Monday, November 28, 2005
Academy Chicago Publishers v. Cheever, 144 Ill. 2d 24 (1991), is a fun case to teach. John Cheever was a Pulitzer Prize-winner author. After his death, a small publisher entered into a licensing agreement with John Cheever's widow for the right to republish a collection of John Cheever's stories. Things went horribly wrong, however. Neither party had the help of counsel, and the contract was poorly-drafted and ambiguous--leaving open basic questions like which stories were being licensed or even how many. Even though the contract did not initially appear to be financially significant (the widow received a $1,500 advance against royalties), the resulting lawsuit ultimately generated over $1 million in legal fees. Unfortunately for the publisher, the contract ultimately failed for indefiniteness.
I like teaching the case for several reasons:
- it shows the limits of gap-filling in common law contracts (and offers an opportunity to discuss if this case comes out differently under the UCC's more liberal gap-filling approach)
- it shows what happens when clients draft complex intellectual property agreements without legal help--the client may end up spending far more money trying to clean up a crummy contract than the client would have spent getting competent counsel involved at the drafting/negotiation stage
- it shows how relatively small contracts can become significant assets, reinforcing that lawyers need to treat even seemingly-inconsequential contracts with respect
- it gives students an opportunity to consider the negotiation dynamics. Why didn't the parties resolve basic details? Why didn't the parties use lawyers? Was one party preying on the other?
This litigation is surprisingly well-documented. The publishers wrote a book called Uncollecting Cheever: the Family of John Cheever vs. Academy Chicago Publishers (1998; ISBN 0-8476-9076-8). You can typically buy this book used for less than $5 at Amazon or Half.com. This book was extensively reviewed (including at the New York Times and Salon), and the book reviews provide a nice summary of the story to supplement the case facts. This page aggregates the various opinions and contains a variety of contemporaneous news articles.
Meanwhile, Academy Chicago Publishers did end up publishing a book, composed entirely of public domain works for which no license agreement was needed, called Thirteen Uncollected Stories by John Cheever (1994, ISBN 0-89733-405-1). You can also buy this book used at Amazon or Half.com for less than $5. I circulated both books in class as props, which I thought made the case far more tangible for students.