For Profit: Shertzer v. Samira and Creative Commons

The District Court’s decision in CA 1055/09 Liat Shertzer-Bar v. Rebecca Samira (see also Haim Ravia‘s summary) is a substantial decision not only under privacy protection laws, but in lex informatica altogether, amongst other things, as it discussed for the first time what is use of a person’s name, nickname, image or voice for profit. The Israeli Privacy Protection Act, prohibits such use in clause 2(6), and the use was materially discussed by the Israeli Supreme Court (for example, see CA 8483/02 Aloniel v. McDonalds), but the question what is considered for profit remained open.

By oversimplification, the facts of the matter are: Liat Shertzer was a guest in a wedding around 2002. Around 2007, she discovered that a photograph from the wedding, where she appeared in the background, appears in a website of a bridal salon. By the magistrate court’s findings (C 47047/07 Shertzer v. Samira), Shertzer appeared in the background, where the bride, wearing the dress designed by the defendant, was in the center. Shertzer petitioned the court for invasion of privacy (Israeli Privacy Laws cover Publicity Rights, unlike other jurisdictions), where the magistrate courts denied her suit, ruling that the plaintiff provided consent by conduct and the lawsuit was to be rejected by the deminimis clause. Upon these findings, Shertzer appealed.

The District court discussed, in brief, two material questions: the first is what is for profit, and the second is the deminimis defense in invasion of privacy. While the second claim was detailed and with detailed court precedents and literature, where the court ruled that not any invasion constitutes compensation and that there are, in cases which the matter is immaterial, to deny a claim under the privacy protection act (and see, in comparison, C (Tel-Aviv) 37759/07 Shochat v. Maarivמ). The idea was to deter false plaintiffs and people who want to gain compensation just because their photograph was in the background of a photo in a newspaper or where a name similar to them was used (and see, for example, C (Jerusalem) 6157/04 Daivd “The Best” Devash v. Adler Homsky).

In contrast, the second question is material, and did not gain the proper discussion in the decision, amongst other things, because it is the first time where this question was raised. The question of when was a profit made by using a person’s name was yet to be answered (and compare C (Haifa) 534-08 Hava Koren Israeli v. Shai Cohen, where the district court accepted that celebrities do not have a right for privacy when using their names under the privacy protection act). The court asserts, clearly, that “in order to assert such damage, the defendant has to show causation between the image where his image appears, and the profit purpose in the use”. Such assertion allows interpretation, for the first time, for a long discussion which was in the copyright field.

On of the most popular licenses in open content is the Creative Commons Attribution Share-Alike Non-Commercial. The license, generally, allows use of other’s works, as longs as three terms are met: (1) proper credit is granted; (2) any work based on the original work must be released under the same terms; and (3) the use of the work would be for non-commercial purposes. The uncertainty of what is “non-commercial” caused a long study about what non-commercial is, which resulted in inconclusive findings. As a result, the question of whether using released under this license in websites, that for example, show advertisements, were unmet. The Shertzer ruling may, at first, provide us with a prism to understand through what does “non-commercial” mean (though there is a difference between non-commercial and for-profit).

The causation requirement is a material and coherent test. Meaning that if I use images for illustration in a website, one cannot prove, distinctly, that there is a statistical and direct connection between such display and my profit from advertisements (even in cases where I use the image in websites that are behind a paywall). Direct profit comes when there is trade in the work, meaning, by trading or by building a business model which results income as a result of using the content.

Therefore, the question of what is non-commercial is a factual and hard one, but does not come from the nature of the user, but from the nature of the use.

[Originally Published in Hebrew]

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