A dispute over the rights to e-book editions

That pub­lish­ers and authors (or their estates) should be argu­ing over rights to pro­duc­tion elec­tronic edi­tions (a grow­ing mar­ket thanks to new prod­ucts like Amazon’s Kindle) is no sur­prise. This sort of dis­pute is a stan­dard part of con­tract law, and comes up any­time a new mar­ket not antic­i­pated in a con­tract opens up.

William Styron may have been one of the lead­ing lit­er­ary lions of recent decades, but his books are not sell­ing much these days. Now his fam­ily has a plan to lure digital-​​age read­ers with e-​​book ver­sions of titles like “Sophie’s Choice,” “The Confessions of Nat Turner” and Mr. Styron’s mem­oir of depres­sion, “Darkness Visible.”

But the ques­tion of exactly who owns the elec­tronic rights to such older titles is in dis­pute, mak­ing it a ris­ing source of con­flict in one of the pub­lish­ing indus­try’s last remain­ing areas of growth.

via Authors and Publishers Argue Over Digital Rights to Older Books — NYTimes​.com.

While the dis­pute is, in many respects, not really new, I still think its inter­est­ing that the courts so far seem to be on the side of authors (but remem­ber, this is really about indi­vid­ual con­tract inter­pre­ta­tions, not really about broad cat­e­gories of dis­putants, although broad cases could influ­ence future decisions):

In 2002, Random House sued RosettaBooks, an e-​​book pub­lisher, for copy­right infringe­ment when Rosetta signed con­tracts with authors — includ­ing Mr. Styron — to release dig­i­tal ver­sions of pre­vi­ously pub­lished novels.

In its suit, Random House relied on word­ing in its con­tracts that granted it all rights to pub­lish the works “in book form.” In its let­ter to agents on Friday, Random House invoked the same word­ing to defend its right to pub­lish e-​​books of back­list titles.

In 2002, a fed­eral judge in Manhattan denied Random House’s request for a pre­lim­i­nary injunc­tion against RosettaBooks, rul­ing that “in book form” did not auto­mat­i­cally include e-​​books. An appel­late court sim­i­larly denied Random House’s request.

What I find most telling in this is the argu­ment that authors and their estates are seek­ing alter­na­tives to tra­di­tional pub­lish­ers because those pub­lish­ers are not offer­ing a very com­pet­i­tive roy­alty rate on dig­i­tal edi­tions. After all, they argue, dig­i­tal works costs less to pro­duce and dis­trib­ute — so pub­lish­ers, who do less work, deserve a smaller slice of the pie.

Obviously tra­di­tional pub­lish­ers do not like this, since it cuts into their poten­tial prof­its — and back­list titles account for a sig­nif­i­cant amount of steady income for publishers.

Still, if the mar­ket can sup­port pay­ing authors more — isn’t that the “nat­ural” path the book indus­try will take in the future? The Web cer­tainly can sup­port non-​​traditional pub­lish­ing avenues, and while these leave off many of the ben­e­fits pub­lish­ers pro­vide (mar­ket­ing and edit­ing, espe­cially), why couldn’t elec­tronic edi­tions find a dif­fer­ent way to mar­ket? (This is espe­cially true when the edit­ing has already been paid for through ear­lier, hard-​​copy sales. And are pub­lish­ers really push­ing back­list pub­li­ca­tions enough to jus­tify their payout?)

Can tra­di­tional pub­lish­ers fend off this move through lit­i­ga­tion and force­ful con­tract nego­ti­a­tions? Or will we see increas­ing alter­na­tives to tra­di­tional pub­lish­ers in the e-​​book realm?

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