Israel: Proving Plagiarism Of A Play Is To Be Done From A Distance

Last Updated: 16 January 2019
Article by Jonathan Agmon
Most Read Contributor in Israel, February 2019

You've enjoyed a night at the theater but are left with a nagging feeling that some of the concepts are similar to a different play or movie you've seen. Perhaps both play and movie share a basic idea or common characters, nevertheless, you're left wondering if you have just watched a plagiarized or an original work of art? When would a theatrical play be considered an infringement of another similar play under Copyright law? These are the questions brought before the Israeli Supreme Court in CA 7517/17 Gueta vs. Mittelpunkt and others.

Gueta, a young Israeli playwright, participated in a competition held by the Beit Lessin theater in 2010, to showcase young playwrights. Gueta wrote "Edmonton" based on his own personal experience with a real estate transaction that failed through fraud. "Admonton", depicts the defrauded hero's attempts to recover from a failed investment by putting on a theatrical show about the fraud. One of the judges of the competition was Hillel Mittelpunkt, a prominent Israeli playwright, and at the time, the Beit Lessin's House Playwright. Although noted for his work on "Edmonton", Gueta did not win the competition.

In 2012, Beit Lessin produced a new show titled "Maxi and I", written by Mittelpunkt. "Maxi and I" depicts the story of the young and ambitious Alex, as he becomes a part of Maxi's financial empire. Alex is abused by Maxi to perpetrate a real estate deal with Alex's friend. On attending the play, Gueta was appalled and claimed that "Maxi and I" was plagiarized and, in fact, was either a copy of or heavily based on his own "Edmonton".

He filed a claim against Mittelpunkt and Beit Lessin with the District Court of Tel-Aviv and based his claim on the following similarities: both plays involve a real-estate scam; both plays involve a villain, a victim, and a friend of the victim. In both, the victim of the scam is financially destroyed and in Gueta's opinion both use this human trauma and tragedy as the premise for the dramatic creation in both plays.

After hearing the evidence and reading the two plays, the Court found no similarities between the two plays and rejected Gueta's detailed and exhaustive attempts to convince otherwise. The court stated that the fact that Gueta had to resort, in his case in chief, to such detailed comparisons only strengthens Lessin's argument, that the plays are not similar.

Gueta, not pleased with the Court's decision, filed an Appeal to the Supreme Court of Israel. The main question brought before the Court was how one draws a line between an idea and an expression of that idea in theatrical plays.

Citing a 1925 US case law (International News Service v. Associated Press, 248 U.S. 215, 250) the Supreme Court of Israel reiterated a long-standing precedent and general notion in Copyright law that ideas, as such, are not protected by law:

"...The idea is like air, which everyone is allowed to breathe it freely. Acknowledging the freedom of ideas is acknowledging the freedom of imagination."

"...However, a specific expression of an idea does enjoy the protection of the law."

Drawing the line between an idea and an expression of that idea is not always an easy task, and preferably, the Court should not be drawn to minute comparisons. As such the court added:

"In some cases – like the one before us – there is no need to express rules in order to see that there is no similarity between the plays, at the most, there is some resemblance on the idea level." 

If ideas were protected by Copyright law, a single idea would dominate a large number of expressions thus curtailing creativity.  The Court, therefore, instructs that the question is "to what extent the similarity between the works is a simplistic idea, and to what extent would the similarity include practical elements of the expression." Given judicial policy, the court also instructs that it would be best for courts to view the works from a certain distance so as to avoid "over judging" the matter. In this case, Guetta submitted lengthy tables attempting to thread with a needle a sophisticated web of connections, which to his mind shown the act of copying by the Mittelpunkt.

The Supreme Court, therefore, denied the appeal as to the issue of copyright. The Supreme Court also discussed the issue of defamation by a party to a lawsuit though this issue is outside the scope of this list.

Beit Lessin was represented by our litigation team, led by Jonathan Agmon, throughout the proceedings, both in the District Court and in the Supreme Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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