HarperCollins Sues Open Road Over E-Book Rights

[anamardoll]

The problem is that Cthullu will have YOU for dessert. He's so capricious. *sigh*

[Kali Yuga]

Originally Posted by pdurrant

No, it's not. Paragraph 1 contains the main grant of rights, as stated on page 8 of the complaint....

It's a good thing you aren't a lawyer.

Paragraph 20 of the complaint quotes directly from Paragraph 20 of the contract. According to HC, the contract explicitly extends HC's rights to "computer, computer-stored, mechanical or other electronic means now known or hereafter invented."

If in fact the contract referenced those rights as HC suggests, this is very different than other contracts which did not reference electronic or digital media at all -- as was more common until the 90s.

And yet again, there is absolutely no way to know what the contract actually says without seeing the whole thing. You can read it however you want, but unless you have actually read it, you're just speculating.

[fjtorres]

Originally Posted by Kali Yuga

They can, but in that type of instance both parties would need to explicitly agree to the changes.

I'm not suggesting the contract was changed unilaterally (though some contracts do allow that) just that the electronic rights clause might've been tacked on more recently, openly and legally, or sneakily. After all, there is no guarantee the *original* 1971 version included the electronic rights. (It is in fact very unlikely.)

A lot of the discussion seems to be focusing on the idea that the rights were agreed to in 1971, and what such an ancient clause might have been intended for *then*, but I'm wondering if they were tacked on in the past decade or so, and actually aimed at ebooks.

[pdurrant]

Originally Posted by Kali Yuga

It's a good thing you aren't a lawyer.

Paragraph 20 of the complaint quotes directly from Paragraph 20 of the contract. According to HC, the contract explicitly extends HC's rights to "computer, computer-stored, mechanical or other electronic means now known or hereafter invented."

If in fact the contract referenced those rights as HC suggests, this is very different than other contracts which did not reference electronic or digital media at all -- as was more common until the 90s.

And yet again, there is absolutely no way to know what the contract actually says without seeing the whole thing. You can read it however you want, but unless you have actually read it, you're just speculating.

I think that you are the one mis-reading the complaint. Paragraph 20 of the complaint claims that paragraph 20 of the contract "further makes clear" what Harper Collins' rights are under the contract

But since it is made clear in paragraph 21 of the complaint that paragraph 20 of the contract is only concerned with limiting Harper Collins' rights to license the work to others, it's hard to see how it can grant any rights to Harper Collins at all.

I do agree that it would be helpful to have the full text of the contract.

I think it is significant that Harper Collins do not quote an explicit grant of rights to publication "through computer, computer-stored, mechanical or other electronic means now known or hereafter invented". In fact, the only explicit grant of rights they quote from the contract is "in book form". In 1971, "in book form" could only mean in paperback and hardback.

Bearing in mind that this complaint obviously puts things in the very best light from Harper Collins point of view, I think their case is very weak.

[Elfwreck]

Originally Posted by pdurrant

I think it is significant that Harper Collins do not quote an explicit grant of rights to publication "through computer, computer-stored, mechanical or other electronic means now known or hereafter invented". In fact, the only explicit grant of rights they quote from the contract is "in book form". In 1971, "in book form" could only mean in paperback and hardback.

An argument could be made that it included audiobooks on record or tape. Not sure how popular those were in 71, but the idea, at least, of book-as-sound existed. And I can think of a couple of weird "book" formats that would also hypothetically be covered--but none of them are ebooks.

(Spiral-bound pack of notecards. Flipbooks with changing photos. Preschool books on plastic. And so on. None of which are particularly appropriate for the book in question, but hey, if the story gets popular with six-year-olds, they'd find a way to market it to four-year-olds.)

[stonetools]

In any case, this is just the kind of question that's best sorted out by the courts- legal issues arising from ambiguities in contract language . We now just have to wait and see.

[ApK]

Originally Posted by ATDrake

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

I disagree, and I think this kind of idea is why so many people think they are justified in breaking the law.

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.

ApK

(It also should be that that control expires in a reasonable amount of time and the work then goes to the public domain for the betterment of society. So I'm all in favor of reforming copyright length, but I'm against weakening copyright protections. I'm not even sure how I feel about compulsory licenses for recording music, but I'm open to being convinced that it's a good thing.)

[din155]

On a side note, I think people at HarperCollins must have been real visionaries if they could envisage eBooks in 70's and put it in contract. Sadly they never saw Rupert Murdoch coming!

[ATDrake]

Originally Posted by ApK

I disagree, and I think this kind of idea is why so many people think they are justified in breaking the law.

I was talking in direct relationship about the publisher who was sitting on the e-book rights and denying the author, who should control the copyright, the ability to assign the e-book rights for her creation wherever she pleased, as the original publisher had not been issuing an e-book but is now trying to block and reverse the release of it through the author's company of choice.

Quoted for context, the immediately preceding paragraph to the quoted statement you commented upon:

Originally Posted by 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.

Originally Posted by ApK

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.

Certainly, and I think that in cases where the rights are not explicitly bargained for in a publishing medium which actually exists, then it should not be assumed that there's implied consent for them included in the pre-existing contract, and the publisher should have to renegotiate for the new media rights again with the creator, and if they can't come to an agreement, then the new media rights should be assigned to creator.

And if the publisher does in fact bargain for the new media rights but fails to release in them, then the new media rights should revert to the author within a specified limited length of time, so that the author is not denied income from the sale of her copyrighted creation.

The author can sit upon and not-release her work for as long as she pleases, but publisher should certainly not be able to do so, at least not without paying significant compensation for it and with the author's explicitly granted consent, which they would have to keep "renting".

And if they don't keep renting and/or the author says "no way" to the amount they're offering, then she gets the new media publication rights back within a few years, regardless and pick whoever she wants to take them to next (or just lovingly file them away in the china cabinet, never to be seen again until 50+ years after her death).

Like having options on movie rights for books, which have to be renewed periodically. 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.

Originally Posted by ApK

(It also should be that that control expires in a reasonable amount of time and the work then goes to the public domain for the betterment of society. So I'm all in favor of reforming copyright length, but I'm against weakening copyright protections.

I'm in favour of not necessarily weakening copyright protections, but altering who can exercise them in favour of the actual creators of the works, rather than the corporate entities who may be exploiting them (cf. work for hire situations like the comic book industry has/had which kept one of the creators who originally invented Superman in borderline poverty doing odd jobs the editors tried to throw his way, while DC Comics/Warner was making huge profits on the Superman franchise and films and licensed tie-in merchandise).

<-- We have no Superman smiley. But he would be kind of hard to represent without the costume, as the spitcurl is kind of not-really-definitively-identifying.

[DiapDealer]

Originally Posted by ATDrake

The author can sit upon and not-release her work for as long as she pleases, but publisher should certainly not be able to do so, at least not without paying significant compensation for it and with the author's explicitly granted consent, which they would have to keep "renting".

Paul Kearney had something similar to this happen with his Sea Beggars series. 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.

That sort of thing shouldn't happen. If you don't want it... sell the publishing rights—or at the very least, have the rights revert back to the author after a reasonable period.

Thankfully, Bantam finally allowed the publishing rights to be sold and an omnibus book (with a new one-book conclusion) is due out in 2012... six years after Bantam decided to bail on the series.

[ApK]

Ah, I see. If you are speaking of the terms creators should agree to (or not) when licensing their work or selling off their rights, rather than a change to the copyright law, then I agree.

[teh603]

Originally Posted by ApK

Ah, I see. If you are speaking of the terms creators should agree to (or not) when licensing their work or selling off their rights, rather than a change to the copyright law, then I agree.

The problem is, the company is dictating terms from a position of strength. The author depends more upon them than they depend on any one author. That's how they're able to get so much leverage.

[ApK]

Originally Posted by teh603

The problem is, the company is dictating terms from a position of strength. The author depends more upon them than they depend on any one author. That's how they're able to get so much leverage.

The times they are a-changin'. Self-publishing forces like Amazon and Smashwords are the vanguard of what is hopefully a revolution. Traditional publishers may soon be in danger of "leveraging" themselves into the dustbin of history.

[teh603]

Originally Posted by ApK

The times they are a-changin'. Self-publishing forces like Amazon and Smashwords are the vanguard of what is hopefully a revolution. Traditional publishers may soon be in danger of "leveraging" themselves into the dustbin of history.

I wouldn't consider Amazon exactly a champion of self-publishing, but YMMV.

[Kali Yuga]

Originally Posted by ATDrake

if the publisher does in fact bargain for the new media rights but fails to release in them, then the new media rights should revert to the author within a specified limited length of time, so that the author is not denied income from the sale of her copyrighted creation.

What are you, new?

For example, let's say I sign a contract with a publisher, that includes film and television rights. The publisher should not be obligated to put out a movie (that could cost tens or hundreds of millions of dollars) in a specific time frame, just because they happened to negotiate for those rights.

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.

Now, if the author puts an expiration date to the rights into the contract, and all parties agree, then I have no problem with it. 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.

Options, by the way, get renewed because they are only the "exclusive right to buy the rights," and are only a portion of the total fees. If a movie studio proceeds and buys the rights, they still aren't obligated to go ahead and make the movie.


As far as "work for hire," again that's a consensual arrangement. Some include payments for residuals, some don't. If you don't like the contract, don't sign it. 'Nuff said.

By the way, Siegel & Shuster weren't kept "in poverty" or "doing odd jobs" while working for National Allied; they were making $75,000 each in 1941 (equivalent to $1 million today). After 10 years working for NA, they sued for control of the rights, lost, and took a $200k settlement ($1.8 million) in exchange for signing away all claims to those rights.

They were well-known, and had every opportunity to capitalize on their success, and did continue to work in their chosen field. 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.

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