Publishers Claim Digital Rights Over Older Titles Even When Not Explicitly Included in Contracts

Open Road Integrated Media has been signing up the authors of well-known older book titles for digital distribution, under the theory that the previous contracts didn’t mention digital rights, so they remain with the authors, who can sign new deals relating to them. The established publishers, who don’t want the competition for the same titles in print on their backlists, disagree.

The latest battle is a lawsuit. Near the end of December, HarperCollins sued Open Road for copyright infringement,

over Open Road’s publication of the e-book edition of Jean Craighead George’s bestselling and award-winning children’s book Julie of the Wolves. The suit charges that HC’s contract with George, signed in 1971, gives it the right to be the exclusive publisher of Wolves, “in book form,” including via “computer, computer-stored, mechanical, or other electronic means now known or hereafter invented. … Open Road’s unlawful exploitation of those rights is directly competitive with sales of the Work in paper format and HarperCollins’ own plans to publish Julie of the Wolves as an e-book.”

I’m not familiar with this particular title, but since its publication, it’s sold almost 4 million copies. The Open Road response was succinct: “While we have not seen the complaint and therefore cannot comment, Open Road has been granted the ebook rights by the author and is confident that the HarperCollins claim is without merit.”

(According to Wikipedia, Open Road is run by Jane Friedman, who was previously President and CEO of HarperCollins Publishers, so she should know book contracts, even if she’s now fighting with her former company. She also “founded … the first audio books division of a trade publisher”, so she’s open to new technology.)

A similar case previously occurred in 2010 between Random House and the heirs of William Styron, but that one was settled by Random House ceding the rights to the author’s representatives, and Open Road proceeded to release ebook versions of Styron’s works (including Sophie’s Choice). A more significant precedent is the 2002 RosettaBooks case, in which it was found

the right to ‘print, publish and sell the work[s] in book form’ in the contracts at issue does not include the right to publish the works in the format that has come to be known as the ‘ebook’.

While I can understand publishers hating competition, a lawsuit doesn’t seem like the optimal way to settle the matter. The author, who is the one making the agreement with Open Road, will wind up at odds with her publisher, poisoning future relations. It would be much more straightforward for publishers to negotiate with authors to obtain digital rights cleanly — but that would mean acknowledging that authors retain the rights and have the opportunity to negotiate better compensation. Plus, it would open floodgates, as multiple authors would likely want their book available to a new revenue stream. Publishers are generally afraid of change, because they are more comfortable with the way things are now. Authors (especially mid-list authors, who find the market disappearing under them) often have much more incentive to explore new ways of doing things.

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3 Responses to “Publishers Claim Digital Rights Over Older Titles Even When Not Explicitly Included in Contracts”

  1. Dwight Williams Says:

    Didn’t we go through all this already with the Canadian and US news services and their reporters/freelancers?

  2. Russell Lissau Says:

    I was about to post something similar, Dwight. If the contract doesn’t specifcally include digiital publication,those rights remain with the creator.

  3. Thad Says:

    Thanks for the heads-up. This is one to watch — it’ll be interesting to see if the language HC’s quoting is indeed present in a 1971 contract. Pretty damn savvy of them if so.

    Not that that makes it ethically right — sitting on a right for 40 years and then lawyering up isn’t going to win you any fans.

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