An Israeli court has rendered a split decision in one of the most bitter—and petty—disputes between archaeologists in recent years.
Judge Yaffa Hecht, deputy chief judge of the Jerusalem District Court, has ruled that Hebrew University archaeologist Eilat Mazar violated archaeologist Meir Ben-Dov’s copyright by publishing two reconstruction drawings of Jerusalem’s Temple Mount. The drawings were views of the Temple Mount from the southeast and from the southwest in Herodian times. At the same time, the court denied Ben-Dov’s claim that Mazar violated his copyright in two other drawings (of domes in a passageway leading to the Temple Mount), which, like the infringing items, Mazar printed in her popular book, Complete Guide to Temple Mount Excavations, published in 2000.
Meir Ben-Dov served as field director of the well-known excavations at the foot of the Temple Mount in Jerusalem under the overall direction of Benjamin Mazar, a highly regarded Biblical scholar and former president of Hebrew University. For nearly ten years (between 1968 and 1977) the area was excavated not just in the summer, but during most of the year, yielding highly significant information about the history of Jerusalem from the Biblical period forward. Ben-Dov was then given responsibility for restoration and conservation over a period of years. In the end, however, the field director and the director had an acrimonious falling out.
When Benjamin Mazar died in 1995, the results of the excavation had not been published in the customary final report. Indeed, only very limited preliminary reports had 017been written by Benjamin Mazar. Ben-Dov has written only popular books, but no scientific reports. The fight over access to the excavation papers and artifactual remains continues.
Afer Mazar’s death, an academic committee appointed his granddaughter Eilat Mazar to publish the results of her grandfather’s excavation. She has already completed and published several volumes and has plans for a number of additional volumes. Meanwhile, Ben-Dov will not release his excavation records to her.
When Eilat Mazar published her popular guide to the Temple Mount excavations, she included material from prior Ben-Dov publications without any reference to Ben-Dov or his work. Ben-Dov sued for copyright infringement.
The court ruled that for copyright to arise, a minimum element of originality and creative effort and skill is required. While the views of the Temple Mount met that standard, the views of the domes did not because the work was technical and involved only copying by various means.
The reconstruction drawings were made not by Ben-Dov, but by Martha Ritmeyer, a well-known and experienced archaeological draftswoman. The court held, however, that Ben-Dov owned the copyright because Ritmeyer was in Ben-Dov’s employ. The court noted that while Ritmeyer and Ben-Dov may not have had a very positive relationship, her employee status was decisive.
The court also ruled that each party must bear his or her own costs, even though in Israel the winner is normally entitled to attorney’s fees. In the court’s view, Mazar was not morally at fault; thus there appears to be no winner. The only relief Ben-Dov received was to prevent Mazar from selling her book with the two infringing items appearing on a single page of the book.
In short, Ben-Dov was able to hurt Mazar, but was not able to recover damages for himself. But he was able to get some revenge—for a price (his own lawyer’s fees). In the meantime, Mazar is unable to get Ben-Dov’s excavation papers to assist her in writing the final excavation report. Perhaps the Israel Antiquities Authority or Hebrew University (under whose auspices the excavation was conducted) should intervene to bring some sense into this small-minded dispute.
An Israeli court has rendered a split decision in one of the most bitter—and petty—disputes between archaeologists in recent years.
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