Citation. 717 F.2d 671, 1983 U.S. App. 43 A.L.R.4th 1163; 9 Media L. Rep. 2257
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Plaintiff Gerard Colby Zilg wrote a book about the DuPont family’s role in American social, political and economic affairs, which he sold to Defendant Prentice-Hall, Inc. After the book created controversy, Defendant reduced the first printing by 5,000 copies and slashed the advertising budget by $9,500. Plaintiff claims that these actions violated Defendant’s obligation to promote the book fully and fairly.
Synopsis of Rule of Law.
The type of publishing contract at issue here establishes a relationship between publisher and author that implies an obligation upon the publisher to make certain efforts in publishing a book notwithstanding the provision that leaves the number of volumes to be printed and advertising budget to the discretion of the publisher.
Facts.
Plaintiff is an author and Defendant a publishing company. Plaintiff approached Defendant about publishing his book about the DuPont family’s role in American social, political and economic affairs. The parties thereafter entered into a form contract that provided in relevant part that Defendant had the right to exercise discretion as to the advertising, publicizing and selling of the work. After an advance copy of the book generated some negative responses, Defendant cut the first printing of the book by 5,000 copies and the advertising budget by $9,500. Thereafter, Plaintiff initiated this action because he claims that Defendant’s actions breached its obligation under the contract to promote the book fully and fairly.
Issue.
Did Defendant breach its agreement with Plaintiff by cutting the first printing and reducing the advertising budget without a sound or valid business reason?
Held.
No. Under the agreement, Defendant was obligated to publish the book but had control over the number of copies printed and the level of advertising expenditures. This promise to publish the book must imply a good faith effort to promote the book to give it a reasonable chance of achieving market success. However, once the obligation to undertake reasonable initial promotional activities has been fulfilled, the contract dictates that a business decision by the publisher to limit the printing or advertising budget cannot be subject to second-guessing by a trier of fact. Hence, Plaintiff may prove a breach of contract if he shows (1) that the initial printing and promotion could not possibly give the book a reasonable chance to catch on with the reading public or (2) that greater printing and promotional efforts were not undertaken for reasons other than a good faith business judgment. Plaintiff did not adequately set forth evidence of either of the abovementioned possibilities. T
herefore, no recovery was possible for Plaintiff.
Discussion.
Sometimes a party’s obligations are not set forth explicitly in the contract, but the court will infer reasonable obligations from the standard practices of an industry.
