IP Law Daily, COPYRIGHT—D. Mass.: Copyright claims against academic journal publisher based on failure to include copyright notice dismissed, (Sep 15, 2025)

By Linda O’Brien, J.D., LL.M.

The failure of an academic journal publisher to include a copyright notice in its distribution of a professor’s articles on its website was a violation of a contract provision and the only remedy for that violation was for breach of contract.

In a lawsuit by a university professor alleging that a U.K. publisher of academic journals engaged in copyright infringement by publishing his articles on its website, the claims could proceed except to the extent they were based on the publisher’s failure to include a copyright notice, the federal district court in Boston, Massachusetts has ruled. However, the professor’s breach of contract of a journal acquisition agreement claim and claim for declaratory relief, except as to seeking rescission of that agreement, could proceed. Thus, the publisher’s motion to dismiss was granted in part and denied in part (Lambert v. Emerald Publishing Ltd., No. 1:24-cv-11980-ADB (D. Mass. Sept. 10, 2025)).

Douglas Lambert was a professor of logistics and supply chain management at The Ohio State University. In April 1990, he formed the company, The International Logistics Research Institute, to create the academic journal “The International Journal of Logistics Management.” Between 1992 to 2004, Lambert contributed eleven articles to the Journal, and for ten of those articles, he did not expressly transfer the copyright in his articles to the Institute. In 2005, the Institute was acquired by Emerald Publishing Limited, a global digital publisher of scholarly journals and books based in Great Britain. The acquisition agreement, which Lambert signed on behalf of the Institute, provided that copyright on all published issues and content transferred to Emerald, however, copyright in articles authored by Lambert remained with the author.

Between 2008 and 2017, Emerald and its U.S. affiliate, Emerald Group Publishing Inc., started offering individual digitized copies of Lambert’s articles on its jointly owned website, Emerald Insight. In 2024 Lambert learned that Emerald had reproduced and distributed over 160,000 individual copies of his articles without including the required notice on his articles. In August 2024, Lambert filed suit against Emerald and its affiliate, asserting 11 copyright infringement claims, a claim for breach of contract, and a claim for declaratory relief. Before the court was Emerald’s motion to dismiss for failure to state a claim.

Copyright infringement. The court found that the Institute acquisition agreement did not bar Lambert’s copyright infringement claims, however, the claim could not be based on Emerald’s alleged failure to provide copyright notices with Lambert’s articles. Lambert retained the copyright in all but one of his articles when he contributed them to Journal, conveying to the Institute as owner of the Journal, only the right to reproduce those articles as part of the Journal. Lambert had the exclusive right to reproduce and distribute his articles. Under the acquisition agreement when the Institute transferred to Emerald the copyright on all published issues and content of the Journal, the Institute could not and did not transfer Lambert’s right to reproduce and distribute the articles on their own.

However, the terms of the acquisition agreement were central to the issue of whether Lambert could bring a copyright claim based on Emerald’s alleged failure to include copyright notices on his articles. The agreement provided that copyright in Lambert’s articles remained with him and a note to that effect should appear in his published articles. The provision did not express “limiting terms” and its plain, unambiguous language did not infer that the Institute’s transfer of its rights in the Journal depended on Emerald’s inclusion of copyright notices in publications of the Journal. Since Emerald, at most, violated a contract provision, Lambert’s only remedy for that violation was for breach of contract, the court explained.

Breach of contract. Emerald argued that Lambert’s breach of contract claims for acts before August 2019 was barred by Florida’s five-year statute of limitations, as Florida law governed the acquisition agreement. Dismissal on limitations grounds was warranted when a plaintiff’s allegations left “no doubt that an asserted claim is time-barred.” Lambert’s complaint did not specify when Emerald allegedly breached the acquisition agreement and Emerald did not dispute that Lambert’s claim was timely to the extent that it relied on acts after August 2019. Florida did not “limit the accrual of a cause of action for breach of contract to the initial breach” and the facts establishing Emerald’s statute of limitations defense was not clear on the face of Lambert’s pleadings, the motion to dismiss the breach of contract was denied, the court determined.

Declaratory relief. Lambert’s claim for a declaratory judgment was dismissed to the extent that the claim requested rescission of the acquisition agreement. Florida law recognizes that rescission may be granted where a party breaches a term which is an essential part of the agreement between the parties such that its breach destroys the entire contract. The copyright notice provision of the acquisition agreement was a covenant that concerned the substantive issue of whether the court may invalidate or rescind the agreement based on Emerald’s failure to include a notice of Lambert’s copyright on each published article. Lambert failed to adequately plead that he was entitled to rescission under Florida law or respond that he had a remedy at law, such as the damages he seeks as part of his breach of contract claim, the court concluded.

The Case is No. 1:24-cv-11980-ADB.

Judge: Burroughs, A.

Attorneys: Alexander Thomas Briggs (Bishop Page & Mills) for Douglas M. Lambert. Matthew C. Hurley (Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC) for Emerald Publishing Ltd. and Emerald Group Publishing Inc.

Companies: Emerald Publishing Ltd.; Emerald Group Publishing Inc.

Cases: Copyright MassachusettsNews