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socrateaser
socrateaser, Attorney
Category: Business Law
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Experience:  Retired (mostly)
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We are an ad agency, our client paid for an editorial supplement

Resolved Question:

We are an ad agency, our client paid for an editorial supplement that went into a magazine and was published in their publication March 1. The pub called our client, interviewed them and added the info into their supplement. The article has been published. The client would like to take the article, and reprint it. They also want to take out references of their competition in the article and maybe make a cover change.

1. As an agency, can we do that without copy write issues since we paid to have our client included in the supplement?
2. Can we change the article and still claim it was in the publication if we alter the editorial?

Thanks for your help.
Submitted: 5 years ago.
Category: Business Law
Expert:  socrateaser replied 5 years ago.
1. As an agency, can we do that without copy write issues since we paid to have our client included in the supplement?

A: Assuming that the modifications by the publisher were actually "creative" (i.e., not simply statistical tables, or typographical corrections), then I see two different possible interpretations: (a) the publisher is a joint copyright holder with you, and as such, you each have the right to reproduce the work, but you would owe the other party for a joint interest in any profits thereby obtained; (b) the publisher has infringed your copyright by modifying the work without your consent, and therefore you have an action for infringement on the current publication. In this latter case, you could not reprint the article with the publisher's modifications, but you could reprint it as it was originally written.

Note: You may also have an action for breach of contract against the publisher for publishing a modified version of the article without your consent. This could provide some negotiating leverage re paying for the publisher's unpermitted action, or for obtaining an unlimited license, or assignment of the publisher's modifications for your use.

2. Can we change the article and still claim it was in the publication if we alter the editorial?

A: You can claim that a substantially similar version of the article was published in the publication, but you can't claim that the original was published, because it wasn't. I'm being a bit factitious here, because other than the publisher, who is going to challenge you if you claim that the article was previously published?

Hope this helps.

Please understand that I "justanswer" questions “about” the law. I have no interest in providing you with anything less than a completely satisfying answer. However, if the law does not favor your unique circumstances, then the best that I can do is to explain what the law "is" and what it "is not."

 



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Customer: replied 5 years ago.
Your Comment - Note: You may also have an action for breach of contract against the publisher for publishing a modified version of the article without your consent. This could provide some negotiating leverage re paying for the publisher's unpermitted action, or for obtaining an unlimited license, or assignment of the publisher's modifications for your use.

-->The publication is not the one that wants to modify the article, it is our client. They want to take the article and reprint it and use as they see fit. So there is no copy write infringment on the side of the publisher, we just want to be sure that our client is covered from copy write issues. Do you think the client will be covered?

A: You can claim that a substantially similar version of the article was published in the publication, but you can't claim that the original was published, because it wasn't. I'm being a bit factitious here, because other than the publisher, who is going to challenge you if you claim that the article was previously published?
-->So if the original article is published,you are saying that we cannot claim it was from the original article because our client modified the original?
Expert:  socrateaser replied 5 years ago.
-->The publication is not the one that wants to modify the article, it is our client. They want to take the article and reprint it and use as they see fit. So there is no copy write infringement on the side of the publisher, we just want to be sure that our client is covered from copy write issues. Do you think the client will be covered?

A: If you provided the copy text to the publisher, and you did not assign your copyright, then it's your creative work and you can license it to whomever you wish, including your client. However, if what you mean is that you literally want to "image" the published version of the copy text as it appears in the magazine, then that would infringe the publisher's copyright, because the fixed representation of the text on the publication's page is the publisher's creative work.

A: You can claim that a substantially similar version of the article was published in the publication, but you can't claim that the original was published, because it wasn't. I'm being a bit factitious here, because other than the publisher, who is going to challenge you if you claim that the article was previously published?
-->So if the original article is published,you are saying that we cannot claim it was from the original article because our client modified the original?

A: In an academic argument, my answer would be that modifying the article and claiming it was the same as that which appeared in the publication could be construed as a deceptive trade practice/false advertising. However, in the real world, this sort of editorial license occurs about 1,000 times every second -- so, the real issue is whether or not the publisher has some reason to challenge you or your client's use. If not (and further assuming that this text is not some peer-reviewed scientific monograph, or some other document, the text of which, were it changed, could have far reaching negative effect on the public interest: e.g., FDA prescribing information), then I'm not sure why anyone would care one way or the other.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

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