Wednesday, March 6, 2013

Let the Lawyers Beware: Just Because You Wrote it Doesn't Mean You Own It

Everyone is building their brand these days. Writing  articles for publication is a common form of marketing outreach which demonstrates the special expertise of the lawyer and firm. It  can put the lawyer and firm name in front of existing and potential clients  who read trade or specialized legal publications. In order to maximize the residual benefits authorship, it is important to carefully review the publisher's standard contract. It might be logical to assume that  the lawyer and firm retain rights to the publication, but  it ain't necessarily so.

Getting Less Than You Didn't Bargain For
It is not uncommon for lawyers to write articles and expect no monetary compensation from the publisher. They benefit from the opportunity to showcase their expertise or special insights on an emerging legal issue. It is perhaps an overreach for a publisher to claim rights beyond the initial publication, but that doesn't mean they won't do it. The lawyer may accidentally give away all future opportunity to reuse the publication for personal or firm benefit. To state the obvious you must...

Read the Fine Print

Recently I have encountered two different specialty newsletter publishers who had approached lawyers  and solicited articles for publication in  their commercial trade publications. I discovered that in both instances, the publishers standard contract required the lawyer to transfer ownership of the article to the publisher.
The appalling implications of this are that the firm either has to ask for permission and possibly pay a royalty to make routine future use of the publication. This means::
  • You can't publish it on the practice group page of the intranet
  • You can't publish it on the firm's external website 
  • You can't distribute it internally to your colleagues 
  • You can't forward it to your clients 
  • You can't reprint it for in house educational materials 
  • You can't reprint it for a client seminar 
  • You can't reprint it as a marketing handout
In short -- the attorney and firm might find themselves creating intellectual capital and then for a lack of due diligence, end up paying a third party for the right to reuse the publication for the most routine marketing and educational opportunities.

Just Ask
It is important to negotiate the terms of ownership or the licensing terms to assure that the attorney and or the firm retain the right make all future marketing and educational uses of the publication. Many small publishers don't have an in-house counsel and can not afford to hire counsel to renegotiate custom terms.  If the publisher will not renegotiate the standard terms, they may agree to an addendum or side letter  prepared by the author which amends the standard terms. Ideally the contract should restore ownership to the author and  modify any license to assure unencumbered use of the publication for marketing and educational purposes. If the publisher won't negotiate it may be best to explore other publishing options..

 The Negotiator
As libraries have grown more digital, professional librarians have developed a high degree of expertise negotiating content licenses and can be an excellent resource in reviewing licenses for publications and negotiations with publishers. If you have such in house talent, don't be afraid to tap your resident negotiator.

1 comment:

  1. Not sure which publishers you contacted. Yes, the publisher's standard contract may transfer ownership of the piece to the publisher, but some publishers, even for-profits (which describes my employer) are happy to have articles that appear in their publications distributed (regardless of whether they own the copyright or you do). We just want to know that it's being done (and where) and we want you to state that it was previously published in our publication (because that gets the name of our publication out to potential customers).

    We don't want to find it in another publication by accident, which has happened to me. That's not in your best interest, because when two publishers find that you've submitted an article to one, had it published, and then re-submitted the article to another publisher and had it re-published (without telling either)--it affects your relationship and credibility with both publishers.

    Even if you own the copyright, it's common courtesy and demonstrates good faith to contact the publisher and let them know that it's being republished. Also, if something is published in our publication, we have an interest in our formatting and appearance. So, at minimum, you need to let us know if you're using a copy of the article as it appears in our publication.

    I have never turned down an author who asks to distribute or republish his/her article as long as they identify the article as previously published in my publication, and I have never charged a fee or a royalty for doing so. I obviously can't speak for all publishers or even other publications that my company produces, but the bottom line is the heading of the next to last paragraph--JUST ASK.