Tel Aviv Magistrates Court Awards Damages to Copyright Infringement
by Jonathan Agmon
On 31 January 2011 the Tel Aviv Magistrate Court (Judge Avigail Cohen) handed down a decision relating to Copyright and Passing off. The Court awarded NIS9,000 (USD2,400) for copyright infringement of a single picture. The case was brought by Jacov Niv Katzav against Hatum Hatum. The plaintiff, a hair dresser, alleged the defendant, took without permission a single picture from his catalogue. The defendant used the picture in his own publications for medical services, did not know the plaintiff when he used the picture, and removed the picture after receiving notice from the plaintiff. The picture was in use for several days only.
On the issue of copyright the court ruled that the defendant, when taking the picture should have known a third party had copyright over it. The court affirms that a subjective belief that the picture is not protected is insufficient even though the defendant received the picture without the catalog. The court states that the defendant should have shown that he had no reasonable foundation to suspect that there was copyright in the picture. This, the defendant failed to do. Moreover, the court adds that the use by the defendant was commercial in nature and no steps were taken to verify who the copyright owner is.
On the issue of passing off the court found that barring evidence of reputation, the passing off tort could not be shown to exist in this case.
Finally, as to damages, the court applies section 56 of the new Copyright Act which allows the court to award up to NIS100,000 (USD27,000) for each infringement. The court states that since the scale of infringement is small, the publication was only for a few days. The publication was in a local north area Internet site, while the business of the plaintiff is in Tel Aviv. The parties are not competitors. The award was therefore set to less than 10% of the maximum award to NIS9,000 (USD2,400).
This is one of the few cases where the Magistrate Court hears an IP dispute. Most of the IP disputes in Israel would be heard by the District Courts since an injunctive remedy is sought.