HarperCollins Sues Open Road Over E-Book Rights

[DonaldL.]

HarperCollins Sues Open Road Over E-Book Rights

HarperCollins is suing digital publisher Open Road Integrated Media for copyright infringement over the digital rights to Jean Craighead George’s Julie of the Wolves, a children’s book published in 1972.

HarperCollins filed its lawsuit on December 23. The company says its contract with George, signed in 1971, gives it the right to publish Julie of the Wolves in any format. Publishers Weekly has some of the text of the complaint: “The rights that HarperCollins acquired from George plainly encompass such electronic means of distribution, which is but a technology-enabled variant for how consumers can read the Work.”

[tubemonkey]

HC doesn't even have a digital version. They have hardcover, paperback, and audio cassette. If they have the rights, then what are they waiting for?

[ATDrake]

Feh. If HC had the rights, they sat on them for a good long time without ever releasing an e-book. And the author herself granted e-book rights specifically to the Open Road people.

In a statement, an Open Road spokesperson said, “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.”

There really ought to be a "use it or lose it" convention when it comes to publishing in new media formats and rights reversion in general.

HC is simply being predatorily grabby now that they've realized there's a paying audience which wants this author's work in e-format and is twisting some vaguely inclusive somewhat tech-related terms in a 1971 agreement written long before e-books were even conceived.

I hope this case gets dismissed on lack of merit, and pointed and laughed at a lot as an example of UR DOIN IT WRONG.

However, as Publishers Marketplace notes, HarperCollins “have sued only the e-publisher Open Road, for infringement, and not their author George, for breach of contract.” George is 93 years old.

Well, I see they have some vague notion of avoiding too much bad publicity.

Maybe she could counter-sue them for, like, sitting on the rights they supposedly held for so long without actually releasing an e-book and thereby squatting on her intellectual property and lowering its market worth by denying her a valuable income stream from the exercise of publishing it in a now industry-standard media market, which as her publisher, they're supposed to do by keeping her books "in print", and is now acting in bad faith to continue to deny her this valuable income stream from her intellectual property.

Or something as equally ridiculous as HC's retroactive ALL YOUR BOOKS ARE BELONG TO US* claims.

* Only made once they got signal. One can only hope they are on the way to destruction in this particular matter and any similar attempts.

[anamardoll]

Originally Posted by ATDrake

Well, I see they have some vague notion of avoiding too much bad publicity.

Thank goodness, right? Because it was starting to seem otherwise.

[teh603]

Originally Posted by tubemonkey

HC doesn't even have a digital version. They have hardcover, paperback, and audio cassette. If they have the rights, then what are they waiting for?

Maybe they want to sit on the rights forever, and never actually make an ebook? When a company does it with a patent, its called patent trolling.

[HarryT]

Originally Posted by teh603

Maybe they want to sit on the rights forever, and never actually make an ebook? When a company does it with a patent, its called patent trolling.

IF (and it's a big "if", because none of us know) HC's contract with the author grants them the blanket rights to the book in "all" formats, their claim would seem to be legitimate. An author can't grant e-book rights to company B if she's already signed them away to company A.

Given that none of us know what the contract actually says, to go further than this is pointless speculation.

[stonetools]

Well, we don't know the contract language for sure, but the quoted portion seems quite inclusive:

The company says it has “the exclusive right to publish George’s children’s novel Julie of the Wolves (herein sometimes “the Work”) “in book form,” including “computer, computer-stored, mechanical or other electronic means now known or hereafter invented” as stated in the original contract.

I doubt HC's claim is going to be dismissed outright- and I'm not a fan of HC's position on this matter. Still, HC has every right to pursue its legal remedies. Best case scenario, the book gets published, and everyone gets to share the proceeds.


Lesson # 1,231,456 in why authors need a good lawyer or agent at the table in negotiations with publishers

[ATDrake]

Originally Posted by HarryT

An author can't grant e-book rights to company B if she's already signed them away to company A.

But it appears that HC may not actually have the rights to release an actual e-book, only to block someone else's release of one, since HC themselves would need the author's consent to license the e-version. And it is a 1971 agreement, back when computers were like, huge IBM mainframes or whatever if they weren't still vacuum tube punchcard things.

The complaint also looks to explain what it calls the “stated limitation of paragraph 20” of its contract — that HarperCollins must seek George's consent to license rights in the Work enumerated in that paragraph — by explaining that the clause “does not grant George or any third party the right to publish the Work as an e-book, a right that instead belongs exclusively to HarperCollins.”

Originally Posted by HarryT

Given that none of us know what the contract actually says, to go further than this is pointless speculation.

Here's some linkage to the Publisher's Weekly article which quotes from the suit, which in turn quotes from the contract (this was originally linked in the text of the OP article, but seems to have gotten edited out when they updated the story?).

Speculate* away! For great justice!

* But more pointedly on the shortcomings of HC, who are handling this in a rather high-handed manner which seems to be a band-wagon jump as it looks like they're now claiming they were planning an e-book release all along (book was just released in October this year), which seems like the sort of thing the author or her lawyers would have checked before they said yes to Open Road's offer to digitize.

This is probably all going to end up on Writer Beware as a cautionary example of predatory publisher practices when drawing up and interpreting decades-old contracts.

[HarryT]

Originally Posted by ATDrake

But it appears that HC may not actually have the rights to release an actual e-book, only to block someone else's release of one, since HC themselves would need the author's consent to license the e-version.

I don't follow that, I'm afraid. If HC already had the rights to publish the book in all formats, why would they require additional permission to publish an eBook?

[ATDrake]

Originally Posted by HarryT

I don't follow that, I'm afraid. If HC already had the rights to publish the book in all formats, why would they require additional permission to publish an eBook?

It's the in the quoted bit about: “stated limitation of paragraph 20” of its contract — that HarperCollins must seek George's consent to license rights in the Work enumerated in that paragraph.

A few paragraphs above in the PW articles, it says: 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 etc.

Which the suit is using to say that while HC may not publish the e-book themselves without getting fresh consent from the author for a new media format, they claim the right to have an exclusive shot at publishing in said new media format should she allow a release in such.

[HarryT]

Got it, thanks. That makes sense.

[Kali Yuga]

Originally Posted by ATDrake

But it appears that HC may not actually have the rights to release an actual e-book, only to block someone else's release of one...

HC can't publish it digitally without the author's permission. However, if their interpretation of the contract is correct, they still have exclusive rights. As in, Open Road doesn't have the rights to publish the ebook, and the author can't reassign those rights without getting HC to release them.

Originally Posted by ATDrake

it is a 1971 agreement, back when computers were like, huge IBM mainframes or whatever if they weren't still vacuum tube punchcard things.

That's irrelevant. If the contract says anything even remotely broad enough to indicate future mediums that did not exist in 1971, then HC has the rights.

Now it is possible that the contract did not in fact assign those rights, but again without having access to more of the contract, it's still just speculation.

Originally Posted by ATDrake

more pointedly on the shortcomings of HC, who are handling this in a rather high-handed manner which seems to be a band-wagon jump as it looks like they're now claiming they were planning an e-book release all along...

Oh, please. How is Open Road publishing a version without clearing or securing the rights first any less "high-handed?"

Originally Posted by ATDrake

This is probably all going to end up on Writer Beware as a cautionary example of predatory publisher practices when drawing up and interpreting decades-old contracts.

Yes, writers should beware... that contracts might obligate them to actually do what they agreed in the contract.

[ATDrake]

Originally Posted by Kali Yuga

Oh, please. How is Open Road publishing a version without clearing or securing the rights first any less "high-handed?"

You're making the assumption that they didn't.

The 2nd comment to the Publisher Weekly article, made by Robert Gottlieb who is apparently part of an author's agency which has had dealings with both HC and OR, says:

I have seen the general Open Road agreement and the author normally warrants that he/she has the right to enter into the publishing agreement with Open Road.

Now maybe the author was mistaken when she said yes, she could assign them the rights, or maybe her lawyers were overly optimistic in interpreting her contract, but Open Road Media did go and secure them as best they could before proceeding.

Originally Posted by Kali Yuga

Yes, writers should beware... that contracts might obligate them to actually do what they agreed in the contract.

If anything, among the less desperate authors, it's probably going to severely curtail any such further vague assignation of assumed-future-media-which-might-be-invented "rights" which will probably be henceforth explictly spelt out to the letter with limitations, because it's pretty clear that if you give publishers* an inch, they'll try and take a mile even if they have to end up with scorched earth** because of it.

And that'll probably end up being a good thing. At least all the parties involved will know exactly where they stand.

* This is not an attitude exclusive to publishers, unfortunately.

** More quotage from Mr. Gottlieb:

So if Harper has the ebook rights as they claim then what happens if the author and they can't agree on a royalty for ebooks?

I have a similar issue with Harper in the UK for a Trident author where we can't come to terms on an ebook royalty and Harper is blocking the author from exploiting the rights elsewhere. Because of this behavior Trident has placed Harper UK on the bottom of our submission list.

[Blue Tyson]

Stay classy, minions of Murdoch.

[Kali Yuga]

Originally Posted by ATDrake

You're making the assumption that they didn't.

If Open Road is getting sued, I'd say someone strongly believes they didn't.

Originally Posted by ATDrake

Now maybe the author was mistaken when she said yes....

Gottlieb saying "I've seen the Open Road agreement" doesn't prove anything in either direction.

Either Open Road did its due diligence and has a valid defense; or didn't and acted in a high-handed fashion.

Originally Posted by ATDrake

If anything, among the less desperate authors, it's probably going to severely curtail any such further vague assignation of assumed-future-media-which-might-be-invented "rights"....

Contracts these days are pretty extensive, and it's up to the author, the author's agent and the author's lawyer(s) to watch their backs. Seriously, there is nothing new about this, and anyone who is going to consider the implications of a contract from a news article rather than from a lawyer needs to hire a better lawyer.