Experts: Professor broke copyright law

3 authors say Churchill reproduced their essays without their permission

Laura Frank, Rocky Mountain News

Published June 3, 2005 at midnight

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On a rainy Saturday in October 1988, Robert T. Coulter, a soft-spoken lawyer and member of the Potawatomi Nation, gave a talk at a conference hosted by Evergreen State College on the banks of Puget Sound in Washington state.

After his speech on the status of American Indian nations, he handed out copies of what he had presented.

One of the people attending the conference, Coulter recalled, was Ward Churchill.

Three years later, Churchill included Coulter's presentation in a book of essays he was editing. But Coulter said Churchill never asked for his approval.

In fact, Coulter said he wasn't even aware that Churchill had published his work until a reporter called to ask him about it recently.

At least three times, Ward Churchill has taken other people's work and published it without their permission, the Rocky Mountain News has found. In doing so, he has sometimes changed their words and, in one case, even added erroneous information.

And in doing so, the prolific University of Colorado professor violated copyright law, legal experts said.

"He should have gotten permission," said Barbara Weil Laff, a Denver attorney who specializes in intellectual property copyright law. "I would assume that someone who writes books for a living would understand copyright law."

Churchill declined to comment on the matter.

What Churchill did is different from plagiarism. He gave Coulter and the other authors, Rudolph C. Ryser and Elizabeth Cook-Lynn, credit for writing the essays he published. He just didn't give them notification that he was going to do it.

"He hasn't tried to pass it off as his own, so it's not plagiarism," Laff said. "It's pure copyright infringement."

Two of the essays in question appeared in a 1991 book Churchill edited called Critical Issues in Native North America, Volume II, the same book containing a fishing rights essay he is accused of plagiarizing. The third essay appeared in a journal he published from his home called Issues in Radical Therapy: New Studies on the Left.

Ryser, a member of the Cowlitz Nation and co-founder of the Center for World Indigenous Studies, helped organize the 1988 Evergreen conference and presented a paper of his own there. He, too, said Churchill reproduced his essay without his permission. Ryser and Coulter both had approved their presentations appearing in a publication produced in 1989 by Ryser's center.

"His publication extracted this material from our publication," Ryser said of Churchill.

Cook-Lynn's article originally appeared in an American Indian studies journal she edits called Wicazo Sa Review. When Churchill reprinted her article, he credited both Cook- Lynn and her journal, although she said he mistakenly identified her tribal nation and her position at Eastern Washington University.

Cook-Lynn said she isn't bothered personally by the use of her article, but as an editor of a journal, she would have acted differently.

"As far as I'm concerned personally, as long as he gave the original source, it's OK with me," she said. "But as an editor, I think copyright has to be defended as a principle."

Other professors have faced discipline for copyright violations, said Kenneth D. Crews, who heads Indiana Law School's Copyright Management Center.

"I think it would be relevant and appropriate for the University (of Colorado) to inquire about this and then decide how to proceed from there," Crews said. "If this is proved true, then it raises some very serious copyright concerns."

Laff said the authors could register a copyright with the Library of Congress, then sue Churchill for infringement. Such cases are rare, both experts said, because legal costs usually outweigh any potential money that could be collected.

None of the authors plans a suit.

In the case of Coulter's article, he said Churchill made editing changes throughout the piece and added 15 endnotes. Endnotes, like footnotes, usually show the source of material used in a piece of scholarly writing, but they appear at the end of the article.

Coulter said he was most upset about Churchill adding the endnotes.

"That I never would have agreed to, and didn't know it happened," he said. "I would never have permitted that - especially Ward Churchill. He's not a lawyer. He doesn't have the skill or expertise to add (endnotes) to a paper on my own subject - never mind the fact that I think I have differences of opinion with him."

Further, the first of these endnotes is mistaken, Coulter said.

Churchill, who said in the piece that he "prepared" the endnotes, wrote that a legal case called Santa Clara Pueblo v. Martinez "most clearly" illustrates Coulter's point that Indian tribes exist legally only at the "will of the U.S. Congress."

"That case is about tribes' immunity from suit," Coulter said. "It's not about sovereignty at all. You shouldn't cite that case for that point. That would demonstrate very poor legal scholarship and analysis."

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