Re: Can an Author Post His Article Published in a Journal on His Web Site?

[Walter Dufresne <walter.dufresne@xxxxxxxxx>]

Dear Mr. Lindsey,

Your recent e-mail to the subscribers of the digital copyright list  
run by the University of Maryland is one of the clearest, fact-based  
summations I've read on this recurring topic.  Thanks for the  
citation to Matthew Walden's work.

Academic authors routinely assign their copyrights via contract.   
(Don't get me started on the "publish or perish" anxieties that lead  
to this "surrender".  Those same anxieties will place academics at  
the mercy of publishers who insist on further rights.)  It's  
fascinating to read Walden, and I'm not sure he's right:  I'd guess  
(and it's too much a guess) that I *can* sign a contract in New York  
in which I agree to both assign my copyrights and give up my fair use  
rights/defense/doctrine to my own work, and that such a contract  
would be valid and enforceable.  But that's a fascinating question:   
can I contractually agree to surrender such rights?  Thanks for the  
provocative research.

This reminds me of that other common publishers' strategy, a contract  
in which the author and publisher agree to a "work made for hire"  
even though the specifications of the contract don't even begin to  
meet the narrow requirements outlined in Title 17 for valid "works  
made for hire".  Inevitably such contracts contain a fall-back clause  
that makes for, when all is said and done, an assignment of copyright.

Is it okay by you if I keep your e-mail and occasionally forward it,  
intact and quoted below, to those colleagues at CUNY who occasionally  
ask the same question?

Sincerely,
==============================================
  Walter Dufresne, adjunct assistant professor
Advertising Design and Graphic Arts Department
   New York City College of Technology / CUNY
    300 Jay Street, Brooklyn, NY  11201-2983
==============================================
31 Montgomery Place, Brooklyn, NY  11215-2342
  tel:  +1.718.622.1901  fax:  +1.718.789.1452
      e-mail:  wdufresne@xxxxxxxxxxxxxxxxx
==============================================

This is a reply to Jonathon Poritz from Colorado State University.  See
Sandy Hadock's post of August 22. I've recently researched this very
issue and the answer, like many to copyright issues, is complex.

What we have to determine the legal position of this issue is the
opinions of the copyright law titans, Melville and David Nimmer, the
split opinions of a few federal courts and a law review article pretty
much on point in this discussion by Mathew Walden that I'll share with
you.  You can post your article on your web site without the permission
of the publisher whom you have assigned all rights, if it qualifies as
Fair Use.  Many publishing contracts assigning copyrights from the
author to the publisher expressly forbid using published material
without the Publisher's permission whether it is fair use or not. The
question then becomes, does federal copyright law (17 USC Section 107 -
fair use) preempt state contract law?  The afore mentioned copyright
scholars argue that it does. And it's a very persuasive argument. See
Walden's law review article link below. If they are correct, and posting
an article you have authored on your web site is fair use, then you
don't need the publisher's permission.  Without all the facts necessary
for a full blown four factor fair use analysis, I am inclined to think
that this is fair use if you are using a password protected web site and
only students enrolled in your class have access. . Hence no competition
in the market with the publisher. If, however, you intend to post your
article on an open access web site, it becomes more of a stretch for
qualifying for fair use, but not impossible. In my experience most
academic publishers will give limited permission to authors to reprint
or post articles. You'll only know for sure by asking the publisher.

For a detailed legal analysis on federal law preempting state contract
laws, go to:

Walden, Matthew D., Washington and Lee Law Review, Fall 2001
(<http://find articles.com/p/articles/mi_qa3655/is_200110/ai_n8957262/ 
pg_1>)

I'd sure like to hear comments on this by others on this list. Thanks.

Marc Lindsey

Copyright Specialist, Washington State University and WSU Press