The opinion of the court was delivered by: SWEET
This is a dispute about creativity and the respective responsibilities of an author and his publisher. It takes the form of a diversity action by plaintiff Doubleday & Company, Inc. ("Doubleday"), a well known New York publishing house, which seeks to recover a $50,000 advance paid to defendant Tony Curtis ("Curtis"), a well known and well regarded actor. The advance was to be credited against the sales by Doubleday of a book by Curtis which was never published.
Upon the findings of fact and conclusions of law set forth below, judgment will be entered dismissing the complaint and Curtis' counterclaims.
This hard fought and well litigated action was commenced on November 24, 1982. Curtis answered and counterclaimed seeking from Doubleday additional royalties due him from the sales of his prior book "Kid Andrew Cody and Judie Sparrow" ("Kid Cody "), previously published by Doubleday. Discovery with some attendant motions was conducted.
A six day non-jury trial took place from October 4 to 15, 1984 during which eight witnesses were heard and a number of exhibits admitted. Final arguments and briefs, proposed findings and conclusions were submitted on November 9, 1984. The findings and conclusions stated below are based upon those proceedings.
Curtis, a California resident, is an engaging and highly successful actor, who tried his hand at writing while in the midst of his successful acting career. By 1976 he had completed a manuscript which he submitted to Doubleday, a New York corporation with offices in the City in which it conducts a substantial publishing business. On February 18, 1976 Curtis and Doubleday signed an agreement which defined the rights of the parties with respect to two works by Curtis described as "1. Kid Andrew Cody, and 2. an untitled work." (the "1976 Agreement"). It is the submission and treatment of this second, then untitled, work which gives rise to the controversy.
This 1976 Agreement provided for the payment of advance royalties by Doubleday to Curtis of $12,500 upon signing the 1976 Agreement, $12,500 upon acceptance by Doubleday "of complete satisfactory manuscript for book #1", and for similar payments on submission of an outline and acceptance of book #2. Curtis' address was stated to be care of Aaron M. Priest Literary Agent, although Doubleday had corresponded with Irving Lazar ("Lazar"), known in the trade as Swifty, concerning the 1976 Agreement. The 1976 Agreement also contained the following provisions:
19. (a) Publisher shall render statements of sales semi-annually as
of April thirtieth and October thirty-first and make payment of monies
due within four months thereafter. If the work has not earned the
amount of royalties advanced or Author has received an overpayment
of royalties or is otherwise indebted to Publisher, ...