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ZILG v. PRENTICE-HALL

June 9, 1981

Gerard Colby ZILG, Plaintiff,
v.
PRENTICE-HALL, INC. and E. I. duPont de Nemours & Company, Inc., Defendants



The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

Plaintiff, the author of duPont: Beyond the Nylon Curtain (the "Book"), commenced this action against his publisher, Prentice-Hall, Inc. and against E. I. duPont de Nemours & Co., Inc. ("duPont") alleging as against Prentice-Hall that it failed to meet its contractual obligations as a publisher to promote his Book in good faith. Mr. Zilg contends that the co-defendant, duPont interfered with this contract, and another contract pertaining to the subsidiary rights to his Book, entered into by Prentice-Hall with the Fortune Book Club. Plaintiff contends that after learning of duPont's claims of untruthfulness and objections to the form and content of the Book, Prentice-Hall ("PH"), as a result thereof, altered its advertising and promotion plans for the Book to the author's detriment.

 Specifically, plaintiff alleged:

 (1) PH cut the first printing of the Book from 15,000 to 10,000 copies;

 (2) PH reduced the advertising budget (however firm or tentative it may have been) by almost 2/3rds;

 (3) PH did not publicize the duPont effort to suppress the book or cooperate with the author in this regard;

 (4) Despite the clear adverse effect on the book, PH did not bring suit or otherwise pursue potential legal action against duPont or (Fortune Book Club);

 (5) PH's conduct almost blocked (plaintiff's) efforts with respect to serialization of the book in the Delaware State News, and PH failed to make effective use of the serialization to promote advance sales;

 (6) PH failed to keep sufficient books in stock to meet demand for the book; and

 (7) PH failed to inform (plaintiff) of numerous material matters relating to publication and promotion of the book. Affidavit of Gerard Colby Zilg, sworn to May 5, 1981, at 11-12. By motion argued on May 20, 1981, defendant Prentice-Hall moved for summary judgment.

 The publishing agreement entered into on June 23, 1972 between the plaintiff author and publisher Prentice-Hall provided, inter alia, that:

 
"1. The Author grants to the Publisher the exclusive right to publish in the English language in book form in the United States of America, its territories and possessions, Canada, and the Republic of the Philippines an unpublished work tentatively entitled DU PONT: Behind the Nylon Curtain and also the exclusive subsidiary rights listed in paragraph 5 below during the full term of copyright and all renewals or extensions thereof.
 
4. When the manuscript has been accepted and approved for publication by the Publisher and is ready for publication, it will be published at the Publisher's own expense. The Publisher will pay the Author royalites from its sale of the published work, said royalties to be computed and shown separately, as follows: (Royalty Schedule omitted).
 
12. The Publisher shall have the right: (1) to publish the work in such style as it deems best suited to the sale of the work; (2) to fix or alter the prices at which the work shall be sold; (3) to determine the method and means of advertising, publicizing, and selling the work, the number and destination of free copies, and all other publishing details, including the number of copies to be printed, if from plates or type or by ...

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