[Videolib] Legal Battles Over E-Book Rights to Older Books

From: Rubin, Nan <RubinN@thirteen.org>
Date: Mon Dec 14 2009 - 13:19:39 PST

>From the NY Times this past Sunday.

Nan Rubin

Nan Rubin, Project Director
Preserving Digital Public Television
Thirteen
450 W. 33rd St.
New York, NY 10001
212-560-2925 (direct line)
212-560-2833 fax
Rubinn@thirteen.org
www.ptvdigitalarchive.org

* * * * *

December 13, 2009
New York Times
Legal Battles Over E-Book Rights to Older Books
 
By MOTOKO RICH
<http://topics.nytimes.com/top/reference/timestopics/people/r/motoko_ric
h/index.html?inline=nyt-per>

William Styron
<http://topics.nytimes.com/top/reference/timestopics/people/s/william_st
yron/index.html?inline=nyt-per> 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.

Mr. Styron's family believes it retains the rights, since the books were
first published before e-books existed. Random House
<http://topics.nytimes.com/top/news/business/companies/random_house_inc/
index.html?inline=nyt-org> , Mr. Styron's longtime publisher, says it
owns those rights, and it is determined to secure its place - and
continuing profits - in the Kindle
<http://topics.nytimes.com/top/reference/timestopics/subjects/k/kindle/i
ndex.html?inline=nyt-classifier> era.

The discussions about the digital fate of Mr. Styron's work are similar
to the negotiations playing out across the book industry as publishers
hustle to capture the rights to release e-book versions of so-called
backlist books. Indeed, the same new e-book venture Mr. Styron's family
hopes to use has run into similar resistance from the print publisher of
"Catch-22" by Joseph Heller
<http://topics.nytimes.com/top/reference/timestopics/people/h/joseph_hel
ler/index.html?inline=nyt-per> .

On Friday, Markus Dohle
<http://topics.nytimes.com/top/reference/timestopics/people/d/markus_doh
le/index.html?inline=nyt-per> , chief executive of Random House, sent a
letter <http://graphics8.nytimes.com/packages/pdf/arts/Dohle.pdf> to
dozens of literary agents, writing that the company's older agreements
gave it "the exclusive right to publish in electronic book publishing
formats."

Backlist titles, which continue to be reprinted long after their initial
release, are crucial to publishing houses because of their promise of
lucrative revenue year after year. But authors and agents are
particularly concerned that traditional publishers are not offering
sufficient royalties on e-book editions, which they point out are
cheaper for publishers to produce. Some are considering taking their
digital rights elsewhere, which could deal a financial blow to the
hobbled publishing industry.

The tussle over who owns the electronic rights - and how much the
authors should earn in digital royalties - potentially puts into play
works by authors like Ralph Ellison
<http://topics.nytimes.com/top/reference/timestopics/people/e/ralph_elli
son/index.html?inline=nyt-per> and John Updike
<http://topics.nytimes.com/top/reference/timestopics/people/u/john_updik
e/index.html?inline=nyt-per> .

Some publishers have already made agreements with authors or their
estates to release digital editions. All of Ernest Hemingway
<http://topics.nytimes.com/top/reference/timestopics/people/h/ernest_hem
ingway/index.html?inline=nyt-per> 's books, for example, are available
in electronic versions from his print publisher, Scribner, a unit of
Simon & Schuster.

But with only a small fraction of the thousands of books in print
available in e-book form, there are many titles to be fought over.

"This is a wide open frontier right now," said Maja Thomas, senior vice
president for digital and audio publishing at the Hachette Book Group.

While most traditional publishers have included e-book rights in new
author contracts for 15 years, many titles were originally published
before e-books were explicitly included in contracts.

And with electronic readers like the Kindle from Amazon and the Nook
from Barnes & Noble
<http://topics.nytimes.com/top/news/business/companies/barnes-and-noble-
inc/index.html?inline=nyt-org> attracting new readers and sales of
e-books growing exponentially, authors and publishers are trying to
figure out how best to harness the new technology.

New ventures focusing explicitly on e-books are cropping up regularly,
and some offer authors better financial terms than the traditional
publishers.

In the case of Mr. Styron, who died in 2006 at age 81, the eight titles
his family wants to re-release as e-books were published in print before
1994. This fall, Mr. Styron's estate reached an agreement with a new
company, Open Road Integrated Media, founded by Jane Friedman
<http://topics.nytimes.com/top/reference/timestopics/people/f/jane_fried
man/index.html?inline=nyt-per> , the former chief executive of
HarperCollins Publishers Worldwide, and Jeffrey Sharp, a film producer.

In October, Open Road announced that it would produce e-books of Mr.
Styron's work, along with several older titles by Pat Conroy
<http://topics.nytimes.com/top/reference/timestopics/people/c/pat_conroy
/index.html?inline=nyt-per> and Iris Murdoch
<http://topics.nytimes.com/top/reference/timestopics/people/m/iris_murdo
ch/index.html?inline=nyt-per> .

Alexandra Styron, 43, Mr. Styron's youngest daughter, said her family
liked that a company "focused on the idea of the future of the book
industry wanted to make my father's books an important part of their
plan to bring old and long-gone authors into the 21st century."

Ms. Styron said her family was happy with the job Random House, and
their father's editor, Robert Loomis, had done for Mr. Styron's work.
But with e-books, she said, "we didn't feel that we were getting any
similar kind of full-court press."

In his letter on Friday, Mr. Dohle said that authors were precluded
"from granting publishing rights to third parties." Stuart Applebaum, a
spokesman for Random House, said the company expected to "continue to
publish the Styron books we own in all formats, including e-books."

Mr. Sharp, president of Open Road, said in an e-mailed statement: "We
are confident in our agreements and only make deals with parties who
represent to us that they own the rights."

Several publishers who say they retain e-book rights on old contracts
are working to amend those agreements to insert digital royalty rates. A
spokesman for Simon & Schuster, Adam Rothberg, said the company has
amended many old contracts. "Our plan is to publish all our backlist in
e-book form," he said.

Open Road announced in October that it planned to publish an e-book
version of "Catch-22," which is published in print by Simon & Schuster.
It is a mainstay of college reading lists and this year has sold 85,000
copies in its paperback edition, according to Nielsen BookScan, which
tracks about 70 percent of total sales.

Mr. Rothberg would not comment directly on "Catch-22." But Amanda Urban,
a literary agent who represents Mr. Heller's estate, said in an e-mail
message that her agency, International Creative Management, believes the
e-book rights reside with the author, not the print publisher.

Ms. Urban said that there was not yet a signed deal with Open Road but
that discussions were continuing.

There is some precedent for arguments over e-book versions of backlist
titles. In 2001, 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 2001, 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.

The case never went to trial. In a settlement, Random House granted
Rosetta a license to release e-book versions of 51 titles. Under a
different agreement with Mr. Styron, Rosetta also published two of his
books, though its license to do so has since expired.

Agents say some authors and their estates are seeking alternative routes
for e-books in part because they are dissatisfied with the digital
royalty rate offered by most traditional publishers. That rate -
typically 25 percent of net proceeds - generally results in authors
receiving less than they typically receive on hardcover editions. Agents
argue that because it costs publishers less to produce and distribute
e-books, authors should receive more, not less, in digital royalties.

"I think the potential danger that publishers run by not talking this
through carefully," said Andrew Wylie, a literary agent who represents
the estates of authors of backlist titles not yet in digital form,
including Ralph Ellison and Vladimir Nabokov
<http://topics.nytimes.com/top/reference/timestopics/people/n/vladimir_n
abokov/index.html?inline=nyt-per> , "is that they will be excluded from
e-book rights in a significant way."

Copyright 2009
<http://www.nytimes.com/ref/membercenter/help/copyright.html> The New
York Times Company <http://www.nytco.com/>

* <http://www.nytimes.com/privacy>

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Received on Mon Dec 14 13:20:15 2009

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