Looks like it’s that time again: time for some publisher to sue over backlist e-book rights. Open Road’s e-publication of Jean Craighead George’s young-adult novel Julie of the Wolves has HarperCollins howling. HarperCollins, which has sold 3.8 million print editions of the book since its 1972 publication, has filed suit against the e-publisher. It insists that its contract with George covers “such electronic means of distribution, which is but a technology-enabled variant for how consumers can read [the book]”, despite e-books having been strictly science-fictional at the time the contract was written.
This isn’t the first time Open Road has tangled with publishers over backlist works. Last year, the company tangled with Random House over the e-rights to William Styron’s backlist novels (Random House eventually backed down) and lost out on Catch-22 to Simon & Schuster.
Backlist e-book rights in general have been a contentious issue for the last fifteen years, ever since Random House sued e-publisher RosettaBooks over backlist works then rather hastily settled after a court’s preliminary ruling (upheld on appeal) stated that “Random House is not likely to succeed on the merits of its copyright infringement claim”. The court held that “books” are made of paper, and that contracts made before e-books were even considered simply didn’t cover e-book rights one way or the other—and in the absence of specific language addressing them, those rights belonged to the author.
The publishers still disagree, but as far as I know, there hasn’t been an actual ruling on the issue yet. The lawsuits have all been settled out of court instead. Perhaps the publishers were nervous about setting an actual precedent that might turn in the authors’ favor, and the authors were just as happy to settle the matter and not have to shell out legal fees.
Of course, I haven’t seen George’s contract, and I’m not a lawyer anyway, so I don’t know how different the circumstances are, and whether the phrasing of the contract suggests HarperCollins’s position has greater merit than Random House’s. The wording could vary considerably, so there’s no real way to tell whether the case has merit or not.
But even if the wording was exactly the same as the Random House contract, will courts today take a more favorable position to publishers given how ubiquitous e-books have become? In the day of the RosettaBooks ruling, e-books were an interesting toy that nobody but early-early-early adopters wanted to touch. Now, e-books are in the early stages of crowding paper books out of the market. This could turn in publishers’ favor, giving them more room to argue that e-books essentially are books by another name.
Hopefully Open Road, Jean C. George, and their lawyers can kick HarperCollins back to its own side of the mountain. But whether they can remains to be seen.
I’m rooting for Open Road!!!
When e-books were a fringe market, the big publishers showed no interest. When e-books began their creep into the mainstream book market, the big publishers tried everything they could think of to stop the process…not releasing back list books, delay releasing new books, higher prices.
Now that the e-book “trend” has reached the unstoppable point, they’re suddenly appointing themselves the guardian of all things e-book.
Saying that a contract written before e-books existed should cover the rights to e-books now that they do exist is like saying my grandfather should own the rights to Ford because he once owned a horse.
Without seeing the contract, we can’t really know for sure whether it covers e-books or not. It depends on the wording. If it assigns HC “all rights” or “all rights except this, that, the other”, then that could indeed cover rights that haven’t been invented yet. If it only covers specific “book rights, audiobook rights, this right, that right, the other right” then a case could be made that it’s limited to only those formats.
I imagine that, as with the RosettaBooks case, the important details will come out when the judge rules on a preliminary injunction.