“Appropriate Reward for Artistic Gifts”

This month brought an important ruling in the ongoing copyright suit between Penguin and heirs of John Steinbeck's second wife, though it will probably have little impact on other authors' copyrights. The judges seem to be ruling on matters specific to the Steinbeck literary estate, such as when his third wife negotiated new contracts. (And don't think there aren't family tensions involved, too.)

However, I'm glad that the latest judicial decision overturned an unusual, and highly impractical, dictum within a 2006 decision. As Publishers Weekly just reported:

In the 2006 decision, a judge ruled that the author's heirs should be able to renegotiate the original publishing contract Steinbeck signed in 1938, since no one could have predicted how popular his works would go on to become. As reported elsewhere, the judge who made that 2006 ruling, Richard Owen, said the copyright law allows for renegotiation and "appropriate reward for artistic gifts to our culture."

According to the same logic, publishers should be able to renegotiate contracts with authors whom they've overpaid on the basis of accumulated royalties. Obviously, those works have turned out to be worth much less to the culture than author and publisher originally anticipated.

As in, "I'm sorry, Mr. Segal, but when we read your book twenty years after our predecessors signed it up, we realized it was a load of crap. And since sales are way down, it's clear that the rest of the country thinks so, too. Therefore, we want to drop your royalty rates and ask you to repay us half of the original advance."

Or perhaps we consumers could apply this idea, and ask publishers to pay us back for all those books we bought because we thought they were important, but have never read. Right now our best option is to truck them out to the local library's used-book sale, and how many copies of A Man in Full can one community ingest?

Or perhaps--and this is where I get serious--we should realize that publishing contracts, like many other business deals, are crap shoots, and neither party knows the long-term value of a book at the time they make the deal. Both author and publisher go into negotiations assessing their risks and probabilities, hopes and realities. The contract terms reflect those considerations and the two parties' relative power (usually the publisher has more, of course). Sometimes one side ends up luckier than the other.

In the case of John Steinbeck, the books covered by this lawsuit includes some of his most popular, and therefore most lucrative: Of Mice and Men, The Red Pony, and The Grapes of Wrath. After their publication he negotiated more favorable contracts with the same firm for new novels. East of Eden and Cannery Row are well regarded, but most critics don't consider The Moon Is Down, The Wayward Bus, or The Winter of Our Discontent to be great artistic gifts to our culture. Would a judge order those contracts to be renegotiated in Penguin's favor?