March 19, 2014
Judge rules in Julie of the Wolves digital rights case
by Nick Davies
A New York judge made a ruling this week in a dispute between HarperCollins and digital publisher Open Road, over the e-book rights to Jean Craighead George’s Newbery Award-winning novel Julie of the Wolves. After more than two years in court, Judge Naomi Reice Buchwald ruled that, despite an agreement with the author, Open Road impinged on Harper’s copyright by publishing an e-book edition, and would have to pay damages.
Andrew Albanese writes for Publishers Weekly that Open Road’s Julie and the Wolves e-book came about from a disagreement over royalties: George wanted to publish one with HarperCollins, which holds the rights to the book, but the publisher “refused to budge” on its 25% net e-book royalty offer. Open Road argued that “Harper had its opportunity to publish an e-book edition of Julie of the Wolves… George, who was certain she retained the e-book publication rights, would have preferred to publish with Harper because of their long print association. Harper, however, would not meet Open Road’s 50% royalty offer.”
Harper filed a lawsuit in 2011, after George agreed to publish with Open Road; Harper’s lawyers argued that two clauses in the 1971 contract “gave it the exclusive right to license an electronic edition—albeit, only to be executed with the permission of George.” The author passed away in 2012, though, so without being able to depose her (or her agent, also deceased) Buchwald had only the contract to rely on. One of the two paragraphs that formed the basis of her decision states that HarperCollins “shall grant no license without the prior written consent of the Author… including uses in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now known or hereafter invented.”
James Grimmelmann, a law professor at the University of Maryland and contributing editor to Publishers Weekly, opines that:
The decision seems quite reasonable, given the language in the contract. Ironically, the language [George’s agency] Curtis Brown inserted to make it harder to license digital uses without the author’s consent is precisely what shows that digital uses were something both George and HarperCollins had in mind. Paragraph 20 doesn’t make sense unless HarperCollins had some relevant rights for electronic media, and the language is quite broad as to what those media might be.
While damages haven’t yet been assessed, the penalties under the Copyright Act could run up to $150,000 per instance of willful infringement. While it’s tempting to see the case as a landmark ruling in digital rights to publishers’ backlists, Judge Buchwald cautions that it’s dependent on the specific language of George’s contract with Harper, and of “limited applicability beyond the confines of this contract and this case.”
Nick Davies was a publicist at Melville House.