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HarperCollins Prevails On Summary Judgment In E-Book Copyright Infringement Action

On March 14, 2014, Weil secured a complete victory for major publisher HarperCollins Publishers LLC (HarperCollins) in its copyright infringement action against e-book publisher Open Road Integrated Media (Open Road). District Judge Naomi Reice Buchwald (S.D.N.Y.) granted HarperCollins’ motion for summary judgment and denied Open Road’s cross-motion for summary judgment.

HarperCollins filed its copyright infringement action against Open Road in 2011, alleging that HarperCollins had obtained the exclusive right to license third parties to publish e-book versions of the beloved and award-winning children’s novel Julie of the Wolves by Jean Craighead George, and that Open Road had violated HarperCollins’ rights in that work by publishing such an e-book without HarperCollins’ authorization. George had contracted with HarperCollins in 1971, granting the exclusive right to publish her novel “in book form”; the agreement also granted HarperCollins certain subsidiary rights to the novel, including the exclusive right to license third parties to use the work “in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now known or hereafter invented.” Open Road contended that this language did not convey e-book rights to HarperCollins.

The parties both filed motions for summary judgment in early 2013, each contending that the contractual language at issue was unambiguous on its face, and that the Second Circuit’s so-called “new use” precedents supported their proffered contractual interpretation.

In her March 14 ruling, Judge Buchwald agreed with HarperCollins and held that the language of the contract was clear on its face and that the 1971 contract granted to HarperCollins the exclusive right to license electronic publications, which Open Road had infringed in its unlicensed e-book publication of Julie of the Wolves. The court found that although the 1971 agreement did not expressly address e-book rights, which were yet to be developed, the clear language of the contract was sufficiently broad to encompass those rights, finding that the contract “encompassing as it does the forward-looking reference to technologies ... is sufficiently broad to draw within its ambit e-book publication.” Addressing Open Road’s interpretation, the court noted that “[i]ndeed, apparently recognizing the breadth of the language in paragraph 20, Open Road’s briefing largely ignored it.”

Judge Buchwald’s decision contemplates the submission of briefing on appropriate remedies, including injunctive relief, damages and attorneys’ fees.

The Weil team included partner Bruce Rich, counsel Jonathan Bloom, and associates Sabrina Perelman, Melissa Colon-Bosolet, and Olivia Greer in New York. The team also included former counsel to the Firm, Mark Fiore.

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