Wednesday, April 17, 2013

Can Editor Include Samples in Portfolio?

Dear Rich: I am an editor and have a potential client who is asking me for before-and-after editing samples on certain topics. I’m not going to send anything from any client who has made me sign nondisclosure forms, but I do have a couple of book manuscripts that fit the bill. I can take a chapter and remove any obviously identifying info or metadata, but unfortunately anyone could Google a passage and figure out what the book is and who the author is. Do you think it’s professionally unethical to use the samples without getting the author’s permission? Or could it even be a violation of copyright? We can't comment on the ethical obligations of an editor -- that's between, you, your client and the ethics gods -- but we can respond to the legal issues.
Is it a violation of law? Copyright infringement occurs when a copyrighted work is reproduced without the permission of the copyright owner. So, technically you are infringing by forwarding chapters without permission. We doubt this will turn into an issue for you, however, because it seems unlikely that the copyright owner will learn of your use. And if the owner does learn of your use, the case for infringement is not especially strong because you limited distribution (and damages) and may even be able to qualify the copy as a fair use. You can further limit liability by requesting that the potential client not reproduce the samples and maintain their confidentiality. (That indicates your good faith in limiting reproduction.) That's not as powerful as having the potential client sign a confidentiality agreement (which we doubt you want to do).  However, if the potential client asks you to sign a confidentiality agreement, by all means, seek to make it mutual, so that the submissions will be confidential. And in the future, if you use editing agreements, you might want to include a provision that grants you a non exclusive license to reproduce segments of the editing work in your "portfolio" to be shown only to potential clients.

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