Intellectual Property Rights, Explicit Content, Public Policy And Everything In Between

Author:Ms Rakefet Peled and Lior Glassman
Profession:Reinhold Cohn Group

On 7 August 2018 a magistrates' court in Israel issued a ruling discussing the question of whether relief ought to be granted to pornographic filmmakers claiming infringement of their rights. The ruling held that despite copyrights existing in pornographic films the court would not, for reasons of public policy, enforce these rights in a dispute between pornographic filmmakers and owners of websites that have links permitting viewing of these films. Though this ruling dealt with copyright law, it is consistent with similar caselaw with respect to trademarks, where trademarks which include profanity and which would harm public policy have been prescribed as impermissible.

The Copyright Law protects that which it defines as work and it does not require exceptional creativity or artistry for one to be afforded the right of protection. Nor does the law set down provisions as to the substantive value of the work afforded protection; indeed, the law has extended its protection to cases where pornographic filmmakers have appealed to courts. For example, in Harpaz v. Hashashua1, the district court sustained the motion brought by makers of a pornographic film, holding that it falls within the scope of a cinematic work entitled to legal protection, and it issued an injunction order that would disallow the film from being viewed on websites without permission from the film's copyright owners; the court here was not required to examine the quality of the film's content.

Be that as it may, in the ruling the magistrates' court handed down earlier last month in the Sex Style2 case it was held that despite the author having copyrights in the pornographic film, the court would not, on public policy grounds, assist in enforcing the copyrights in the film against one who runs a website that has links to such film.

There was no dispute in that case that the plaintiff owns the rights to the films and the parties did not dispute that the films were glaringly pornographic and not just erotic or art films.

The court held that pornographic films of the type discussed are obscene subject matter according to Article 214 of Israel's Penal Law, and thus illegal, further ruling that the distribution of these films is contrary to public order. The court made a distinction between a moral judgment of pornographic work and a judgment of its consequence, namely whether the films presented before it is harmful to society; it observed that the objectification of a human body...

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