We covered the HarperCollins vs. Open Road case a few months ago, over e-book editions of the late Jean C. George’s novel Julie of the Wolves. George signed a contract with Open Road to publish the e-book editions, arguing that there was no way her original 1971 contract with HC could cover e-books because they hadn’t even been invented yet. However, Andrew Albanese at Publishers Weekly reports that the district judge in the case has ruled in HarperCollins’s favor, finding HC’s interpretation of the contractual language convincing.

The case came about when George wanted to publish an e-book edition of her work but was not delighted by the 25% net royalty HC offered. Since she believed she had the e-book rights, and Open Road offered a 50% royalty, she went with them, and HarperCollins sued.

There had already been some precedent in the matter of backlist e-book rights, set by a lawsuit over eight titles including Kurt Vonnegut’s Cat’s Cradle, between Random House and e-publisher RosettaBooks, about twelve years ago. Random House settled after a court made it plain it felt that the boilerplate language in the contracts Random House had used at the time probably did not support a backlist e-book rights claim. However, the Open Road decision hinges on some different language in HarperCollins’s contract that the judge found did support an e-book backlist claim.

Specifically, paragraph 20 of the 1971 contract states that HarperCollins “shall grant no license without the prior written consent of the Author… including uses in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now known or hereafter invented

Open Road tried to argue that clause referred specifically to storage and retrieval systems, not e-reading systems, but the judge didn’t buy it. Also, the Rosetta/Random House contract specifically mentioned Random House had the right “to print, publish and sell in book form” while the HarperCollins contract left out the word “print.”

This is definitely going to set the cat among the pigeons when it comes to backlist rights. Ever since RosettaBooks’s victory, there has been something of an assumption that contracts which pre-dated e-books couldn’t possibly cover e-books in general. However, if this decision stands, it is going to send a strong message that backlist e-book rights hinge on specific clauses. (Which was probably always true anyway, come to think of it.)

Normally, a case like this would represent a cautionary tale warning writers to be careful just what rights they sign away. Of course, barring the invention of a time machine, that’s not going to be the case here. The boilerplate language all publishers use was changed dramatically in the wake of the RosettaBooks case, or even before, clearly specifying when e-book rights are entailed. Any writer who has the potential to be affected by this already signed those contracts decades ago, and there’s no going back.

That being said, the decision will probably cast a pall over many fewer book contracts than one might fear. Except for those very few perennial bestsellers such as Julie of the Wolves, most books from that era have long since stopped selling in sufficient numbers for publishers to want to keep the rights, and all contractual rights would have reverted back to their authors or their estates years ago.


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