From: Kevin Smith <[log in to unmask]>
Date: Mon, 27 Apr 2015 12:11:29 +0000

Hi Linda,

There is a definition of a "joint work" in section 101 of the
Copyright Act (Title 17 of the U.S. Code).  In section 201(a) we are
told that "[t]he authors of a joint work are co-owners of the
copyright in the work."  To the best of my knowledge, the specific
meaning of co-ownership has been a matter of interpretation for the
courts, where rulings, including the one I cited, Weinstein v.
University of Illinois 811 F.2d 1091 (7th Cir. 1987), have indicated
that each co-owner of a copyright can exercise the rights
independently, subject to a duty to account for profits to the other
copyright holders.

By the way, the Seventh Circuit ruling in Weinstein -- it is a dispute
over publishing a scholarly article -- makes for interesting reading
for those in an academic setting.  The panel for the case included two
of our most famous appellate court judges (and former academics) --
Richard Posner and Frank Easterbrook, with Judge Easterbrook writing
the opinion.  The paragraph about co-ownership is paragraph 13; it
cites an earlier case as well as the opinions of Nimmer and Latman.


Kevin L. Smith
Director, Copyright & Scholarly Communication
Duke University Libraries

-----Original Message-----
From: Linda M Schwartz <[log in to unmask]>
Date: Fri, 24 Apr 2015 11:28:16 +0000

Kevin, I read your reply with interest. Can you tell me where in the
copyright law I would find the information that "a joint author, as
co-owner of the copyright, is entitled to publish even without the
permission of other joint authors." Is this in the law itself or other
sources such as case law? Thanks.


Linda Matula Schwartz, MDE, AHIP, CM
Director, Knowledge Management
(Library Services and Patient Education) Lehigh Valley Health Network
Allentown, PA 18105
610-402-5290



-----Original Message-----
From: Kevin Smith <[log in to unmask]>
Date: Thu, 23 Apr 2015 10:52:29 +0000

Hi Ann,

This is such a difficult situation, and there is lots of information
needed before advising the student about any steps she should take.

First, what is her job situation and prospects/ambitions in her field?
Academic disciplines tend to be close and sometimes closed
communities, so she should consider whether raising a conflict with an
established faculty member might damage her future opportunities.
Sadly, sometimes ignoring this type of misappropriation is the best course.

Second, it is important to establish what the misappropriation was.
Is the complaint about outright plagiarism and/or copyright
infringement, or does the student mean that she was not credited as an
author on a paper for which she feels she did significant "research
work?"  In the latter case, many institutions have a process to
adjudicate authorship disputes.

Third, what evidence does she have of the mis-appropriation?  "He
said, she said" type conflicts with faculty in academia seldom work
out well for the students.

Finally, she should remember that, under U.S. Law (not sure where this
dispute is taking place), a joint author, as co-owner of the
copyright, is entitled to publish even without the permission of other
joint authors.
So if there is a colorable argument that the faculty member is a
co-author, there is not likely to be any recourse from the copyright
perspective.  See the case of Weinstein v. University of Illinois.

With all these caveats and pointers toward needed information, I would
ultimate suggest that, if the situation is genuinely a
mis-appropriation rather than an authorship dispute, and if the
student really wants to pursue it outside of the relationships and
structures of her university, that contacting the publisher is the
appropriate step.  In most case then will have received a copyright
transfer for the work, and need to know if there is a dispute about
the validity of that transfer and their subsequent right to publish.
The publisher has a legal relationship with the putative author(s) who
published the work, and that relationship is the best lever the
aggrieved student can employ.  But really, there are very sound
reasons why most disputes like this between faculty and students never
get to that point, and this student should consider her position very
carefully.  Often a single-minded pursuit of what the student feels is
justice will only result in greater harm.

Just my .02, but I give a lot of words for the price!

Kevin

Kevin L. Smith, M.L.S., J.D.
Director of Copyright and Scholarly Communications Duke University
Libraries Durham, NC 27708 [log in to unmask]