Pirates of the Holy Land--the other Rosenberg Trial

Scott-Martin Kosofsky's picture

On Monday, September 19th, an Israeli court found in favor of the plaintiff in a copyright infringement suit against Tzvika and Piki Rosenberg, of Masterfont. The plaintiff, Hannah Tal, alleged that the Rosenbergs had purloined the typeface Hadassah, the work of her father, Henri Friedlaender. Some of the details were reported in Ha'aretz, a major Israeli newspaper:

http://www.haaretz.com/print-edition/news/court-inventor-s-heirs-own-had...
and another article:
http://www.haaretz.com/print-edition/news/whose-font-is-it-anyway-the-ba...

We in the United States can only be aghast at such an event, as our law provides virtually no protection for the design of letters (or many other sorts of graphic design), though it provides much protection for trademarks, the names and symbols under which things are sold. Here, the suit could only demand that the Rosenbergs cease selling the type under its original name.

One should keep in mind that there are other versions of Hadassah around, made in Israel and elsewhere, though not all traded under that name. And there are original types that were inspired by Friedlaender's forms, too. Hadassah, like Ismar David's eponymous type, has become something close to common cultural property in Israel and throughout the Jewish world. Both are modern masterpieces that have suffered greatly in poorly executed versions (a charge one might make against the Rosenbergs in this instance). One might argue, too, that the punchcutter and supervisors at the Amsterdam Tetterode Typefoundry had a large share of responsibility for Hadassah's success. That leads me to think there's a least a drop of wisdom in the U.S. law, though we would do well to have at least a drop of protection, too. But woe to those who design a great classic type!

William Berkson's picture

Very interesting. It's not very clear what the legal issues are in the article. What do you think are the better and worse versions of Hadassah?

Scott-Martin Kosofsky's picture

Hi Bill! It's good to hear from you. I've been intending to write and tell you how much I enjoyed your article on Caslon in the APHA journal. In our mind's eye, we each have a Caslon--that is, if you've grown up in the Anglo-American tradition.

I think one would have to read the complaint and a transcript of the trial to get any sense of the points of law in this case. I don't know if those documents are, or will be, made public. Perhaps, after the appeals are over, someone will write something about it. Israeli copyright law looks very strange to American sensibilities, or even European ones. Whereas ours is based on an 18th-century notion of progress--and, more to the point, the avoidance of any impediment of progress--Israel's was born into a helter-skelter world in which many who sought refuge there were themselves the victims of the most ruthless thievery, not only of intellectual property, but of real property and life itself.

There's a blog I occasionally look at published by an American-born Israeli IP attorney: http://blog.ipfactor.co.il/ Maybe he'll write something about the case. What I gather from reading it is that Israel has no specialty court to decide intellectual property cases, so the law is made by judges as they go along. What appears to be better, though, is that little guys have a chance to fight against corporate interests. In the U.S., a little guy can be spent to death in a matter of days by corporations who have staff attorneys. Both systems are double-edged swords. For American designers, who have largely been closed out of copyright protection, we do have the protection of contract law, which is of considerable power.

If you're as interested in the subject as I am, you might want to check out the blog of William Patry, one of foremost copyright attorneys in the land. In an entry from some years ago, he talked about book design. http://williampatry.blogspot.com/2006/04/richard-eckersley-and-book-desi...
Unfortunately, Patry became senior copyright attorney for Google, which has professionally placed him in the position of arguing against design copyrights. If designers had any real rights to their work, no matter how minor, the entire system of something like Google Books could come crashing down, or, in the least, would be restricted to very old material.

Be this all as it may, I wish you and yours a Shanah Tovah! May you be inscribed in all the best books.

Scott

david h's picture

> Israeli copyright law looks very strange to American sensibilities
> Israel has no specialty court to decide intellectual property cases, so the law is made by judges as they go along

???????

Please check your facts!

The New Israel Copyright Law 2007:
The Law replaces the 1911 Copyright Ordinance inherited from the British, which was replaced in 1956 and again in 1988.

http://www.tau.ac.il/law/members/birnhack/IsraeliCopyrightAct2007.pdf

William Berkson's picture

Scott, thanks for the appreciative words on the APHA article. It was really fun writing that, because I learned so much from the research that surprised me, specifically about the amazing Theodore Low De Vinne, and about Luckiesh, who seemed to have vanished from history.

David, thanks, but I not much wiser after starting to read this. I suppose I shouldn't have expected to, not being a lawyer. Here for example:

"Copyright shall not subsist in "designs" as defined in the Patents and Designs Ordinance unless the design is not used, nor intended for use in industrial manufacture.; The Minister may prescribe conditions for determining when a design is deemed to be used for industrial manufacture."

Huh? Are typefaces "designs" in Israeli law? And what does that mean about protection?

Shana Tova U'metukah to all!

david h's picture

>...not being a lawyer

Neither do I.
But saying "Israel has no specialty court to decide intellectual property case" is ???.

The Court system is comprised of the Supreme Court, the District Courts and the Magistrates’ Courts.
Magistrates’ Courts -- Criminal matters + civil claim (IP or whatever is the case/claim; and only if the amount of the claim does not exceed one million Israeli shekels)
District Courts -- Criminal matters + civil claim (when the amount is above one million Israeli shekels).
That's it.

> Are typefaces "designs" in Israeli law?

For some reason I can't post a pdf... so here is the Contextual Alternate (I don't want to bring the 'dead' issue, but this is in English):

Copyright protection for typefaces

-----------

Shana Tova

Scott-Martin Kosofsky's picture

David, I stand by my previous remarks—all of them. And I agree with Bill in his perplexity over the language. Michael Factor's description of Narkiss, Rosenberg, Koren Publishers v. Microsoft, in the link you sent, is a perfectly good case in point. Also, the Israeli law's extremely vague language about derivative works, lumping together adaptations and translations, its deferral of the determination of industrial use to a government ministry, and its reference (sec. 46) to "distortion . . . mutilation or other modification," have great potential for confusion, especially in what may be valuable interpretive works. For the plaintiff in the Hadassah case, it was an opportunity to make a sentimental case to a judge, who likely understood very little about the fine points on which such evaluations are made. The granddaughter's remarks recorded in Ha'aretz seemed to me very simplistic, to the point of artlessness. There are honest efforts among type revivals that fail to hit their mark, too. In Bill's article about Caslon revivals, he treats very fairly the case of Founder's Caslon, which is an attempt at literal-mindedness that ends up being little more than an antiquarian curiosity.

Bill, as to your earlier question about available versions of Hadassah I like, I'm afraid I haven't seen any that capture the forms and movement very well. If Masterfont had been truly successful in capturing Hadassah, I would have had to quote the old line, "A handsome thief is always half-forgiven," but alas that's not the case. It's neither literal nor interpretive. What's interesting to me is how far Hadassah had come from its earliest drawings to the final foundry version. (Does that fact have bearing on this lawsuit?) It reminds a me quite a bit of comparing Hermann Zapf's drawings for Palatino with the Stempel foundry production. The feeling is so different that one might attribute the design as much to August Rosenberger, the punchcutter, as to Zapf. The drawing has some very Germanic features, whereas the final type is classically Italianate.

quadibloc's picture

We in the United States can only be aghast at such an event, as our law provides virtually no protection for the design of letters (or many other sorts of graphic design), though it provides much protection for trademarks, the names and symbols under which things are sold.

I find this comment strange.

Why couldn't Americans - particularly those whose business is the design of typefaces - consider that existing U.S. law in these matters (I think it has actually changed recently, and the trademark-only limitation is a think of the past) is inadequate, and, thus, have no reason to be shocked that the more reasonable laws of other jurisdictions are being enforced in practice?

Of course there are ways in which the laws of other countries can differ from our own that we would legitimately consider shocking, but this hardly seems like an example of that.

dezcom's picture

Regarding piracy issues, you may want to look at parts of this thread:

http://typophile.com/node/86151

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