May 17, 2004
Requesting Free Legal Advice
A contributor to Open Source Politics finds himself in a dilemma:
I'm moving at last to publish my 270-odd pages of poetry in book form. The reading I've been doing suggests that even non-contractual publication on a mostly politics website will count as prior publication for most journals I might submit to: my own fault, but highly annoying, since OSP has published 7 of my 20 favorite poems, and many others. That's why I've stopped posting new poems until further notice, though I left the ones already there.
Do you consider me or my poems bound by any kind of contract? I've certainly never discussed that with anyone. Do you have any sense of copyright implications for text published on OSP? Sorry it looks like I'll have to stop publishing my poems with you.
An OSP board member replied:
One thing I do know is the story of Mathworld. In a nutshell, the creator of Mathworld, after some years of having the site on the net for everyone to see, decided to publish everything that was then there in book form. The contract he signed without reading forbade that, so his publisher sued him for having the site on (IIRC, the publisher couldn't get Mathworld off the net but he did get the creator and the host to pay a substantial sum of money, but here I'm not completely sure).
Any De Novo readers know what the rules of free-to-read internet publication becoming pay-to-read print publication are?
May 17, 2004 11:37 AM
It's a matter of contract purely. The writer (at most) needs to disclose the fact of prior publication to the person seeking to license the work. There's no real copyright significance as such to the fact of prior publication (I think the copyright rights are automatically created and vested in the writer upon creation and not publication, but not sure), no significance to the fact that it was offerred for viewing for free on the Internet, and there's no implied warranty or anything that a work being licensed has not been previously published. (Assuming that open source is just part of the title and not a legally operative term.)
Here's an article that discusses a couple of relevant recent decisions in this general area.
DISCLAIMER: obviously this comment does not constitute legal advice and should not be construed as such. The person should seek advice of counsel. Free legal advice on the Internet is always suspect!
For what they’re worth:
Balasubramani is correct that a copyright is automatically created when the Work (the poem) is fixed in a tangible medium. Thus, when the poem was put on paper, recorded (video or audio), etc., the copyright was automatically created and vests with the author.
For copyright purposes, “publication” just means that the Work was made available for others to see. It does not require publication through a publisher. It is published when given to a friend to read, uploaded to a Web site, or otherwise read in public. Thus, the poems were published when they appeared on OSP.
Having looked at the OSP site briefly, it does not appear that there is any legal/copyright policy. However, I have no idea what agreement exists between the various contributors, if any, regard material put on the site. I would have to guess none.
Based on that assumption, I would think that the contributor is still the owner of the Works and that no transfer or license has occurred. Nonetheless, the poems have been published.
The issue comes down to a contractual one. Most publishers demand a representation that the work has not previously been published. Of course, this is negotiable. The problem, though, is that, as a [presumably] first-time publisher, you don’t have much bargaining power. If you were, say, Maya Angelou, you would certainly be in a position to make greater demands of the publisher.
So, at this point, the poetry has been published. Neither you nor the publisher can do anything to change that. It’s your starting point – like it or not.
Practically speaking, you have the following options:
1. Agree not to post future Works on the Internet that you intend to publish in book form and provide the Publisher with a list of those that have already been published;
2. Try to convince that Publisher that the poems have never been published as a collection - arrangement of works is entitled to its own copyright protections – and therefore, the prior publication of individual poems will not adversely affect the demand for the collection; or
3. Negotiate the ability (retain certain rights) to publish select poems on the Internet as a way of promoting the collected poems that will be published by the Publisher.
In any case, you should represent that you have not assigned or licensed the right to publish the poetry to anyone else, assuming that is the case. Those are just some thoughts off the top of my head. Again, not legal advice. No attorney-client relationship. Get your own lawyer. Etc…
As an afterthought, I would refrain from publishing additional poems until you have a signed agreement with a publisher delineating what you can and cannot do.
Of course, if you decide that publishing on the internet (as opposed to on paper) is how you prefer to go...then, post away.
Hmmm. Maybe the poems haven't been "published" within the meaning of copyright. Publication under 17 U.S.C. 101 requires a distribution of copies, which would require certain inferential leaps to apply to websites. Perhaps they have only been "publicly displayed." This is largely a point of copyright minutia, as it only had effect when copyright could be lost for not affixing proper notice to "published" works. For dealing with the publisher, it is probably best to tell the publisher exactly what has been done so a fair contract can be negotiated, and go from there.
It doesn't look like OSP, despite the name, takes advantage of a Creative Commons license for posted material, which would otherwise create complications here.
Re: CCC, I agree - no complications. Since OSP didn't have a CCC notice, I thought it was easiest to not complicate matters.
The copyright law defines "publication" as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending" or "offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance or public display."
I think it is pretty well settled that placedment on the internet falls within the definition of "copy". Certainly, placing someone's work (without that person's authorization) on the internet would be considered copyright infringement. Thus, a "copy" may exist online. It seems that it has definitely been published under the second portion of the definition. It's less clear that it has been published in the first.
In any event, I agree: Be honest with potential publishers and try to work our a mutually acceptable agreement.
But for publication to occur there needs to be copies and those copies need to be distributed to the public. Certainly one copy was made to post on the web, but I don't know that simply posting the poems on the web authorizes all viewers to possess copies of the work, rather than just view it. Think of a live broadcast showing the text of the poem on television--one copy exists, but the broadcast does not distribute any copies to the public.
Of course, under MAI v. Peak, RAM copies are "copies" under copyright, so these incidental copies made in viewing the web page might be "distributed" by the posting. This may carry the day, but I'm unsure.