Publishing Law - Starstruck Strikes Out

On September 7, 1977, actor Tony Curtis, inspired by the success of his first novel, Kid Cody, agreed with Doubleday & Company to write a "rags to riches story of a lascivious Hollywood starlet" called Starstruck (Doubleday & Company v. Curtis, 763 F.2d 495 [2d Cir. 1985], rev'g, 599 F. Supp. 779 [S.D.N.Y. 1984], and cert. denied, 474 U.S. 912, 106 S. Ct. 282, 88 L. Ed. 2d 247 [1985]). On the strength of negotiations by his agent, Irving Paul ("Swifty") Lazar, Curtis received an advance of $50,000, which would be offset against the future ROYALTIES expected from sales of the Starstruck novel. The contract specified that Curtis should submit a satisfactory manuscript by October 1, 1978, but Curtis submitted nothing until April 1980, when he delivered a partial first draft.

In August 1981, Doubleday editor Elizabeth Drew concluded that the Starstruck manuscript was "junk, pure and simple, " and concurred with editor Adrian Zackheim, who was "appalled at the product," that Curtis's contract should be terminated under the contract's satisfaction clause. Doubleday asked Curtis to return the advance, but Curtis refused. Doubleday then sued for recovery in the Southern District of New York, and Curtis counterclaimed for third-party payments that Doubleday had received for Kid Cody.

At trial, Curtis argued that Doubleday had breached the contract in bad faith. According to Curtis, Doubleday had provided inadequate editorial assistance, and it had canceled the contract to avoid the terms of a related printing contract. The trial court dismissed Doubleday's claim on the theory that it had waived its right to reject the manuscript under the satisfaction clause by waiving deadlines. The trial court also dismissed Curtis's counterclaims.

On appeal, the Second Circuit Court of Appeals reversed the dismissal of Doubleday's claim. The appeals court examined the case history and found that Curtis had refused editorial assistance offered by Doubleday, including the suggestion that Curtis consult a "novel doctor." The court also held that Doubleday had not waived its rights under the satisfaction clause, that Doubleday's editors, "who were forced to harmonize an inferior manuscript, a lucrative reprint agreement and a recalcitrant author," had acted in GOOD FAITH, and that Doubleday was entitled to a return of its $50,000 advance, plus interest. Curtis appealed to the United States Supreme Court, but the High Court refused to hear the appeal.