Gerard Colby Zilg, Plaintiff-Appellee-Cross-Appellant v. Prentice-Hall, Inc., and E.I. Dupont De Nemours & Co., Inc., Defendant-Cross-Appellee

717 F.2d 671, 9 Media L. Rep. (BNA) 2257, 43 A.L.R. 4th 1163, 1983 U.S. App. LEXIS 24312
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 1, 1983
Docket620, Dockets 82-7335, 82-7425
StatusPublished
Cited by35 cases

This text of 717 F.2d 671 (Gerard Colby Zilg, Plaintiff-Appellee-Cross-Appellant v. Prentice-Hall, Inc., and E.I. Dupont De Nemours & Co., Inc., Defendant-Cross-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gerard Colby Zilg, Plaintiff-Appellee-Cross-Appellant v. Prentice-Hall, Inc., and E.I. Dupont De Nemours & Co., Inc., Defendant-Cross-Appellee, 717 F.2d 671, 9 Media L. Rep. (BNA) 2257, 43 A.L.R. 4th 1163, 1983 U.S. App. LEXIS 24312 (2d Cir. 1983).

Opinions

WINTER, Circuit Judge:

Prentice-Hall, Inc. (“P — H”) appeals from a judgment entered after a bench trial before Judge Brieant ordering it to pay damages of $24,250 plus pre-judgment interest to the plaintiff, Gerard Colby Zilg, for breach of contract. Zilg cross-appeals the judgment in favor of E.I. DuPont de Nem-ours & Co., Inc. (“DuPont Company”) on his claim of tortious interference with contract. We reverse as to Zilg’s breach of contract claim against P-H and affirm the judgment in favor of the DuPont Company.

BACKGROUND

Gerard Colby Zilg is the author of DuPont: Behind the Nylon Curtain, an historical account of the role of the DuPont family in American social, political and economic affairs. Early in 1972, after one partially successful and several unsuccessful efforts to find a publisher for his proposed book, Zilg’s agent introduced him to Bram Cavin, a senior editor in P-H’s Trade Book Division. Cavin expressed interest in the book, and he and Zilg submitted a formal proposal to John Kirk, P-H’s Editor-in-Chief at that time. Kirk approved the proposal, which described the future book as

a thoroughly documented study of the major role the DuPont family has played in the development of modern America and its corporate and social institutions. After skimming lightly over the family’s origins in France and its development of its gunpowder business up to and through the Civil War, the book will concentrate on the period after that conflict right down to the present day. The story — essentially one of money and power — is going to be told in human terms and in the lives of the members of the family and their actions. The family will be looked upon as a unit in its relations to the outside world. But it will also be shown to be, as many families frequently are, one torn by feuds and struggles over the money and the power.

As it passed through the editorial and corporate hierarchy, the proposal received a notation from P-H’s publicity director that the book’s potential for radio and television coverage was “slight to non-existent unless matter in [the] book is highly controversial and print [media] says so first.”

P-H and Zilg executed a form contract which provided in relevant part:

3. The manuscript ... will be delivered ... by the AUTHOR to the PUBLISH[674]*674ER in final form and content acceptable to the PUBLISHER....
4. When the manuscript has been accepted and approved for publication by the PUBLISHER ... it will be published at the PUBLISHER’S own expense.... 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 other process, date of publishing, form, style, size, type, paper to be used, and like details.

Zilg submitted the first half of his completed manuscript to Cavin in November, 1972, and the remainder a year later. Ca-vin authorized acceptance of the work on behalf of P-H, apparently without the participation of Peter Grenquist, who had become president of P-H’s Trade Book Division sometime after execution of the contract but before submission of the manuscript. P-H’s legal division scrutinized the manuscript for libelous content and concluded that, if a libel action were brought, P-H “would ultimately prevail” because the subject matter of the work was constitutionally privileged and the plaintiffs would have to prove actual malice. The division’s opinion noted, however, that litigation against the DuPonts would be very costly.

A decision was made to accept the manuscript which was distributed to selected wholesalers, reviewers, and booksellers. Copies were also sent to the editorial director of the Book of the Month Club (“BOMC”). Although BOMC decided not to offer the book as a selection of its main club, a subsidiary, the Fortune Book Club, which appealed to a readership composed largely of business executives, did choose it as a selection.

A committee of various P-H department representatives, including the book’s editor, met on March 28, 1974 to discuss production plans. The sales estimates of committee members varied from 12 to 15 thousand copies for the first year although by May two members were predicting sales of only 10 thousand. Estimates of from 15 to 20 thousand sale's over a five year period were also made. Cavin, an ardent supporter of the book, made estimates of 20 to 25 thousand in the first year and 25 to 35 thousand over five years. The committee decided on a first printing of 15,000 copies at a retail price of $12.95 per copy. At a later meeting, the committee decided to devote roughly $15,000 to advertising.

Although the literary or scholarly merits of the book are not our concern, its nature, tone and marketability among various audiences are key facts in this litigation, for they bear upon the book’s prospects for commercial success and illuminate the negative reactions which later set in at P-H. The book is a harshly critical portrait of the DuPont family and their role in American social, political and economic history. Indeed, it is a harshly critical portrait of that history itself. The reactions of readers and reviewers in the record indicate that the book is polarizing, the difference in viewpoint depending in no small measure upon the politics of the beholder. A significant number of readers regard the book as a strident caricature, drawing every conceivable inference against the DuPont family and firms with which members of the family were or are associated. One judge at BOMC, for example, described it as “300,-000 words of pure spite.” On the other hand, the book has a loyal band of admirers. It received a favorable review in many newspapers, including the New York Times Book Review section. Its comprehensiveness and the extensive research on which it was based were frequently noted. The book also has some appeal to another audience, namely readers with a taste for gossip about the rich and powerful, particularly readers in Delaware.. Indeed, it was once first in non-fiction sales in that state.

In the American market, the book’s appeal is somewhat limited by the fact that it [675]*675is not a work critical of business on grounds that reform of capitalism is necessary in order to save it, a viewpoint with mainstream appeal. Rather, it presents a Marxist view of history. Also weighing against its overall marketability were its size (586 pages of text, 2 inches thick, three and one-half pounds), complexity (almost 200 family members with the surname DuPont and 170 years of American history) and price ($12.95 in 1974 dollars).

Prior to June, 1974, Grenquist appears not to have been aware of the nature and tone of the book, of the intensity of negative feeling it might arouse in some readers or of evidence of serious inaccuracies. He may have been reassured partly by Cavin’s enthusiasm and partly by the book’s selection by the Fortune Book Club. That selection itself remains something of a mystery since the Club’s inside reader concluded it was “a bad book, politically crude and cheaply journalistic.” However, instead of accepting his recommendation that it “be fed back to the author page by page,” BOMC contracted with P-H to have it adopted by the Fortune Book Club.

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717 F.2d 671, 9 Media L. Rep. (BNA) 2257, 43 A.L.R. 4th 1163, 1983 U.S. App. LEXIS 24312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerard-colby-zilg-plaintiff-appellee-cross-appellant-v-prentice-hall-ca2-1983.