Thursday, August 14, 2008

An Important Copyright Case Is Decided

Yesterday, the Second U.S. Circuit Court of Appeals decided a case that may have consequences for the heirs of other authors.

The case was Penguin Group, Inc. v. Steinbeck, and it pitted two sides of the Nobel Prize winner's family against each other.

On one side was the offspring of Steinbeck's second marriage to Gwyndolyn Conger. He and Gwyn were married for only five years from 1943 to 1948, but their union produced his only children, Thom and John IV. Thom and his brother's daughter, Blake Smyle, joined together in the lawsuit. Blake's father, John, died in 1991.

On the other side was the estate of Steinbeck's third wife (and widow) Elaine whom he married in 1950. Their marriage lasted until his death in 1968. She died thirty-five years later in 2003.

When he died, Steinbeck left his two sons $50,000 each. He left his widow Elaine his interest in the copyrights to his early works. This case concerned ten of those early works, including The Grapes of Wrath, Of Mice and Men and Tortilla Flat.

Back in 1938-1939, Steinbeck had signed publishing contracts with The Viking Press covering those early works. According to Viking's website, the imprint (and its contracts) was purchased by Penguin books in 1975.

In exchange for giving Penguin rights to additional works, Elaine negotiated a better deal with Penguin in 1994. According to, she got "a larger annual guaranteed advance and royalties of between 10 percent and 15 percent of retail sales."

When she died in 2003, Elaine bequeathed her copyright interests to her own children and grandchildren by a previous marriage. She did not leave anything to her husband's sons.

Many authors are familiar with a law that passed in 1998--The Copyright Term Extension Act, sometimes called the Sonny Bono Act--which extended copyright terms in the U.S. by twenty years. Less well known is a provision of that law that allows authors and heirs to terminate contracts and "recapture some of the additional value produced by the lengthened copyright term . . ." (

A year after Elaine's death, Steinbeck's son and granddaughter contacted Penguin, announcing their plan to terminate the 1994 agreement.

Both Penguin and Elaine's heirs sued.

In 2006, U.S. District Court Judge Richard Owen ruled in favor of Steinbeck's blood relatives over his widow's heirs. According to the London Times:
Judge Owen wrote that copyright law reflected that “a number of such young composers, artists and authors . . . such as John Steinbeck writing his first book in 1929, cannot predict the high stature they would attain, and the popular prominence of their works in musical and literary conciousness — not to mention the eventual high financial rewards to them and their families their work can command.” also quoted Judge Owen:
. . . any interpretation of the 1994 agreement "having the effect of disinheriting the statutory heirs to the termination interest [the Steinbeck Descendants] in favor of Elaine's heirs must be set aside as contrary to the very purpose of the termination statute."
Penguin appealed. And yesterday the Second U.S. Circuit Court of Appeals overturned Judge Owen's decision.

Elaine's attorney, Susan J. Kohlmann, was quoted by
"There aren't a lot of decisions interpreting termination rights under the copyright law," Kohlmann said. "By the court's decision, the wishes of John Steinbeck related to the ownership of his literary works has been validated."
Judge Robert Sack, writing for the appeals court wrote that, once Elaine negotiated that better deal, there was no case under the Sonny Bono Act for the Steinbeck blood heirs to terminate the contract. closed its article with a quote from the Steinbeck descendents' attorney:
He said the case will now be returned to Owen for further proceedings on claims the descendents have against the estate of Elaine Steinbeck, including their monetary damages claim that she conspired to deprive them of their statutory termination rights when she negotiated the 1994 Penguin deal.


BlogSloth said...

Steinbeck would have wrote a novel about this whole affair. Whose side would he have been on??

The answers are in his pages...


Authors Library said...

The Judge got it wrong six ways from Sunday. The Steinbecks terminated under section 304C of the Copyright Act, written while Sonny was still singing with Cher. Sacks erroneously referred to Section 203 which came later but has similar requirements. The ruling is a sad day for the creators of intellectual property. To be sure, Steinbeck never mentioned his wife's family in his will, but set up a trust for his sons. It appears it was a trust seriously broken.