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I'm writing an editorial and would like to use a figure that I published with a coauthor a few years ago.

The copyright agreement (see #4) with the publisher allows the authors of the paper to reuse any of the work in any derivative work, as long as proper attribution is given, including a DOI.

Given the above, I would have permission from the publisher to include this figure in the editorial with proper attribution.

The coauthor and I, however, have had a falling out, and if I did ask permission he would almost certainly say no. He did not make the figure for the paper, I did, and I am first author.

Given that I produced the figure, and the publisher would allow me to use my work in any derivative work, am I required (even ethically) to ask permission of my coauthor to publish this figure in an editorial that I'm writing?

More generally, when copyright terms from the publisher are such that the author(s) may use their work in derivative works (with proper attribution), as is common in my field, must authors always obtain permission from all coauthors to republish orginal or derivative works?

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You -- and your co-author -- have, most likely, assigned your copyright in the paper to the publisher.

Without knowing all the details of your copyright agreement, your copyright agreement seems to allow you, and your co-author, the right to re-use the work, and that right applies to each of you separately. The right to re-use the work requires you to reference the original paper and all its authors.

I see no reason why you shouldn't use the figure, even without the permission of your co-author, as your copyright agreement with the original journal appears to allow this. I see no ethical argument against re-using the figure, either.

P.S. I have a qualification in intellectual property law, but I am not a lawyer.

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    This is the crux I think, the statement doesn't specifically state if the right to use the work applies separately or jointly, and logically separately would make more sense, I'll send an email to the copyright person at the publisher... – daaxix May 19 '15 at 0:26
  • I included a link to the actual agreement. – daaxix May 19 '15 at 1:13
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    @daaxix Since the copyright agreement doesn't appear to distinguish between a single author and multiple, legally it would probably be up to precedent and argument if anybody really cared. Ethically, however, it seems quite reasonable for you, the person who drew the figure, to reuse it elsewhere with appropriate attribution. – jakebeal May 19 '15 at 2:10
  • My understanding is that in general US copyright law gives independent rights to each co-creater. Thus there is no need for the journal's copyright statement to specify whether the right to use work applies separately or jointly, and even if they were to state this they would have no standing to dictate the terms. That said, I am not a lawyer etc. etc., these are complicated issues, and so I could easily be mistaken. – Corvus May 19 '15 at 5:36
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    @Corvus: I think Nicholas refers, though, to the assumption that copyright was assigned to the publisher. Therefore the questioner's legal standing to use the figure doesn't come because of individual rights as the creator, it comes because the publisher has, as part of the copyright transfer agreement, returned a license back to the author(s). They have standing to dictate the terms of that license, don't they? And AFAIK the author has the right to transfer/sell away their creator's right to use the work, or to restrict it in funny ways, if that's what the contract says. – Steve Jessop May 19 '15 at 15:05
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I don't think that it matters who created that figure or any particular internal to the paper artifact. The copyright AFAIK applies to the paper as a whole (would it be a data set, things might be a bit different). Since the paper is a joint work (legal term), even though you're a first author (academic term), from a legal standpoint, you are a co-author and, thus, IMHO your association to the specific artifact is irrelevant. Ethically, I think it would be OK to use a part, solely created by you, without the co-author's permission (not sure how helpful is that, considering the legal aspect).

Having said that, perhaps, you can use the figure in question in an editorial, based on the fair use legal doctrine. I would recommend to consult with your institution's legal department in regard to assessing the interpretation and applicability of the fair use doctrine in/to your particular case.

Disclaimer: I'm not a lawyer and this answer does not represent a legal advice.

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    I am not a lawyer either, so maybe someone can correct me, but my understanding is that all authors have an independent copyright claim to any joint work. That said, if the OP created the figure in the original manuscript, why not re-create a new figure that serves the same purpose and sidesteps all of these issues? – Corvus May 19 '15 at 0:13
  • @Corvus: Perhaps, you're right. In that case, your idea about re-creating the figure seems feasible to me, but I personally would consult legal department, just in case (on both re-creating and fair use assessment). – Aleksandr Blekh May 19 '15 at 0:18
  • A single figure in the paper would have its own copyright as a pictoral or graphical work. Copyright vests in the image independently of any text surrounding it. – Nicholas May 19 '15 at 0:26
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    The doctrine of fair use as a defence against copyright infringement requires a consideration of how the work is re-used, and in what context. Republishing the work in another commercial, for-profit, journal is probably not going to be covered by the fair use doctrine. – Nicholas May 19 '15 at 0:28
  • @Nicholas: I agree about the need of consideration, hence my advice to consult with a legal department. As for the journal, for some reason (perhaps, incorrectly), I assumed that the editorial is targeting a non-commercial publication. – Aleksandr Blekh May 19 '15 at 0:37

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