HarperCollins Sues Open Road Over E-Book Rights

[tompe]

Originally Posted by ApK

I
Holding copyright means you have the right never to distribute your work if you see fit. Copyright is about control, which is as it should be.

But that right you always have even without copyright. You just do not publish your work.

[ApK]

Do you honestly believe that's the same thing or was that humor?

[tompe]

Originally Posted by ApK

Do you honestly believe that's the same thing or was that humor?

The same thing as what? It is the right to never distribute your work. Just burn it or never show it to anybody. You do not need copyright to have that right.

Copyright is for controlling your work after you have sold it.

[ApK]

Originally Posted by tompe

The same thing as what? It is the right to never distribute your work. Just burn it or never show it to anybody. You do not need copyright to have that right.

That's like saying you don't need a law against me beating you to death, just lock yourself in your house and never go out.

Copyright is for controlling your work after you have sold it.

Selling has nothing to do with it. Not even any sort of publication is not required for your work have copyright protection.

But even if you DO publish or sell your work (or someone just happened to see it over your shoulder while you were editing it) copyright laws protect your right to not have anyone ELSE publish or sell your work without your permission.

ApK

[ATDrake]

Originally Posted by Kali Yuga

The idea that a publisher is obligated to release material in every medium listed in the contract, despite explicit language in the contract to the contrary, is patently absurd.

The idea that every movie script that gets sold must be made into a movie is equally absurd.

Hey, did I say they were obligated to actually produce and market the work in either case?

No, in fact I said:

Originally Posted by ATDrake

You can keep them unused if you can't get funding/whatever for production, but you have to keep paying the author for the exclusivity and the lock-out from anyone else making The Film Of The Book.

If the company decides it's not worth it to them to make the e-book/film/3-D telepathic sens-o-rama/whatever, all very well and fine.

But if they happen not to, then after enough time, their "exclusive right to buy the rights" in that particular medium, as you phrased it, should lapse and the author should be able to take her creative work elsewhere to try again rather than the publisher being able to block its production, unless they renew "the exclusive right to buy the rights".

Perhaps the author might have to pay a certain standard fee if the publisher feels it needs some form of compensation for whatever it regards as its loss, but she should be able to expect to one day not too far off in the future receive the rights back to try and bring to market her unused creation, one way or another.

As DiapDealer pointed out with his example of Paul Kearney which I partially quote below, situations like that do no one any favours.

Originally Posted by DiapDealer

Bantam abruptly dropped the series after the second book of a planned four book series. They had no intentions of ever publishing any further installments in the series (in any format), but they still wouldn't relinquish (or sell) the publishing rights to the series. It was a very weird situation.

Nor do they make anyone any involved any profit or even revenue. Not the publisher, not the potential customer, and especially not the creator, who may have their entire livelihood tied up in a work which is not being sold, or even made available to be sold anywhere.

And as comics artist Colleen Doran points out, even Getting Paid Late for one's work (vs. Not Getting Paid At All) can really screw up an author/artist's life, even if turns out to be a minor matter for the publishers, which seem to held to a far more lax standard than the creator in many matters.

Originally Posted by Kali Yuga

But if it isn't in the contract, then the reversion of rights has no grounds whatsoever, nor should copyright laws interfere in legitimate contracts reached between consenting parties.

I would opine that not publishing a work in a medium contracting specifically for the rights to publish in said medium would constitute some form of grounds.

Note that I am not demanding that the work be actually published if the publisher does not wish to do so for whatever reason. I am only saying that if they do not intend to or are unable to publish, then the author ought to get a fair shot at taking her work elsewhere after a certain length of time and inactivity should the publisher not wish to negotiate again for more time.

Out of curiosity, how would the situation work out if a publisher bought the print rights to print an author's book, but then simply ended up not printing it for whatever reason?

Would the author not have cause to obtain the rights back, even if she had to return the advance and such?

Originally Posted by Kali Yuga

It was much later in life that Shuster had health problems and was unable to work -- as in, over 30 years later. No one knew that Superman would become an iconic character -- and much of the reason for that status is due to work by NA/DC done long after Siegel and Shuster stopped working on the comic.

I was in fact speaking of that "30 Years Later*", when Shuster was quietly given make-work by DC editor Julius Schwartz, IIRC, so that he could scrape by.

And Siegel & Shuster did recognize that the Superman copyright had value, if only sentimental, and tried to legally re-establish their interest in it, and when they sued for it the first time, they had been pretty much primary-to-exclusive writer/artists for the comics (again IIRC, which I'm very fuzzy on since Golden Age comics are not my forte).

Now, maybe if they'd acquired them, they'd have taken Superman in a direction where it flopped (not that the 50s-70s pre-Denny O'Neil Superman comics were anything to write home about, mind you). But the core of the character was their creation and they had the right to try and get control of it back.

And thanks in part due to the Superman copyright fight, the comics industry now has more-or-less standard sorts of contracts which are more beneficial to the creators actually creating the marketed works.

And that's why we've entire lines of creator-owned comics such as at Image, and even the DC/Marvel/other corporate universe have minor creator-owned characters within them, if a writer/artist came up with an original contribution that was popular enough to be re-used.

Originally Posted by Kali Yuga

So yeah, not sure this qualifies as an example of the sheer horrors and injustices of work-for-hire.

Whatever you may think about it, the kerfuffle that was originally raised around it when the situation came to light in the public consciousness when the Superman films with Christopher Reeve were released has basically changed the way comics are created and the creators treated in the US mainstream comics industry.

Incidentally, the courts went and ruled that the original portion of the Superman story that S&S created somehow did not qualify as "works for hire" and so the families now share the copyright.

Warner apparently responded by suing the lawyer fighting on the families' side in the case, apparently alleging he had some sort of secret financial stake in the matter and therefore a conflict of interest.

This allegation, they based on documents stolen from his office.

Is it any wonder sometimes people are much more inclined to side with the creators when it comes to exercising control of copyrights than the corporations?

* I'd make a "One Year Later" joke, but maybe "Crisis of Infinite Copyrights" would have more name-brand recognition, since it's considerably more iconic than any of the DC mega-events it spawned.

[HarryT]

Originally Posted by tompe

The same thing as what? It is the right to never distribute your work. Just burn it or never show it to anybody. You do not need copyright to have that right.

Copyright is for controlling your work after you have sold it.

Copyright very importantly gives you a right not to publish, as well as a right to publish. Copyright gives you a right to not to have things like personal letters and diaries published against your wish, or against the wish of your family, following your death.

[Kali Yuga]

Originally Posted by ATDrake

...if they happen not to, then after enough time, their "exclusive right to buy the rights" in that particular medium, as you phrased it, should lapse and the author should be able to take her creative work elsewhere to try again rather than the publisher being able to block its production, unless they renew "the exclusive right to buy the rights".

This is not a job for copyright law. It's a job for the contracts, and the lawyers who write them up.

If it's important to the content creator to have certain rights exploited in a timely fashion, then they should get it into the contract.

Originally Posted by ATDrake

I would opine that not publishing a work in a medium contracting specifically for the rights to publish in said medium would constitute some form of grounds.

So what is an appropriate time frame? 10 years? 5 years? 2? What starts the time period? After all, Project Gutenberg got its start in 1971 on a mainframe computer -- is that the start date of the ebook, even though it took nearly 30 years to become a viable commercial and public option?

Originally Posted by ATDrake

I am only saying that if they do not intend to or are unable to publish, then the author ought to get a fair shot at taking her work elsewhere after a certain length of time and inactivity should the publisher not wish to negotiate again for more time.

They can... by requesting or purchasing back the rights. Or, getting that language into the initial contract.

In fact, quite a few ebooks do get published by an author requesting the electronic rights back from the paper book publisher, and then self-publishing.

Originally Posted by ATDrake

Out of curiosity, how would the situation work out if a publisher bought the print rights to print an author's book, but then simply ended up not printing it for whatever reason? Would the author not have cause to obtain the rights back, even if she had to return the advance and such?

My understanding is that most contracts will require that the book be published in a set time after it is submitted (12-18 months). What would happen to the rights would be set out in the contract.

If the author did not include such a clause, or if the publisher inserted a clause saying "we have perpetual rights even if not published," then the author does not have a case. And that's why you hire a lawyer before you sign a contract.

Originally Posted by ATDrake

Siegel & Shuster did recognize that the Superman copyright had value, if only sentimental, and tried to legally re-establish their interest in it

Of course it had value, and they weren't out for the sentiment. But the bottom line is, they voluntarily signed contracts which forked over material to NA, and dropped all future claims when they later settled for $200k. Apparently, they changed their minds about that later in life, despite not having worked on the material in ~30 years.

Originally Posted by ATDrake

the core of the character was their creation and they had the right to try and get control of it back.

Sure. They and their estates have had many days in court.

Originally Posted by ATDrake

Incidentally, the courts went and ruled that the original portion of the Superman story that S&S created somehow did not qualify as "works for hire"....

Right, so you knew this and brought this up as an example of the evils of work-for-hire anyway...?

A single example, even a prominent one, isn't necessarily the best way to evaluate a system. Plenty of writers who work on content like TV shows receive residuals for years because, say it with me now... they negotiated for it in the contracts.

Let's say I was a writer who worked on The Simpsons as work-for-hire, and even developed a few minor characters. Does it make sense that five years later I should be able to put out a comic of the shows I worked on? If I wasn't smart enough to demand a residual, should I be allowed to go back and demand it retroactively? Should I be allowed to "take my characters elsewhere," or demand compensation if they choose not to exploit those characters in subsequent episodes or other mediums?

The Simpsons have well over 100 people who have written material for the show. Should each of them have control over how the material they contributed gets used?

"Work-for-hire" may not be a perfect system, but it is basically necessary for collaborative efforts, and allows publishers to take risks on producing content -- and hiring content creators. And in the same way that it's up to you as an individual to take responsibility for your actions and actually negotiate for the sale of a home, or get a good salary, or haggle for a good price on a car, it's a content creator's responsibility to negotiate for a satisfactory contract... or walk away from a bad deal.

(By the way, holding onto the copyrights is far from a guarantee that the content creator will be set for life and/or paid what we might believe they deserve. I'd be here all day if I had to list artists who were not in a work-for-hire situation, created iconic and enduring works, and did not receive large enough compensation to retire for life at 40.)

Originally Posted by ATDrake

Is it any wonder sometimes people are much more inclined to side with the creators when it comes to exercising control of copyrights than the corporations?

Authors are rarely in the position to abuse copyrights. In order to be published they've often transferred those rights, and are rarely in a position to exploit them anyway.

You might as well suggest that people are more likely to side with civilians instead of armies, when innocent civilians are harmed during an armed conflict. The opportunities for military forces to inadvertently harm large groups of civilians is abundant; the opportunities for civilians to inadvertently harm large groups of civilians is practically non-existent.

Also, you're not really siding with the author in this case, you're siding with Open Road over HC. Did HarperCollins lose its moral compass when Jane Friedman left and started her own company?

I see no reason to side with either party in this dispute. I'm siding with the contract, no matter what it says -- because that is what all parties ought to abide by.

[pdurrant]

Originally Posted by Kali Yuga

I see no reason to side with either party in this dispute. I'm siding with the contract, no matter what it says -- because that is what all parties ought to abide by.

I agree with you, but the reason there's a court case is there's a dispute about what the words in the contract actually mean.

Since we do not (yet) have the full wording of the contract, and you and I appear to have different interpretations on what the words in the contract actually are, we naturally do not agree on what they mean.

So, let's go with hypothetical wording. If the essential wording of the contract written in 1971 was:

1. Author grants publisher exclusive rights to publish the work in book form.
2. Publisher may not license the work through "computer, computer-stored, mechanical or other electronic means now known or hereafter invented" without the authors consent.

do you think that would give the publisher exclusive rights to publish the work as an ebook?

[DiapDealer]

Originally Posted by Kali Yuga

I see no reason to side with either party in this dispute. I'm siding with the contract, no matter what it says -- because that is what all parties ought to abide by.

If all contracts were written to clearly _say_ anything, I'd agree with you. But when it's quite possible for both parties to truly believe they are abiding by the terms of the contract while simultaneously believing the other party is in clear violation of the terms, how is it possible that the contract is really _saying_ anything?

[anamardoll]

Originally Posted by ATDrake

And as comics artist Colleen Doran points out, even Getting Paid Late for one's work (vs. Not Getting Paid At All) can really screw up an author/artist's life, even if turns out to be a minor matter for the publishers, which seem to held to a far more lax standard than the creator in many matters.

That POST.

I cannot even. Wow.

It just blows my mind.

I've hired indie artists for book-related work a couple times now, and each artist has been exceedingly polite about my insistence that I pay them half up-front because WHAT IF I GET HIT BY A BUS, NO, REALLY. (Husband is usually up on what I'm commissioning at any given time, but that would be overwhelming to manage in any event.)

I just assumed that was me being Professional. Apparently, I'm very UN-professional by expecting to pay my artists.

[ATDrake]

Originally Posted by Kali Yuga

This is not a job for copyright law. It's a job for the contracts, and the lawyers who write them up.

We have basic standard provisions in place to protect factory workers and such from over-exploitative and detrimental working conditions and ensure certain workplace rights without having to involve everyone hiring the lawyers for non-special situations.

I don't see why we can't have something similar for content creators, especially since "intellectual property should be treated almost exactly equivalent to real property, only more special!" seems to be the song of the day.

I'm not saying that people shouldn't be able to lease out their birthright for a mess of pottage made of magic beans if they truly want to.

But it would be nice to have clearly understood standardized term limits to just how much and for how long (just as we have Life+ rules for pre-humous public domain eligibility, at least outside the US) someone can involuntarily get screwed out of their own creative work, as places like Writer Beware point out that there are plenty of predatory publishers and agents out there.

Originally Posted by Kali Yuga

But the bottom line is, they voluntarily signed contracts which forked over material to NA, and dropped all future claims when they later settled for $200k. Apparently, they changed their minds about that later in life, despite not having worked on the material in ~30 years.

That was after the original Superman copyright had expired and was up for renewal. Perhaps there was a clause in the settlement limiting them to not claiming during the original copyright term, perhaps there wasn't. Considering they don't seem to have gotten countersued around the time of the 2nd try in the 60s, maybe it was the latter.

Originally Posted by Kali Yuga

Right, so you knew this and brought this up as an example of the evils of work-for-hire anyway...?

No, I found that out after doing a bit of digging, as it turns out that while Action Comics #1 was treated as a work for hire by the company and everyone else, it seems, it actually wasn't as Siegel & Shuster did not create the Superman story specifically on commission for them or however it works, but they brought a pre-existing written-and-drawn comic to the publisher who said they wanted to publish it but needed to re-arrange the story to fit the issue.

So their families at least get the early parts of the Superman mythos which S&S came up with before the publisher started publishing the comics and/or were incorporated into subsequent comics from the original concept sketches/etc.

Probably Jack Kirby would have been a better example of true "work for hire" detriment, as he contributed much vaster amounts of stuff that the Marvel comics continuity is still based upon and using, and it seems that sometimes they would even deny him so much as a co-credit for his own creations and additions, apparently on the grounds that they would have to pay him more if he was properly credited for his extensive contributions.

And in any case, the very concept of work-for-hire can be used by the publisher to try to falsely appropriate a creator's work.

I rather doubt that Colleen Doran is the only one to have had one of her former publishers claim that her original stories and graphics which the publisher approached her to publish was in fact their own creative work which they'd just happened to hire the then-teenaged Doran to illustrate.

Originally Posted by Kali Yuga

A single example, even a prominent one, isn't necessarily the best way to evaluate a system. Plenty of writers who work on content like TV shows receive residuals for years because, say it with me now... they negotiated for it in the contracts.

Such contracts have changed over the years as people have become aware of their drawbacks.

For your hypothetical Simpsons example, what seems to happen in this case (there was a Television Without Pity comment or interview with a female TV show writer regarding how the writing process works; unfortunately I can't remember for which show and it was a few years ago*) is that when an original character is created by her on the show, she gets paid a little extra for that character's appearance on the show.

If another writer uses her character as well, then she also gets paid a little extra for the appearance, but a very small amount compared to what she gets paid when she writes the character herself.

While she can't take her character to another show (unless the network is doing a spinoff and wants her to write for it too) and she can't stop her character from appearing in future episodes if she decides she hates the show and never wants to write for it again, if the network keeps using the character, they have to keep paying her that tiny amount per appearance that she gets when another writer adds her character-created-within-the-context-of-the-show to episodes of the show.

So no, it's not total control and obviously wouldn't be. But as long as the company keeps using her creative work, she does get some continuing benefit from her creation, even if she has no real control.

* I think, given the timeframe and the fact that I don't watch all that much US network TV, it may have been Veronica Mars, Life (that cop show with Damien Lewis), or Mad Men.

Originally Posted by Kali Yuga

"Work-for-hire" may not be a perfect system, but it is basically necessary for collaborative efforts, and allows publishers to take risks on producing content -- and hiring content creators.

The flipside of that is that content creators are risking producing content for the publishers which then they may not even get paid for, while the publisher still "owns" the work and can derive future profits from reselling it, or at least attempting to.

I'd link you to an example of such, but I have too many tabs full of TL;DR text open and I can't find it again.

Originally Posted by Kali Yuga

And in the same way that it's up to you as an individual to take responsibility for your actions and actually negotiate for the sale of a home, or get a good salary, or haggle for a good price on a car, it's a content creator's responsibility to negotiate for a satisfactory contract... or walk away from a bad deal.

Funny you should mention the cars, as it seems that the US has a "lemon law" designed specifically to protect consumers from being shafted too badly by the purchase of egregiously bad cars. And provides consumers with rights that "may exceed the warranties expressed in purchase contracts".

Again, I'm not saying that people shouldn't be able to sign bad deals which end up not benefiting them.

Only that there should be a limit to how long those bad deals can last, and that the truly exploitative ones be able to be invalidated if there is sufficient cause.

There are other consumer protection laws in place to protect people not so much from their own stupidity or ignorance, which you seem to believe to be the trumping contributing factor, but from being so grossly taken advantage of by profoundly negligent and/or outright predatory parties.

Again, I don't see why content creators shouldn't have some limited protection under the law against those latter such, just like other people do.

Originally Posted by Kali Yuga

(By the way, holding onto the copyrights is far from a guarantee that the content creator will be set for life and/or paid what we might believe they deserve. I'd be here all day if I had to list artists who were not in a work-for-hire situation, created iconic and enduring works, and did not receive large enough compensation to retire for life at 40.)

Have I said I expected this to be a guaranteed minimum income for life+50/etc. thing?

No, only that the creators should have "a fair shot" at deriving benefit from their creation if they can, and not have it totally tied up by a publisher for an indefinite time if the publisher ends up not publishing for whatever reason.

Originally Posted by Kali Yuga

Also, you're not really siding with the author in this case, you're siding with Open Road over HC. Did HarperCollins lose its moral compass when Jane Friedman left and started her own company?

Did I say anything otherwise?

No, I actually said (emphasis added):

Originally Posted by ATDrake

Myself, and I admit this is emotionally-based, I'd side with whichever side the author herself picked, as she seems reasonably enthusiastic about having this particular book published by this particular company, given that she went and recorded a new video message talking about the writing the story in the book for said company's website.

[teh603]

Originally Posted by ATDrake

No, I found that out after doing a bit of digging, as it turns out that while Action Comics #1 was treated as a work for hire by the company and everyone else, it seems, it actually wasn't as Siegel & Shuster did not create the Superman story specifically on commission for them or however it works, but they brought a pre-existing written-and-drawn comic to the publisher who said they wanted to publish it but needed to re-arrange the story to fit the issue.

Just a note on this specific issue, I was under the impression from reading a lot of Writers' Market entries that the wording on the contract trumped whether or not the work was pre-existing. As in, "Any unsolicited works will be treated as a work for hire."

S&S just got lucky with their contract.

[ATDrake]

Originally Posted by teh603

Just a note on this specific issue, I was under the impression from reading a lot of Writers' Market entries that the wording on the contract trumped whether or not the work was pre-existing. As in, "Any unsolicited works will be treated as a work for hire."

S&S just got lucky with their contract.

And with the modifications made in the 1976 Copyright Act which allowed creators to reclaim their works under specific circumstances, it would seem.

Anyway, if anyone's interested, here's a bit more on how Action Comics #1 came to be, over at the Comic Book Urban Legends archive, which contains some pretty nifty info about the industry.

PS. Actual IP/Publishing specialist lawyer's informal analysis of the HC vs Open Road case and the implications on his blog: "Who Controls eBook Rights? - The Court Battle that Could Determine the Fate of the Book Industry:A Review & Analysis"

Well worth a read, IMHO.

PPS. Hey, it looks like that "use it or lose it/authors should be able to reclaim their rights after sufficiently long time even with an outright abusive contract" thing I was advocating for actually does kind of exist! I love it when that happens.

Albeit at lengths of 35, 56, and 75 years, and only after a certain date with certain timeframes for sending the notices out, but otherwise the basic structure is in place and can no doubt be improved upon.

Termination of Book & Music Publishing Contracts (mentions the Superman case as well, for anyone who hasn't gotten sick of reading about it yet)

More commentary on the subject in Do publishers control e-book rights to their legacy titles?

[pdurrant]

Originally Posted by ATDrake

PS. Actual IP/Publishing specialist lawyer's informal analysis of the HC vs Open Road case and the implications on his blog: "Who Controls eBook Rights? - The Court Battle that Could Determine the Fate of the Book Industry:A Review & Analysis"

Well worth a read, IMHO.

Thanks for the link. It was indeed well worth a read.

[HarryT]

Very interesting article. Thanks for posting it.