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Israel: Photographer’s Moral Right over a State-Copyrighted Photograph Recognized

(Aug. 10, 2015) On July 20, 2015, the Jerusalem District Court issued a judgment requiring the payment of compensation to a photographer for violation of his moral right to a historical photograph taken by him during his military service. The photograph that was the subject of the judgment was used without attribution in posters created and published by the defendant in a book and on his Internet site. Both the plaintiff and the defendant are recognized recipients of Israel’s Award for Design. (CC (Jer) 19114-08-13 Michael Tsarfati v. David Tratkover (July 20, 2015), NEVO LEGAL DATABASE (by subscription) (in Hebrew).)

The photograph depicted President Anwar Sadat of Egypt waving goodbye at a military ceremony conducted at Israel’s Ben Gurion airport on November 21, 1977, upon the conclusion of his historic visit to Israel. While the plaintiff admitted that he did not have copyright over the photograph itself, which was taken during his military service as a photographer for an Israel Defense Forces magazine, he asserted that the defendant had violated his moral right to the photograph by neglecting to give the plaintiff attribution in the posters in which the photograph was used. (Id. ¶¶ 4-5.)

Analyzing the circumstances of the case, Judge Rafael Yaakovi opined that photographers of all types, and especially those taking documentary photographs of the kind that is the subject of the current suit, may acquire both a copyright as well as a moral right over their creations. (Id. ¶ 15a.) Yaakovi held that although under section 36 of the Copyright Law (5768-2007, SEFER HAHUKIM [Book of Laws, Israel’s official gazette] 5768 No. 2119, p. 38), the state is the primary owner of a copyright over a creation produced by a state employee, including by a soldier, this does not negate the moral right of the creator in accordance with section 45 of that Law. (CC (Jer) 19114-08-13, ¶ 15b.) According to the Copyright Law, “the moral right is personal and cannot be transferred, and it will remain for the creator even if he/she does not have copyright over the creation… .” (Copyright Law, § 45 (b).)

Yaakovi concluded that the photograph in question is unique in that it was taken at a ceremony that included many photographers. It was selected by the defendant especially because of its uniqueness. (CC (Jer) 19114-08-13, ¶ 15c.) Although the defendant had acquired the right to publish the photograph from the Government Press Office, he was under the obligation to inquire into the identity of the creator and give him proper attribution. Because the defendant violated this obligation, Yaakovi handed down a verdict requiring the defendant to pay the plaintiff compensation as well as legal expenses. (Id. ¶¶ 13 & 18.)