Old publishing contracts are usually silent on electronic rights and e-books, which of course may not have been invented when the contract was signed.
So. Does this mean that those rights belong to the original publisher, who can be presumed to have all book rights even if the specific technology wasn’t invented yet? Or does it belong to the author, because there is a reserved rights clause that states that all rights not belonging to the publisher (including, presumably, those that have not been invented) belong to the author?
There is a somewhat under-the-radar legal battle going on right now between HarperCollins and Open Road over the e-book rights to Jean Craighead George’s Julie of the Wolves that should have significant implications for this landscape moving forward.
The suit hinges over what exactly it means to publishing something “in book form.”
There are tons of old publishing contracts out there, and many of them are for books that continue to sell to this day. Whether the original publisher or the author/author’s estate has the right to these e-book rights will have a massive impact on the future of the business.
For authors, it can be far more lucrative to sell those rights directly to another publisher or e-publisher than to simply receive an e-book royalty from the original publisher. Meanwhile, publishers have countless backlist titles that could be threatened depending on the specific wording of very very old publishing contracts.
Art: Fencing-match by Charles Jean Robineau
Shawn Lamb says
When I contacted my publisher about doing an e-book version, they would only do so if I paid for it! I asked why, and they said to help cover the cost of the upgraded technology needed to convert. I volunteered to have my husband do the conversion, to which my publisher gave an emphatic NO! claiming it would be a breech of contract as an ancillary product and placing it in direct competition with the paperback. Thus no e-book yet.
I think I'm going to consult a lawyer on this one, since e-books aren't stated in my contract.
Catherine Ryan Hyde says
Thanks for this, Nathan. This has really been on my mind lately, especially as the physical books go out of print. I'd sure like to get the rights to some of those older books back.
The part of this that's particularly insidious, in my opinion, is that in many if not most contracts rights revert to an author if the book goes out of print. An e-book is NEVER out of print, therefore a publisher claiming e-book rights means you will never EVER get either your print OR your e-book rights back. And I think it's safe to say no author intended to sign their rights away when they were signing a contract back before e-books were even a twinkle in anyone's eye. Very disturbing. JA Konrath managed to muscle his rights back from his publisher, but he's nto saying how and I think it's safe to say not many of us would be able to do it.
It seems to me that there may be as yet unseen consequences no matter which way this plays out. I'm keeping an eye on this issue for sure.
A very intriguing topic, and one that I'm very curious to see where it leads!
I'm lucky, I think, because I've had experience on "both sides". As a writer, it doesn't seem correct that a publisher should have the e-rights to my work if it was not clearly stated in the contract. I would think there would need to be some negotiation on royalties at least, if nothing else.
However, I've also grown up in a small family publishing company. I know the hard work that goes into running a publishing company, and how that hard work happens every day, even if it's decades after the author last set down his/her pen. So, I know how frustrating it would be to have done all that marketing, promotion, production, customer service, etc., and then suddenly have the author capitalize on that, without any compensation to the publisher, by either selling e-books him/herself, or giving those rights to another publisher.
But, at the end of the day, I would have to say that unless it is stated in the contract that the publisher retains all book related rights, in all formats, current or yet to come, I think the rights have to revert to the author… But, it's tough! And it's a good lesson to make sure contracts are incredibly clear – for all involved.
J Keith says
This is such an interesting topic and one I would say will be decided by the court when they define what 'any book related form' means or whether rights not spelled out belong to the author.
Steven M. Moore says
This question has raised its ugly head (legal issues for me are ugly) twice in my writing–very interesting post. My first POD (before ebooks) was with Xlibris. I worried about it then, but made the ebook a second edition, hoping to squeeze under the radar horizon (the book didn't sell that well anyway–the price was too high for a trade paperback). The second is now. I have one POD with Infinity that doesn't also have an ebook version. That book came out before Infinity had ebooks, but now they do (hence my next two Infinity books were in both formats). I'd like to make an ebook version since it's a hole in my opus, but I'm not sure what to do. So far, I've taken a wait-and-see attitude. Any advice?
Thanks for this post, I can't wait to tune in to your next post about old publishing contracts; it'll be interesting to hear what the final say is on the subject.
K. C. Blake says
I used to write for Harlequin, and after a certain number of years passed I was supposed to get the rights back so I could sell the book to another publisher if I wanted. But there is a stipulation in the contract that says Harlequin has the right to re-publish it instead of returning the rights to me. I couldn't see this happening, so I contacted them and asked for the rights back. Well, they turned around and published them as ebooks. Now I get a small royalty instead of 70 percent which is what I would have gotten with Amazon. Sucks, but there isn't anything I could about it.
Janey Burton says
It's about the context in the contract as well as the single term 'book' or 'volume' rights, but yes: the major practical problem that arises out of older contracts is that because availability has for so long been the marker of whether a book is in print or not means the rights may not be reverted. However, even with old contacts it should be possible to do some re-negotiating and I am arranging such a change for one of my clients now.