William Styron and Droit de Seigneur

January 4th, 2010 · 22 Comments
by Kassia Krozser

Over the New Year holiday, Jonathan Galassi, president of Farrar, Straus & Giroux, published an Op-Ed piece in the New York Times titled “There’s More to Publishing Than Meets the Screen”. I think he started with the intent of justifying the cost of ebooks — something publishing has handled abysmally — but he took a wrong turn. Into some very interesting territory.

Let’s break it down. The first line of the article is “What is an e-book?” This is never answered because Galassi moves on to discuss the decision by William Styron’s heirs to move Styron’s digital rights from Random House, who originally published the author in 1951*, to Open Road Integrated Media, a new digital publishing company headed by Jane Friedman, late of HarperCollins. Friedman’s new company, particularly the desire to reprint classic, in-copyright titles, interestingly, may have sparked what will be the most contentious of all issues facing publishing in the next few years.

(One hopes this was intentional.)

Rights of all sorts are under scrutiny. Just as we settled in for a long winter’s nap, Random House, never one to avoid an aggressive move, said their English-language Kindle titles will be available worldwide. Yay for readers, but you can imagine this didn’t make others happy. And, of course, Random House (again!) has asserted fairly broad digital rights. If you’re not caught in the crossfire, this is exciting stuff.

So, right, Galassi. He provides a little history lesson, talks about the careful attention paid to the editing of Styron’s work, the typesetting, the marketing. Yes! This is good stuff! It shows what a good publisher can be. If Random House actually has digital rights is a question that cannot be answered here. Galassi’s far more interesting point is that another publisher should not have the right to republish the Random House versions of these books. Let us set aside the notion that both the author and the editors (we can also set aside marketing) expected the fruits of their labors to be free to the world by now. It’s a good question: does Random House “own” the version they published?

Well, Styron (or his heirs) owns the copyright, the actual intellectual property. It is not shared with Random House or the editor who guided the work to perfection. Styron licensed certain rights to Random House, and in turn, the publisher performed certain duties. But at no point, did those duties constitute ownership of the actual text being published.

Galassi seems to be arguing that the editorial contribution is of comparable value to the creative contribution. Perhaps in this case, it’s a fair argument to be made. I am not sure it follows for every book published by every publisher. Is the publisher a creative partner or a service provider? Who owns the book at the end of the day?

I am of the mindset that the position advocated by Galassi will lead to deeper questions about the roles of publishers and how they serve authors. For seemingly perpetual rights, there will need to be more consideration. Galassi distinguishes between a publisher and a distributor, but fails to acknowledge that when it comes to digital distribution the playing field is beyond level, and when it comes to backlist titles, traditional publishers need to step up their game.

In fact, these publishers need to understand they’ll be selling themselves to authors, not the other way around.

(This relates to the utterly fascinating — if only to me — assertion by Random House that licensing digital rights to another publisher constitutes a competing version of a book.)

Then there’s the fact that Random House has more than earned back its initial investment in these books. Digital sales, setting aside the cost of conversion (oh, please don’t do a cheap and ugly scan and conversion, it shatters this argument into the tiniest of shards!), will be gravy on Random House’s investment in these titles. One can safely assume that the decisions being made by the heirs has little to do with art and everything to do with money: a digital edition will lead to a decline in print sales, volume unknown, so rights owners will want to maximize their return. Understandable.

If Galassi had stuck to his original thesis — the value of books — this would have been a welcome opening argument. Choosing to fall back on the work of William Styron to prove his point took the discussion in a different direction. One equally compelling, and one that will play out across the industry in loud and contentious ways.

Still, this attempt leaves me more convinced than ever that publishing isn’t really ready to have a public discussion about ebooks and pricing, though it’s long overdue. It won’t be a conversation filled with comfortable silences. And it won’t be a conversation lead by the industry. Which you know, is a shame. It’s not like ebooks are a surprising new product.

* – Note, the Styron book in question was not originally published by Random House, but by Bobbs-Merrill. New York Times Correction.

File Under: The Future of Publishing

22 responses so far ↓

  • Rich Adin // Jan 5, 2010 at 8:38 am

    Kassia, nice post (just wish you’d fix the excessive italics :)) but a couple of points.

    1. Who owns the Random House version? I think RH owns it if RH paid for the editorial work. However, publishers can transfer those rights to the author, and usually do.

    As an editor, I make it very clear that an author or publisher is always free to use the author’s unedited original manuscript, or a version edited by someone other than me, but that I claim an interest in my edited version UNTIL I am paid; once I am paid, my interest immediately ceases and whatever interest I had reverts to whoever paid me.

    Unfortunately, this attitude, although not settled in law, is necessary because some publishers and authors do their absolute best to stiff editors.

    2. I think Galassi did answer the question of what is an e-book. Basically, Galassi said it is just another form of the original book as prepared and published by the publisher. I think Galassi has good grounds for his position if we are talking about the version that the publisher originally published. If a new e-book publisher is going to take the original author manuscript — before editing — and re-edit it, then Galassi has no firm ground on which to stand.

    Somehow, RH has to be compensated for the work it did. Remember that a publisher doesn’t publish a book with the idea that after 6 months it is paid back in full and everything reverts to the author. Rather it is a long-term joint investment. Perhaps the terms need to change, say a reversal of the split, but that is different than saying that underlying relationship automatically changes.

    OTOH, the one thing we do not know is whether RH returned all rights to the author.

  • Chris Kubica // Jan 5, 2010 at 9:02 am

    Great post!

    “Let’s break it down.” made me immediately think of M. C. Hammer and “You Can’t Touch This.”


  • Kassia Krozser // Jan 5, 2010 at 10:09 am

    Rich — Thanks. I thought I’d fixed that, but clearly made it worse.

    I’m not going to disagree with you. I’ve been thinking along these lines for a few years, especially as questions of authors parsing out their various rights comes to mind. However, given the vintage of the books in question, I found the example to be poor. Had he chosen a more recent book, one that RH and the author would have reasonably expected to fully exploitable in the marketplace in this year, then it works far better.

    In this case, RH has been fully (and likely beyond) compensated for its work. If they are not completely profitable on this title at this juncture, I fear for their financial acumen.

    I do disagree that Galassi answered his own question. He forced the definition to meet his own needs, making it, at best, an incomplete answer. He didn’t take the necessary (in my hardly every humble!) view of what an ebook truly is and how it fits into the publishing ecosystem.

  • Kassia Krozser // Jan 5, 2010 at 10:09 am

    Chris — you caught me out!

  • Marilynn Byerly // Jan 5, 2010 at 10:59 am

    Droit-de-seigneur is the perfect expression– we have the right to screw you first.

    Every book and its editing are different. Sometimes, editors improve the book, other times, they just change it so no one court case will be a be all and end all of lawsuits in this matter.

    If the paper publisher doesn’t want the edited version of a book going to an e-publisher, they ought to do something silly like offering the writer or his estate more money, better add ons, etc., instead of saying we own this and you don’t.

  • Judith Baumel // Jan 5, 2010 at 11:53 am

    Thanks for this thoughtful analysis! You helped me put a finger on what was missing in the piece. I have (non book) friends who found Galassi very good and usefully illuminating; I had trouble explaining to them what more I wanted.

  • Andrew Wheeler // Jan 6, 2010 at 8:25 am

    Galassi really did get himself into a thicket there, didn’t he? As other people have pointed out various places, he essentially argues that reprints by other publishers are immoral, which I don’t think he expected to do. After all, how is Open Road all that different from the Library of America’s publishing program, or a new edition of an old book from Penguin Classics or NYRB Review Press? He’s arguing that all exploitation of a literary work, in any form, is the right of the original publisher — presumably, that would apply to dramatic rights as well, and any other rights anyone can think of, now or in the future.

    Damningly, he’s also silent on the fact that the publisher-author relationship is governed by a contract — both parties have rights and responsibilities, specifically enumerated in a legal document that they both agreed to. Instead, he does have a seigneural view of publishing — of the publisher as the lord who deigns to publish a work by some lowly scribe, and should benefit from his munificence forevermore.

    Even worse, there’s now a correction — Random House wasn’t the original publisher of Styron’s first book, so Galassi’s argument — such as it is — would seem to indicate that Random shouldn’t have any right to that book, since they didn’t originate it.

    Sloppy, sloppy thinking on his part there — and you’re very right to shine light on it and start to poke holes in his very flimsy arguments.

  • Kassia Krozser // Jan 6, 2010 at 11:14 am

    Andrew — Glad you popped up in the comments. I was thinking about you the other day (or, rather, I was thinking narrowly and recalled your reminder about broadening my perspective).

    I thought the skirting of the contractual issue was most fascinating — it certainly contributed to the whiny aspect of Galassi’s piece. I remain intrigued by the larger questions he raised. They’ve certainly been on my mind as I’ve considered issues of separation of rights.

  • JL // Jan 6, 2010 at 11:24 am

    Great article and great, great comments!

  • Robert // Jan 6, 2010 at 11:36 am

    Kassia –

    Last week on the American Public Radio show, Sound Opinions hosted by Jim DeRogatis and Greg Kot featured a similar news story in teh world of music.

    It seems that mosnter rock acts like the Eagles will soon have the legal remedy/opportunity to back out of their copyright agreements and open up shop at iTunes sans their major label.

    Can their label claim make a similar claim as Galassi or Random House.

    Link to their podcast of their show #214 – this story is featured in teh fist 5-7 minutes of the show.

  • Theresa M. Moore // Jan 6, 2010 at 12:03 pm

    No one seems to realize that it’s not so much the blatant disregard for authors’ rights by publishers when it comes to ebooks, it’s that few of them realize that the author considers them uniquely different and separate properties. It is also demonstrated by some booksellers who demand that if they carry the ebook, the publisher must obtain a separate ISBN for it. Legally, therefore, separate contracts are called for, and if the publisher persists in treating print books and ebooks as the same property, the author is well within his right to sue for reclamation of lost revenues. Unlike other intellectual property, the book is a tangible result, just as the ebook is. So a separation of rights is clearly called for, especially if all the author signed over was the right to print.

  • Candida Ellis // Jan 6, 2010 at 3:32 pm

    Sorry to be somewhat left of the topic–but my concerns on reading Galassi differed.

    Given the sad state of publishing–books replete with grammatical errors, typos, under- and over-writing–I am astounded that he asserts that the halcyon days of Maxwell Perkins nurturing talent are with us still. The contemporary corporate wet-finger-in-the-marketplace-wind mass produces far too many books of zero literary merit. And far too many editors live under a gun that will go off on their careers if they take a chance on something that isn’t mainstream, which I define as predictable and insipid.

    Perhaps the rise of ebooks will take enough profitability out of publishing that the business of fiction can die and the art of fiction return. At the very least, the literary version of agribusiness will lose its stranglehold on what reaches the reading public.

  • Yudel // Jan 6, 2010 at 5:17 pm

    Back in 1951, copyright required registration — so the copyright to Styron’s work applied to the edited version. Also back in 1951, copyright lasted for 56 years — so we would be able to download the book from Project Gutenberg by now.

    Under present copyright law, the legal status of an edited manuscript is a mess and the publisher may well own the copyright to certain sentences of the final product. Does my my contractual promise as publisher to copyright the final book in the author’s name has the effect of transferring copyright for the changes back to the author?

  • Maryann Miller // Jan 7, 2010 at 9:17 am

    Wonderful article and comments. It is amazing to me that so many folks get caught up in the rhetoric and forget that this issue boils down to what is in the contract. Every contract that I ever received had the licensing rights spelled out definitively.

  • Laura Dawson and Kassia Krozser respond to Jonathan Galassi’s stand on ebooks | TeleRead: Bring the E-Books Home // Jan 7, 2010 at 9:51 am

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  • Gail Kump // Jan 7, 2010 at 12:47 pm

    I love this debate about ebooks and have been reading your blog for about one year. Having not read the contract between Random House and W. Styron we cannot be sure who exactly owns the ebook rights. It may come down to the ‘intent’ of the contract as there may be no direct association with todays technologies and yesteryears format definitions .
    If you are an author you want the rights to go to whomever will be the most passionate, forward thinking and creative “publisher” for your work. Ms Friedman seems to be the clear winner here as she continues to articulate her vision for Open Road IM. Thank you for your blog.

  • KatG // Jan 8, 2010 at 3:15 pm

    I greatly respect Galassi and he’s a truly nice man. And his point that publishers don’t just distribute but do try to help authors and bring works to the world is one worth making. But that’s their jobs. That’s how they make money. Which has got nothing to do with licensing rights under contract.

    More to the point, it is the decision of the publisher what to do and not to do on a book. Many books, especially with small presses but even these days in big houses, receive little to no editing, virtually no publicity support and the absolutely minimal marketing (it’s in the catalog and if booksellers order it, they’ll ship it to them.) And the author can do nothing about this, nor about the mistakes a publisher may make on marketing, cover art, etc. Did Random House’s efforts help Styron or actually hinder him from gaining more sales? Who in the world can determine this nearly fifty years after the fact when publishing has changed so much?

    But nobody really cares, because right now publishers (Random House particularly) and authors/agents are locked in a battle royal over whether those electronic rights traditionally granted to publishers in book contracts back in the Stone Age do or do not include e-publishing rights. Publishers are looking at the fearful prospect that they are going to have to compete in auction for e-rights, not only with each other, but with numerous new companies, some of whom have tech behemoth money behind them, for a market that they fear will wipe out their print market before they can make adjustments. But if they can hold on to all the rights for their backlist, then they have a shot at survival. So they are fighting with authors instead of working with them.

    Hopefully, it’s temporary, as the new rules get worked out. But let’s hope some of the smart ones stop whining about how much authors owe them and start making better deals.

  • Karl Lamb // Jan 11, 2010 at 9:54 am

    Very helpful discussion. Thanks to all concerned.

  • J. M. Cornwell // Jan 11, 2010 at 11:23 am

    As long as the book is changed, and in this case means formatted for the e-book market, that constitutes a change. The rights belong to the copyright owner and since, in this case with Styron, the rights did not include digital rights, RH does not have a legal or ethical leg to stand on.

    Pricing e-books at the same cost as a first edition hardback is prohibitive and it works against the publisher. Someone interested in trying an author’s work will either go to a library or borrow a book from someone else because they are not going to shell out hardcover price for something as transient as an e-book. You are right. Publishers aren’t looking at the digital market with clear eyes. They need to remove the blinders and embrace the future.

  • Moriah Jovan // Jan 12, 2010 at 6:00 pm

    Pricing e-books at the same cost as a first edition hardback is prohibitive and it works against the publisher.

    It’s my opinion that prohibitively pricing e-books is a misguided attempt to kill the market.

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  • Laurel L. Russwurm // Jul 24, 2010 at 4:38 pm

    Wow. Hearing about the Styron legal battle was the deciding factor in my decision to not even consider mainstream publishing my debut novel. This article was interesting but the opinions and information dripping from the comments tell me clearly that I’ve made the right choice.

    I especially liked:

    “Perhaps the rise of ebooks will take enough profitability out of publishing that the business of fiction can die and the art of fiction return.” ~ Candida Ellis