Reading the thread on $1 a year contracts made me wonder about copyright transfer in which the author is paid nothing. I have been publishing papers in journals for over 40 years. In the 60s and 70s, the journal simply copyrighted the articles without a by your leave. Starting in the 80s, they asked for a transfer of copyright, which I signed until 1995. At that time, I signed one but added that I reserved the right to post electronically. They responded by sending me a new form that was titled something like, “Permission to publish for an author who wishes to retain copyright”. Fine, I signed that (which didn’t stop the journal from putting their standard copyright notice on the first page of the aritcles–not just on the cover of the journal). Since 1995, I have refused to publish in any journal that requires copyright transfer and had to withdraw one paper after the publisher refused to compromise on that. At no time was I offered any “consideration”. I have taken the attitude that they have no ownership rights in the early works, that they probably do have full rights between roughly 1980 and 1994 and I own the 1995 papers and everything since then. It has not stopped me from posting all my earlier papers (so sue me!), but I am wondering if the lack of consideration results in their having no rights even there.
I can’t comment on your individual situation (among other things, I’d need to look at the documents and learn more about the circumstances), but consideration need not involve cash. Any benefit to you can meet the consideration requirement.
Arguably, the agreement to publish your work (in what I assume is a respected professional journal) might, by itself, be enough of a benefit to your professional/academic standing to be adequate legal consideration.
If the journal asked you to assign your copyright to them as part of the agreement for them to publish the article, their payment to you for the article is the consideration.
I took this to mean that he was not paid for the articles, which is not all that uncommon in a professional journal context.
If my assumption was incorrect, and he was paid, and the request for copyright transfer took place at the same time, then I agree with Walloon.
Again, this is not reliable legal advice. I’m not your attorney. See a lawyer licensed in your state if you are making any real life decisions in this area.
If you allowed the journal to publish your article, and there was by mutual agreement no payment, and you never explicitly assigned your copyright to the journal, you retained the copyright, at least under U.S. copyright law, which since 1978 has favored authors by default. However, there are statutes of limitations for claiming breach of copyright. The time limit starts anew with each breach of the copyright, for example, if the journal republished the article in a book or put it on the web.
If this ever turned into a legal action, the journal might argue that the intangible benefits you received in your academic community by being published acted as consideration to make a contract.
Yes, I have heard befoe this theory that their decision to publish was sufficient consideration. Still two questions remain. First, what about the pre-1978 publications that never asked for a copyright transfer. And second, the copyright on books reverts to the author when the book is out of print for a certain amount of time, I believe six months. If they choose not to reprint after six months, the author owns the copyright (I have three books whose copyright has formally reverted; in each case the publisher send a letter acknowledging this. A journal is out of print essentially immediately. Does anyone know if there any reversion principle there?
17 U.S.C. § 203
Termination of transfers and licenses granted by the author.
But termination of transfer of copyright is not the same thing as reversion.
“Reversionary Rights in Book Contracts” by Ivan Hoffman.
According to the attorney who drafted the contract I use with the writers I publish, consideration does not need to be in the form of cash:
As a courtesy, I usually give my authors a free subscription to the publication, but this is not made explicit in the contract. As you see from the language, publishing the article is the consideration.
In order to transfer a copyright, the copyright holder has to sign a document transferring the copyright. No money or other consideration need change hands.
In order to publish your copyrighted work, the publisher needs to be granted a license to use the work. Again, you do not need to get any consideration in order to grant the license, though usually the author gets free copies, if not actual payment, for the license.
I have had people reprint stories of mine for no consideration whatsoever. For instance, someone once asked permission to translate a story of mine into Hebrew. I granted it, and got nothing in return (other than a link to the web page). Technically, the translater holds copyright on the Hebrew version.
Now, for pre-1978 works, it was the same: transfer or licensing of copyright occurred at the descretion of the copyright holder and all that was needed was a document attesting to the transfer.
Reversion is listed in the contract with the magazine. Many magazines don’t have reversion clauses in their contracts; if they don’t have one, the work stays with them indefinitely (unless you use the termination clause listed above). It’s common, though, for magazines to have an automatic reversion these days: if the work isn’t published within X months after signing the contract, then the work reverts to the author. It has a set time limit becuse, unlike books, the magazine has a shelf life, whereas it’s possible that a book remains in print indefinitely.
I just talked with a contract law professor. Publication in an academic journal is itself the consideration. It imposes an obligation on the publisher, and a benefit on the author.
It’s always nice when the law professors see it my way.