A friend of mine, whom I will call Julia, recently co-wrote an article with one of her supervisors at work. Julia did the lion's share of the research and writing and was told that she would be given a co-author credit when the article appeared in print. Indeed, a preliminary version of the article (blessed by her supervisor) specifically listed Julia as co-author. However, between the time she wrote the article and when it was scheduled to appear, she took a job with a competitor. Lo and behold, when the article was ultimately published, Julia had suddenly become, in Orwell's phrase, an unperson. Not only was her name omitted from the by-line, but her co-author gave her no credit at all, not even a fleeting mention in a footnote. Slimy.
What could she do? What should she do?
This is, of course, a woefully common fact pattern. Credit is, of course, a key consideration in all types of writing, ranging from million-dollar screenplays to scholarly papers where the writer has no expectation of any payment. Regrettably, as is so often the case, there may be a wide disparity between the legal remedies theoretically available, on the one hand, and the practical cost-effective options, on the other.
As to what Julia could do, here are the principal legal remedies that credit-robbed writers have sometimes successfully pursued:
This is, of course, a woefully common fact pattern. Credit is, of course, a key consideration in all types of writing, ranging from million-dollar screenplays to scholarly papers where the writer has no expectation of any payment. Regrettably, as is so often the case, there may be a wide disparity between the legal remedies theoretically available, on the one hand, and the practical cost-effective options, on the other.
As to what Julia could do, here are the principal legal remedies that credit-robbed writers have sometimes successfully pursued:
1. Copyright. The most direct attack would ordinarily be for Julia to file a lawsuit seeking a declaratory judgment that she is the joint author and co-owner of the copyright and seeking an accounting of any revenues (to which, as co-owner, she would be presumptively entitled to half).
However, in Julia's case, the article was written within the scope of her duties to the company -- i.e., at the direction of her boss, on company time, using company computers, accessing subscription databases, such as Lexis-Nexis, paid for by the company, for the purpose of demonstrating the company's expertise in the subject area. For these reasons and others, her contribution to the work probably constitutes "work made for hire," as defined in Section 101 of the Copyright Act, belonging to the company. Indeed, her supervisor's contribution to the article is also probably "work made for hire." As a result, the company -- rather than either of them individually -- probably owns the copyright. As a result, my friend could not seek a declaratory judgment for joint ownership of copyright -- much less pursue a claim for copyright infringement. Indeed, one co-owner of a copyright owner cannot ordinarily sue the other for infringement.
That said, if you are a freelancer or an independent contractor, you, unlike Julia, might have a basis for a declaratory judgment action. Here, for example, is the Court of Appeals decision in an epic battle by songwriter Shirley Goodman to obtain a declaratory judgment that she was the joint owner of the copyright in the rock and roll classic, "Let the Good Times Roll".
2. False Designation of Origin Under the Lanham Act. Until 2003, my friend could have brought an action under the federal Lanham Act, which prohibits various forms of unfair competition. For many years, the federal courts held that a contributor to a creative project could sue, under the Lanham Act, for false designation of origin if she was not given proper credit -- or any credit -- for her work. For example, in Lamothe v. Atlantic Recording Corporation, two members of the band Ratt sued other members of the band, alleging that they had wrongfully been denied credit as co-writers of the band's songs. An appeals court held that one of the purposes of the Lanham Act is to ensure that "the producer of a good or service receives appropriate recognition and that the consuming public receives full information about the origin of the good." The Lanham Act even offered the possibility of triple damages if the defendant's conduct was egregious. But then came the Supreme Court's decision in Dastar v. Twentieth Century Fox Film Corp. Dastar is a complicated case, which I won't try to summarize here, but the effect of the decision was to slam the door on the use of the Lanham Act in cases of alleged false attribution of creative credit or omission of credit.
3. Breach of Contract. After Dastar, Julia's last best hope for a successful lawsuit would probably be a claim for breach of contract. Not all contracts have to be in the form of signed writings in order to be enforceable. In many instances, an oral agreement on authorship credit could be enforceable. Or a contract might be inferred from the circumstances (e.g., the draft with Julia's name on it). [Don't get me wrong: it's always better from a legal perspective to have a written, signed contract, and some agreements, like "work made for hire" agreements and copyright assignments must be in writing.] Basically, Julia's claim would boil down to: you promised to give me credit, you broke your promise, and I was injured as a result.
There are a few other possible legal theories: unjust enrichment, state deceptive trade practices laws, state artist's rights statutes, etc. But none is especially likely to be more successful than a straight-out breach of contract claim.
But let's get real. Julia's boss wasn't paid for the article. So even if she were to win a breach of contract case, she probably would not receive more than token damages. It's too late for a court to order that her name be included in the by-line of the printed article. Contract damages on the theory of injury to her professional reputation would be extremely speculative and, as a result, unavailable. With no real prospect for recovering interesting money damages, Julia could never get a lawyer to take her case on contingency. If she has to pay a good IP lawyer his hourly rate, she would soon find herself writing four figure checks. Maybe one of volunteer lawyers for the arts groups discussed in this post would help, but Julia may actually have too large an income to qualify for their services.
So what should Julia do?
The right strategy in these cases varies wildly depending on the dynamics of the writer's situation. These steps might make sense for Julia, but they might make no sense for you.
1. Figure out in advance what your objectives are. In Julia's case, her principal goal in writing the piece was to obtain professional recognition. It's too late now to get credit in the printed article. But it might still be feasible to ask that a correction be published in conjunction with the online version of the article, acknowledging her contribution. This would enable her to point to the article as her own, include it on her resume, etc., so it is a goal that may be worth pursuing. Your goal, by contrast, may be reasonable financial compensation, another project to work on, an apology, a email you can point to acknowledging your role as co-author, shaming of your co-author, or sweet revenge -- each of which may require a different strategy.
2. Gather your evidence. Pull together and preserve all emails, drafts, letters, contracts, invoices, etc. relating to the project. Review whether there is any objective, documentary evidence of the promise of credit. Or does it come down to your word against your co-author's?
3. Decide whether you dare to complain. There are times when it's frankly not worth it to fight over credit -- an undistinguished article in an undistinguished publication, no money at stake, the risk of offending someone whose goodwill you depend upon. For example, if Julia were still working at her old company, making an issue over the denial of credit might have cost her a raise, a promotion, or even her job. Those considerations might have had a bearing on whether and how she pursued her grievance. But, because she is no longer working under her co-author, she has little to lose in fighting for the credit she deserves. I am not suggesting that writers should hesitate to complain when they've been screwed; all I am saying is that it's important to maintain a sense of proportion about any dispute.
4. Decide whom to complain to. Obviously, the first person you will complain to will be your co-author. But are you willing and able to complain to others? Keep in mind that if you announce to a third party that your co-author robbed you of proper credit you may run a risk that your co-author might claim you have libeled him. (If I only tell you that "you're a plagiarist," it isn't libel; but if I make the same statement to your boss and can't back it up, it could be. See this interesting article on libel claims arising from plagiarism allegations.) If you are planning on complaining to your co-author's boss or the publication's editor or making your grievance known to the public at large (e.g., on your blog or a gripe site), it may be wise to consult a lawyer first.
5. Decide how to complain. A face-to-face meeting is often the most effective means of resolving any dispute. Emails and letters have the virtue of giving you time to collect your thoughts and providing a record of what has been said. Your complaint should generally make clear (a) your basis for claiming that you were promised a certain form of credit; (b) the way in which the promise was breached; (c) what you want your co-author to do by way of remedy; and (d) the deadline for implementing the remedy. These are the classic elements of a lawyer's letter. If you threaten litigation, it should not be an idle threat.
6. Decide early on how far you are willing to go. If litigation is a genuine consideration, see that lawyer sooner rather than later. Consider whether there is anything you would be willing to give in return for the remedy you are seeking.
7. Keep a record of what you've done to pursue your complaint. Memorializing your conversations and keeping copies of your emails and letters of complaint may be important both offensively and defensively.
8. Be persistent but never harass.
9. Mediation? Is there anyone that both you and your co-author would trust to help facilitate a resolution?
10. Small claims court? Julie could pursue a claim for breach of contract in small claims court. In most jurisdictions, individuals need not appear through a lawyer, although corporations must. You can't recover much money in small claims court; usually the court's jurisdiction is limited to claims of a few thousand dollars. In Julia's case, however, the problem is that she really doesn't have any financial damages, and, even in small claims court, they don't award you money just for being right.
In some contexts, there may be non-judicial means of seeking redress. In the film industry, the Writers Guild of America and the Directors Guild of America have rules on properly crediting writers and mechanisms for enforcing them. Universities often have ethics committees that will review disputes over proper crediting of co-authors. Some scholarly and professional organizations will also investigate accusations of failure to credit and the related offense of plagiarism.
So what should Julia do? If she had a claim of co-authorship of a hit Broadway musical or a Michael Jackson song, full-fledged litigation might be worth considering. But, with no pot of gold at the end of the rainbow, the most cost-effective result she could reasonably hope for is to argue, bluster, or cajole her co-authors into giving her credit in the online version of the article. And an apology.
The next time, she will know to document her agreement on co-author credit by an exchange of emails. On bigger projects, as discussed in this prior post, she should consider entering into a simple collaboration agreement.
[Hat tip to DJF for editorial suggestions.]
However, in Julia's case, the article was written within the scope of her duties to the company -- i.e., at the direction of her boss, on company time, using company computers, accessing subscription databases, such as Lexis-Nexis, paid for by the company, for the purpose of demonstrating the company's expertise in the subject area. For these reasons and others, her contribution to the work probably constitutes "work made for hire," as defined in Section 101 of the Copyright Act, belonging to the company. Indeed, her supervisor's contribution to the article is also probably "work made for hire." As a result, the company -- rather than either of them individually -- probably owns the copyright. As a result, my friend could not seek a declaratory judgment for joint ownership of copyright -- much less pursue a claim for copyright infringement. Indeed, one co-owner of a copyright owner cannot ordinarily sue the other for infringement.
That said, if you are a freelancer or an independent contractor, you, unlike Julia, might have a basis for a declaratory judgment action. Here, for example, is the Court of Appeals decision in an epic battle by songwriter Shirley Goodman to obtain a declaratory judgment that she was the joint owner of the copyright in the rock and roll classic, "Let the Good Times Roll".
2. False Designation of Origin Under the Lanham Act. Until 2003, my friend could have brought an action under the federal Lanham Act, which prohibits various forms of unfair competition. For many years, the federal courts held that a contributor to a creative project could sue, under the Lanham Act, for false designation of origin if she was not given proper credit -- or any credit -- for her work. For example, in Lamothe v. Atlantic Recording Corporation, two members of the band Ratt sued other members of the band, alleging that they had wrongfully been denied credit as co-writers of the band's songs. An appeals court held that one of the purposes of the Lanham Act is to ensure that "the producer of a good or service receives appropriate recognition and that the consuming public receives full information about the origin of the good." The Lanham Act even offered the possibility of triple damages if the defendant's conduct was egregious. But then came the Supreme Court's decision in Dastar v. Twentieth Century Fox Film Corp. Dastar is a complicated case, which I won't try to summarize here, but the effect of the decision was to slam the door on the use of the Lanham Act in cases of alleged false attribution of creative credit or omission of credit.
3. Breach of Contract. After Dastar, Julia's last best hope for a successful lawsuit would probably be a claim for breach of contract. Not all contracts have to be in the form of signed writings in order to be enforceable. In many instances, an oral agreement on authorship credit could be enforceable. Or a contract might be inferred from the circumstances (e.g., the draft with Julia's name on it). [Don't get me wrong: it's always better from a legal perspective to have a written, signed contract, and some agreements, like "work made for hire" agreements and copyright assignments must be in writing.] Basically, Julia's claim would boil down to: you promised to give me credit, you broke your promise, and I was injured as a result.
There are a few other possible legal theories: unjust enrichment, state deceptive trade practices laws, state artist's rights statutes, etc. But none is especially likely to be more successful than a straight-out breach of contract claim.
But let's get real. Julia's boss wasn't paid for the article. So even if she were to win a breach of contract case, she probably would not receive more than token damages. It's too late for a court to order that her name be included in the by-line of the printed article. Contract damages on the theory of injury to her professional reputation would be extremely speculative and, as a result, unavailable. With no real prospect for recovering interesting money damages, Julia could never get a lawyer to take her case on contingency. If she has to pay a good IP lawyer his hourly rate, she would soon find herself writing four figure checks. Maybe one of volunteer lawyers for the arts groups discussed in this post would help, but Julia may actually have too large an income to qualify for their services.
So what should Julia do?
The right strategy in these cases varies wildly depending on the dynamics of the writer's situation. These steps might make sense for Julia, but they might make no sense for you.
1. Figure out in advance what your objectives are. In Julia's case, her principal goal in writing the piece was to obtain professional recognition. It's too late now to get credit in the printed article. But it might still be feasible to ask that a correction be published in conjunction with the online version of the article, acknowledging her contribution. This would enable her to point to the article as her own, include it on her resume, etc., so it is a goal that may be worth pursuing. Your goal, by contrast, may be reasonable financial compensation, another project to work on, an apology, a email you can point to acknowledging your role as co-author, shaming of your co-author, or sweet revenge -- each of which may require a different strategy.
2. Gather your evidence. Pull together and preserve all emails, drafts, letters, contracts, invoices, etc. relating to the project. Review whether there is any objective, documentary evidence of the promise of credit. Or does it come down to your word against your co-author's?
3. Decide whether you dare to complain. There are times when it's frankly not worth it to fight over credit -- an undistinguished article in an undistinguished publication, no money at stake, the risk of offending someone whose goodwill you depend upon. For example, if Julia were still working at her old company, making an issue over the denial of credit might have cost her a raise, a promotion, or even her job. Those considerations might have had a bearing on whether and how she pursued her grievance. But, because she is no longer working under her co-author, she has little to lose in fighting for the credit she deserves. I am not suggesting that writers should hesitate to complain when they've been screwed; all I am saying is that it's important to maintain a sense of proportion about any dispute.
4. Decide whom to complain to. Obviously, the first person you will complain to will be your co-author. But are you willing and able to complain to others? Keep in mind that if you announce to a third party that your co-author robbed you of proper credit you may run a risk that your co-author might claim you have libeled him. (If I only tell you that "you're a plagiarist," it isn't libel; but if I make the same statement to your boss and can't back it up, it could be. See this interesting article on libel claims arising from plagiarism allegations.) If you are planning on complaining to your co-author's boss or the publication's editor or making your grievance known to the public at large (e.g., on your blog or a gripe site), it may be wise to consult a lawyer first.
5. Decide how to complain. A face-to-face meeting is often the most effective means of resolving any dispute. Emails and letters have the virtue of giving you time to collect your thoughts and providing a record of what has been said. Your complaint should generally make clear (a) your basis for claiming that you were promised a certain form of credit; (b) the way in which the promise was breached; (c) what you want your co-author to do by way of remedy; and (d) the deadline for implementing the remedy. These are the classic elements of a lawyer's letter. If you threaten litigation, it should not be an idle threat.
6. Decide early on how far you are willing to go. If litigation is a genuine consideration, see that lawyer sooner rather than later. Consider whether there is anything you would be willing to give in return for the remedy you are seeking.
7. Keep a record of what you've done to pursue your complaint. Memorializing your conversations and keeping copies of your emails and letters of complaint may be important both offensively and defensively.
8. Be persistent but never harass.
9. Mediation? Is there anyone that both you and your co-author would trust to help facilitate a resolution?
10. Small claims court? Julie could pursue a claim for breach of contract in small claims court. In most jurisdictions, individuals need not appear through a lawyer, although corporations must. You can't recover much money in small claims court; usually the court's jurisdiction is limited to claims of a few thousand dollars. In Julia's case, however, the problem is that she really doesn't have any financial damages, and, even in small claims court, they don't award you money just for being right.
In some contexts, there may be non-judicial means of seeking redress. In the film industry, the Writers Guild of America and the Directors Guild of America have rules on properly crediting writers and mechanisms for enforcing them. Universities often have ethics committees that will review disputes over proper crediting of co-authors. Some scholarly and professional organizations will also investigate accusations of failure to credit and the related offense of plagiarism.
So what should Julia do? If she had a claim of co-authorship of a hit Broadway musical or a Michael Jackson song, full-fledged litigation might be worth considering. But, with no pot of gold at the end of the rainbow, the most cost-effective result she could reasonably hope for is to argue, bluster, or cajole her co-authors into giving her credit in the online version of the article. And an apology.
The next time, she will know to document her agreement on co-author credit by an exchange of emails. On bigger projects, as discussed in this prior post, she should consider entering into a simple collaboration agreement.
[Hat tip to DJF for editorial suggestions.]
Hi Mark,
ReplyDeletethis case sounds like it was writen for my situation. Do you think you can assist a former scientist review a similar case to tell me if I have a basis for a lawsuit? it is about fairness really, I feel very unfairly treated in my contribution to an article now drafted for submision to a scientific journal. order of author in the byline (very important in research) doesnt give me proper credit for the work I did.
If you are courageous and want to dare, my email is mamezam@live.com, would be happy to hear from you
This is so true and common in scientific world.
ReplyDelete