November 2, 2008 by Ellen Brohm
“Steinbeck Heirs Feel Publisher’s Wrath.” This heading comes from a piece written by David Litterick. I can’t help but think that the heading is misleading. At closer observation it is not the publisher’s wrath so much as it is their stepmother’s. We are discussing the result of a Court decision in the United States . The son and grandson of John Steinbeck were unsuccessful in terminating a 1938 contract between the late author and Penguin Publishing. It turns out that John’s third wife, Elaine, beat them to the punch.
While the legal argument had merit, based on the USA Copyright Act  that allows for authors, heirs, or widows to terminate a licence contract for the author’s copyrights, there was one downfall. It was that Elaine had already terminated that contract. She had renewed it with Penguin years earlier.
The Act was changed by the legislature due to a real concern regarding an author’s unequal bargaining power at the beginning of their career. The Act was changed several times to boost the remedy for authors who had bargained for a contract that didn’t match the success of their work. One remedy made available through the Act, and the one that Steinbeck’s heirs were attempting to exercise, was a right to terminate, within a certain window of time, a contract for the license of the author’s copyrights . When exercised, a publisher will likely renegotiate the terms of the contract to better reflect the value of the author’s work.
This is exactly what the heirs were trying to do. The problem in this situation was not the big bad publisher taking advantage of the Steinbeck heirs. It seems instead that it was the infamous step-mother who was leaving them out of the loop. The remedy had already been used by Elaine when she negotiated the second contract in 1994. The court determined that there was a one time opportunity, within the window, to terminate the contract and Elaine had already exhausted it.
It is now Elaine who benefits from the renegotiated contract and not the heirs. This raises another issue; Elaine, now deceased, left nothing to the son and grandson. In fact, she specifically excluded them from her will. These circumstances don’t exactly appear to demonstrate a match where on the one side there are the mourning heirs of an author who sold his copyrights too cheap and on the other the grandiose publisher rolling in fortune. The vision I see is Penguin standing on the outside of the ring awaiting the family to settle their dispute.
Penguin had already renegotiated the contract for a fairer value knowing Elaine held the remedy in her back pocket. Penguin was not fighting for the 1938 contract. Penguin would’ve likely contracted with either party so long as they could continue to publish the works. I think this is one example in which Penguin was not releasing “wrath” but was an interested spectator outside the ring. It is also not likely a situation to which the legislature imagined the remedy applying.
 Penguin Group (USA) Inc, v. Steinbeck (2nd Cir. 2008) available online at http://www.ca2.uscourts.gov:8080/.
 Copyright Act, 17 U.S.C. (the “Act”)
 Ibid. at § 304(c) and (d).