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HarperCollins Sues Over Ebook Rights

28 December 2011

HarperCollins has filed a copyright infringement suit against Open Road Integrated Media over Open Road’s publication of an ebook version of  Julie of the Wolves by Jean Craighead George. The suit was filed in federal court in the Southern District of New York. Open Road was formed by former HarperCollins CEO Jane Friedman in 2009.

The lawsuit is based upon a 1971 publishing agreement that supposedly included ebooks with a clause granting Harper rights to publish the book in “computer, computer-stored, mechanical or other electronic means now known or hereafter invented.”

This is 100% speculation on PG’s part, but he suspects the cited language is in a later amendment to the publishing agreement.

Passive Guy is still in the process of pulling together documents, but here is a link to the Harper – Open Road Complaint. PG is looking for a copy of any attachments to the complaint, which would presumably include the publishing agreement and any amendments thereto.

One interesting tidbit in the complaint is that Harper has sold 3.8 million copies of Julie of the Wolves in one form or another. Another interesting tidbit is that Harper has heretofore neglected to publish an ebook version of the book.

The most intriguing legal issue PG sees in the contract language cited by Harper is the “now known or hereafter invented” provision.

As a general proposition, unless an author specifically grants a right under the author’s copyright, that right is retained (although it’s always good practice to include a clause that explicitly states the author retains all rights not expressly granted to the publisher).

As another general proposition, if a technology is not known to the parties or reasonably contemplated by them at the time the contract is signed, it cannot be granted by the author.

If anyone finds a copy of the HC publishing contract involved in this litigation, please let PG know where it is via the Contact page.

A note on reading litigation documents: Filing a complaint is the way a federal court case is begun. It represents the case from HC’s perspective and the complaint is written in a manner to present the case in a manner most favorable to HC. It would be unusual for a complaint to concede any weaknesses in the plaintiff’s case.

Every attorney has his/her own style of writing complaints, but, to PG’s eye, several paragraphs sound like press release excerpts rather than the types of allegations that build a case for HC’s claims. PG has never practiced in New York City federal courts, but some of the paragraphs of the complaint would have been routinely stricken in courts where he did practice.

One of the fluff paragraphs, #11, reveals the rather astounding fact that HarperCollins only spent $70 million in promoting its books during its fiscal year ending in June, 2011. This seems very low for a company the size of HC.

One additional request – If anyone has a HarperCollins contract from the late 60’s or early 70’s, PG would love to have a copy for his Contract Collection. He is particularly interested in the strangely prescient ebooks clause HC references in its complaint.

 

Big Publishing, Contracts, Ebooks

5 Comments to “HarperCollins Sues Over Ebook Rights”

  1. It’ll be interesting to see how this one’ll intersect with the Peggy Lee decision (which, granted, was a CA Supreme Court, rather than a Federal Court decision).

    -Dan

  2. If I were an author with HarperCollins, this is precisely the sort of thing that would have me looking for another publisher.

    Do they not realize what a PR nightmare this is going to be for them? How oblivious are they, really? Or do they simply not care?

  3. I wrote a book report on Julie and the Wolves in 5th grade. It’s a great book. Keep us updated on what you find.

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