Legal Question in Intellectual Property in California

Can they publish that?

I submitted an incomplete, early draft of an op-ed to a non-profit that I belong to, to be considered for publishing. The draft was sent back with suggestions for edits. I never made the edits, and never signed a release allowing the article to be published.

I was shocked to find the article had been edited, published, and distributed in a national journal without my approval AND without my bibliography.

Is this a violation of my intellectual property rights? What legal options do I have? Am I at risk for perceived plagiarism because my bibliography was not included? Can I ask for monetary compensation, even though the journal was distributed for free?


Asked on 11/07/07, 12:00 am

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Can they publish that?

A threshold issue is whether the edits were sufficient to make it an original work of the editor. You have no copyright in your opinions or ideas; copyright exists only in your expression of them, and a sufficient editing of a draft may result in an original work by the editor.

Another question is whether you or the journal has copyrighted its version.

The fact that the journal is disributed free and that the publisher is a non-profit is not completely dispositive of the financial injury and hence damages issue, because it may have gained other dollarizable benefits, but if you were writing this piece without expectation of paymentm this would probably be the last nail in the coffin of getting more than nominal damages.

So, on balance I'd say there was an invasion of your rights (unless the piece was very heavily revised in editing) but that it's not the sort of case that makes for a lawsuit. If you are a well-known author and make a living doing this, my views might be different. I'd discuss this with the publisher, get their side of the story, and maybe pressure them for a private or public apology, if warranted.

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Answered on 11/07/07, 12:27 pm


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