From Collaboration to Disagreement: Safeguarding Joint Copyrights and Preserving Creative Partnerships

Many creators, naturally immersed in the creative process, do not always bother to regulate their copyrights as co-creators, and even if they regulate it, they seldom forget to address the question of what will happen on the day of parting – what will be the fate of the joint creation? Which of them will be able to use it? is there an obligation to share the proceeds in case each of the co-creators makes independent use of the joint creation? and more.

Israeli law states that a joint work is “a work created by several creators jointly and it is not possible to distinguish the part of each of them in the work”, however the law does not regulate joint copyrights in case of disputes between the co-creators and does not determine what will happen to the joint work after the separation between its creators. Thus, disputes have reached the courts regarding shared copyrights in books, dictionaries, and other works.

In a recently published case, a Magistrate’s Court dealt with a dispute between two co-writers of a professional guide (the case of Ariel Peled v. Dan Herman – TA 70737-11 -20). Although the co-writers agreed in writing that the copyrights in the guide would be shared by both, the agreement did not address the consequences of a separation or dispute between the co-owners of the copyrights. The dispute arose when at a certain point the defendant (one of the co-writers) published the guide without notifying the plaintiff (the second co-writer) in advance, without receiving her approval to add her name as co-author to the guide which was sloppy and did not undergo proofreading. The court ruled that the unilateral act of the co-creator constitutes copyright infringement.

In the absence of a provision in Israeli law regarding the situation where co-creators disagree about the use of the joint work, the court applied the comparative law approach. On the one hand the English law – under which each of the copyright owners may prevent its partners from publishing the work without their consent, while publication without the consent of all partners will be considered a violation of copyright. On the other hand, under American law joint copyright owners are granted the right to make free commercial use of their authors’ rights subject to the duty to report any such use to the other owners and sharing profits, except in cases where extensive use of the work by one of the co-owners would harm the value thereof.

Eventually, the court reached its decision based on the Movable Law and the Land Law under which each partner may reasonably use his rights, without the consent of the other partners, provided that it does not prevent the other partners from doing so while being obligated to share income with the other partners. With the wish to balance the rights of the parties, the court decided that the defendant is not allowed to publish the guide with the plaintiff’s name as long as the work has not been duly corrected. In addition, the court ruled that each party could market the guide through a separate marketing channel (different book chain stores).

Against this background and other cases heard by the courts, it is evident that before starting the creative processes it is important to define the relationship between the partners in an agreement which regulates the rights of the parties during their collaboration and thereafter giving special thought about the day after or a possible dispute. An orderly agreement addressing all the relevant questions will avoid long and expensive legal disputes and will even prevent a situation in which the commercialization of the work will be thwarted due to the existence of a dispute regarding the rights of its co-owners.