May 18, 1998
|| Deans of Member and Fee-Paid Schools
|| Bari Burke
|| Model Author/Journal Agreement
In 1996, in response to several requests, the Executive Committee
appointed the Special Committee on Law Review Publishing Agreement and asked
that committee to produce a model author-journal agreement that would serve
as one reasonable model against which law professors could judge the
agreements that they received from law journals. The special committee
endeavored to produce an agreement that would be fair both to authors and to
journals and that might result in some greater uniformity nationally.
The special committee has produced the attached agreement. The Chair of
the committee drafted a cover, "Why a Model Author/Journal Agreement," which
introduces the model agreement and explains the committee's process of
crafting the agreement.
We would appreciate your distributing copies of this memo and attachment
to members of your faculty.
The Association would like to take this occasion to thank for their hard
and excellent work the members of the Special Committee: Professors Stephen
R. Barnett (University of California, Berkeley, School of Law), Robert A.
Gorman (University of Pennsylvania Law School), Marci A. Hamilton, Chair
(Benjamin N. Cardozo School of Law, Yeshiva University), and Lloyd Weinreb
(Harvard Law School).
Why a Model Author/Journal Agreement?
Marci A. Hamilton1
Any law professor who has published in more than one journal knows that
there is precious little uniformity among agreements between the law reviews
and their authors. For the noncopyright scholar, each agreement offers a
new set of quandaries. Copyright law professors frequently find themselves
advising their colleagues on whether to sign a publication agreement, or a
particular provision of an agreement.
The following model agreement was crafted by four copyright law
professors, Professors Stephen Barnett, Robert Gorman, Lloyd Weinreb, and
myself, for the purpose of providing a reasonable agreement that could be
used as a measure against which to judge other agreements. Working as a
Special Committee of the AALS, we labored to craft an agreement that is fair
to both sides and that takes into account the central concerns of both sides.
We do not offer the agreement as the only reasonable alternative, but rather
as one possibility that the parties would do well to take into account.
Before we turned to the task of drafting the agreement, we put-together a
file of agreements from a large number of law reviews. The range of
agreements was astonishing. While some insisted on a work-made-for-hire
arrangement between the parties, i.e., the journal became the
"author" for copyright purposes, others only obtained from the author the
right to publish the article in the hard copy version of the journal.
We knew that the range of agreements could not be attributed to the fact
that each journal had widely divergent interests from the others. Rather,
this was a natural chaos, arising from the fact that law reviews are run by
students who cannot devote their full energies to the agreement that
accompanies the really hard work, the article, and that agreements may be
drafted by any of a number of groups, including law professors, general
counsels to the law schools, general counsels to the universities, local
practitioners, or by the students themselves, perhaps using samples from
other law reviews. The range seemed unnecessarily broad to us, and called
for a model agreement that might bring some uniformity to this area.
Having viewed this vast range of agreements, we were also persuaded that
there is a range of reasonable agreements and there are some that are
patently unacceptable, because they shift too much power in the direction
of the journal or the author.
To be perfectly frank, this was not an easy agreement to write. In this
era of lightning quick alterations in content delivery, retrieval, and
collection, I am certain that there will be copyright professors who take us
or the agreement to task for one item or another. The agreement does
reflect, however, some core shared presuppositions of those on the committee
that we would hope to see in any author/journal agreement. They include:
- It is unacceptable to ask an author to agree that the work will be a
work made for hire. By agreeing to a work-made-for-hire agreement, the
author not only loses control of the work in every circumstance, he ceases
to be the "author" for purposes of the copyright statute. No journal
requires this level of control over a work, and no author should agree to
relinquish this level of control over his creative works.
The academic community and the marketplace of ideas are enriched when
the author retains some rights to exploit the work. Without
work-made-for-hire, there are two entities exploiting the work in
different forms, and they are entities with sufficiently different agendas
and contacts to push the work into different forms more efficiently.
- It is unacceptable for an author to engage in competing
publications of the work during the first one or two years of the
journal's publication. This principle arises not out of the copyright law,
but rather out of a sense of fairness.
- In order to avoid future disputes, both sides need to think very
carefully about where the work might land beyond the journal's hard copy
publication, such as edited books, the author's or the journal's websites,
in classroom materials, and on data retrieval services (both legal and
nonlegal). The information era has made it significantly more likely that
a work can and will appear in other forms, and both parties need to prepare
for that possibility, if not inevitability.
- The overall function of student-edited law journals is to provide
education for both the student editors and the readers. The law schools
that house and commonly subsidize such journals have the purpose of
uncovering and disseminating knowledge. Unlike the case of a trade
publication seeking to make a profit, it is appropriate that most material
in law journals be available to the author, and to others in nonprofit
institutions, for use in the classroom and other instructional settings.
Would that we could have offered a one-paragraph agreement that would
satisfy most needs. That we found impossible to do. Instead, we offer the
following, which embraces as many reasonably likely eventualities as we
could imagine (and some unlikely ones, like litigation) and which attempts
to achieve a meaningful and fair balance of power between author and journal.
Model Author/Journal Agreement
AALS Special Committee
Professors Barnett, Gorman, Hamilton (chair), and Weinreb
The following is an agreement between ________________, hereinafter referred
to as the Author, and _______________________, hereinafter referred to as
the Journal, and governs _________________________ (title of work, which
may be an article, essay, comment, book review, or other writing or graphic
work created by the Author), hereinafter referred to as the Work.
- Author's Grant of Rights
- Except as provided in Paragraphs 1(c) and 2(b), the Author grants to
the Journal the rights to reproduce and distribute the Work in the Journal,
in facsimile reprints or microforms, as a contribution to a collection
published by the Journal, and by means of an Internet or Intranet site
over which the Journal exercises effective control, and also by means of
a third-party online legal information provider, such as, but not limited
to, LEXIS-NEXIS and Westlaw.
- The Journal's rights provided in Paragraph 1(a) shall be exclusive for
a period beginning when this Agreement is executed and ending one (1) year
after publication of the Work in the Journal or two (2) years after
execution of this Agreement, whichever is shorter, and shall be
- The Journal's right to reproduce the Work includes the right to
prepare a translation in any language or to authorize the preparation of
such a translation, but such right is subject to the Author's approval of
the translator, which is not to be unreasonably withheld.
- After the Work has been published in the Journal, the Journal shall
have the right, after notification of the Author, to authorize another
party to reproduce and distribute the Work in the forms specified in
Paragraph 1 (a).
- The Author grants the above rights without claim of royalties or other
- Author's Ownership of Copyright and Reservation of Rights
- The copyright in the Work shall remain with the Author.
- The Author retains the rights:
- To reproduce and distribute the Work, and to authorize others to
reproduce and distribute the Work, in any format, to students for
classroom use, at or below cost;
- To include the Work, 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 Work to another periodical
without the permission of the Journal sooner than one (1) year after
publication of the Work or two (2) years after execution of this
Agreement, whichever is sooner, and provided further that such Work
identifies the Author, the Journal, the volume, the number of the
first page, and the year of the Work's publication in the Journal.
- To post the Work, in whole or in part, on an Internet or Intranet
site over which the Author has effective control provided that such
Work identifies the Author, the Journal, the volume, the number of the
first page. and the year of the Work's publication in the Journal.
- Publication by Others
- Unless the Author notifies the Journal in writing otherwise, the issue
of the Journal in which the Work appears shall include a notice stating
that the Work may be reproduced and distributed, in whole or in part, 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 Journal, the volume, the number of the first page,
and the year of the Work's publication.
- The Journal shall have the right to authorize another party to
reproduce and distribute the Work in a form other than those specified in
Paragraph 1(a), provided that such reproduction identifies the Author, the
Journal, the volume, the number of the first page, and the year of the
Work's publication in the Journal, and provided further that the Author
has been notified by the Journal of its intent to authorize such
reproduction and distribution not less that thirty (30) days prior to the
grant of such authorization and the Author has not within thirty (30) days
after being notified given the Journal written notice of the Author's
objection to such reproduction and distribution.
- Author's Warranties and Undertakings
- The Author warrants that to the best of the Author's knowledge:
- The Author is the sole (joint) author of the Work and has the
power to convey the rights granted in this Agreement;
- The Work has not previously been published, in whole or in part,
except as follows: _________________________________________________
- The Work does not infringe the copyright or property right of
- The Work 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.
- If the Work reproduces any textual or graphic material that is the
property of another for which permission is required, the Author shall, if
requested by the Journal, obtain written consent to such reproduction.
- If a claim is asserted against the Journal 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 Journal's response to and defenses against such claim, and the Journal
shall not settle such claim without the Author's approval. If a settlement
requires the Journal to make a money payment, or a money judgment is
rendered against the Journal, the author shall reimburse the Journal for
the amount of such payment or judgment, and shall pay the cost and
expenses reasonably incurred by the Journal in defending against the
- The Journal 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 Journal. 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 Journal's reasonable costs and expenses incurred in the
proceedings, and the balance shall be divided equally between the Author
and the Journal.
- Editing and Printing
- The Author authorizes the Journal to edit and revise the Work prior to
publication in the Journal, but the Work shall not be published by the
Journal unless it is acceptable in its final form to both the Author and
- Promptly after publication, the Journal shall give the Author, without
charge ______ offprint copies of the Work and, if requested by the Author,
additional copies at a cost to be determined.
- Final Agreement
This Agreement constitutes the sole agreement between the Author and the
Journal with respect to the publication and copyright of the Work. Any
modifications of or additions to the terms of this Agreement shall be in
1Professor of Law,
Director, Intellectual Property Law Program, Benjamin N. Cardozo School of
Copyright © 1998 Marci A. Hamilton. <Back to
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