Tel Aviv District Court holds that photos of buildings constitute artistic work and determines ownership based on objective standards
by Jonathan Agmon
The Tel Aviv District Court (Justice Avi Zamir) ruled January 5th, 2011 in the matter between Coral Tel Ltd. v. Bengal Net Ltd. The District Court held that photographs and videos of buildings showing various real estate projects in Israel and taken in a “specific manner requiring originality and investment” were subject to copyright protection as artistic works. This, contrary to buildings located in public areas whose initial photography is not the subject of copyright (See section 23 Copyright Act, 2007).
In addition, the Court held that undertakings in the agreement between the parties relating to confidentiality, the fact that the defendant undertook to have the plaintiff clients sign order forms and received a relative low payment for the services rendered to indicate who was the owner of the copyright in the photos and videos provided by the defendant to the plaintiff. The Court therefore held that there was nothing in the agreement between the parties awarding the rights into the copyright in the photos and videos to the defendant. Since the case was adjudicated for ownership purposes under the 1911 Copyright Ordinance, the court held that the copyright belonged to the Plaintiff. Notably, the Court used the objective purpose of the agreement to further identify ownership in the copyright. The Court stated that “it would be unreasonable that the parties state of mind allowed a situation where te plaintiff will order and funds photos and videos, and immediately after their publication, the defendant, as the provider of the service, will transfer to the plaintiff’s competitors copies thereof, so that they may upload these to competing web sites, while injuring [the plaintiff’s] business interests.”
It is noted that the Coral Tel Court did not provide sufficient indication how the specific manner of taking the photos and videos separated them from buildings located in a public location, whose initial photography is not protected under the Israeli Copyright Act. In addition, it is noted that it was likely the poor drafting of the agreement between the parties which led the Court to explore the objective circumstances surrounding this case to enable the determination as to copyright ownership in the photos and videos. While this case was decided according to the 1911 Copyright Ordinance, the passage of the 2007 Copyright Act would not have eased the burden on the court. The 2007 Act now provides that “[i]n a work made for hire, the first owner of the copyright therein, in whole or in part, shall be the author, unless it was otherwise agreed upon by the parties, expressly or impliedly.” (See Section 35(a)) This new language will allow the courts greater flexibility in finding who the owner of the copyright is. At present there are no guiding cases on the matter and the list of tests to be used by the courts is yet unknown. Practicing attorneys will have to take additional care when drafting agreements relating to work for hire and specifically address the ownership issue.