. In the statement of claim, the plaintiff attributed to herself the writing of the publications. In the statement of defense, the defendant claimed that at least some of the publications are a copy from the brochure of the “Venus” company and that the rest of the text and/or signs in the publications is standard and not creative and appears in many other publications of third parties.
In the affidavit, the plaintiff attributed to herself a uniform writing style characterized by short sentences and the use of signs. She claimed that in order to write the text she went through the brochure of the “Venus” company and found out the relevant information which she formulated in her own words while adding new text. In other words, the plaintiff shifted the emphasis from the writing of the publications, to the use of signs and selection of information from the “Venus” company’s brochure, this, apparently, due to the thickness of the claims made in the defense.
In the summaries on her behalf, the plaintiff cheapened most of her claims by being a collector.
The court explained that in its opinion there is a flaw in the way the plaintiff presented the facts in the statement of claim when an attempt was allegedly made to create a presentation as if the publications were originally written by the plaintiff, when it turned out that the part concerning the treatment was copied from the brochure of the “Venus” company.
After the court examined the claims of the parties and the publications, it determined that the publications do not meet the requirement of originality due to failure to meet the sub-tests of creativity and originality.
It was ruled that there is no personal seal of the plaintiff in the publications, the publications do not express the fruit of any spiritual labor, the process of their preparation (even if it required an investment) does not amount to creativity and is not minimal and the publications do not contain an intellectual contribution by the plaintiff. The publications include standard factual information copied from the brochure of the “Venus” company and standard marketing sentences, which lack any creativity and are used by many third parties. The design of the publications, including the structure, the arrangement, the use of signs and short sentences, is also standardized, as was proven when similar publications with the exact same characteristics were presented. In any case, the design and structure do not express a creative contribution of the plaintiff as a collector in the way the data is selected or in the way they are arranged or designed.
The investment test – the plaintiff claimed that in order to write the text, she went through the brochure she received from the “Venus” company, which contains various explanations about the “Venus” device. She claimed that she read the entire brochure and then found out the information relevant to her clinic and the services it offers and formulated it in her own words while adding new text. The court explained that although it is not necessarily an accurate statement (in the context of the rewording claim), the investment test can be easily passed due to the low standard it sets before the claimant that his work is protected. In this case the investment test is met because it is clear that the plaintiff required a certain investment in order to prepare the publications. The defendant also did not claim otherwise in her summaries and focused her claims on the non-compliance of the creativity test and the source test.
The creativity test – the plaintiff claimed that she usually keeps a uniform writing style in the posts she uploads, which is characterized, among other things, by short sentences and different markings at the beginning or end of the sentence (for example) to attract the eyes of the surfers. She claimed that she chose to use the marks that characterize her writing such as a green “V”, a blue arrow and a prominent red exclamation point (the marks). She also stated that she wrote tags such as “#laser hair removal” to market her publications in a better way.
The court explained that first, the content of the publications were not the product of the plaintiff’s imagination. The plaintiff admitted that she found out from the brochure the relevant content for her for the publications. That is, the content of the publications was originally written by the manufacturer (“Venus” company) and copied by the plaintiff. The part where the plaintiff describes “how the technology works” is an exact copy of text from the “Venus” brochure.
Sentences like “with the approval of the Ministry of Health” or the type of devices the device has are factual data from the “Venus” brochure. Superlatives such as “amazing results from the very first treatment” or “warm and humane treatment” are common phrases in many publications in the field, as proven in the appendices that the defendant attached to the affidavit.
The way the publications are designed, including their overall structure and the use of signs (“green V”, “blue arrow” and “red exclamation mark”) is a common issue in the field and does not involve creativity, even minimal, on the part of the plaintiff. In the affidavit, the plaintiff attributed to herself the use of those signs and narrow sentences as something that characterizes her writing. It turned out that this is a standard way of writing and design used by many third parties in the field.
The labels used by the plaintiff are also standard. There is no creativity or personal expression in tags. Also, not all the labels in the plaintiff’s publications appear in the copied publications, and it can be seen that the copied publications contain additional labels that do not appear in the plaintiff’s publications.
The plaintiff claimed that even if there are similar posts in the field of cosmetics that are constructed in the same conceptual way (symbols at the beginning/end of a sentence and “hashtags”), they do not disqualify the plaintiff’s creativity and personal expression in the publications. She claimed that a review of the publications attached by the defendant shows that there is not a single post that is “one for one” identical to the plaintiff’s posts. The court explained that the fact that there is no publication that is identical “one to one” to the plaintiff’s publications, does not require the conclusion that the plaintiff passed the creativity test. A distinction must be made between the investment made in the preparation of the publications and the creativity test which is not met in the court’s opinion. There is no personal expression of the plaintiff’s creativity in the publications, neither in the writing nor in the collection of the data from the “Venus” brochure nor in the overall whole. The selection of data from the booklet is not creative. These are simple copied facts. The fact that there are many similar publications shows that the plaintiff’s publications do not have a personal stamp of the plaintiff or an intellectual contribution on her part, even at the minimal level.
Also, the plaintiff did not present an opinion on her behalf that supports the claim of creativity on her part. She also did not point to a specific phrase or one or another word sequence that she created and which reflects creativity on her part, and not minimal.
The court explained that it is not enough that it is a copy to establish a claim under copyright law. Copyright infringement refers to a protected work and not to any work, regardless of its quality and scope. That is, it is a matter of measure. There may be cases in which a certain form of language will be protected, but the uniqueness that results from the effort and investment of the author must be proven in RA (BS) 682/07 Erez Herrnstadt v. Hulit Sior Mebari Ltd. (published in Nevo, 7/22/08)) .
In light of the above, the court ruled that the creativity test is not met in this matter.
The source test – The source test requires that the source of the work be in the creator and not in another work. The court explained that at least part of the publications is a copy from the brochure of the “Venus” company, while the other parts are standard and do not originate with the plaintiff – nor the way they are arranged and designed.
In light of the above, the court ruled that the tests of creativity and originality are not met. The forums do not meet the requirement of originality and do not constitute a “literary work” as defined in the copyright law. Therefore the claim was dismissed. The court explained that it is possible that the dismissal of the claim may cause some discomfort when the defendant did copy almost completely the publications. But copyright law does not prohibit any copying but only copying that violates copyright.
Innocent infringer protection
More than necessary, the court referred to the defendant’s claim that even if it is a work, it is considered an innocent infringer and therefore should not be charged with damages. The court noted that apparently, under the circumstances of this case and in the absence of a factual investigation, the defendant allegedly established this defense.
Section 58 of the Copyright Law states: “A copyright or moral right has been violated, but the infringer did not know and should not have known, at the time of the violation, that there is a copyright in the work, shall not be required to pay compensation due to the violation.” The court explained that although this is a defense that will be accepted in exceptional cases and the burden of proof lies with the infringer, but as claimed in the defendant’s affidavit regarding the reference to the Venus company’s publications, in light of the fact that no attempt was made to obscure the petition and in light of the removal of the publications near the plaintiff’s application, and bearing in mind that the defendant’s claims were not hidden, it seems that the defendant allegedly established this defense. The claims made by the plaintiff in her summaries in connection with this claim did not seemingly waive the defense of the defendant.
