View Full Version : Is there a lawyer in the house?

06-02-2008, 06:01 PM
This is not for a story, but it is writing related, so I hope itís ok to post here.

Iíve been helping out on a project that requires me to wear my editor hat. We received a submission from a guy, and we tell him that his essay is accepted and we will be publishing it. He is happy, we are happy, and we move forward with publishing the issue (which involves copyediting his work, formatting it, peer reviewing it, etc). The guy contacts us a few days ago to tell us that the piece is being published somewhere else next month, so obviously he went completely behind our back and agreed to get the essay published elsewhere. It kind of throws our publication plans up in the air and now we have to spend hours more getting the issue ready again (find more content, reformat it for the printers, peer review the new content, etc). The aggravating thing is that he has this very angering attitude: ďIíve done nothing wrong and you canít do anything about it anyway.Ē My questions:

1) Is there anything we can do (other than to hope that what goes around comes around)?
2) Is there an actual law that prohibits this sort of behavior? If so, where can I find a quote or an excerpt? If nothing else, I want this guy to know that his behavior is definitely not ok.

Thanks in advance. It feels good to just write about it.

06-02-2008, 06:11 PM
What does his contract say? You DO have a contract, right?

Mike Martyn
06-02-2008, 06:17 PM
You need to tell what jurisdiction you're in since remedies vary from place to place.

Since you didn't provide us with that info up front it's obvious that you're in the United States somewhere.

06-02-2008, 06:20 PM
Sadly, the publication does not ask writers to sign a contract. There’s no money involved and it is an academic journal, so most writers want to play by the rules because a publication brings them closer to tenure/grants. We have emails proving that he agreed to let us publish the thing, but that’s it.

We’re based in Canada and the writer is in the US.

Tsu Dho Nimh
06-02-2008, 06:48 PM
No contract, no redress.

If you, as many journals do, have done any advertising or mentions of the coming contents, add a brief editorial note saying that the promised article by "X" will not appear because he/she published elsewhere (don't mention the name of elsewhere) without notifying you that he/she was submitting it elsewhere. That should nicely, and truthfully, warn other editors that he/she is likely to jump ship for a better offer.

06-02-2008, 06:50 PM
I am not a lawyer, etc...

But it seems that what this hinges on is what rights he gave you. First North American serial rights, for example, would mean that you had the right to publish it first in your journal, but he retained the right to let others publish it afterwards.

So the first step is, what rights did he grant you? Even without a contract, do you have a standard policy or submission guidelines that specify what the default rights are that the journal wants?

06-02-2008, 06:50 PM
No contract, no redress.

Ditto. You need a contract even if the writer isn't being paid. Contracts are to protect BOTH parties and to clarify who is giving and getting what.

06-02-2008, 06:52 PM
Thanks Tsu Dho Nimh! Someone on the editorial board was under the impression that our correspondence with the author was an agreement that obligated him to publish with us. Is that incorrect?

06-02-2008, 08:38 PM
You might be able to infer a contract from your emails, but it's going to be very difficult to do so and impossible to answer without seeing all of the emails.

Even if you put together a contract, the question then becomes what damages are involved. Aggravation isn't really worth a whole lot money.

If you're part of a school, I'd see if there is a lawyer on the school staff. If not, you might want to invest the time meeting with an attorney to discuss your present and future situation.

Personally I'd view this as a life lesson learned, and maybe send out the guys name to any friends I knew in the publishing industry (not AW -- private stuff) to warn them of the risks of working with this guy. And obviously he's going to be on your list of you'll never publish him again.

Best of luck,

Jim Clark-Dawe

06-02-2008, 10:27 PM
Well, how about that. That’s wonderful advice – there is in fact an attorney available through the grad student union and we (the editors) can meet with him to go over the whole mess. Thank you so much for suggesting that – I wouldn’t have thought of it. I’m annoyed that he’s “getting away with it” (as he views it) and that he is being so insufferably annoying and passive aggressive about it. If he had just said “I’m sorry, I goofed” there wouldn’t be all this bad feeling (or at least not nearly as much). It is a life lesson learned for sure, but it still leaves a bad taste in the mouth.

06-03-2008, 01:54 AM
I'm not seeing why you couldn't publish the story; unless you have an editorial policy that only allows you to publish first-run stories, or that you can't publish re-prints. The writer may get in trouble for it, but that shouldn't be an issue for you (again, unless you have an exclusivity policy), because the printing was a go prior to that.


06-03-2008, 02:22 AM
Unless and until the author signs away the rights (which is one of the things the contract is for), the author has the right to withdraw his or her permission to publish something. Here the magazine does not have a contract that they would want to rely on (all they have is some level of implied contract through the emails).

If the magazine publishes the article, it would be without permission and it would be in trouble.

Best of luck,

Jim Clark-Dawe

06-18-2008, 12:11 AM
You might be able to infer a contract from your emails, but it's going to be very difficult to do so and impossible to answer without seeing all of the emails. Even if you put together a contract, the question then becomes what damages are involved. Aggravation isn't really worth a whole lot money.

Yeah, they need a contract that says something to the effect of "when the writer signs this contract, First North American Serial rights are transferred to the journal and the writer shall not submit the article or one based in whole or in part on it to any other journal until at least 6 months [or whatever] after it has appeared in this journal." The "or one based in whole or in part on it" is to prevent the writer from revising the same article and submitting a slightly different version of it somewhere else.

But the contract isn't really about damages--it's not like there's ever likely to be an actual lawsuit over an academic article in a nonprofit journal. The purpose of the contract is twofold:
(1) It lets the journal tell a writer who pulls this that they are opening themselves to legal liability because they no longer have the right to publish this article anywhere else (i.e., gives the journal a way to pressure the writer to live up to the bargain); and
(2) It lets the journal prevent another journal from publishing it, because they can fax a copy of the contract to the other journal and let them know they don't have the right to publish it. (Or, they won't have the right to publish it until 6 months after you do, if the contract specifies a time period.)

So they need:
(a) a contract that includes something like what I've outlined above;
(b) and also includes a choice of law clause (they'll probably want to choose Canadian law, since they're in Canada) and something to the effect of the writer agrees that Canadian courts are the only courts that can resolve this matter (this prevents the writer from dragging the Canadian journal into an American court--not that that's ever going to happen, but you might as well spell it out in the contract);
(c) and also includes deadlines by which the signed contract must be returned to the journal (make these EARLY); and
(c) a policy under which they follow up to make sure they get the signed contract back, and do not start planning the issue until they have the signed contract in hand.