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Intellectual Property:

Unwanted Inclusion as Co-Author of Paper?

Reader Question: Because of some of our recent scientific papers, we have achieved a bit of prominence as "up and comers" in our field. At the institute lunch table, I have freely shared ideas and thoughts with a colleague whose lab is down the hall. But they were just collegial, rambling discussions, nothing more. Now, he has published a paper in a major journal and listed me as a co-author. This is without my permission and without there having been any real input or review from me. I do not want my widespread colleagues to feel I have endorsed this chap's research -- let alone contributed to it. He claims he was just being gracious by including our name, but we feel he might be "trying to ride on our coattails". At this point, how can I set the record straight, and also prevent him from doing this again?

Expert Comments:

As you already realize, your colleague had no right to use your name on his paper without your permission. It was possibly a bad move legally, and was certainly one ethically. As a professional and a scholar, your name is more than just its letters; it communicates to the reader your expertise, knowledge, and reputation.

As such, you may have "publicity rights" in it. These vary from state to state, but typically they involve the right of an individual to control and profit from the commercial use of his or her name or likeness. Under most states' right of publicity laws, the individual is protected from the loss of commercial value that results from the unauthorized use of his or her name for commercial purposes. In some states, only celebrities and public personalities are protected.

Given that you have, most likely, used your name for a variety of papers, presentations, journal articles, books, and other publications, and have applied for and received significant research grants and awards under your name throughout your professional career, your name, by now, communicates your reputation as a scholar and it carries with it some "goodwill”. Readers will expect a piece of work bearing your name to be yours, at least in part, and to have a certain quality, standard, or integrity to it.

You are also correct in your assessment that the inclusion of your name on a paper or publication communicates at least your endorsement of the content, if not your active participation in the creation or development of it. As such, it would seem that your colleague, even inadvertently, was seeking to use your name for the "commercial purpose" of enhancing his paper for acceptance by the journal as well as the scientific community.

Without knowing more about the specific laws of your state, I cannot say for sure whether he has legally violated your right of publicity. However, even if your state protects the rights of publicity of celebrities and public personalities only, and even if the paper on which your name was used were not deemed to be use for a "commercial purpose," it would seem, nonetheless, that he has infringed the spirit - if not the letter - of your right of publicity.

You mention that your colleague may simply been "trying to be gracious". It is possible that in this, he may have been attempting to comply with what he believed to be your copyrights, and thereby inadvertently made this unauthorized use of your name. In fact, he may have believed that the copyright law required him to attribute to you what he believed to be your proprietary material that you had shared with him over lunch. Although well intentioned, this belief is incorrect. The copyright law does not protect ideas, thoughts or concepts alone, but rather, protects how ideas, thoughts, and concepts (among other things) are expressed in fixed form. In other words, if you had written down your ideas and thoughts, the substantial form of the expression of them as written would have been protected through copyright. If your colleague believed attribution of your "unfixed" ideas and thoughts to you to was required, however, it was not.

You could mention that you might be happy to be mentioned in his paper if such is not citation as an author, but instead is a credit or acknowledgement for ideas that you legitimately provided. However, in that case, you should require that he add a disclaimer indicating that the content and conclusions of the article are his alone.

It is also possible that he has run afoul of institution-specific policies and guidelines in his unauthorized use of your name. Most institutions have a committee to resolve questions and disputes about intellectual property. If your colleague's unauthorized use of your name were to happen again, your next line of defense might be this group. Perhaps even without another incident, the committee could be asked to reaffirm or issue guidelines setting forth proper acknowledgement, crediting, attribution of authorship, and uses of the names of others.

You may also want to seek redress through the journal that published your colleague's paper. Most periodicals readily publish corrections and retractions. Presumably, when your colleague's paper was accepted for publication, he had to sign a release form provided by the journal indicating that he either owns or has legitimately obtained all necessary rights, consents, and releases to the piece. Since the use of your name was not authorized, , it is likely that the journal would be happy to publish a correction or retraction indicating that you are not one of the authors of the paper.

In conclusion - fair warning—in today’s Google world of digital search and storage “forever”, it is possible that your erroneously-attached name will never be completely expunged, and will confuse scholars for decades to come. But you will have done all you can.

Comments by Suzanne K. Ketler, J.D., Ph.D., Roetzel & Andress, Akron, OH., She concentrates her practice in the area of Intellectual Property.

The foregoing has been legal information only and should not be considered legal advice on a specific issue. For legal advice, the reader should contact legal counsel of his or her choice.

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