C.F. 6157/04 David (Hachi Tov) Dvash v. Adler Chomski & Warshavski et al (Jerusalem District Court, November 7, 2006; yet unpublished)

This judgment refers to a rather amusing story: A few years ago, an insurance company (Personal Direct Insurance) launched a massive TV campaign for insurance services. The star of the campaign is a character called "David Hachi Tov", who responds to anything that happens to him (including unfortunate events such as a car accident) by saying "Hachi Tov", which means in Hebrew "the best". The campaign was successful and the character of "David Hachi Tov" has become one of the most prominent characters in TV advertising campaigns in recent years. The insurance company was sued by a person called David Dvash, an artist who is known among his acquaintances by the nickname "David Hachi Tov" as a result of him saying "Hachi Tov" in response to anything that happens to him. This person used to perform before small crowds (mostly of the orthodox religious sector of the public) as a singer and story teller. However, he is not well known to the general public in Israel. Mr. Dvash filed the claim against the insurance company as well as against the entities which were involved in the creation of the advertising campaign, and contended that the creation and use of the character of David Hachi Tov in the defendants' advertising campaign violated his rights. In a rather precedential judgment, the Jerusalem District Court (Justice Shapira) accepted most of the claim. The court ruled that, based on unjust enrichment paradigm, a person is entitled to prevent use of his character and his right of publicity, if he can prove economic value for the use of unique characteristics in his persona. Provided that the plaintiff in this case can prove such value, his right of publicity was violated by the defendants. The court refused to provide protection for the plaintiff's character based on copyright and privacy laws. Nevertheless, the court ruled that the plaintiff is entitled to copyright protection in three short stories he used to tell in his shows and which were apparently used in the advertising campaign. The court went on to rule that the defendants also violated the plaintiff's moral rights with respect to his protected works. Interestingly, despite the unequivocal ruling regarding violation of the plaintiff's rights, the court refused to grant a permanent injunction. The judge ruled that, in this case, whereby some of the defendants were unaware of the plaintiff at the time of the launch of the campaign, and in view of the huge resources invested in the campaign (millions of NIS), the balance of hardships does not justify the grant of an injunction. The plaintiff is, however, entitled to monetary remedies, which shall be determined at a later stage in a final judgment to be given in this regard.