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socrateaser
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 33480
Experience:  Retired (mostly)
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This pertains still to the previous question which you answered.

Resolved Question:

This pertains still to the previous question which you answered. New scenario, though.
Submitted: 1 year ago.
Category: Estate Law
Expert:  socrateaser replied 1 year ago.
Hello,

How may I assist?
Customer: replied 1 year ago.

Scenario-I am co-author to a manuscript for a deceased author. Her partner asked me to do a rewrite as the manuscript was rejected by a publishing company. The rewrite from me was accepted by a publisher and put under contract but publisher died and all rights returned to all authors of the publishing company. The partner now says she doesn't want me as a co-author. I understand copyright law as far as equal rights to co-authored works, etc. as well as non-exclusive publishing rights. Because the partner is now an author who has a manuscript accepted by another publishing company and that company expressed in the past an interest in publishing my co-authored manuscript I believe the partner wants to get someone else to do a different rewrite and will use all of what I brought to the story. Since I have the original manuscript from the deceased author and the revised manuscript which I wrote (appx 75% modification), would it be plagiarism or a copyright infringement if another author took the concept, ideas, narrations, dialogues from my work and incorporated into his/her work? Or can they legitimately do that?

Expert:  socrateaser replied 1 year ago.
1. Please define "partner" for the purposes of your question. Are we talking about a domestic partner, business partner, coauthor, etc?

2. Did the partner inherit the intellectual property rights belonging to the decedent?

3. Is there a written agreement between you and the partner, concerning the intellectual property rights of your work?

4. Is there a written agreement between you and the decedent, or his/her estate, concerning the intellectual property rights of your work?

Thanks in advance.
Customer: replied 1 year ago.

Partner is the unmarried 'partner' (lesbian couple). No written contract between the partner and myself but a couple of years of email communications. Partner has legal rights to the original manuscript. The deceased author and I collaborated on the original. Original was submitted and rejected by Publisher A. Partner asked me to rewrite it. Revised story was submitted to Publisher B by partner as a co-authored manuscript of deceased author and me. Manuscript was accepted and contracts signed. Publisher B died and company closed. All rights were returned to authors. Partner then has a different story accepted by Publisher C, who then expressed an interest in the manuscript. I have no problem with them publishing the manuscript as long as it designates me as co-author and royalties are split equally. I believe however the partner is trying to get out of the co-authorship by making some modifications to the story but keeping the main body, concept, changes I made. My question is, since we are talking about a co-authored story between the partner and me, is what I brought to the manuscript protected under either plagiarism or copyright law?

Expert:  socrateaser replied 1 year ago.

1. When you first wrote the manuscript with decedent, you and decedent became joint copyright owners, who could license the work as long as profits were split between you and decedent.

2. When decedent died, her copyright descends to the estate, and then to the estate beneficiary/ies. I assume because you state that partner has legal rights in the manuscript, that partner was given decedent's copyright via a will and probate estate.

3. If all of the above is true, then your rewrite of the manuscript created a derivative work from the original, and that work is 100% yours, but subject to the partner's 50% license obtained through the probate. That is, neither you nor partner can independently license the 2nd manuscript.

4. Any revision of the 2nd manuscript would be subject to your 100% copyright on the derivative, so even if you didn't do any work, the partner could not publish without your consent.

5. There is an alternative legal theory under which your work creates an implied license of your work, granted to partner, whereby you retain your copyright, but partner impliedly obtains the right to edit and distribute the manuscript. In cases where courts have actually found an implied license agreement, the question devolves into exactly what was the reasonable expectations of the parties. Did you grant an unlimited nonexclusive license to revise and republish? Doubtful. I would probably find that you did license the work, but that it was only the work that you wrote, and that by revising it a third time, the license was violated.

The important point here is that a competent publisher is not going to publish without your consent, because there is a risk that you will sue for infringement and win. So, I think you may be overthinking the outcome. You still have a lot of leverage -- though the partner may not recognize it, because she doesn't understand copyright law.

You can send a letter to the publisher stating that there is a substantial dispute over the ownership of the manuscript, and that if it is published or revised without your consent, you will be forced to take legal action to protect your interests.

If you haven't registered the 1st and 2nd revisions of the manuscript with the U.S. Copyright Office, I suggest that you do, so that if you have to sue -- you can.

 

Note: my analysis identifies a different scenario in paragraph #3, which I did not continue. If "all of the above" is not true, then the outcome here may be different.

Hope this helps.

Customer: replied 1 year ago.

Thank you for the detailed response. Your scenarios are partially accurate. The only discrepancy I see is that the deceased wrote the original manuscript but collaborated with me. When she passed away the partner inherited the rights to the manuscript. She then asked that I rewrite and be designated as a co-author. I have copies of the submission to that publisher from the partner who very specifically refers to me as 'co-author'.


 


Yes I am overthinking but I prefer to understand the law rather than assume or presume. My concern, however, is legitimate in that she instructed me to destroy ALL copies of what I had. That raises some concerns with me. So, based on this scenario, as the co-author of the deceased's work who rewrote appx 75% of the manuscript, it would be my understanding that my work and interest has theoretical protections...i.e. against plagiarism and copyright infringement from another author using what I have done to create another version. I do not dispute the right of the partner to take the original manuscript and having someone else do a rewrite on it. That would be reasonable. Hopefully, this makes sense to you. Thank you again for you patience on this one. I realize it is rather complicated.

Expert:  socrateaser replied 1 year ago.

Yes I am overthinking but I prefer to understand the law rather than assume or presume. My concern, however, is legitimate in that she instructed me to destroy ALL copies of what I had. That raises some concerns with me. So, based on this scenario, as the co-author of the deceased's work who rewrote appx 75% of the manuscript, it would be my understanding that my work and interest has theoretical protections...i.e. against plagiarism and copyright infringement from another author using what I have done to create another version.

A: Unless you can identify the specific 75% that you rewrote, as a separate and distinct work, then you rewrote the work -- period. No percentages involved. The 2nd manuscript is yours, and it is derived from the first manuscript which you jointly authored. No one can tell you to destroy the manuscripts. If anything, the opposite may be true.

I do not dispute the right of the partner to take the original manuscript and having someone else do a rewrite on it. That would be reasonable. Hopefully, this makes sense to you. Thank you again for you patience on this one. I realize it is rather complicated.

A: If the partner gets rid of your rewrite, then the partner could publish a rewrite of your jointly authored original, as long as your name were visible and profits were shared.

As a practical matter, you may want to consider trying to sell your rewrite to a different publisher. If successful, that would increase your bargaining power enormously, because it would mean that without a settlement, there could be two similar works in the marketplace simultaneously.

Hope this helps.

socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 33480
Experience: Retired (mostly)
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