Wednesday, December 16, 2009

David Versus Goliath, Revisited

NB: the guest post submissions continue to roll in, and again, they look great. If you'd like to submit one, you've got two hours from now (the deadline being 12:00 PM ET) to do so. If in doubt—submit!

In the continued battle for The Future of Publishing™, Random House has apparently told its agents and authors that it owns the e-book rights to all backlist titles published before 1994 (apparently the Random House standard contract was altered in 1994 to explicitly include electronic rights). As you might imagine, this is a somewhat contentious issue.

In one corner, you've got the Authors Guild insisting that since authors never expressly granted Random House electronic rights, they are retained by those authors. The AG further claims that The Big House is aware of this, since they went ahead and altered the language of their contracts in 1994 to explicitly claim electronic rights, which the AG takes as an implicit admission by Random House that they do not control electronic rights for earlier titles.

In the other corner, you've got Random House insisting that they retain all U.S. rights to the books they acquire, which implicitly include electronic rights. They haven't said as much (at least, not to my knowledge), but I imagine their position regarding the change of language in their contracts is that it was merely a clarification of existing terms, and not the introduction of new terms of acquisition per se. So far, all we know is that they "respectfully disagree" with the AG's position.

I've always been of the opinion that any rights not specifically granted to one party by another are retained by the party granting the right(s), but I haven't seen the legalese in question and therefore am not really in a position to make a determination. I do think it sets a dangerous precedent for future rights battles, however, since if a company can buy the rights to something that doesn't even exist yet, there's theoretically no limit to the latitude they'll have with everything from book formats to international distribution. Scary times, cats and kittens. Scary times.

In lighter news: happy holidays, and I'll be posting the winners of the First Ever Guest Post Contest tomorrow morning!


  1. Eric,

    I think RH has a legitimate point. The value of the book is content, intellectual property, not the paper on which it is printed. I think authors and publishers both recognize that this is what is being sold and contracts in the digital era have been more careful to include any form in which that content may be sold.

    I totally get that retaining eBook rights benefits the author and let me add, "Go, writers!" but... If RH bought the content in good faith it seems like parsing words to say they aren't entitled to the content if it steps out of classic book form. Would the author retain legal rights to the content in, say, scroll format?

    Also, don't rights revert to the author after a certain amount of time, at least in most contracts? 1994 was fifteen years ago. Does the publisher retain the rights until it becomes public domain?

    Am I wrong?

  2. I think this is pretty messed up. If I were to take sides (also being ignorant in the legalese of such things), I'd be with the Author's Guild.

    E-books are a new format entirely, that weren't even invented at the time of those contracts. Since audio rights are sold separately because it's a different format, it stands to reason that e-book rights would be sold separately. Different mediums, different customer bases, different rights. Booyah.

    It does freak me out that RH assumes they can turn back time and lay claim to "all future book formats to be invented ever." This seems more than a bit bizarre.

    It will be interesting to see what happens!

  3. Laurel

    There are a plethora of rights ascribed to that intellectual property. If the author did not sign a contract granting Random House electronic publishing rights, it does not have the right to produce that book electronically.

    I don't find this scary. I find it to be a nuisance. I'm glad I won't be the one filing suit if RH doesn't back down, but rest assured, someone will sue if they don't relent in their position. (And when they do, they'll win, too.)

  4. Joseph:

    I see your point...thank you. For some reason I was looking at this from the wrong angle. More along the lines of the author would want the eBook published and RH might choose to sit on it, in which case the author has no way to publish the book electronically. Which is unfair, but I guess not illegal. The other way around, though, where the author did not even have the option to decline digital format because no one was thinking about it, that is an entirely different prospect.


  5. So what we need is a clause in contracts stating point blank that any rights not explicitly granted to the involved purchaser remain in the ownership of the author.

    Yikes. I do not like the precedent that sets, but at least they'll lose when it comes to lawsuit. I hope.

  6. I can't see how RH could win this. I mean, I haven't seen the legalese either, but wouldn't this also imply that if (say) audio rights weren't mentioned in the contract, they are automatically owned by RH? International rights? Interplanetary rights (you know, when those become a thing)?

    That seems kind of ridiculous. Am I understanding this wrong?

  7. When I signed contracts for novels with a major publisher in 1989 through 1991, they all said the "book in any form" and included something about this being forms not yet discovered, as well.

    I don't mind that. Besides, all o.p. books go through a rights reversion (from this early period) usually by contract terms or by request once they have been out of print for some time.
    When to request a rights reversion has been a standard agent and author agenda item for decades.

    So RH is only talking about books they kept in print in the main part and likely only by authors who are true bestsellers. In most cases, I imagine they're dealing with heirs.

    Geez, most authors themselves would celebrate the occasions when an original publisher decided to bring out an eBook of an otherwise o.p. title.

    I honestly think RH is doing the right thing and this so-called "stand", if it is a battle line, is a battle line to protect o.p. books from the likes of google's outright steal of copyrighted works for an un-negotiated value (what shall we call it, a "pittance"?)

  8. Isn't there usually a financial difference between selling print rights and 'all rights'? One can be worth significantly more than the other.

    Intellectual Property rights in book publishing are a different thing entirely too IIRC, as they essentially give the company owning the IP the ability to take the profits of all merchandising, character or world based spin-offs, etc. I'm thinking of the way Games Workshop used to handle it's contracts in the past, for example.

    If we accept that there is a monetary difference between different rights grabs, then Random House are essentially trying to take rights they didn't ask for without offering payment. It's rude, and illegal.

    To me it's another example of bad PR, and big publishers looking like they're trying to screw the little guy. Yes, they are businesses, but they can still be ethical about it. And they wonder why authors have the impression they might get a better deal elsewhere...