Citing sources and the “Right to Publicity” (USA)

Question

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?

Answer 1

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.

Answer 2

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.