Deja Vu

A story in yesterday’s NY Times addressed the battle between backlisted authors and book publishers, focusing on the efforts of William Styron’s heirs  (Styron wrote The Confessions of Nat Turner and Sophie’s Choice, among others) to license e-book versions of his works.  Random House, which published Styron’s earlier works, said through a spokesman “that authors were precluded ‘from granting publishing rights to third parties'” because their contracts with Random House covered all such works, including e-books.  Internet law students may wonder if they stepped into a time machine, as they recently read the trial court opinion in Random House, Inc. v Rosetta Books LLC which rejected Random House’s suit to enjoin publication of e-book versions of various works–including Styron’s.  Indeed, Random House asserts its control over e-books arises from its right to publish the authors’ works “in book form”–the same argument the trial court rejected in denying Random House injunctive relief. Rosetta Books.  The Times article notes that the Second Circuit affirmed the trial court’s decision. Random House’s argument is not totally off the wall because the trial court ruled Random House was not likely to succeed on the merits of its contract claim and the Second Circuit held that the trial court did not abuse its discretion–in other words, there was no trial  or appellate review on whether the right to publish works “in book form” encompasses e-books.  Nevertheless Random House’s argument was not compelling  in 2001 and the years since have not been kind to its theory for relief.

The Styron parallel aside, there is much at stake in the contest between publishers of older books and the heirs or literary executors of the books’ authors. Backlist titles are an important source of revenue.  One would expect that publishing contracts more recent than the 1994 agreement between Random House and Styron addressed e-book rights explicitly.  This shapes up as an interesting struggle over the contract lawyers’ abilities to control rights over technology whose nature they could perceive dimly, at best, when drafting the contracts.

This story has a totally unrelated aside.  Random House is also struggling to control e-book versions of Joseph Heller’s Catch-22.  I read Catch-22 (for pleasure, not as an assignment) when I was 16 or so, and I am currently halfway through an audio book version.  Catch-22 taught me the term deja vu, a phenomenon  (along with jamais vu and presque vu) the Chaplain ponders throughout the book.  I remember my deep satisfaction with learning the proper name for the sense of having experienced a moment before.  This was long before Yogi Berra’s “it’s like deja vu all over again” became a ubiquitous punch line and cheapened the sensation’s mystery.  Given Catch-22’s presence in the article and over my car’s audio system, deja vu seemed the right title for this post.

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