"Hatikvah" – a hopeless copyright case

“Hatikvah” ("The Hope") is the national anthem of Israel. French singer, producer and songwriter Francky Perez produced a version of "Hatikvah" in February 2008 for Israel’s 60th anniversary celebration (www.youtube.com/watch?v=Czcqw0gUma4). In May 2008 El Al, Israel’s national air carrier, produced a version of "Hatikvah" for its advertisements (www.youtube.com/watch?v=iVS1yoZMY9I). Perez sent El Al his version before they produced their advertisement. Claiming that El Al had copied his version, Perez claimed copyright infringement and sued for damages and production of sales receipts.

According to the statement of case, the similarity lay in a list of elements, including the rhythm, the beat, the tone, use of a black choir and a black soloist, a rap rhythm, the Israeli flag, the camera angles, the singers' halos, the almost identical clothing of the choir and various lighting effects. Perez acknowledged that the words and the music were in the public domain and withdrew charges that the idea was copyright protected. He produced evidence of having given a copy of the clip to El Al employee Michelle Richie, who forwarded it to the head of marketing. El Al staff admitted having been shown Perez’s clip, but had considered it indicative of what they did not want. They claimed to have been working on the Hatikvah advert concept before receiving the clip, but admitted to starting filming only afterwards.

After listening to expert witnesses and watching and listening to the recordings, presiding Judge Hadas Ovadia concluded that, as would be expected with orchestrations and videos of the same words and melody, there were some common elements; but the recordings, taken as a whole, were substantially different. Thus, she dismissed the charges.

She cited extensively from the cross-examination of Perez's expert witness, who admitted that there were significant differences and that El Al's expert witness was an authority. Furthermore, the judge ruled that the original production was a work for hire produced by Perez for a company called Blast Production (now defunct), and consequently that Perez had failed to establish ownership of the creation and thus legal standing. Finally, she related to the clips holistically, and explained that Perez’s version was a rap, produced by Broadway singers, that featured African-American gospel singers in cassocks and had a universalist theme. In contrast, the El Al advertisement invoked the ingathering of the exiles and featured Jewish singers from different countries singing in different styles (the Russians in operatic style and the Oriental Jews in Mizrachi style). The black singers in the El Al advert were Ethiopian and wearing traditional white gowns, and were featured as a tribute to EL Al’s role in Operation Moses and Solomon, in which the record for the number of passengers on a Boeing 747 was broken. The judge also noted that El Al had stayed faithful to the words, whereas Perez had included additional lyrics in English and made some other changes. In addition to dismissing the charges, she awarded NIS12,000 in costs to El Al.