Columbia Law Review
From Copyright Experiences
Here's my agreement with Columbia Law Review.
A CONTRACT BETWEEN MARK LEMLEY AND THE COLUMBIA LAW REVIEW
The following is an agreement between Mark Lemley (the “Author”) and the Columbia Law Review Association, Inc. (the “Association”) and governs publication of the Author’s piece, Spillovers (the “Essay”), by the Columbia Law Review (the “Review”).
The Association accepts the Essay for publication and contemplates publishing the Essay in the January 2007 issue of the Columbia Law Review, Vol. 107, No. 1 (the “Issue”).
1. Author’s Grant of Rights
a. Except as provided in Paragraph 2(b), the Author grants to the Association the rights to print, reproduce, distribute, and sell the Essay, or any portion thereof, in all manners customary in law review administration, in any language and in any country, including but not limited to the following: publication as part of the Issue; publication as individual reprints; reproduction as part of bound volumes including the Issue; reproduction in a collection published by the Review; and reproduction in facsimile reprints or microforms. b. Except as provided in Paragraph 2(b), the Author also grants to the Association the right to electronic publication and reproduction of the Essay, including but not limited to the following: publication by means of an Internet, Intranet, or World Wide Web site over which the Journal exercises effective control; publication by means of a third-party online information provider, such as, but not limited to, Lexis-Nexis and Westlaw. c. The Association’s rights provided in Paragraph 1(a) to print and sell the essay shall be exclusive for a period beginning when this Agreement is executed and ending one (1) year from the date when the Issue is first mailed to the Review’s subscribers (the “Publication Date”) and shall be nonexclusive thereafter. During the one year period, the Author shall not publish the Essay, or any portion thereof, in any other law review or scholarly publication, nor shall the author authorize any other party to do so, without the written consent of the Association. d. After the Essay has been published in the Review, the Association shall have the right, after notification of the Author, to authorize another party to reproduce and distribute the Essay in the forms specified in Paragraphs 1(a)– (b). e. To the extent permitted by applicable law, the Author irrevocably grants the above rights to the Association without claim of royalties, other compensation, or other participatory claim.
2. Author’s Ownership of Copyright and Reservation of Rights a. The copyright in the Essay shall remain with the Author, and nothing in this Agreement shall be construed as an assignment of copyright ownership to the Association. Except as otherwise provided, all rights in the Essay under the Copyright Act of 1976 belong to the Author. b. Except as provided by Paragraphs 1(c)–(d), the Author retains the rights: i. To reproduce and distribute the Essay, and to authorize others to reproduce and distribute the Essay, in any format; ii. To include the Essay, in whole or part, in another work of which the Author is the sole or joint author or editor, provided that in either circumstance, the Author may not submit a work for publication that is substantially the same as the Essay to another periodical without the permission of the Association sooner than one (1) year after the Publication Date, and provided further that any reproduction or republication of the Essay, other than a photocopied duplicate of an original printed copy, must bear the legend that the Essay or portions of the Essay (as applicable) first appeared in the Columbia Law Review, using a method of citation similar to the form set out immediately below, or whatever form of citation may then be commonly used: This Essay originally appeared at XX Colum. L. Rev. xxx (2007). Portions of this Essay originally appeared at XX Colum. L. Rev. xxx (2007). where “XX” indicates the volume number, and xxx represents the page of the Issue on which the Essay begins.
3. Publication by Others a. The Association has the nonexclusive right to authorize the photocopied reproduction and distribution of the Essay; as well as the nonexclusive right to authorize others to reproduce and distribute photocopies of the Essay (“others” includes, but is not limited to, reproduction rights companies, such as the Copyright Clearance Center, and document delivery services, such as University Microfilm, Inc.). b. In the Issue in which the Essay appears, the Association shall have the right to publish a notice stating that the Essay may be reproduced and distributed, in whole or in part, as it appeared in the Columbia Law Review by nonprofit institutions for educational purposes including distribution to students, provided that the copies are distributed at or below cost and identify the Author, the Review, the volume, the number of the first page, and the year of the Essay’s publication in a manner substantially similar to that described in Paragraph 2(b)(ii). c. The Association shall have the nonexclusive right to authorize another party to reprint and distribute the Essay in a form other than those specified in Paragraph 1(a)–(c) and 3(a)–(b) in any language and in any country, provided that such reprint identifies the Author, the Review, the volume, the number of the first page, and the year of the Essay’s publication in a manner substantially similar to that described in Paragraph 2(b)(ii), and provided that the party seeking to reprint or distribute the Essay additionally obtains permission from the Author.
4. Author’s Warranties and Undertakings a. The Author warrants that to the best of the Author’s knowledge i. The Author is the sole or joint author of the Essay and has the power to convey the rights granted in this Agreement; ii. The Essay has not previously been published, in whole or in part, except as follows:
iii. The Essay does not infringe the copyright or property right of another; and iv. The Essay does not contain matter that is defamatory, violates another’s civil right, right of privacy, right of publicity, or other legal right, or is otherwise unlawful. b. If the Essay reproduces any textual or graphic material that is the property of another for which permission is required for reproduction, the Author shall, if requested by the Review, obtain written consent to such reproduction.
5. Litigation a. This Agreement shall be construed as a contract made under the laws of the State of New York. b. If this agreement is signed by the Author after the Publication Date, the Author agrees that the past performance of publication shall constitute valid consideration pursuant to New York General Obligation Law § 5-1105. c. If a claim is asserted against the Review or Association as a result of the Author’s alleged breach of this Agreement or the warranties herein, the Author shall be promptly notified. The Author shall have the right to participate in the Review or Association’s response to and defenses against such claim, and the Review shall not settle such claim without the Author’s approval, which shall not be unreasonably withheld. If a settlement requires the Review or Association to make a money payment, or a money judgment is rendered against the Review or Association, the author shall reimburse the Review or Association for the amount of such payment or judgment, and shall pay the cost and expenses reasonably incurred by the Review or Association in defending against the claim. d. The Association shall have the power, after giving notice to the Author, to initiate legal proceedings against persons or entities believed to be infringing the rights granted by the Author to the Association. The Author agrees to cooperate reasonably in the institution and maintenance of such proceedings. Damages recovered in such proceedings shall be applied first toward the Association’s reasonable costs and expenses incurred in the proceedings, and the balance shall be divided equally between the Author and the Association.
6. Editing and Printing a. The Author authorizes the staff of the Review to edit and revise the Essay prior to publication in the Review. The Essay shall not be published by the Review unless it is acceptable in its final form to both the Author and the Review. b. One of the instances in which the Review may find the Essay unacceptable in its final form is if the Essay has grown to greater than 115% of the Review’s stated Essay Word Length limit of 37,000 words (greater than 42,250 words, including footnote text, determined by Microsoft Word’s Word Count function). In such cases, the Review shall have the right, subject to Paragraph 6(a), to edit the piece to conform to its Word Length policy, or decline publication altogether. c. Promptly after publication, the Association shall give the Author (or authors, if the Essay has more than one author) a total of twenty-five (25) offprint copies of the Essay without charge and, if requested by the Author, additional copies at a cost to be determined.
7. Final Agreement This Agreement constitutes the sole agreement between the Author and the Association with respect to publication rights, copyright, and republication rights relating to the Essay. Any modifications of or additions to the terms of this Agreement shall be in writing.
Professor Mark Lemley Date
Grant Mainland Date Editor-in-Chief, for the Columbia Law Review Association, Inc.