Cheever v. Academy Chicago Ltd.

• Decision Date: 09 June 1988
• Docket Number: No. 88 Civ. 3404 (GLG).,88 Civ. 3404 (GLG).
• Citation: 685 F. Supp. 914
• Parties: Mary W. CHEEVER, Susan Cheever, Benjamin Hale Cheever, and Federico Cheever, Plaintiffs, v. ACADEMY CHICAGO LTD. d/b/a Academy Chicago Publishers, Defendant.
• Court: U.S. District Court — Southern District of New York

685 F. Supp. 914

Mary W. CHEEVER, Susan Cheever, Benjamin Hale Cheever, and Federico Cheever, Plaintiffs, v. ACADEMY CHICAGO LTD. d/b/a Academy Chicago Publishers, Defendant.

No. 88 Civ. 3404 (GLG).

United States District Court, S.D. New York.

June 9, 1988.

Frankfurt, Garbus, Klein & Selz, P.C., New York City (Martin Garbus, Maura J. Wogan, of counsel), for plaintiffs.

Kronish, Lieb, Weiner & Hellman, New York City (Adam Walinsky, Tab K. Rosenfeld, of counsel), for defendant.

OPINION

GOETTEL, District Judge:

The late John Cheever is an author of some note, with his published novels and short stories continuing to enjoy a measure of success. His short stories were, by and large, published in magazines, although a volume of his short stories previously was published as part of a collection under the title Collected Stories.

In the summer of 1987, Cheever's widow and an editor named Franklin Dennis discussed with Academy Chicago Publishers the possibility of publishing a volume of the uncollected stories of John Cheever. Dennis advised Mrs. Cheever of the following by letter dated July 10, 1987:

Academy Chicago looks forward to discussing sic with you and the other family members such questions as locating the stories, deciding on those appropriate for publication, resolving copyright questions, the introduction and the foreword.

The publishers underscore their concern with producing a volume—or even volumes—which meet your collective approval. I mean, in particular, matters of format and design. Academy Chicago, of course, will take on all editorial, copyright and production work.

The interested parties were apparently aware that Mrs. Cheever owned the copyrights to only certain of the uncollected stories, that the magazine publishers (and perhaps others) owned some of them, and that certain of them had gone into the public domain.

Dennis further advised Mrs. Cheever that Academy Chicago could not afford a large advance. They would, however, "pay full royalties on all stories in the volume(s) irrespective of their copyright status."

Dennis apparently negotiated directly with Academy Chicago Publishers on behalf of Mrs. Cheever and himself. Pursuant to those negotiations, he mailed a contract to Mrs. Cheever at her Ossining home, noting:

Academy Chicago obviously views the particulars of the contract as appropriate. But you should understand that the document is intended primarily to get things underway, and that Academy Chicago expects to discuss the terms in detail.

The contract, dated August 15, 1987 and entitled "PUBLISHING AGREEMENT," was (as is so often unfortunately the case with literary matters) a form uniquely unsuited to the endeavor under discussion. It initially refers to Mary W. Cheever and Dennis as the authors. Mrs. Cheever struck out that description on the signature line when signing and Dennis struck out the designation of "co-author," inking in "editor." The form publishing agreement was one intended with respect to a new work. A number of paragraphs, therefore, had to be eliminated and many inked-in changes were made. As pertinent to the issues before this court, the agreement states:

1. The Author grants to the Publisher, during the full term of copyright of the Work and all renewals and extensions of copyright, the exclusive right to print, publish, and sell the Work in book form in the English language throughout the world, and the exclusive right to license its publication in all languages throughout the world.

2. The Author will deliver to the Publisher on a mutually agreeable date one copy of the manuscript of the Work as finally arranged by the Editor and satisfactory to the Publisher in form and content.

Paragraphs 3 and 4 have been inked-out.

5. Within a reasonable time* after delivery of the final revised manuscript, the Publisher may publish the Work at its own expense, in such style and manner and at such price as it deems best, and will keep the Work in print as long as it deems it expedient; but it will not be responsible for delays caused by circumstances beyond its control.

* and a mutually agreeable date

6. The Publisher will apply for copyright in the United States of the Work in conformity with the Copyright Law of the United States and the Universal Copyright convention in the name of Mary W. Cheever and may effect any renewals or extensions of copyright provided for by law.

* * * * * *

12. The Author warrants that he or she has full power to make this agreement; that the Work has not been previously published in book form; that all rights conveyed to the Publisher hereunder are free of encumbrances; that the Work does not violate any copyright or any other right and contains nothing libelous, obscene, or otherwise unlawful.

* * * * * *

25. In order to expedite payment of royalties and advance, the Publisher will divide royalties and advance due equally between Mary W. Cheever and Franklin Dennis, providing each with accompanying documentation. Each will be paid 50% of all monies due on dates noted in paragraph 11 of this Agreement.

With respect to the financial arrangement with the "Author" (in reality, the author's widow and an editor), the agreement called for the usual royalties in addition to the small advance referred to in paragraph 25.

Disputes arose among the parties. Academy Chicago Publishers (which is apparently the trade style of the actual corporate entity, Academy Chicago Ltd.) brought suit against Mrs. Cheever in Chicago, Illinois. This was appropriate since paragraph 20 of the publishing agreement provided that any suit arising out of or relating to the agreement would be filed only in Chicago.

Mary Cheever and the three Cheever children then commenced this suit. Immediately after initiating this action, plaintiffs moved that the court establish an expedited discovery schedule with an eye toward seeking a preliminary injunction enjoining defendant from publishing the book in question. In response, defendant moved to dismiss this action pursuant to Fed.R.Civ.P. 12. Before us, then, are defendant's motion to dismiss and plaintiffs' motion for expedited discovery.

Plaintiffs initially sued not only Academy Chicago but also the editor, Dennis, and a company controlled by...