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Something that came up the other month, I was asked to sign a declaration that something I'd scribbled, amongst other things, didn't contain the names of any individuals: living, dead or fictional.... without "consent". Which lead me to ask a few questions such as WHY, and how can a fictional individual grant consent to cite a nonexistent work they haven't created. Anyway the WHY is apparently down to "Right to Publicity" statutes in various US states (There's no direct equivalent in the UK).

Anyway I'm still wondering if similar declarations are standard in all US publishing agreements, and whether there really is an assumed grant / waiver, on having something published, for others to cite it?

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    A fictional individual cannot 'grant consent' ... the fictional character's author can. Take, for example, the fictional author, Richard Castle, protagonist of the American TV Show "Castle". That character is an author of crime dramas. There are also actual (real) crime dramas, supposedly penned by him for sale (obviously actually penned by a real author). The TV company ABC and its sister publisher Hyperion Books retain the 'Right to Publicity' of that character. You would need consent from any or all of the above, but not "Richard Castle".
    – CGCampbell
    May 6, 2015 at 16:08
  • @CGCampbell If I ever stumble across a paper by Dr Bones McCoy, that I feel the need to cite, I'll remember your comment ;-)
    – arober11
    May 6, 2015 at 16:33

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I don't think I've ever seen any such clause in an academic publishing agreement.

As an example, I and some coauthors recently published a paper in a journal run by the American Mathematical Society (a US organization). The publishing agreement contained no such stipulation; the closest thing is a clause requiring us to certify that our paper "does not libel anyone, infringe anyone’s copyright, or otherwise violate anyone’s statutory or common law rights."

Indeed our paper mentioned the names of lots of individuals, both living and dead (though none fictional, as far as I know), in the context of citing their work. We never asked their consent and it was never suggested that we should. It is conceivable that this might violate the "statutory or common law rights" of those individuals, if there really are laws such as you suggest, but I've never heard a suggestion that merely mentioning people by name was likely to pose actual legal problems.

If I did see a clause like the one you mention, I'd probably do one of the following:

  • If I were feeling lazy, I'd just sign it even though it's not actually true, and assume that no real trouble will result.

  • If I were feeling conscientious, I'd tell the publisher that I can't sign the agreement as it stands because my paper does mention people by name, and it's not feasible to ask their consent. (I could add something about this being an undue restriction on academic freedom, etc.) If they insisted, I'd withdraw my paper and look for a publisher with more reasonable lawyers.

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  • The clause appeared in an appendix that had been added to the agreement, as a CA based entity would be involved. The legalise of that appendix was also different to that in the rest of the NY pened pile, probably just down to the authorship. Anyway many questions were asked and apparently you're giving an implicit grant for your name to be cited, on having a work published, but was wondering how widespread "Right to Publicity" declarations are?
    – arober11
    May 7, 2015 at 10:13
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Like Nate Eldredge, I've never seen such a clause in any academic publishing agreement.

I'm certainly not a lawyer, but as I understand it, publicity rights primarily refer to commercial exploitation. For example, I couldn't exploit Harrison Ford's fame to sell my product by using a photograph I took of him using it (without his permission). However, nothing stops me from referring to Harrison Ford here or telling people that he came to fame by acting in Star Wars. Similarly, a publisher couldn't advertise its math journals by using a photo of Andrew Wiles without his consent, but it's fine to cite his work on Fermat's Last Theorem. As with most aspects of the law, I suppose you could quibble about where to draw the line between different sorts of activities. However, I'm confident that academic citations of published papers are not problematic.

Anyway I'm still wondering if similar declarations are standard in all US publishing agreements, and whether there really is an assumed grant / waiver, on having something published, for others to cite it?

There are increased rights for people to criticize your published work (and that wouldn't make sense if they weren't even allowed to cite it). For example, see this court decision about whether calling someone a "crank" is defamatory. It points out that publishing a paper makes you a public figure in that respect, which increases the difficulty of suing for libel in the U.S. (You have to prove actual malice, not just incorrectness.) Once again I'm not a lawyer, but if publishing a paper makes you a public figure, then I can't imagine that you could assert a right to privacy and try to use that to block citation of the paper.

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