Academic integrity and copyright law entangled in legal case

In a case that explores questions of academic integrity and the intricacies of copyright law, biotech entrepreneur Andrew Mallon is suing Brown University professor John Marshall, Mallon’s former postdoc adviser, for an alleged breach of copyright. The complaint, which was first reported on the blog Retraction Watch on Monday, was filed with the U.S. District Court of Massachusetts. In addition to Marshall, it also names as a co-defendant one of Marshall’s collaborators, Wayne State University professor Dennis Goebel. 

The saga began in 2008, when Mallon joined Marshall’s lab as a postdoc to investigate a potential drug for learning and memory disorders. According to the complaint, Mallon and Marshall soon cofounded a company that aimed to exploit the promising findings. In October 2011, the two submitted a manuscript presenting the work, with Mallon as the first author and Marshall as the corresponding author, to the journal Neuron, which declined publication. Shortly after, Mallon and Marshall found that they “disagreed about how [the company] should be operated and about the required standards of legal and ethical conduct,” the complaint states. The two “had a falling out” that resulted in Marshall leaving the company and Mallon leaving Marshall’s lab. They went their separate ways to found new, competing companies focused on developing novel compounds for treating learning and memory disorders.

The lawsuit raises complex issues about how universities, authors, and journals handle authorship and copyright ownership.

Then, in February 2013, Marshall and Goebel published a paper in PLOS Biology that Mallon’s complaint identifies as his “Neuron paper with minor alterations.” The complaint also states that Mallon “conceived, planned, supervised and undertook the research described in the PLOS Biology paper. And he wrote the majority of the text and figures.” The complaint goes on to allege that Marshall “published it as his own work” in PLOS Biology “whilst removing Dr Mallon as the first author.” Mallon was not included in the author list of the PLOS Biology paper. He is instead thanked in the acknowledgements for “electrophysiology assistance and discussions.”

Mallon claims that “Marshall decided not to list [him] as an author on the PLOS Biology Paper in an attempt to gain a competitive advantage for himself and his company.” The complaint also makes obscure references to several instances of scientific misconduct by a Ph.D. student who at the time was working in Marshall’s lab. It claims that another reason Marshall did not include Mallon as an author on the PLOS Biology paper was that he wanted to “retaliat[e] for … cooperation with authorities into [such] actions.” The complaint demands both a “[d]eclaratory judgment that Dr. Mallon is a co-author and co-owner of the copyright of the PLOS Biology paper” and the “[f]ull retraction of the PLOS Biology paper.”

In a motion to dismiss the lawsuit obtained by Science Careers, the defendants dispute the claim that they unduly appropriated Mallon’s work. Marshall and Goebel argue that “the figures and text [of the two manuscripts] bear little resemblance to one another.” Retraction Watch also reports that “[w]e were forwarded emails between PLoS Biology and Brown University, in which a representative of Brown says it had conducted an investigation of misconduct regarding the paper, and concluded that no misconduct had taken place.”  

The crux of the lawsuit is in establishing who owns the copyright for the unpublished manuscript submitted to Neuron and whether publishing the PLOS Biology paper violated this ownership in any way. The complaint claims that Mallon co-owns the copyright to the Neuron submission, along with his co-authors, and that, by using the work in the PLOS Biology paper and signing a Creative Commons Attribution License, Marshall and Goebel have “destroyed the value of Dr. Mallon’s copyrighted Neuron Paper.” As explained on PLOS Biology’s website, the license “permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.” This earned Marshall and Goebel “the promise that anyone that uses Dr Mallon’s work cites them as the author and not Dr Mallon,” the complaint argues.

But in their motion for dismissal, the defendants argue that Mallon does not own any copyright to begin with. They claim that, according to U.S. copyright law, the Neuron manuscript is a “work made for hire,” which the law defines as “a work prepared by an employee within the scope of his or her employment.” In such cases, “the employer or other person for whom the work was prepared is considered the author.” The motion argues that, because Mallon “was a Brown University employee when he participated in drafting the original article” and “[i]t certainly is within the scope of a post-doctoral researcher’s employment to write academic papers,” the copyright should go to Brown rather than to Mallon or his coauthors.

As defined by Brown University in its copyright policy, however, “[c]opyrightable works of scholarly research, course materials or artistic works made by faculty members would not be considered Works Made for Hire and are the property of the author or authors.” Mallon cites this policy to defend the argument that he co-owns the copyright.

Regardless of whether Mallon co-owns the Neuron submission copyright, the defendants’ motion to dismiss provides additional arguments supporting their claim that the complaint is unfounded. First, the motion emphasizes that, if the copyright for the Neuron manuscript belongs to the authors and not the university, Mallon is just one co-owner. Therefore, the motion states, “[u]nder basic copyright law, as joint owners of the copyright in the original work, the Defendants had carte blanche to use as much or as little of the original work in subsequent works.” Moreover, the motion states that while the Copyright Act gives owners some rights, including reproducing and distributing a piece of work or preparing derivative works, “with the exception of visual arts, the right of attribution simply doesn’t exist under U.S. copyright.” With no right of attribution, the motion argues there are no legal grounds for Mallon to claim that his name should be added to the PLOS Biology paper. The motion was denied, and the case goes on.

The lawsuit raises complex issues about how universities, authors, and journals handle authorship and copyright ownership. Its final ruling may well have implications that reach beyond this specific case.

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