Litigation
Book Publishing Contracts
Who owns e-book rights? In 2001, publishing giant Random House sued Rosetta Books, a start-up electronic publisher, for licensing and publishing e-book editions of works by William Styron, Kurt Vonnegut, Jr. and Robert Parker. Random House claimed it had acquired electronic book rights in contracts (signed in the 1960s through the 1980s) that acquired the right to publish those authors’ manuscripts in “book form.” A federal court disagreed with Random House’s argument, ruling that authors retain e-book rights unless they expressly grant them. This year, the federal appellate court affirmed that decision, leading to a settlement of the lawsuit.
The Authors Guild played an active role in the suit, advising Rosetta’s attorneys and, with the Association of Authors’ Representatives, filing briefs with the trial and appellate courts.
Freelance Articles
Who owns electronic rights in freelance articles? The Authors Guild’s class action lawsuits against electronic databases and the New York Times for their many years of infringing the copyrights of countless freelance articles entered court-appointed mediation this year.
Two years ago, the Guild and seven authors filed a federal class action suit against nine leading electronic databases for making tens of thousands of freelance articles available to paying subscribers without the authors’ permission or payment. Fifteen months ago, we filed a separate class-action suit against the New York Times to counter its campaign to purge databases of freelance works unless the authors agreed to give up their rights without compensation. We intend these suits to help us establish a just system of compensation to authors for digital re-uses of their works.
Authors’ Statutory Termination Rights
Captain America creator Joe Simon, who first penned the patriotic superhero in 1939, won the right last month to convince a jury that he created the character independently of a publisher now owned by Marvel Characters. The U.S. Court of Appeals for the Second Circuit ruled that Copyright Act Section 304(c), which allows creators to terminate licenses to publishers (or others) after many years, couldn’t be eliminated by later agreements that define the works as “made for hire.”
To redress the unequal bargaining powers of creators and publishers, Congress stipulated in the Copyright Act of 1976 that original creators have the right to terminate any grant made to exploit the work after many years (beginning 56 years after the grant for pre-1978 works; 35 years for post-1978 works). The Act says that this right to terminate a grant exists “notwithstanding any agreement to the contrary,” but it does not apply to works made “for hire.”
In 1999, when Simon tried to exercise this new right of termination, Marvel sued him, arguing that he had no copyright to retrieve because he had agreed in the earlier settlement that the works were made “for hire.” When alerted by Simon’s lawyers to the issues in the case, the Authors Guild brought several creators’ organizations together as amici curiae in the trial and appellate courts.
In its brief and on oral argument, the Authors Guild argued that a decision against Simon would render meaningless the termination provisions of the Copyright Act. Such a decision would allow publishers to leverage their superior bargaining power, forcing creators to accept “works for hire” clauses as a condition of publication. The Court of Appeals agreed, and held that Congress included the “notwithstanding any agreement to the contrary” language precisely to avoid such an outcome.
Other Litigation
American Historical Association v. National Archives and Records Administration. Through an amicus brief, we helped challenge the recent Presidential Order that closed to researchers the official documents generated by the Reagan White House. Under the pressure of the lawsuit and negative press, the Archives eventually released many of the documents. The case continues in an effort to gain access to the remaining papers.
Winter v. DC Comics. The Guild asked the California Supreme Court to clarify that a clearly transformative parody of a celebrity does not infringe the right of the celebrity to control commercial use of his name and image. The Court agreed to review the case.
Kelly v. Arriba. This case demonstrates the interplay of new technology and traditional rules of fair use. We co-signed an amicus brief arguing that a search engine that displayed copyrighted photos on its website, completely bypassing the website that had legitimately posted the photos, was not making fair use of the photos. The Ninth Circuit Court of Appeals largely agreed.
Jacobson v. Deseret Books. In this case -- important to all authors who make use of archival records -- the right of an author to recount facts from historical source material is at stake. The amicus brief, in which the Authors Guild joined with the Association of American Publishers joined, requests that the U.S. Supreme Court review a federal appellate court’s decision that dramatically restricts an author’s ability to make use of such material.
