Moral Rights in Israel
By Tony Greenman, attorney at law
Israel’s Copyright Act grants moral rights to authors of works, other than computer programs and phonograms. Moral rights are personal rights which vest in the author. They may not be assigned, although they may be waived. Even in cases where copyright vests initially in a person other than the author, such as in the case of works created in an employer-employee relationship, the moral rights in the work will vest in the author and will not belong to the copyright owner.
Israel recognizes two moral rights namely, the right of attribution and the right of integrity.
The right of attribution ensures the right of the author that his name will appear on his work to the extent and in a manner befitting the circumstances. Many courts have addressed this right, which is seen as an extension of the recognition in Pirkei Avot (“the Chapters of the Fathers”) that he who speaks in the name of speaker brings redemption the world. In the leading “Dead Sea Scrolls” case, the Supreme Court held that reference to “a colleague” without mention of his name was completely insufficient and could not be considered a discharge of the duty to credit the author. Under the former Copyright Ordinance, attribution needed to be given in the “customary extent and manner.” Under that standard, a court had held that it was not an infringement where a photographer's name was not mentioned in an advertisement incorporating one of his photographs, since it was not customary to grant credit to an author in that field. Another court ruled that there was no obligation to accord attribution to the author of a purely functional work. The new standard enables courts to disregard unworthy customs. Credit will generally be required when quoting from a work. Courts have also required attribution in publications connected to the work, such as posters and programs.
The right of integrity is defined as the right of the author to prevent mutilation or distortion of his work, or any other change in form or derogatory act in relation to it, but only if any of these acts are prejudicial to his honor or reputation. The courts have held that the question of whether a particular act is prejudicial to an author's honor or reputation will be examined objectively, the question being whether the act detracts from, obscures, or impairs the creative elements or characteristics of the work.
Infringements of the right of integrity have been found in the making substantial changes in an architectural work, distortion of the lyrics of a song, negligent printing and publishing of a literary work, playing of a musical work out of tempo, destruction of a work, omitting substantial parts of a work in a purportedly complete reproduction, publishing a work in an out-of-context manner as part of an extreme political manifesto which was repugnant to the author and using a work, not intended for that purpose, in a commercial advertisement.
The right of integrity will not be considered infringed if the act complained of was reasonable under the circumstances. In assessing the reasonableness of an act, the court may consider, inter alia, the character of the work in respect of which the act was done, the nature of the act and its purpose, the fact (if applicable) that the work was made by an employee in the course of his employment or under a commission, the custom in the relevant field and the need for performing the act as weighed against the harm caused to the author as a result thereof. One court has held it reasonable for an artist to digitally manipulate an existing work of art in the course of creating another work based on that existing work, that eventually left no remnant of the former work. The court held that the new work was transformative and that artists through time, such as Manet and Duchamp had employed such techniques. In another case, the court held that the right of integrity of an architect in an architectural work was not infringed where the owner of the building added an additional floor, which employed a different style of architecture, created by a second architect. The court did, however, order the defendant to place a plaque on the building showing which parts of it were designed by the original architect, and which were added by the second architect. Another court held that the right of integrity of a typeface designer was not infringed where a graphic studio used letters from two different typefaces in writing text which was to appear on a television screen. The studio claimed that this had been done in order to ensure that the text would be readable on the screen and the court considered this reasonable in light of the functional purpose of the typeface.
Indirect infringement of the right of integrity is also actionable, if, with actual or constructive knowledge of the infringement, one deals in a copy of a work which infringes the right of integrity, either by sale or lease, including an offer for sale or lease, possession for commercial purposes, distribution on a commercial scale or exhibition in public in a commercial manner.
Moral rights exist for as long as the work is protected by copyright and expire when the copyright on the work expires. The moral rights of a deceased author may be enforced by his immediate family members.
Remedies for infringement of moral rights include statutory damages in the sum of up to ILS 100,000 per infringement, as well as an injunction.