Best Practices for Law Review Authors?

As UC‘s only Copyright specialist, I field a lot of questions from my faculty colleagues each year involving what they can and can’t do in class (things like, “can I hand out this clipping from today’s paper?”) Usually, my answer is simple: “yes, fair use. That will be $32,500, please.” Twice a year, though, during the peak law review submission seasons, I get questions of a different sort, generally revolving around what sorts of things law professors should and shouldn’t agree to in order to get their work published. This is an area of great interest, but great uncertainty—the core of the problem is that law journal publishing agreements often arise in an atmosphere of mutual ignorance, where neither party to the transaction really understands the language of the agreement they are signing.

Now that the semester is over, I am preparing to give a short lunch presentation to my colleages next week on this topic. My aspiration is for everybody to go into the fall journal submissions season with a little better understanding of the terms of the transaction that occurs when you sign a publication agreement. (My secondary goal is to foster open access; as readers of this blog will know, and you may see for yourself by clicking on our “open access” tag, this is a pet issue of mine.)

To guide the discussion, I have written a very short introduction to publication agreements for authors. It’s purposefully aimed at a nonspecialist audience, so there are plenty of things it doesn’t cover. But I don’t think it does such a bad job at teeing up the issue. An excerpt:

Suppose you wish to live in my house. You and I might reach two sorts of agreements to make that happen. First, I could sell you my house. In that case, it would become your house: you could live in it, hold raucous parties, trash the place, resell it, or do anything you wished. Second, I could rent you the house. It would still be my house, but you would have my permission to do whatever we agreed to in the lease.

Publication agreements are like that. You can assign your copyright in the work, which is like selling your house. Now it’s not your work any more: it belongs to the publisher. Perhaps they will give you permission to continue using it in certain ways, but at the end of the day, they own it. Alternatively, you can retain your copyright in the work, but grant the publisher the permissions it needs to publish it (including the permission to, for example, include the work in the major electronic legal research databases). This alternative is like renting your home. It’s still your work, but you and the publisher have agreed that they may use it in certain specified ways.

I’d love to hear any feedback readers of this blog may have on the piece. This whole thing is Creative Commons licensed, so of course you are free to copy and adapt it yourself.

3 Responses to “Best Practices for Law Review Authors?”

  1. Apropos OA, have you considered signing the Durham Statement?

  2. The Durham Statement plays into a paper I’m working up this summer on the role of libraries in a disintermediated world, and I expect I’ll have more to say about it as my research progresses. I applaud the sentiment behind it, but want to see how it plays out in practice—there have been similar initiatives by university libraries in the past that proved to be much less open in their implementation (e.g., we’ll allow “open” access to the digital materials in our collection, but only if you are a student or faculty member at another university that has also joined our group). Harvard Law has been an offender in this regard, which is one of the reasons why it’s such good news to have John Palfrey running things now.

  3. Great article. Do you think it applies equally to book publication as well as articles, or are there any differences? Are publishers more reluctant to let an author retain copyright for a book as opposed to an article?