{"id":2393,"date":"2019-07-01T07:21:40","date_gmt":"2019-07-01T07:21:40","guid":{"rendered":"https:\/\/sanlaw.legal\/?p=2393"},"modified":"2019-07-02T19:14:30","modified_gmt":"2019-07-02T19:14:30","slug":"no-surprises-fair-use","status":"publish","type":"post","link":"https:\/\/sanlaw.legal\/he\/no-surprises-fair-use\/","title":{"rendered":"No Surprises & Fair Use"},"content":{"rendered":"\n

Does Eviatar\nBanai\u2019s New Video Clip Infringe Upon Radiohead\u2019s Copyright?<\/strong><\/p>\n\n\n\n

Eviatar\nBanai, one of Israel\u2019s most beloved Israeli singer-songwriters, just released\nhis latest video \u201cRachamim\u201d reflecting his family\u2019s humble beginnings in Israel\nas Iranian immigrants, his life choices and his journey to self-discovery. <\/p>\n\n\n\n

Banai\u2019s\nlyrics as well as visuals pay tribute to his major influences along his journey\nsuch as a homage to Radiohead's \u201cNo Surprises\u201d video clip. In the original 1997\nvideo, taken from the iconic \u201cOk Computer\u201d album, Thom Yorke sings inside a\ndiving helmet while it fills up with water. In \u201cRachamim\u201d\nBanai recreates the same image with himself instead of Yorke. In another homage,\nwe can see Banai as a cartoon character on the set of The Simpsons tv show while\nmentioning \u201cBart & Lisa\u201d in his lyrics. <\/p>\n\n\n\n

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Banai | Rachamim ; Yorke | OK Computer Album <\/figcaption><\/figure>\n\n\n\n

Assuming\nBanai did not receive authorization to include these images in his video would\nthey be considered copyright infringements according to Israeli law? Can\nRadiohead file a lawsuit in Israel and prevail? <\/p>\n\n\n\n

Legal Analysis<\/strong><\/p>\n\n\n\n

Several\npossible causes of action are available to Radiohead under Israeli law: Copyright\ninfringement, the tort of Passing Off and Unjust Enrichment. <\/p>\n\n\n\n

Copyright\nInfringement<\/strong><\/p>\n\n\n\n

Copyright\nlaw<\/strong>\nprotects the fixation of an idea and not the idea itself. Banai takes the main\nconcept of the \u201cNo Surprises\u201d video, but did he also copy the fixation of the\nidea, the expression, which is protected under the scope of copyright law? I\ndoubt it.<\/p>\n\n\n\n

Let\u2019s\nzoom in: through the lyrics, Banai reflects on the way he alienated himself\nfrom his roots and replaced them with Bart and Lisa Simpson, Johnny Depp and\nJuliette Lewis. At this point in the clip, short take offs on Radiohead and The\nSimpsons are shown. From the copyright law point of view, it is important to\nnote that Banai is not copying the Radiohead clip as such but rather reenacts\nit. Banai puts himself in the place of Thom Yorke and sings his own original\nlyrics. <\/p>\n\n\n\n

As\nshown in the images above, Banai clearly copied a specific visual from the\nRadiohead clip. This was clearly done for artistic purposes. This is where the\nFair Use doctrine kicks in. Copyright is not an absolute right. The\nlaw balances the interest of the copyright holder with the interest of the\npublic: freedom of expression, the distribution of ideas and creative work.  <\/p>\n\n\n\n

Can\nBanai\u2019s homage qualify for the Fair Use defense under\nIsraeli copyright law? Banai makes a deliberate artistic choice to visualize his\nlyrics and the influence Radiohead had on him. The purpose of the use, the fact\nthat Banai recreates the visual rather than using it as is, the way he uses\nonly short bits intended to reflect the lyrics and the insignificant impact on\nthe market value of the \u201cNo Surprises\u201d video, may support the\nclaim that Banai\u2019s use of this visual is permitted under the Fair Use doctrine.<\/p>\n\n\n\n

The Tort\nof Passing Off <\/strong><\/p>\n\n\n\n

In\norder to prove Passing Off<\/strong> one must prove goodwill and consumer\nconfusion. Radiohead are one of the most famous bands in the world and in\nIsrael specifically. Israelis love to brag that \u201cCreep\u201d became a major hit\nafter being played over and over by local radio DJ Yoav Kutner in the GLZ radio\nstation. Is the \u201cNo Surprises\u201d video well known in Israel? In my opinion, No\nSurprises is not well known enough to the relevant Israeli audience. I assume\nonly a few music fanatics may recognize the reference, since the visual is only\none of many in the clip and as Radiohead are not even mentioned in the lyrics. <\/p>\n\n\n\n

Consumer\nconfusion is not to be found. No one would mistake Banai\u2019s clip as being of\nRadiohead or connected with them. <\/p>\n\n\n\n

Unjust\nEnrichment<\/strong><\/p>\n\n\n\n

What\nabout unjust enrichment<\/strong>? Plaintiffs will be required to prove that (1) Banai\nwas enriched or otherwise benefited (2) at Radiohead\u2019s expense and (3) without\na lawful right. <\/p>\n\n\n\n

Even\nif one assumes that Banai profits from his clip, it is farfetched to attribute\nthis enrichment in any way to Radiohead. <\/p>\n\n\n\n

Behind\nthe Legal Scenes <\/strong><\/p>\n\n\n\n

Radiohead\u2019s\napproach to the music industry and to copyright enforcement is non-conventional.\nA few weeks ago, Thom Yorke's minidiscs (!) from the \u201cOk Computer\u201d era were\nstolen and ransom was demanded. The group took an unusual step and released for\nsale on the internet the music from these minidiscs. More than 18 hours of\nmusic! I admit that even I did not have the time to listen to it all.<\/p>\n\n\n\n

Radiohead do not hesitate to act against what they see as copyright infringement. A year ago, they approached Lana del Rey after one of her songs was too similar to Creep. Lana del Rey even tweeted that Radiohead's lawyers were relentless in their attitude J. It ended in a settlement. <\/p>\n\n\n\n

Another\nangle: Radiohead's Jonny Greenwood is married to an Israeli born artist and is\nwell familiar with the Israeli music scene. In fact, Israeli musician Dudu Tassa\nopened for Radiohead in their last American tour. I like the idea that Greenwood\nis familiar with Eviatar Banai's work. I believe he may appreciate the tribute.\nWill this affect the decision to take legal actions against Banai? <\/p>\n\n\n\n

Will\nRadiohead take legal action? I guess we\u2019ll need to wait and see\u2026..<\/p>\n\n\n\n

\u201cRachamim\u201d\nvideo by Eviatar Banai & Tamir Muskat. Director: Asaf Korman<\/p>\n\n\n\n

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