Cheever v. Academy Chicago, Ltd., 88 Civ. 3404 (GLG).

Citation690 F. Supp. 281
Decision Date02 August 1988
Docket NumberNo. 88 Civ. 3404 (GLG).,88 Civ. 3404 (GLG).
PartiesMary W. CHEEVER, Susan Cheever, Benjamin Hale Cheever, and Federico Cheever, Plaintiffs, v. ACADEMY CHICAGO, LTD. d/b/a Academy Chicago Publishers, Defendant.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

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

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

OPINION

GOETTEL, District Judge:

John Cheever was an American writer of fiction, primarily short stories. His first short story, Expelled, appeared in the New Republic magazine of October 1, 1930. It was a personal account based on his recent expulsion from a private school. During the next fifty or so years, he wrote and had published more than a hundred stories. Most of these appeared in magazines, particularly the New Yorker, although several collections of his stories were published in book form culminating in a large volume entitled The Stories of John Cheever, published by Alfred A. Knopf, Inc. in 1978. The book, almost 700 pages in length, contained sixty-one stories, all of which were written after Cheever's discharge from the Army at the end of World War II. Chosen as a Book-of-the-Month Club selection, and a major literary event, it won a Pulitzer Prize for literature and, along with his four earlier published novels, secured Cheever's place as a major American literary figure.1

Cheever died in 1982 at the age of 70, leaving a widow, Mary W. Cheever, and three children, Susan, Benjamin and Frederico. His widow serves as his literary executor. With respect to copyrights that expired following her husband's death (and there were three or four of them), she renewed them in her own name. The children, except for Frederico, who is a lawyer, are involved in various literary pursuits, some of which involve the life and letters of John Cheever.

Franklin H. Dennis is a literary promoter and editor. He presently does much of his work for Academy Chicago Publishers ("Academy Chicago"),2 a small publishing house in Chicago specializing in literary works of limited popular appeal but of purported cultural value. Dennis was aware that there were a number of the short stories of John Cheever that had never been collected in book form. During the summer of 1987, through a mutual friend, he obtained an introduction to Benjamin Cheever. Dennis described Academy Chicago to Ben in such a way that the younger Cheever thought that it was a university press associated with Chicago University. Dennis told Cheever that he thought a book publishing some of the uncollected stories of his father would be well received and that Academy Chicago would be interested in publishing such a work. It was agreed that the Cheevers would evaluate the stories and decide which were worthy of inclusion.

Neither Ben Cheever nor Dennis knew precisely how many uncollected stories there were or the precise ownership of the copyrights, but they were aware that Mary Cheever held many of the copyrights and that various magazines held the lion's share of the remainder. Ben Cheever agreed to speak to his mother about the project. Thereafter, Dennis wrote several letters to her promoting the idea. In his first letter of July 10, 1987, Dennis wrote, inter alia:

Academy Chicago looks forward to discussing sic with you and and sic 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.
Although Academy Chicago, a high quality, literary publisher, cannot afford a large advance, they will pay full royalties on all the stories in the volume(s) irrespective of their copyright status.

Thereafter, Dennis met again with Ben Cheever, and the following month Jordan Miller, an officer of Academy Chicago, sent Mary Cheever a proposed publishing agreement. The publishing agreement was a printed form designed for use with respect to new works in progress. It did not lend itself to easy adoption for a project such as that envisioned.3 The agreement, as mailed, was to be between the Estate of John Cheever and Franklin H. Dennis, as authors, and Academy Chicago, as publisher. The tentative title of the work was The Uncollected Stories of John Cheever. The publishing agreement, as prepared by Academy Chicago, stated in paragraph two: "The Author will deliver to the Publisher on a mutually agreeable date one copy of the manuscript of the work as finally revised by the Author and satisfactory to the Publisher in form and content." The remainder of the agreement had the usual provisions applicable to the publication of a newly created work, including the provision that the book would be "copyrighted in the name of the Author," as well as two typed-in provisions concerning an advance of $1,500.00, with the further provisions that half of it would not be payable until publication and that payments would be divided between the Estate of John Cheever and Franklin Dennis. In addition, the agreement provided that it would be construed under the laws of Illinois and that no suit or any cause of action arising out of or relating to the agreement would be filed except in Chicago, Illinois.

When Mary Cheever received the agreement, she passed it on to her literary agent, International Creative Management, Inc. The agent made certain changes, the most pertinent of which were to substitute Mary W. Cheever for the Estate of John Cheever and to attempt at other places to distinguish between Mary Cheever as the author and Franklin Dennis as the editor. In addition, paragraph two was revised to read as follows: "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." The provision concerning copyrighting in the name of the author was changed to be in the name of Mary W. Cheever. As so amended, Mary Cheever signed the agreement, as did Dennis and the publisher.

Mary Cheever signed the agreement upon the recommendation of her agent, as well as her prior conversations with her son Ben. She envisioned a rather modest work containing only a limited number of stories with a small printing. She believed that, as the author who was supposed to deliver a manuscript, she would have control over which works would be included. She was aware that her husband considered his early stories inferior and did not want his literary reputation sullied by their collected publication.

Academy Chicago developed a different perspective.4 There were almost seventy stories which had never been published in book form, albeit most of them were the early works of Cheever (pre-1947) which both he and his family viewed as being inferior to his subsequent works. In light of the tentative title, The Uncollected Stories of John Cheever, and the author's literary reputation, Academy Chicago believed that it had found a gold mine in both the literary and financial senses.

In December of 1987, Dennis had his first meeting with Mary Cheever. He dropped off two, spiral-bound volumes of uncollected Cheever works.5 The photocopies were difficult to read and Mrs. Cheever made no effort to go over them. She did supply Dennis with an additional story which she had from another collection. She passed on the books to her son Ben. Dennis also left with her five books, two of which were published by Academy Chicago, and all of which were purportedly of cultural value but not for mass publication. This confirmed Mary Cheever's view that Academy Chicago was engaged in a limited project which was far from completion. Ben Cheever, however, in discussions with Dennis, began to have a better appreciation for the substantial scope of the project as viewed by Dennis and his publisher. Cheever brought his own literary agent into discussions with Dennis at a meeting at the Algonquin Hotel in Manhattan in January of this year. It soon became apparent that there were substantially different views concerning the ultimate publication of the proposed work.

Mary Cheever did not deliver a manuscript to Dennis or the publisher, nor did she advise either which works she deemed suitable for inclusion.6 On the other hand, they did not ask her opinion as to what should be included. Instead, they prepared galleys of a manuscript containing all of the uncollected stories, some 68 in number, most of which were written prior to World War II, with an introduction by Professor Scott Donaldson (who had just written a biography of John Cheever). They did not give the Cheevers a copy of the proposed work.

Based on the advice of Ben Cheever and his literary agent, the Estate of John Cheever retained attorneys who, on February 17, 1988, wrote Academy Chicago claiming that the publishing agreement was obtained through fraudulent representations, asserting that Dennis and his publisher were incapable of performing their obligations, and threatening suit unless Academy Chicago confirmed that it did not intend to publish any of the works of John Cheever. Academy Chicago and Dennis responded by commencing an action in an Illinois state court in Chicago seeking an adjudication of rights. A few months later, the Cheevers responded by commencing this action in this district, suing for copyright infringement and unfair competition under federal law. By this point they were aware that the proposed work contained all of the uncollected stories as well as the Donaldson introduction, which the Cheevers found offensive.

The plaintiffs in this action are Mary Cheever and her...

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