Has Academic Journal Stolen My Copyright?

Dear Rich: I am a university professor. Two French colleagues organized a conference in 2017 and invited me to speak at it. After the conference, they said they wanted to publish our talks (expanded into articles) in a book, and they told us we should start to revise our talks. Several months later, they wrote to say that a Swiss-based academic journal had agreed to publish the essays as a special issue. I responded to say "sounds good," and I submitted my essay to the two French colleagues, who copyedited it, and I did not hear another word for months until a PDF of the final version of my article arrived in my inbox. I was surprised to see that the article was Copyright 2019 by the Swiss publisher and that I was authorized to distribute no more than 25 copies of this PDF, and that it was not permissible to put the PDF on the Internet. I wrote to the Swiss publisher and asked on what basis they claimed the copyright, given that I never signed an agreement with them. The head of the press cheerfully admitted that there is no signed agreement of any kind and that they claim the copyright by fiat, simply as a consequence of publishing the text ("We pay the printer"). It seems to me that they have illegally usurped (or tried to usurp) my copyright. Am I correct about this?

Yes, you're correct. The concept of claiming copyright because "we pay the printer" went out with quill pens and hoop skirts. To claim the copyright to your article (which many journals do), the Swiss would need to have acquired documentation: a written assignment agreement or a work-made-for-hire agreement.

Implied license. Under U.S. copyright law, you retain copyright ownership, and the Swiss publisher probably has an implied license to publish your article in the journal. Licenses can be implied from the parties' conduct and reasonable expectations. For example, if a written license expired, but the parties continued as if it hadn't, the license for the extended use would be implied. Your consent to publication was implied by your "sounds good" and by furnishing, revising, and copyediting your article. However, the implied license doesn't permit the Swiss journal to dictate the terms of your use and doesn't allow them to distribute the article in any way other than in the journal.

P.S. Dept. The Swiss publisher would be permitted to claim a compilation copyright in the journal. The compilation copyright does not protect the individual articles, but instead, it protects the particular selection and arrangement of those articles together in one journal.

How Long Can They Use My Photos in Catalog?

Dear Rich: Do I have a right to ask for extra payment if a company is still using my photos from a photoshoot in April 2012. After the photoshoot they made me sign a small paper stating I received a payment of 15,000 pesos. There was no other written agreement. They just told me they will call me again if I will be accepted for their next photoshoot. The photos were used in their catalog (I think in April or May 2012 and the next catalogs after that). Up to now there are some photos still in their new catalogs even in their website. Can I ask for extra payment? Are there written limitations about how long they can use my photos? We don't think you're likely to have much recourse for the continued use of your photos but the answer depends on the factors described below.
What nation's law is applicable? You mentioned that you were paid in pesos which indicates that you or the company paying you is Mexican. If the work is subject to Mexican copyright law, we're not going to be of much help. Rules about ownership differ slightly from U.S. law. The copyright law in Mexico is grounded more in European copyright principles than in British rules (like the U.S.). If your arrangement is subject to U.S. law, read on.
Who is the copyright owner? By default you are the copyright owner as the creator of the photograph. However, if you were an employee (not likely) or a contractor who signed a work made for hire agreement, the company would own your catalog photos and would have the right to reproduce them whenever they wanted. So, your first task, if you still have that piece of paper, is to see whether that agreement establishes a work made for hire arrangement or alternatively, whether you gave up rights with an assignment.
License or work made for hire? It's also possible that you may have retained your copyright ownership but you licensed the catalog uses. This could have been done with an explicit license (again, check the paperwork) or it could be an implied license. For example, if the job description stated you were taking photos for use in a catalog, or you orally agreed that they could be used for catalogs, a judge would likely believe that an implied license was granted and the company would be within its rights (provided it only used the photos for catalog purposes). On the other hand, if your oral understanding was that the use was to be limited to a period of time -- say, two years -- then, you would be within your rights to demand more money.

Who Owns Volunteer's Website Content?

Dear Rich: I wrote for a website for many years. It was on a volunteer basis - I wasn't paid. I am now starting up my own website. I would like to repost many of my stories on my own site. Can I do that? Do I own the copyright for the material I wrote for the other site? Do I have the right to request that the other site take down my material? Assuming (1) you never executed any agreements with the website, (2) you weren't an employee of the other site, and (3) you didn't co-write any of the articles with someone else, then you would own the copyright in the material you created. That gives you the right to reproduce your stories wherever you wanted.
The other site. We don't know what your arrangement was with the other site but you may have created an implied license based on your behavior. That is, the fact that you posted at the other site, implies you granted them a right to display the material. If there is no implied license (and no evidence granting rights to the other side), you can ask to have your copyrighted materials removed.

Wants to Publish Poetry Contest Winners

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Dear Rich: I am publishing an anthology in which I will include poems from my blog poetry contest. Several poets entered the contest and when I've tried to find them on the internet, to get permission, I can't find them. Since they willingly sent their poems to my blog, do I need their permission to put them in my anthology? I give them credit, of course, with their names and the reference to my blog contest. Or would it be better to delete the ones I can't contact? Publishing poems without express or implied permission is infringement unless you can claim fair use (which seems unlikely in your situation). However, we have a feeling you will be able to publish without perishing.
Are you sure the poets haven't consented? We haven't seen your contest solicitation but every writing contest we have seen provides some rules about rights, particularly if a selection is chosen as a winner or runner-up. Did your solicitation contain any statement that could arguably imply permission? Even if not, you may be able to argue that furnishing an entry implied that the winners expected to be published and consented by way of an implied license. We can't guarantee that argument will work in your case but it would succeed, for example, when a letter to the editor is published. (Implied licenses and related permission are discussed in this poetry-related entry.) (Certainly, your future contests should contain a statement that winning entries will be published.)
Should you publish? We can't tell you whether to go ahead without permission. As a general rule we would be more inclined to proceed without permission for an online, electronic anthology than for a print publication. That's because the online entry can be easily taken down if there is a complaint, while the print publication is irreversible. In any case, if you can't find the poets online, it's equally possible that the poets won't find your anthology, in which case, the risk is diminished substantially.

Does Not-for-Profit Own Teachers' Courses?

We are a not for profit that has several courses and workshops developed by teachers who are contractors. We want to publish the courseware online. What is required to be clear that the IP is owned by our organization not the teacher? They were paid for developing the materials. Absent an agreement to the contrary, a contractor acquires copyright in works created for someone else. (Check our previous entry, Who Owns What I Write For NonProfit?) So if your non-profit wants to reproduce copyrighted materials, you'll need to have an agreement in place. You may have already signed such an agreement, or you can go back now and seek either an assignment or a license, both discussed below.
Acquiring ownership of contractor works. Your non-profit will own the copyright in the coursework (and not have to seek permission) if the contractor signed a work for hire agreement at the time the materials were prepared. Alternatively, you and the contractor might have signed an agreement containing an assignment provision -- an arrangement that says something to the effect of, "I assign all copyright in the work I created to the not-for-profit." Either of these arrangements allow the non-profit, as copyright owner, to freely exploit the materials including publish them online. Although it is probably too late to execute a work made for hire --  such agreements should be made in anticipation of the completed work -- the contractor can execute an assignment at any time.
License it. Even if the non-profit doesn't own copyright and can't acquire ownership via an assignment,  the nonprofit may have acquired a nonexclusive implied license to reproduce the materials for their intended purpose. That is, if you hired the teachers to create course materials and the teachers were aware of your intention to publish the materials online, you would still have an implied license to publish the materials online. The drawback to an implied license is that it is nonexclusive and the teacher can offer the course materials to others, as well. In that case, you can still achieve your goal by executing an exclusive license for the rights you want. You can find sample agreement for most of the purposes discussed above in our Getting Permission book.