Israel has national elections next month, in which, yet again, Israelis will get to go to the polls to vote for a party that won’t represent them. I suppose that’s better than not getting to go to polls to achieve the same result, which is what transpires in the PA. Unfortunately, based on what gets reported in the mainstream media, we have no idea as to the views of the leading candidates on the issues of the day, because for the most part we’ve been reading and hearing about media-manufactured crises crudely designed to embarrass the current prime minister, and lots of mud-slinging between the heads of the different parties. Including the most succinct expression of what’s on the mind of the present opposition heads, the bumper sticker reading “Anyone but Bibi”.
Over the weekend, the PM’s Likud party came out with a new anti-left campaign video, which shows some ISIS a-holes in a pickup truck listening to an Arabic hip-hop song. They stop, ask someone for directions to Jerusalem, and are told to turn left (which they do, at which point we can see said bumper sticker - in Hebrew - on the back of the truck. Cute.) This is followed by a The-left-will-give-into-terror-only-the-Likud-will-keep-you-safe message. After the ad’s release, the usual suspects on the political left trotted out their usual responses – “incitement” (whatever the heck that’s supposed to mean), beneath contempt, beyond the pale, there should be a criminal investigation, etcetera. Ho-hum.
More interesting to this IP practitioner was this report of the reaction of the band that wrote and performed the rap song used in the video, a couple of Jordanian guys who call themselves “Palestinians”: they say that the Likud didn’t obtain their permission to use the video, and that by associating them with ISIS (which – surprise! – is not particularly popular in parts of Jordan right now after immolating a Jordanian pilot), the Likud has placed their lives in danger. They’re threatening legal action.
Of course, this claim got me to thinking, what legal action could they take, and where could they take it? I would think their main goal would be to get the video taken down, and perhaps to receive some sort of compensation for its unauthorized use. Inasmuch as the Likud used a significant portion of the song, and it plays through nearly the whole video, I don’t think “fair use” would be much of a defense. So an injunction is in principle a possibility, as is financial remuneration.
But where to seek such redress? I suppose they could approach a Jordanian court. I don’t know anything about Jordanian copyright law, but even if they were able to get an injunction and/or a monetary judgment there, good luck enforcing it here in Israel in a timely fashion, if at all.
More promising would be enforcement in Israel. Maybe. Jordan is member of the Bern Convention, so from the Israeli perspective, if under Jordanian law copyright inhered in their song as soon as it was fixed in a tangible medium, then per section 9 of the Israel copyright statute the song also became copyrighted in Israel at the same time. Moreover, Israeli courts grant injunctions for IP infringement, and there is statutory compensation for copyright infringement even in the absence of proof of damage.
There is, of course, the technical matter of finding a lawyer who would represent them: since 2000, the Jordanian Bar Association has forbidden its members from having any contact with Israelis, let alone representing them. So in this case the band members would need to retain an Israeli lawyer directly, one who isn’t bothered by the asymmetry in representing someone from a country where that lawyer himself couldn’t obtain representation. However, I have no doubt that such creatures exist, including some who would take a perverse pleasure in representing the band in this case. It wouldn’t be the first time Israel’s openness and tolerance proved to be its undoing.
After retaining an Israeli lawyer, the band members would need to get a judge’s attention soon; obtaining an injunction after the elections would by a Pyrrhic victory. While there are procedures for obtaining emergency injunctions, I’m not going to speculate on whether or not an Israeli judge would grant such a motion in this case, and if he doesn’t, the case might not be heard for years. And here’s a bit of (not so) heretical speculation: the alacrity with which the case is handled might depend on the judge’s political views.
In addition to the straightforward assertion of infringement for use of the song without permission, the band members would also, apparently, have a claim for infringement of their “moral rights” per sections 45 and 46 of the statute to have their names associated with their work, and possibly for a derogatory association between them and the song by virtue of its being used in a Likud advertisement.
If infringement is found, the authors could receive up to 100,000 NIS (about $25K) without proof of injury. But since the big political parties routinely go into debt to finance their campaigns, and then make the public pay for the shortfall, I wouldn’t count on monetary compensation if I were a member of the band.
Of course, the more obvious, faster and surer way to get the clip taken down is to file a copyright complaint with Youtube, where the clip is hosted. Or maybe it’s not so obvious: as of this writing, the clip is still up.
It’s a safe bet that even if the clip comes down on Youtube, it will be reposted on Youtube and other clip-sharing services.