No Copyright Protection for an Idea in a Play (The Supreme Court of Israel)

A Supreme Court of Israel appeal and Cross-Appeal against the Judgment of the Tel Aviv-Yafo District Court dated January 1, 2017 in TA 61624-12-13 delivered by Honorable Judge Dr. D.Avnieli.

The proceeding was heard before a panel of the Supreme Court composed of:

  • Justice Neal Hendel
  • Justice Daphne Barak-Erez
  • Justice George Kara

Judgment was delivered on November 11, 2018.


  • Appellant and Respondent in the Cross-Appeal: Ron Guetta
  • Respondent 1 and Appellant in the Cross-Appeal: Hillel Mittelpunkt
  • Respondent 2 in the Appeal and the Cross-Appeal: Beit Lessin Theater in Dizengoff


The case concerns two plays. One play was written by the Appellant (Ron Guetta) and the other play was written by Respondent 1 (Hillel Mittelpunkt). The Appellant claims that the play written by the Respondent is nothing more than a copy of his play, written in violation of his copyrights. The Respondent denies the Appellant’s claims.

Judgment of the District Court:

The District Court dismissed the Appellant’s claim. The main reason given was that, beyond the fact that both plays revolve around a real estate scam and that both have a villain character, the plays are very different from each other, a fact which in itself leads to the dismissal of the claim. The claim was also dismissed on other grounds, such as the extent of the Respondent’s access to the Appellant’s work or the question of which play was written first, the Appellant’s or the Respondent’s.

In addition to dismissing the Appellant’s claim, the District Court accepted the cross-claim filed by the Respondent on the grounds of defamation. It was determined that two letters sent by the Appellant to the CEO and artistic director of the theater that staged the Respondent’s play, and to the chairman of the theater’s public administration, as well as oral allegations made to another representative of the theater, amounted to defamation. The content of the letters and the complaint was essentially the same – accusing the Respondent of stealing the play written by the Appellant and violating his copyrights. In the circumstances of the case, the District Court awarded the Respondent the sum of NIS 10,000.

Outcome of the Proceedings:

  • The appeal was dismissed on the grounds of copyright infringement.
  • The appeal was accepted on the grounds of defamation.
  • The Supreme Court overturned the financial charges imposed on the Appellant by the District Court (including damages, attorney’s fees and legal expenses).
  • The cross-appeal was dismissed in its entirety.
  • No costs were awarded in the current proceeding.

Key Points Discussed in the Proceedings:

Ideas are not protected by copyright.

The Supreme Court clarifies that a general rule is that ideas, in and of themselves, are not protected by copyright. Protection is granted only to the specific expression of an idea.

Justice Hendel, in his colorful language, states that an idea is like air, which everyone in the world is free to breathe.

The recognition of the freedom of ideas is a recognition of the freedom of imagination. This freedom is contrary to the concept of property and ownership, including intellectual property. The freedom of imagination and ideas makes them part of the public domain, and anyone who wants to take them can do so. On the other hand, the right to property expresses the exclusion of the public from the individual’s asset.

It was ruled that since the freedom of ideas is desirable for the benefit of the entire public, the basic rule is that a beautiful idea in itself does not give “ownership” over it:

“Granting protection to the creative expression of an idea in a work can reduce the maneuvering space of future creators who are denied the ability to use the expression of protected ideas. Granting copyright too broadly reduces the basis and foundations for future works, and the reward for granting the right may come at a loss” (CA 2392/99 Asherz Data Processing Ltd. v. Transbeton Ltd., PD 57(5) 255 (2003)).

A person’s ability to access reality and arrange it according to ideas, thoughts, and imagination is perhaps his most prominent characteristic.

Paradoxically, it is precisely because these abilities are at the basis of human freedom as such that they are not suitable in their pure and abstract form for the laws of ownership and property.

Distinguishing Between Idea and Expression

The Supreme Court ruled that the distinction between idea and expression is not a clear one. In its purest form, an idea belongs to the Platonic world of ideas, not to the human world of law. In our world, every idea is dressed, to a greater or lesser extent, in some kind of practical garb. The soul and the body, if you will. Therefore, the question is to what extent the similarity between the works is a matter of an abstract idea, and to what extent the similarity also includes practical elements of the way in which the idea is expressed.

Intermediate situations can raise difficult questions and require different tests in order to determine whether an idea has been copied or its practical expression.

In order to draw the line between an idea and its expression, several auxiliary tests have been proposed in Israel and around the world, such as the test of the level of abstraction of the idea or the test of the original addition.

Despite the difficulty, there is no escape from the fact that the court will still try to draw a line between idea and expression in relation to the specific case. However, in practice, not every case requires this. There are also clear cases in which all the tests proposed lead to the same result. Sometimes the similarity between the work and the later work is on specific and deep levels.

In other cases – and the Supreme Court states that this is the case before us – there is no need for clear tests to see that there is no practical similarity between the two works, but at most there is a certain conceptual similarity between them.

Justice Hendel added that as a matter of judicial policy, it is appropriate for the court not to be overly involved in such subtleties as those presented by the appellant, except when the matter is prominent and lies not only in the soul of the work but also in the body of the work. Creating a separation between law and the creative fields is undesirable. However, the court would do well to distance itself from “over-judgment” in this matter, as if it were its natural domain.

The Supreme Court accepted the conclusion and ruling of the District Court. It was ruled that the play written by the appellant does not close the door to works of the type of the respondent’s play, and therefore it is not a copy that infringes the appellant’s copyrights.

Defamation in Judicial Proceedings

Regarding the appeal against the finding that the appellant had published defamation:

It was ruled that according to Section 13(5) of the Defamation Law, 1965, a publication made by a party to a judicial proceeding is not a ground for a defamation claim.

The interpretation given to this section in case law is that the protection from a claim applies to all stages of the legal process, including steps taken towards its initiation, such as warning letters (CA 364/73 Zaidman v. State of Israel, PD 28(2) 620, 624 (1974); RCA 43/11 Harem v. Zaks [Published in Nevo] (08/28/2011)).

In our case, we were not dealing with formal “warning letters”, but a review of the letters sent by the appellant and the content of what he said shows that these were steps taken before filing a lawsuit.

Indeed, when it comes to letters sent before a legal proceeding, and which are not “official” warning letters, their classification in terms of defamation law may vary depending on the case and the circumstances.

Factors that are important include, among others, the number of letters sent, their content, and the identity of the recipient.

In this case, there were only three recipients, all of whom held key positions in the theater.

The content of the letters was relatively factual, and presented factual claims – the same factual claims that were later raised in the statement of claim.

In these circumstances, and in light of the entire legal process, the Supreme Court held that the letters written and the statements made by the appellant should be seen as part of the legal process in its broad sense.

If not, it would undermine the possibility of resolving disputes before going to court, a situation that is undesirable and not in line with the trend of trying to resolve civil disputes outside the courtroom whenever possible.

On the other hand, it should be emphasized that in cases such as the one before us, the examination is individual. The above does not give a free hand to publish degrading or humiliating publications as long as a civil claim is filed later.

Therefore, it was ruled that the respondent’s claim for defamation should be dismissed.


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