## Facts

- Gerard Colby Zilg authored *DuPont: Behind the Nylon Curtain*, a critical historical account involving the DuPont family and company.
- Zilg and Prentice-Hall, Inc. entered into a publishing contract requiring publication upon acceptance of a satisfactory manuscript, while reserving to the publisher discretion over print quantity and the advertising/publicity budget.
- After Zilg delivered the manuscript, the publisher initially planned a substantial first printing and advertising campaign.
- Advance reactions from market intermediaries (including reviewers, booksellers, and book-club editors) were largely negative, and a major book club withdrew its selection.
- The publisher also identified factual problems and potential libel risk in the manuscript.
- In response, Prentice-Hall reduced the first printing (approximately 15,000 to 10,000) and cut the advertising budget (approximately $15,000 to $5,500).
- Zilg sued Prentice-Hall for breach of contract, claiming the publisher failed to give the book a fair opportunity in the market, and sued E.I. DuPont de Nemours & Co. for tortious interference with the publishing contract.
- After a bench trial, the district court found Prentice-Hall liable for breach (awarding damages plus prejudgment interest) but entered judgment for DuPont on tortious interference.

## Issues

1. Whether a publishing contract that gives the publisher discretion over printing and advertising nonetheless implies a duty to make good-faith, reasonable efforts to promote the book, and whether reducing the initial print run and advertising breached that duty.
2. Whether DuPont tortiously interfered with the publishing contract between Zilg and Prentice-Hall.

## Decision

- The Second Circuit reversed the judgment against Prentice-Hall on the breach-of-contract claim.
- The court held the contract implied a duty to make good-faith efforts to provide a reasonable initial opportunity in the market, but later printing/advertising decisions are protected if grounded in good-faith business judgment.
- The court concluded Zilg failed to prove that the initial launch was incapable of giving the book a reasonable chance, or that the cutbacks were motivated by anything other than good-faith business considerations (including negative advance market reaction and liability concerns).
- The Second Circuit affirmed the judgment for DuPont on the tortious-interference claim, finding insufficient proof of intentional, improper interference causing the publisher’s actions.

## Legal Principles

- A promise to publish in a standard publishing contract implies an obligation to undertake reasonable, good-faith initial promotional and distribution efforts so the work has a reasonable chance of market success.
- Contractual discretion over printing and advertising is constrained by good faith, but courts generally will not review the wisdom of a publisher’s later marketing and print decisions if they reflect honest commercial judgment.
- An author alleging breach may show breach by proving either (a) the initial printing and promotion could not reasonably give the book a chance to catch on, or (b) greater efforts were withheld for reasons other than good-faith business judgment.
- Tortious interference requires proof of intentional and improper interference inducing breach (or causing the relevant contractual harm); generalized influence or lawful self-interested conduct, without the required improper inducement, is insufficient.

## Conclusion

The court recognized an implied good-faith duty in publishing contracts to make reasonable initial efforts to market a book, but held that once a reasonable launch is provided, the publisher’s subsequent reductions in printing and advertising are not actionable absent proof of bad faith; the author also failed to prove tortious interference by the company discussed in the book.


Zilg v. Prentice-Hall, Inc., 717 F.2d 671 (2d Cir. 1983)