Academic Legal Writing - Eugene Volokh [146]
b. You want to be able to make copies in case you run out of reprints.
c. You want to be able to e-mail the paper to people who prefer to get it electronically.
d. You want to be able to reuse your words and your article's structure in future articles on the same theme, or future works based on the article. (This book, for instance, is based on an article I wrote earlier.)
e. You want to be able to let people photocopy the article for a law school class or a Continuing Legal Education event, and to let them reprint it in practitioner journals or excerpt it in textbooks.
f. You want to be able to make presentations based on your article, and create handouts, overhead transparencies, or Power-Point displays to go with the presentations.
If you transfer the copyright to the law journal, you may lose these rights. True, in practice, you might still be able to do what you want, since law journals aren't assiduous at enforcing their copyrights. But if you want to be honest, you'll have to ask the law journal's permission to do some of these things; and some people, such as publishers of textbooks that might include an excerpted version of your article, might insist on that. Who needs the hassle, and the possible expense?
The law journal, of course, does need to get some rights from you. But there's no reason that it needs exclusive rights: Student-edited journals are generally heavily subsidized by their schools, and get the rest of their money from subscriptions and issue sales, so they don't really rely on charging people for permission to reprint articles. Even if they do want to charge for this permission, you should fight them, because such charges are against authors' and readers' best interests—and because permission fees are such a small matter to most journals, you usually won't need to fight much.
Here's some sample language that should give both you and the journal what you both need:
The author conveys to the journal perpetual, unlimited, nonexclusive rights to reproduce, distribute, and display the article, and to authorize others to do the same. The author conveys to the journal the exclusive right to be the first to publish the article in a law journal. The author promises to clearly state in each copy or presentation that the article was originally published in the journal.
This lets the journal (a) print the piece without fear of copyright liability, (b) put the piece on its own Web site, (c) let Lexis and Westlaw put the piece online, and (d) respond to requests for permission to copy or reprint the article, if the request is sent to the journal (as such requests often are). It also assures the journal that you won't scoop it by publishing the article elsewhere first. But it leaves you free to distribute the article broadly, and to reuse your words later.
If the journal for some reason insists on getting the copyright, offer the following compromise:
The author conveys to the journal perpetual, unlimited, exclusive rights to reproduce, distribute, and display the article, and to authorize others to do the same. The author, however, retains the perpetual nonexclusive right to reproduce, distribute, perform, display, and adapt the article, and to authorize others to do the same (so long as the author clearly states in each copy or presentation that the article was originally published in the journal), except that the journal retains the exclusive right to be the first to publish the article in a law journal.
This will have the same effect that I describe above, but will technically let the journal own the copyright, subject to your rights to use the article.
If the journal resists, point out the various ways that you might want to reuse the article—for instance, the ways mentioned at the start of this subsection—and ask the editors why they would want to bar you from such reuses. My guess is that most editors will realize that they don't want to stop you from doing these