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In 1919, French artist Marcel Duchamp created a defiant and challenging work of art. He took what was considered one of the most famous symbols of painting and art - da Vinci's "Mona Lisa" - and added a goatee and mustache. To heighten the impact, and also sharpen his protest against the conservatism of the world of art and Western society in general, Duchamp added, below the painting, the letters "L.H.O.O.Q.," which when pronounced in French sound like "Elle a chaud au cul" - translating colloquially as "she has a hot ass."

The arguments over whether a composition like this is a work of art have been the subject of many a debate since then. Indeed, this work almost naturally springs to mind also we peruse a ruling that was handed down last month by the Tel Aviv Magistrate's Court, and which is causing a furor among local caricaturists. The ruling trains a spotlight on the twilight zone where freedom of expression and creativity clashes with legal protection of intellectual property. It was handed down following a lawsuit submitted by Israel Prize-winning photographer David Rubinger against the Walla! Web site, the Zarmon Goldman advertising agency and Haaretz newspaper. Rubinger was suing for two reasons: publication of an advertisement in which use was made of his iconic picture of Israel Defense Forces Paratroopers at the Western Wall during the Six-Day War, and publication online of a caricature based on that same picture.

The more interesting part of the ruling refers to the second aspect of the case, in which an original work was not used for commercial purposes per se, but rather for the purpose of creating a new work of art. In the caricature, drawn by illustrator Eyal Eilat and published on the Walla! site in February 2007, the soldiers, recognizable from Rubinger's photo, are standing next to the Western Wall, under a barrage of stones. The caricature was published following an event that involved Palestinians, who threw stones at Israeli policemen at the entrance to Jerusalem's Temple Mount. In response the police threw stun grenades at the Palestinians and evacuated Jewish worshipers from the plaza in front of the wall.

The court's deliberations raised a great number of questions. Did Eilat make legitimate use of an existing work for artistic purposes, or was this a case of causing serious damage to an original work, to Rubinger himself and to his copyright over the famous picture? Can creation of a caricature of this kind in the post-modern era - in which references to, quotes from and mention of other works are so very widespread in many spheres of art - be considered a legal offense? Would Duchamp also have been considered a transgressor if Michelangelo's work was protected by copyright when he chose to use it for his own purposes? And do artists who want today to create a work that clearly references another work need to worry about being summoned to the courtroom?

Diminished value

In his expert opinion of Eilat's caricature that was submitted to the court, Prof. Asher Kasher, an Israel Prize laureate in philosophy, wrote: "The caricature before us naturally can be interpreted as mocking the Paratroopers in the [original] picture. While they are seen in the photograph at a moment of enthrallment, of excitement and even of spiritual uplifting within a historic context, in the caricature they are depicted as the object of harassment, as the target of a shower of stones aimed at them. Moreover, the Paratroopers in the picture are depicted as strange figures since there is nothing whatsoever in their behavior to indicate an intention to defend themselves from the shower of stones raining down on them ... Since this caricature, both by its nature and by its specific details, arouses a negative feeling about the Paratroopers and the position in which they found themselves, its publication can be seen to 'diminish its value.'"

In her ruling, Judge Hannah Yanun ordered Walla! to pay damages of NIS 20,000 to Rubinger, and stated that Eilat copied Rubinger's photo without giving him appropriate credit, thus violating his intellectual property, his moral rights vis-a-vis the work.

"The caricature in question makes a mockery of the artistic content of the photograph the artist intended to give it, as a photo that reflects a special and positive moment in history that was achieved by heavy fighting. It introduces into it a change that can be seen as a distortion and disruption, since the soldiers are seen with a shower of stones landing on their heads," Yanun wrote.

The ruling shocked local artists, prompting fears that their freedom of expression had suffered a terrible blow and would do so in the future as well.

"From this ruling, one hears the call: 'Damn you, caricaturists. From now on, hold on to your pencils and make sure to use your erasers,'" says artist Michel Kishka, winner of the Dosh Prize for caricature in 2008.

"An enlightened country has to allow its artists freedom of expression, and this ruling is a cloud over Israel democracy ... The widespread use that has been made of the Rubinger photograph has already made it part of Israeli iconography, and therefore whether it is used for a 'heroic' or a critical purpose - it is legitimate. It is legitimate for a caricature to deal with icons and sacred cows. Caricaturists the world over use famous works of art like 'The Thinking Man, 'Mona Lisa' and 'Guernica' every day to put across critical messages, and they serve as a wonderful, creative tool that makes it possible for the reader to immediately understand what you want to say."

Artist Shlomo Cohen (of the Israel Hayom newspaper) was also sued in the past for his caricature based on the same picture by Rubinger, which was published in Globes. Cohen believes that Yanun's decision "stems from a total lack of understanding of the questions of what is art and what is caricature. Caricature, like any art form, is always interpretation. It always deals with images and symbols, and it relies on the idea that the observer knows what, or whom, I am drawing. And what should we criticize if not an icon or a symbol? Rubinger's photo turned a long time ago into an icon reflecting a wonderful and exalted moment. Eilat's caricature stresses to what extent this icon is absurd today. Therefore, this ruling in effect destroys freedom of expression and the right to create satire."

Cohen cites by way of comparison the historic photograph of U.S. marines raising the United States flag on the Japanese island of Iwo Jima during World War II - a picture that won the Pulitzer Prize for its photographer, Joe Rosenthal, and has become an icon in America.

"Artists have done countless interpretations of this picture," Cohen asserts. "Hardly a week goes by without a caricature using this picture to express something about war, education, crime and so forth. The photo has become a symbol, just like the one by Rubinger. Eilat's caricature was intended to make fun of the photo or the 'iconization' of the photo - just as large numbers of works have done with respect to the Iwo Jima picture. It is the artist's right to give his interpretation of the works of others; sometimes it is homage, and sometimes satire."

Dr. Michael Birnhak of Tel Aviv University's law faculty says that Yanun's ruling is "regrettable," but notes that since it was handed down in a magistrate's court, it cannot serve as a precedent.

"The legal mistake here, with all due respect, lays in not giving sufficient weight to freedom of expression," Birnhak says. "With regard to copying Rubinger's photo, the claim of fair use should have been raised - this is a defense in such cases, which is anchored in law. According to it, the court has to strike a balance between intellectual property rights on the one hand, and important public interests on the other. In Eilat's caricature there is undoubtedly general social criticism, [but] the use made of it is not commercial. It will not have an effect on the market value of the original work, and it is not an alternative to it. This is a classic example of fair use. To my great regret, the ruling makes no mention of this."

Legal expert Dr. Guy Pessah of the Hebrew University of Jerusalem agrees that this is a problematic ruling, "because it does not take into account considerations of freedom of expression and freedom of creativity in terms of other artists besides Rubinger. It does not take into consideration that works that have become public property, cultural icons, have to be used as part of our cultural language. Cultural works, and especially icons and cultural symbols, are like building blocks that later artists use for their own purposes. In a post-modern world, the need to use existing materials is inherent in the cultural environment. The obvious examples are, of course, parody and satire."

Patriotic considerations

David Rubinger, for his part, shakes off the perception of his photo being an icon.

"For me it is not an icon, but a photograph for which my permission is needed before use," he says. "I have about half a million photos and I'll defend any one of them to the same extent. It's not I who created this icon, it's the public that did. In my eyes, it's just another one of my photos. I have already been involved in many lawsuits because of various uses that have been made of this photo - among other things, against Geula Cohen's political party, which used it as a symbol of its struggle. There are people who will not steal a match, but a photograph in their eyes is 'ownerless.'"

Birnhak, however, points out another interesting point with regard to the ruling. Is it possible that patriotic considerations prevailed in the courtroom where the case was discussed, he wonders.

"In laws governing intellectual property, one sometimes identifies 'the narrative of the romantic creator' in the ruling - that is, the court sometimes thinks about the artist, his work and the creative process in a very romantic way. Like in the movie 'Shakespeare in Love.' But in this case, the court referred only to Rubinger and to the connection between him and his work in terms of the narrative of the romantic artist, while the attitude toward the persons who used his work was completely different: The court related to them as if they were copying it. Thus, the narrative of the romantic creator was joined by another one - the narrative of the Zionist nationalist, which is seen in Israel as the 'holy of holies,' as untouchable," Birnhak declares.

Last year a new version of the law concerning intellectual property was adopted, which places restrictions on the moral right of an artist vis-a-vis his work, and may be used to defend artists who make fair use of the works of others. Especially in view of this, it is perhaps regrettable that the decision in Rubinger's case (made on the basis of the previous version of the law) - even though it does not have a precedent-setting status - may nevertheless deter artists from creating and make them overly wary when entering their studios.

If the ruling is not appealed and overturned by a higher court, it is certainly possible that those who create parodic, critical and satirical works in the coming years will be much more hesitant to use national symbols and cultural icons. This will not merely mean we will laugh less: It will also mean that criticism about the not-so-simple reality in which we live will be diminished as well.