January 12, 2012

Pandora’s box about to be reopened: Who owns erights to old books?

by

Jane Friedman‘s comeback idea after she was deposed as head of HarperCollins was a good one, no? Open Road Media‘s basic idea was to simply put out ebooks of all those great books published before anyone had conceived of ebooks—because their contracts couldn’t possibly have covered rights for something that hadn’t been invented yet, so those rights should be available from the authors, right?

Well, no, not necessarily. In 2001, Random House sued RosettaBooks, which argued that Random’s old contracts only covered print books. There were some preliminary decisions against Random, wherein the judge said authors retained all rights not specifically detailed in the contract, but the case was eventually settled out of court before a final decision was rendered. Meanwhile, everyone has been waiting for a more decisive case to be made, and many publishers feel they can still win this one.

That’s because lots of contracts, even decades ago, had language that, in one way or another, could be argued to be covering the text of a book in whatever format it took—things like giving permission to print in “volume” or simply in “book form.” So maybe authors didn’t necessarily have the rights to sell to someone else, these publishers would argue.

There hasn’t been much talk at all, meanwhile, about whether it was particularly smart on the part of authors to do so—that is, whether it was a good idea to have competing volumes of your text from competing publishers. Were they likely to work very hard for you if their promotional work, say, helped someone else sell their version of the text? And do you want to generate the animosity of that print publisher that first invested in you—and still controls your print rights?

In fact, in the discussion about Open Road, there hasn’t been so much about these ideas as there has been a rush of eagerness to see great books turned into ebooks—to be that much more widely available was an obvious good thing.

But now the complicated issues everyone’s avoided discussing since the Rosetta case have been brought into sharp focus. As Jeffrey Trachtenberg reports in a Wall Street Journal story, “Two days before Christmas, HarperCollins filed a copyright-infringement suit against Open Road Integrated Media Inc. in federal court in New York, seeking to block Open Road from selling an e-book edition of Jean Craighead George‘s 1972 children’s novel ‘Julie of the Wolves.’”

At the core of the case, according to Trachtenberg:

HarperCollins states that its contract with Ms. George grants it the right to publish in the U.S. and Canada the novel “in book form,” which the publisher states includes “as an e-book.” A spokeswoman for News Corp.’s HarperCollins, said “Open Road’s e-book edition violates our rights. HarperCollins Publishers believes in protecting its exclusive rights.”

“HarperCollins is trying to intimidate authors, overturn established law and grab rights that were not in existence when the contracts were signed many years ago,” Open Road COO Chris Davis says. “We are confident that we will successfully defend authors’ rights.”

To make the case, Open Road has hired the attorneys who defended RosettaBooks against Random House in 2001.

Also notable: No one from the the Curtis Brown Agency—author Jean Craighead George’s representatives—would issue a comment. Clearly, they’re worried about that animosity issue I mentioned earlier.

Assuming this case goes the way the RossettaBooks case went, and the court decides the author retains digital rights if the contract doesn’t specifically give them to the publisher, the question remains:  Are authors making a mistake by selling those ebook rights to a different publisher?

What do you think?

 

Dennis Johnson is the founder of MobyLives, and the co-founder and co-publisher of Melville House.

  • Peter Turner

    Hi Dennis: It seems to me like it all depends on exactly how this particular contract was worded. Some contracts drafted during this period had various language suggesting the rights extended beyond the particular form of publication; others simply refer to “in book form.” I find it hard to imagine that what “book form” means is going to get defined any time soon. Mostly, likely, any determination will be around what unforeseen form of publication a publisher can claim the right to. Copylaw.com has a good piece on all the ins-and-outs, by the way. 

  • http://www.henrybaum.com/ Henry

    I think Harper Collins is right.  Ebooks are books.

  • Peter Turner

    I tend to agree, a book is a book, regardless of platform. But when does a book become a new opportunity for the publisher, agent, or author to license a right, or publish in a new way, e.g. an app or enhanced eBook. Of course, often an app is an amalgam of author originated content that may have been published from multiple (contracted) sources as well as new material and new “concept.” What to do?

  • Heather

    I am curious as to why this issue isn’t covered by a non-compete clause in the original contract, which I would expect to be fairly standard…

    • http://mhpbooks.com Melville House Publishing

      Believe it or not, the publishing industry has traditionally been a pretty trusting industry; non-competes have been pretty rare. I guess the idea was that it just seemed illogical — why would an author want to compete with themselves? — so why legislate it? But what with all the piles of money Amazon and agents have been saying is lying around for authors in the form of digital rights, attitudes and situations have changed, and publishers have started making non-competes more and more a part of their contracting — ironically, much to the consternation of agents. — Dennis Johnson

  • Peter Turner

    My two cents: “Non-compete” is a weak provision in the contract. It doesn’t prohibit, for example, for an author changing publishers, which would certainly be competitive. 

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