The Dorothy Parker copyright fight was the subject of a Saturday article in the London Telegraph. The columnist says of Penguin's editors, "we can wonder if they're proud that their edition included evidence of little more scholarship than it takes to use a photocopier" and "There's no law against slapdash publishing." He writes that although the plaintiff, Stuart Silverstein, was ruled against, Penguin should be ashamed of it's victory in the courts. A good read. Silverstein has 30 days to file an appeal, which would be sometime in early December. Labels: legal
Posted by Kevin Fitzpatrick on Monday, November 19, 2007 at 10:52 AM | Permalink | Comments  
Not a single Sunday newspaper pundit yesterday mentioned the Dorothy Parker Copyright Fight. Maureen Dowd dropped a Parker quote into her column, however, she was writing about the screenwriters strike. The entire media-publishing blogosphere rolled over and played dead on this one, so I will take a crack at a post mortem. This past week the copyright trial that centered around two Dorothy Parker books – Not Much Fun: The Lost Poems of Dorothy Parker (Scribner, 1996) and Dorothy Parker Complete Poems (Penguin Classics, 1999) – reached its apogee when a federal judge shot down the plaintiff, Stuart Y. Silverstein. The defendant, Penguin, then crowed to the Associated Press that this was, “a complete vindication for Penguin, and a great victory for all publishers.” But what does this mean? I want to review the facts of the case, a case that I have been following for eight years. In July, I was the only person to attend the entire trial in federal court; not a single person from the media or publishing world was there each morning. I emailed media insiders to try and get them interested, such as Sara Nelson from Publisher’s Weekly, the bible of the business. No reply. I begged Emily Gordon, doyenne of Emdashes, the wonderful New Yorker blog, to come to court, because I wanted to sit next to a witty and fun person. She had a real job to report to. I prayed for Lizzie Widdicombe or Ben McGrath to waltz in from Four Times Square. I secretly hoped my favorite Times metro reporter, Sewell Chan, would plop down nearby and whip out a reporter’s notebook. Book beat writer Motoko Rich eventually wrote 750 words for the Times, a by-the-numbers industry piece, which was the only attention the Gray Lady ever gave Silverstein vs. Penguin Putnam. The indefatigable Lawrence Carrel wrote about it some more for The Street.com; he was the first journalist of note to write about Silverstein, in 2001, for the Wall Street Journal. [Full disclosure: Carrel and I have been friends for years. We used to mow lawns with Jesus for beer money, and I handed him the story idea on a platter I got at Tiffany]. I watched the trial alone. I have come to several conclusions about what the court’s decision means. Since 2000, Silverstein has been telling columnists on the book beat about the case, a case they did not really grasp. And now that their pithy little 500-word summaries have been buried on the inside pages, I want to analyze what happened and what this means. For some reason, the Toronto Globe and Mail, the London Telegraph, and a few bloggers picked up on the case, but no other media. Now that the decision has come down, what happens next? First, let’s talk about the plaintiff, Silverstein. I first came into contact with him when he sent me an email in the summer of 1999. I had started the web site that is now dorothyparker.com in November 1998, and I owned his book, which was out in hardcover. I did a short email interview with him for the web site, and was thrilled with that. This was before the case against Penguin began. Silverstein is a non-practicing lawyer, which I think is one of the reasons he wanted to battle Penguin in federal court. A researcher or editor who did not posses a law degree probably would have shied away from such a fight. Over the years Silverstein has sent me updates about the case. It was only when the case went the other way that I heard from Penguin’s side. I went to the federal courthouse in 2003 and 2007 to see for myself this legal mess the Parker legacy was involved in. Silverstein was the one who sat in front of microfilm readers at a dozen libraries and dug up the 122 “lost” poems that make up his book. If he did not do this in 1994, Parker aficionados today would not have the Hate Verses to enjoy, unless we all possessed copies of Life or Vanity Fair from the Twenties. Silverstein located them. It takes a particular kind of researcher to sort through reel upon reel of microfilm, to look up page after page of grainy printed matter from 90 years ago, and make sense of it. He spent countless hours of his time finding these poems. What kind of drudgery is microfilm viewing? Have you ever looked at old newspapers on microfilm? Fifty issues? Two hundred and fifty? If you have done it, you know it is a drag. It is tedious, dull, physically hurts your body and causes eyestrain. This is not like using Google to find something (there was no Google in 1994). But what happened next? Silverstein presented his research to Penguin Books, after meeting one its top editors, Jane Von Mehren, at a book industry convention in Los Angeles. She talked it up at the Penguin offices in New York, where the fate of Silverstein’s project was decided. Before we go on with what they wanted to do with his manuscript there on Hudson Street, let us examine how Penguin Books got into bed with Dorothy Parker in the first place. Dorothy Parker’s first publisher was Boni & Liveright. Parker was a dear friend with the publishers Charles Boni and Horace Liveright, who founded the company in 1916; the same year Parker started her professional career. The company folded in 1930. Parker’s first two books came out from Boni & Liveright, then she went to the Viking Press, which was also run by her friends. The Viking Press gave her an advance for a novel, a novel she never wrote. Parker kept the advance. Nonplussed, Viking printed a collection of her work, Laments for the Living, in 1930. In 1944, Viking brought out The Portable Dorothy Parker – a book that has remained in print for more than 60 years. In the mid 1970s, Penguin purchased the Viking Press, and the titles then rolled into Penguin’s backlist. Parker herself never had any dealings with Penguin Books, which started life in London in 1935 as a paperback publisher. Viking and Penguin never really did much with its Parker books. In the early 1970s, Viking reprinted the Portable with a dreadful introduction by Brendan Gill, the crusty staff member of The New Yorker. This abomination stayed on shelves until 2006, when Penguin Classics finally revamped it and put biographer Marion Meade on the case. Meade is the only biographer who has ever done Parker any justice, and has now written more about Parker than anyone else. In 1998 the company woke up and issued a collection of Parker’s short fiction, titled Dorothy Parker Complete Stories that the editors said collected all of her stories, such as “Big Blonde”. As we learned in court with Complete Poems, they missed some things. But it did well enough, and has since been issued a second time, with a neat cover cartoon from the Al Hirschfeld vault. Back to Silverstein and his dealings with Penguin. He gave the company a manuscript of Not Much Fun. He had it in his mind that this would be the “fourth” Dorothy Parker collection of verse, which would follow her own three titles she had brought out in her lifetime: Enough Rope (1926), Sunset Gun (1928), and Death and Taxes (1931). Silverstein wanted to be the compiler/editor/detective of Book #4. He wanted his book on the shelf next to the others. However, Penguin had other ideas. It wanted to bring out a collection of “all” of Parker’s poems and verse. It wanted a complete volume, not a thin collection of 122 “lesser” Parker pieces. Somewhere along the line, the series editor, Michael Millman, and the head of Penguin, Kathryn Court, decided that Complete Poems would come next in the Parker parade. As a brief aside, I want to address critics who say these 122 poems are “juvenilia” (a term used by someone) or garbage (another adjective someone said to me). This collection is not a dog’s breakfast. In fact, I believe some of it, such as the Hate Verses, is among Parker’s finest material. “Cassandra Drops into Verse” appeared in the second issue of The New Yorker in 1925, and Parker should have put it into Sunset Gun. It was good enough for Harold Ross. These 122 are better than what passes for poetry in some magazines today. Since 2000, Silverstein has claimed that Penguin offered him just $2,000 USD for his sleuthing. He told me -- and many others -- that Penguin’s offer was $2,000 for this feat of uncovering the “lost” poems. This is not true. At the trial I learned Penguin originally wanted Silverstein to be the editor of Complete Poems and the $2,000 would be his fee to be the editor/compiler of the complete collection. Silverstein’s literary agent rejected the offer. Why? I do not know why further negotiations never took place. Why the agent didn’t counter, and ask for more money. This was not in the trial. What happened next, and became a point in the trial, is that Silverstein rejected the deal and then shopped his project around, and Scribner picked it up. Penguin made him a fair offer (however low, what did it break down to? Five dollars per research hour? I do not know). But consider this: In 1995 Silverstein was a person who at the time had (1) not published any books; (2) was not a professor or literary figure; (3) was an unknown in the publishing industry. One of the biggest publishers in the business was going to hire an undistinguished writer -- and entrust one of their bestselling backlist authors with such an important project -- speaks volumes. The $2,000 was the standard fee the house paid for such work. Silverstein could have negotiated, and did not. Penguin could have been asked to up its offer, and did not. Silverstein could have gotten his name on the cover of a Penguin collection that would have a long, long shelf life. He could have gotten a lot more attention, immediately, as the editor of Complete Poems and the Indiana Jones of lost Parker material. But he went out on his own and got his own deal, with another publishing house. It is speculation, but if he was the editor of Complete Poems he could have gone on to greater glory as a literary sleuth, instead of spending years buried in legal briefs and cursing at Penguin. The trial brought out testimony and evidence from all parties concerned in the deal-making of the time that the offer to Silverstein was to be the editor of the Complete Poems, but he wanted his own book, his own project, and on his own terms. This is how Not Much Fun was born. Penguin of course watched Not Much Fun come out from Scribner in 1996, and said as much in the trial. The freelance editor the company got (for its $2,000) was Colleen Breese, who had about as much credibility as Silverstein at the time. She seems to have been hired solely because she already had been a photocopy whiz at an Ohio commuter college, teaching Parker courses with her own Xerox Dorothy Parker material. Breese did not have a problem taking the $2,000 to photocopy the rest of the Parker canon – Silverstein’s book. A major -- and critically important -- argument in the case to remember is that Silverstein never claimed his case was based on the “sweat of his brow” and hard work in finding the 122 pieces. Copyright law does not allow a writer to claim such “sweat of his brow” as a reason to get copyright protection. He was claiming his copyright was violated based on his creativity and subjective decision-making in what went into the compilation. That Penguin can now claim Judge John F. Keenan’s decision is a major “victory” for publishers is laughable. Here is why. Penguin’s editors were shown in the trial to have been sloppy, lazy, and careless. Mistakes that Silverstein made in his book were copied into Penguin’s book, and never caught. If Silverstein dropped an entire line of a Parker poem (which he did once, by mere oversight) than so does Complete Poems repeat the error. Some of the “lost” poems did not have titles, so Silverstein cooked up new ones. Penguin’s book then picked these up as well. At no time in the editorial process of Complete Poems was any fact checking (or even spot checking) undertaken. Penguin claims “victory” here – victory for what? Victorious for being sloppy? I encourage you to read the trial transcripts. These are illuminating. Something that struck me at the trial in July was watching the two video depositions of the “experts” in the case, Breese and another professor from the Midwest, Randall Calhoun. As a Parker fan, it saddened me to see that the top two Parker scholars in academia are a part-time adjunct teacher (Breese) and professor who is so far off “tenure track” that he is teaching classes to inmates in the Indiana prison system (Calhoun). For some reason, and I can’t put my finger on it, neither the defense nor the plaintiff could come up with an Ivy League expert. At no time in the trial did it ever come up that both star witnesses had barely enough credentials to get a book contract, much less be the two highest-ranking Dorothy Parker scholars in the country. It may have been a completely different trial if the expert on the stand was by a doctor of American Lit from Harvard or Yale. Watching the video of Breese and Calhoun sit uncomfortably as the big city lawyers grilled them can only be described as sad. If this case goes to the appeals court, is there a professor with a doctorate in English who can show up to testify? Please? [Full disclosure: I am the pot and the kettle. My meager B.A. degree was earned in the land of Mark Twain; I picked up my sheepskin in a river town located between East Jesus and Bumfuck]. The dénouement of this book battle is not over. What can happen next? There is probably a time limit for Silverstein to file an appeal. One of the reasons the case has gone on since 2000 is that Judge Keenan’s decision in 2003 to find in Silverstein’s favor, and force Penguin to withdraw Complete Poems from bookstore shelves, is that Penguin appealed the decision. This sent it to the Court of Appeals, which sent it back down to Circuit Court, and back to Keenan’s courtroom. Last summer when I was at the trial, I spoke with someone who said that the judge would be very careful with his next opinion, because Keenan did not want to see the case appealed and sent to the Court of Appeals again. And even to a novice like me, if I was a judge on the Court of Appeals, and saw “the Dorothy Parker case” coming at me again, four years later, would I consider it? Would I want to go through this all one more time? The answer is no, because then the case starts all over again. Judge Keenan spent 79 pages laying out his opinion, and his arguments, all backed up with examples, detailing why he found for Penguin in this. But could Silverstein appeal? He can, and he might. Would be find success in the appeals court? That would be for the panel to decide. Where does this leave Penguin? Can they issue Complete Poems again? Could Barnes & Noble stock the book in time for Christmas? First, Penguin’s in-house lawyer will probably wait and see if Silverstein appeals. They have been sitting on the book for close to five years, so waiting a few more months will not hurt them. However, even if Silverstein’s attorney tells the court there will be no appeal, that does not mean the publisher should open the warehouse doors and begin shipping the dusty old books out to Peoria and Spokane. Here is why. Complete Poems is flawed. At the trial we learned there are scores of mistakes and errors in it. There is material that has titles that were put on by Silverstein, not Parker. There are editing mistakes, never caught in 1999. But most important of all – this is not “complete” at all. I’m sitting on perhaps five Parker poems that are not in either Not Much Fun or Complete Poems, Parker creations that slipped by Silverstein in his quest in the mid 1990s. One is called “Reformers: A Hymn of Hate” that Parker wrote in 1922, at the zenith of her power at the Algonquin Round Table. This is one of the Hate Verses that Silverstein never found, and then Penguin never published. Parker started it off: “I hate Reformers/They raise my blood pressure.” If she was alive to watch this case, hers would hit 160, or higher. For Penguin Classics (the division at the company that Complete Poems would fall into) to bring out the book again, it would need to be edited again. Line by line, the book’s complete inventory needs to be checked. Every poem and title must be checked against Parker’s originals, on microfilm, and not from some photocopy that someone dug up, or worst of all, online. I’d also toss out the introduction and hire a poetry authority or a major literary figure to write a fresh one. Pay some good money. Invest more than $2,000 in the damn book. Slap a decent cover on it, like the company did by hiring Seth for the 2006 revision of The Portable Dorothy Parker. This was a bruising case for both sides. Hundreds of hours were spent in its preparation. The cost must have been more than $1 million. And the fact of the matter is this: the case never needed to come to trial. The case could have been avoided: IF Silverstein had accepted Penguin’s offer to be the editor of Complete Poems; IF Penguin would have published Complete Poems and credited Silverstein; IF Complete Poems' editors would have used the microfilm reader instead of the Xerox machine in 1998; Or finally, IF Dorothy Parker, at age 74, issued a book in 1967 that was titled The Poems of Dorothy Parker I Never Thought Were Good Enough to Collect in the 1930s, But Now That I Am About To Die, Here They All Are. Labels: legal
Posted by Kevin Fitzpatrick on Monday, November 12, 2007 at 12:25 PM | Permalink | Comments
![[COMPLETE POEMS]](http://dorothyparker.com/legal/images/complete01.gif) The seven years of ongoing legal machinations of the Dorothy Parker Copyright Case, Stuart Y. Silverstein vs. Penguin Putnam, Inc., reached yesterday what could be the final phase. United States District Court Judge John F. Keenan issued on Nov. 7, 2007, a Findings of Fact and Conclusions of Law (complete PDF here), and in it he found for the defendant, Penguin, publisher of Dorothy Parker Complete Poems, a book it was forced to recall by the same judge in June 2003. Silverstein, who compiled Not Much Fun: The Lost Poems of Dorothy Parker for Scribner in 1996, had claimed Penguin’s 1999 book ripped him off. Yesterday, the judge decided Silverstein did not meet the requirements of federal copyright law to support his arguments. The one-week trial in July brought forth a colorful cast of publishing world insiders and outsiders. However, they could not help Silverstein’s case enough, and that his claims that he used subjective methods to select the poems that Parker herself did not collect in her lifetime. A major portion of the trial centered on the definition of what is and what is not a poem. Neither side could agree on this definition; it was up to the court to render a legal opinion of what constitutes a poem. This led to several Parker poems being read into the record. However, the judge found this helped Penguin’s case. The court said yesterday, “The Court finds that Silverstein sought to compile every uncollected Dorothy Parker poem he could find. Accordingly, he employed a broad, structural definition of “poem” in determining whether an individual work was a poem or not. This determination did not entail creativity.” Silverstein attempted to claim copyright for his selection and his compilation, by claiming he had used creativity in choosing the poems. However, the court ruled he merely published every poem he could find, despite Silverstein’s argument that he did not. The court said, “Silverstein could not articulate, and the Court cannot discern, any creative principle that guided his determination that a work was a poem or not. Silverstein repeatedly characterized his inclusion of specific poems as “instances of subjective selection,” merely parroting the legal standard that he had to prove. His overuse of the word “subjective” seemed consciously tailored to the relevant case law for the purpose of winning this lawsuit. In reality, Silverstein classified as poems those Parker works that fit the typical structure of a poem, described above, just as anyone else would. This selection process involved no creativity.” By reading the trial transcripts ( all posted here) a major portion of the testimony of Professor Randall Calhoun of Ball State University centered on defining a poem. Calhoun, who edited the excellent Parker book “Dorothy Parker: A Bio-Bibliography” did waffle a bit, and change his testimony, but in the end the judge liked what he said about looking at and enjoying the art form of poetry. Calhoun’s testimony carried perhaps the greatest weight of all in the case, even more than the big shot Penguin executives who were put on the stand. ![[NOT MUCH FUN]](http://dorothyparker.com/legal/images/fun01.gif) The judge then went point by point through the arguments in the case. He stated, “The poems selected by Silverstein are objectively recognizable as poems. No creative or subjective judgment inhered in their classification as such.” The plaintiff had made the argument that his selection of the material for Not Much Fun was protected by copyright law. However, the court thought otherwise, and that he did not exclude any poems he located as Parker’s. The opinion issued yesterday says, “Silverstein was not exercising creativity in his decisions to include or exclude items from Not Much Fun. No creativity was involved in his selection process because he identified works as poems simply by their structural characteristics and attributed poems to Parker based on historical evidence. Silverstein was asked repeatedly at trial to name one single item which he determined to be a poem or verse written by Dorothy Parker and previously uncollected that he decided to exclude from Not Much Fun, but he could name none.” Another issue was the poems that Silverstein put into Not Much Fun, which were 122 that Parker never collected herself. He said these were “all” of the missing Parker pieces from her canon. This was found to be the case in his selection. The court did not find for the plaintiff on any of the points he made. The court ruled that, “The evidence adduced at trial establishes that Silverstein was guided only by the principle of all inclusiveness in compiling Not Much Fun. His admitted purpose was to gather as many uncollected Parker poems and verse as he could find. He did not select the 122 poems and verses that he determined to be the best of a larger pool of Parker’s uncollected poems. By his own testimony, he selected every item that he determined to be a poem or verse written by Parker that had not been previously collected. His book announced this to the world: these are “the lost poems of Dorothy Parker,” this is the “complete chronology,” and it includes “all” of Parker’s poems and verses.” In the trial, it came out that Penguin’s editor, freelancer Colleen Breese, had photocopied Not Much Fun. This did not matter to the court at all, nor did the hard work that Silverstein put in to put his book together. He said he went to 12 libraries to locate all the material. However, American copyright law does not allow for hard work to be copyrightable. The court said yesterday: “Not Much Fun is an exhaustive compilation of Parker’s uncollected poems. Silverstein employed significant time, personal resources, and patience in making Not Much Fun. His efforts will likely advance the understanding and study of Dorothy Parker, an important American literary figure. Yet it was Silverstein’s so-called “sweat of the brow,” not his creativity, that led to the creation of Not Much Fun. Efforts of this kind are not the object of the copyright laws. As the Supreme Court has acknowledged, “It may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation.” (From Feist, 499 U.S. at 349.) The copyright laws serve their goal of promoting science and art by according protection not to the author’s labor alone, but to creative expression produced by that labor. The Court’s finding that Not Much Fun lacks creativity compels the conclusion that it is not entitled to copyright protection.” What happens next? Will Silverstein appeal? Will Penguin bring out Complete Poems again? Wait and see. Update: The Associated Press got statements. Penguin sounds giddy. Labels: legal
Posted by Kevin Fitzpatrick on Thursday, November 08, 2007 at 9:56 AM | Permalink | Comments
The Dorothy Parker Copyright Trial ended today. It lasted seven days; the final day was devoted to concluding the video deposition of Randall Calhoun. The monotonous testimony considered the line of questions that took up most of yesterday afternoon, defining what “poems” and “poetry” mean to scholars. Calhoun, an assistant professor of English from Ball State University, had another three hours of his deposition played in court. Calhoun, who bears a passing resemblance to Adam West, saw the questions put to him become a little more difficult, as he flopped around and tried to explain his contradictory statements to the attorneys. The cross-examination today was begun by Thomas Kjellberg, of Cowan, Liebowitz & Latman, a trial attorney representing Penguin Books. He grilled Calhoun on intricate interpretations of the schematics of poetry. Calhoun continued to be as wily as ever, contradicting himself and forgetting what he had previously told the attorneys, written, or testified about. In a remark he made, Calhoun related the craziest tale I’ve ever come across in my nine years of running this Web site. “There's a rumor,” Calhoun said, “That I think it's a fact, that Lillian Hellman went to Parker's apartment and found her dead and collected anything she could find there. And there's a rumor going around that someplace in Switzerland, there's a whole bunch of Dashiell Hammett/Dorothy Parker papers that are lost.” Wow! Somehow this was not mentioned in the 5,000-word article Marion Meade wrote for Bookforum last year about the Hellman-Parker relationship. Later, Calhoun said the FBI murdered Marilyn Monroe. Kjellberg tried to pin Calhoun down on the big issue that was raised yesterday, about when are Parker pieces poems, and when are they not. Since Calhoun, author of Dorothy Parker: A Bio-Bibliography, seems to be the No. 1 scholar in the trial, his words would weigh heavily on the case. Kjellberg read a statement Calhoun had previously given: "...the definition of poetry is general and vague. Whether an item should be deemed to constitute poetry is inherently a personal, subjective determination but is informed by and depends upon an individual’s personal background, education, taste and judgment I believe that certain items are not poetry, are not actually poems.” This same statement by Calhoun was raised before, and it prompted Kjellberg to ask, “When you said that, were you referring to the more objective classification, or were you talking about what you've sort of characterized as the subjective, whether something is poetic to you?” This follows what Calhoun had said earlier, and was played for the court yesterday; Calhoun said he believed the Quentin Tarantino film Pulp Fiction and James Dickey’s novel Deliverance were both poetic. Kjellberg asked him, “Would it be accurate to say that when you said "the definition of poetry is general and vague," you meant poetry in some more subjective sense, poetry in terms of what moves the individual reader or strikes an individual as poetic?” Calhoun said he agreed with the statement. He also agreed with pretty much everything that Kjellberg asked. Calhoun had said earlier that what Silverstein classified as poems, were not poems in his opinion. This debate lasted quite awhile. Calhoun said, “a poem is one thing, but poetry is art… but a poem isn't necessarily a work of art. Poetry is a work of art.” He went on like this to Kjellberg, who raised the issue again of how Silverstein and Calhoun differed on the question of poetry. The Bio-Bibliography does not classify as poems some of what Silverstein called poems in his book, Not Much Fun. “News Item” made about its fifth appearance in the trial. Like a bad penny, it keeps turning up. Today it was Kjellberg’s turn to read, “Men seldom make passes/At girls who wear glasses.” He then asked Calhoun if “News Item” is doggerel. Calhoun said no. “That in itself,” Calhoun went on to say, “just by itself, would be called a couplet because the last two lines rhyme. A couplet can be doggerel, but it doesn't have to be. A lot of authors will use couplets for doggerel verse. But doggerel is kind of like a poem, versus poetry. Something may be doggerel or it may not.” Earlier, Silverstein had stated that “News Item” was “a wisecrack” and not a poem. The deposition continued in this fashion until Calhoun was asked the million-dollar question: which Parker pieces were “poems” or “poetry.” Calhoun was read a list of titles, and was asked his opinion of them. Time and again, he said the pieces were poems or prose -- or neither. Sometimes they were called “squibs” – which was never really clear to me. Calhoun was shown issues of the old Life humor magazine; the publication Parker contributed numerous pieces to in the early Twenties. Calhoun came across as confused and utterly waylaid by Kjellberg’s questions, at one point saying to the attorney, “I don't know what you want me to say. Tell me what you want.” To which Kjellberg replied, “Just the truth.” The next section of the testimony felt like a car spinning its wheels in deep mud. Calhoun attempts to classify free verse and poems, going back on his earlier statements. The questions go over Parker’s famous “Hate Verses” at length. He is asked about Silverstein’s “Complete Chronology” that appears at the end of Not Much Fun; the same question was asked of many of the other witnesses during the past seven days. Calhoun says he would assume that this list is all of the poems of Dorothy Parker, if he was a reader. Silverstein’s lead counsel, Mark Rabinowitz, of Neal, Gerber & Eisenberg, asked the next questions of Calhoun. The two went back to using the terms “poems” and “poetry” as interchangeable. Rabinowitz asked, “How do you explain to me how in both of these affidavits the words “poetry” and “poems” are used interchangeably and sometimes in the same sentence, referring to the same subject?” To which Calhoun replied, “I was asked for my scholarly opinion, not a popular opinion. I have two vocabularies, one that I would use for that, and I was hoping that would be the scholarly vocabulary you wanted. I knew what I meant when I made the distinction between poetry and a poem. As was pointed out before, some of them were not used correctly.” The two disagreed over the two affidavits, going over the replies that Calhoun had made earlier. They talked about the scholarship of Silverstein, which Calhoun seemed to be mildly dismissive of. Calhoun was asked to clarify more of his earlier statements, which he seemed to have a hard time recalling. Calhoun said that one of Parker’s funniest pieces in Not Much Fun, which came from a letter she wrote to her close friend, Robert Benchley, should be called a poem. However, he did not include it in his book, because he couldn’t find a copy, and only read about it in Marion Meade’s bio, What Fresh Hell is This? That is also where Silverstein first saw it, and prompted him to locate the 5-page letter in a Boston’s Mugar Library. Meade’s bio was entered into evidence earlier, and referred to often. Rabinowitz said, “Every single one of your misstatements or your mistakes have in fact changed what was otherwise on the record in favor of Penguin's position, haven’t they?” Calhoun said he “had no idea” about that, and Rabinowitz continued, “Have you ever expressed in writing your intention to write four volumes compiling the works of Dorothy Parker prior to your affidavit that Mr. Kjellberg had you sign? Have you ever expressed that before… my point is, you, in fact, told me were you looking to retire. And that you were not looking to make your academic career anymore; that that was in the past?” Calhoun replied that he had written to the NAACP around 1985 expressing this interest, however, he denied Penguin Books had promised that they would publish his new collections of Parker material, if he ever compiled them, in exchange for favorable testimony in this case. Kjellberg took over a brief line of questions, working on the definition of poems. Calhoun stated that poems on a page, how they are formatted and set off, from margin to margin or indented, can help clarify them as poems – or not. This went on for a good 20 minutes, with Calhoun looking at how Parker pieces were presented in old Life magazines to determine if they were, indeed, poems or not. After listening to Calhoun say, “There's a huge difference between a poem on the page. Sometimes there are even decorations around it as opposed to prose on a page. These "Hate Verses" they don't look like prose when they are written,” it helped me make up my mind: the man is making this up. He seems backed into a corner, and trapped by his previous statements. He was, in a sense, saying that how Parker pieces appeared in magazines, set down by typography, would determine their worth as poems or prose. It was Rabinowitz who pointed out that Calhoun was not being clear about this point at all, and compared the original sources from the 1920s with the books from 1995 and 1999. The end of Randall Calhoun was anti-climatic. The TV screen just flickered off and he was gone. It is shocking to me that in all of higher education, academia, colleges and universities coast to coast, that the very best expert to be found on Dorothy Parker was this man. I have to kick myself, because I once crashed a literary society gathering composed almost entirely of college professors, and I rolled my eyes. However, any one of them would have jumped at the chance to be deposed in a trial like this if they could talk about their author for six straight hours. However, somehow I don’t think this is the last we’ll see or hear from Calhoun. After the testimony, Judge Keenan just had a few activities left. Both sides submitted more material to him. This included charts prepared that compared poems in the two books and Calhoun’s book, with item-by-item page numbers. The plaintiff’s attorney submitted a summary of figures, to try and figure out estimated damages. The defense objected to this. Richard Dannay, Penguin’s lead attorney, made a motion to dismiss the whole case. The judge denied the motion, but told him his rights are preserved. The defense said they were sending the judge 30-plus books. They also entered into the official record the 2006 edition of the Deluxe Edition of the Portable Dorothy Parker. I’d know that sweet Seth cover anyplace. The judge set Oct. 9, 2007, 2:30 p.m. for oral arguments. So the end is not in sight, yet, for this to be over or to the next stage. Then the judge addressed the courtroom. He said he knew he was “tart” at the beginning of the trial (he really laid the smackdown on the attorneys the first minute he took the bench last week). But he made no apologies. Judge Keenan, speaking to the room, said his wife is a retired schoolteacher. One thing he learned from her, he said, was that on the first day of class “if you are tough with students at the beginning of the school year, they are good the rest of the year.” He complimented both sides on behaving and getting along. He said it made for a better trial. I will miss the stunning view of Manhattan from Courtroom 20C of the Daniel Patrick Moynihan U.S. Courthouse. All week, I was the lone spectator in the gallery almost the entire trial. From my front-row seat I could clearly see out the large windows all the way to Times Square, where Dorothy Parker once walked. Labels: legal, news
Posted by Kevin Fitzpatrick on Wednesday, July 25, 2007 at 11:57 PM | Permalink | Comments
The Dorothy Parker Copyright Trial rolled into its second week today, but the end is in sight. Judge John F. Keenan today predicted it would wrap up tomorrow or Thursday. The final live witness was called today, Penguin Books president and publisher Kathryn Court. The courtroom also got its first look, via video monitor, at Randall Calhoun, a professor and Parker researcher who’s name has hovered over the entire case. I was eager to hear Court’s testimony. After 30 years at Penguin, she is one of the best-known people in the New York publishing world. Many editors at major publishing houses have worked under her. In this trial, Stuart Y. Silverstein vs. Penguin Putnam Inc, she is the only one of the three major players in the mess who is still employed by the company: Jane von Mehren, her former executive editor, quit in 2005, and she fired senior editor Michael Millman last year. Both von Mehren and Millman were called to testify last week. Court was a good witness. In a white sweater, eyeglasses, and with the trace of an accent, she looked the part of a publisher. She didn’t appear to be nervous, and answered the questions smoothly. Plaintiff’s counselor Christopher D. Mickus, of Neal, Gerber & Eisenberg, examined Court. Mickus followed a similar line of questioning from von Mehren and Millman, showing a 1996 internal company memo from a Penguin in-house attorney that reminded the staff of copyright and fair use guidelines. In addition, Court was shown the Viking-Penguin author’s guide, which also has a copyright and fair use section. This strategy was designed to show that senior Penguin staff was made aware of U.S. copyright laws. Once again, the facts of the case were brought out. How Penguin was shown Silverstein’s manuscript in 1994 of Not Much Fun, which purported to find 122 “lost” Dorothy Parker poems. Court agreed with the scenario that was presented, that von Mehren brought the book to Court and Millman. Court said early on they had wanted Silverstein to be part of the larger project, which became Complete Poems, published in March 1999. Court said she was never shown Silverstein’s manuscript. Mickus asked Court about the famous Aug. 4, 1999, letter from von Mehren to Silverstein. The letter said that Penguin would want to publish a complete collection. This would rule out just publishing the uncollected poems Silverstein had located. Court said there were discussions about Silverstein being part of the larger project; this indicated Penguin would rather he be the editor of Complete Poems, a role later filled by Colleen “Mikki” Breese. Court said the compilation copyright was never discussed. She gave the green light for Complete Poems to go forward. She said the company felt secure in its rights to publish the poems, which they cleared the permission of those that they wished to include in the volume. This was with Parker’s estate, which is controlled by the National Association for the Advancement of Colored People. Mickus went over the production of Complete Poems, and how Breese and Millman used Not Much Fun as the basis for a large portion of the book. Court said she signed off on the book, without direct knowledge of how it was produced. “We publish 300 to 350 books a year on our list,” she said. “Many, many things that cross my desk are given to people I trust.” At this point, Judge Keenan jumped in. He asked Court if she fired Millman because of the Silverstein lawsuit. She said she did not. Court was asked about the seven printings that Complete Poems went through, before Judge Keenan ordered the book’s recall in June 2003. Court said she attended regular meetings that discussed reprinting, and would likely have been present when the decisions were made to print more copies as part of inventory control. Mickus pointed out that some of the printings took place after Silverstein had alleged copyright infringement. If Millman had told Court of the lawsuit, she did not remember. Next, Court had a very brief cross-examination from Penguin’s lead trial attorney, Richard Dannay, of Cowan, Liebowitz & Latman. His first question was a short one: did Penguin have the rights to publish Complete Poems? Yes, she said. Court was asked how a manuscript was prepared, even books from other publishers that were anthologies and collections. Was photocopying used as a timesaver? “That didn’t matter,” she said. It was done to be “quicker, more accurate… the most straightforward and accurate way to do it.” As far as she knows, that is how all publishers of anthologies assemble manuscripts for collections, which was the same thing Millman said on Friday. Court was asked about the market for “complete” collections that publishers create. “Anybody who admires an author… you want to read everything that writer wrote,” she told the court. Dannay was finished, and Mickus returned for another few questions of the witness. Court was asked about the copyright of Silverstein’s compilation. “The poems contained in Mr. Silverstein’s book were all the uncollected Dorothy Parker,” she said. “That was my understanding… we had no reason to disbelieve it” that these were not all the uncollected poems stated by Silverstein. Dannay stood up for the cross-examination. He handed Court a hardcover edition of Not Much Fun, and had her turn to the back, to the Complete Chronology section. This was the same section that came up during Gillian Blake’s testimony on Wednesday, over the opening sentence: “This is a chronological list of all of Dorothy Parker’s poems.” “It implies that this is all the uncollected poems of Dorothy Parker,” Court said. “That this list included everything, Dorothy Parker poems and verses.” Court was off the stand in a little more than an hour. She could be the final witness to appear in person in the courtroom, as our next witness was on a video monitor. I have been looking forward to laying eyes on Randall Calhoun. I have his book, Dorothy Parker: A Bio-Bibliography (Greenwood Press), and recommend it to anyone who is a serious Parker aficionado. What Calhoun has compiled is a voluminous amount of sources for Parker material, everything from poems and stories to her many screenplays. He put all this together in the 1980s, and finished the book in 1992. Because of this book, he is cited as one of the preeminent Parker scholars in the country, and was sought by both the defense and the plaintiff as a witness. In March, attorneys for both sides went to Muncie, Indiana, and took his deposition. Calhoun is an assistant professor of English at Ball State. He earned his bachelor’s and master’s degrees at Western Illinois, and his PhD. in English at Ball State. Like the other Parker scholar, Colleen Breese, he also taught writing and composition. One thing I found extremely interesting about Calhoun is that for the past few years he has been teaching Ball State students “off campus” – which was his way of saying, they are guests of the state, and incarcerated at Pendleton Correctional Facility. He teaches these prisoners freshman composition; whether or not Dorothy Parker is studied behind bars did not come up. At times he appeared nervous and anxious, repeatedly rolling up and down the sleeves of his gray sweater. Calhoun looks to be in his mid 50s, with gray hair, eyeglasses, and perfect manners. He chuckled a lot at his own remarks. Silverstein’s lead counsel, Mark Rabinowitz, grilled Calhoun about the documents the professor turned over. Of the approximately 4,500 pages, almost none of them were about Calhoun’s book. He said he had thrown them away, or recycled the paper. Next, he went into how he began compiling the book more than 20 years ago. He read the three Parker biographies and went to microfilm readers to review old newspapers and magazines, searching for Parker poems and stories. This was eerily similar to how Silverstein began. Calhoun said he first became a fan of Parker in 1967, when she died. He was a junior in high school and his teacher read some of her poems to the class. He was hooked. In college, he read the Portable Dorothy Parker. “Politics has entered everything,” he said, “even the academic world, as you might guess. I think there are four Twentieth Century American poets, all women: Dorothy Parker, Edna St. Vincent Millay, Elinor Wiley, and Sara Teasdale, whom I think are awfully fine poets. But they're being dismissed now as authors, and I kind of developed an interest just by reading them… Parker is generally left out of American Lit surveys, that sort of thing.” In 1988 he contacted the NAACP about editing the complete works of Parker, and they were receptive. However, he did not get much further with Viking-Penguin. “I found out there was a lot of in-fighting and jealousy among publishers and copyright holders,” Calhoun said. “I got dismissed once by Penguin by saying ‘you're a hick from Muncie, Indiana. You wouldn't have the ability to do this sort of thing.’ And, finally, I said to hell with it. It wasn't worth what I was fighting… I got nothing except obfuscation and maybes, and I had no luck getting anybody interested in that sort of thing.” But Calhoun pressed on, compiling his book and finding an academic publisher, Greenwood Press. A few years later, Penguin did publish a collection of Parker’s stories, and in 1999, Complete Poems. By this time, Calhoun would be a player in a different light, as a witness in Silverstein vs. Penguin Putnam. He was contacted by Silverstein’s legal team, and was sent an affidavit to sign, saying he would be partial to helping the plaintiff. In December 2004, he said he was looking to retire and not pursue adding to his academic reputation further. He was teaching at state prisons. He received a phone call from Silverstein’s attorney, and they spoke of Penguin. His interest in Parker was far in the past and he was hoping to retire. He signed an affidavit stating he would help Silverstein’s case. However, the newfound interest in Parker stirred something in Calhoun, got his juices flowing again. For whatever reason, he said, in June 2005, he spoke to Penguin’s attorney, Thomas Kjellberg. This infuriated Team Silverstein, who had a signed affidavit from Calhoun saying he would assist them. Apparently, Penguin’s attorneys contacted Calhoun at least three times. Calhoun said he was thinking about writing another book. “When all this has come up, I went back and reread all of Parker's work,” he said. “And I think she's a better writer than anybody knows, and so, yeah, I think it might be fun to do.” Calhoun signed a second affidavit, for Penguin, which stated he had in mind editing four more volumes of Parker material: separate ones for sketches, reviews, essays and prose, as four separate volumes. This contradicted his earlier affidavit he had previously signed. It appears that Calhoun was now helping Penguin, not Silverstein. Was it because he believed Penguin would publish his books, if he helped them? Later in his testimony, Calhoun sounded confused and mixed up. “The truth is to this very day, I didn't know who you are, I didn't know who he was, I didn't know who was fighting,” Calhoun said. “Nobody would talk to me. I didn't understand what was going on… I didn't know who was fighting whom over what. I've begun to see a little bit right now.” Calhoun said the Penguin attorneys did not suggest he write a book for the company. Silverstein’s attorneys presented telephone records that showed Calhoun calling a 212 area code, which is Manhattan. There was a 43-minute phone call, followed by others. Apparently, it looks like both sides were fighting for the services of Calhoun, who both believe is the most prominent Dorothy Parker scholar in all of academia. Calhoun had both sides chasing after him to be their star witness. At one point, Calhoun even joked about getting a free trip to New York City, which really riled everyone up. It was unclear if Calhoun was merely an opportunist, seeking to please Penguin because he may get a book deal, or if he just did not understand the facts of the case when he initially agreed to help the plaintiff, Silverstein. What both sides needed of Calhoun was his determination of what poems and poetry are defined as in the mixed-up world of Mrs. Dorothy Parker. The entire afternoon was taken up with a lively debate over what is a poem and what is a verse. What is a “non-poem” and what is “free verse” in Calhoun’s view. The crux of the issue is that Dorothy Parker: A Bio-Bibliography and Not Much Fun are different. Calhoun and Silverstein do not agree on what poetry is. Calhoun called Silverstein an “anthologist” while the book he produced, after almost 30 years of teaching English, is more scholarly. Calhoun could call a Parker piece a poem or a “prose squib” and get away with it, because he was a professor of English who had studied Parker more closely than anyone else. There was a philosophical discussion of poetry. “Is it a poem? Yes,” Calhoun said. “Is it poetry? No. Poetry is more about aesthetics and beauty… it was written as a poem, but it is not poetry.” Calhoun said real poetry is, “beautiful, sublime, it appeals to the human soul.” And in his full-on professor mode, Calhoun brought in everything from Pulp Fiction, James Dickey, and Dylan Thomas. When he brought up Oscar Wilde and Ezra Pound, I was secretly hoping he’d recite some on the spot. Calhoun was on a roll as he started in with the greats of modern poetry, and gave a pretty decent sophomore-level poetry class rant to the assembled courtroom. Calhoun told the court, as if he was in a lecture hall: “The kind of things that Dorothy Parker wrote in the Twenties at one time would have been considered the only poetry there was,” he said. “The iambic pentameter, the trio lets, little exercises like that. People consider those poems. Other authors who were writing at the time, most notably somebody like T.S. Eliot, people made fun of. You can see in her works, "Oh Look, I Can Do It, Too (Showing That Anyone Can Write Modernist Verse)." And those two terms, poetry and verse, are used against each other. In fact, in some ways, she's just a versifier. That's not a poet.” Calhoun cited “One Perfect Rose” as an example of good poetry. But then he looked down his nose at the poems in Not Much Fun. “They were probably lost for a reason,” he said. “They aren’t very good.” Calhoun’s video testimony continues tomorrow. Labels: legal, news
Posted by Kevin Fitzpatrick on Tuesday, July 24, 2007 at 11:20 PM | Permalink | Comments
In an old cowboys and Indians movie I once saw, I remember a cowboy throw his saddle onto the back of his horse. In between the saddle and the horse was a blanket, and underneath the blanket were a couple of burs that had been picked up someplace. When the saddle landed on the blanket on the back of his mount, the cowboy found out what it’s like to have a bur under your saddle. I saw that same look in a U.S. Courthouse today, as the #1 and #2 Penguin Books executives took the stand for a whirlwind hour of testimony in the ongoing Dorothy Parker Copyright Trial. Subpoenas have been issued like parking tickets in this case. Today they brought in the Penguin Group's worldwide chairman and Chief Executive John Makinson all the way from London, and David Shanks, the chief executive officer of the Penguin Group (USA), all the way from Soho. Makinson probably spent more time in the first class lounge at Heathrow than he did in the witness box, but at least he can tell his friends at the next Cambridge alumni reunion what a U.S. federal courtroom looks like when you sit next to the judge.  I was kind of incredulous that the plaintiff in the case, Stuart Y. Silverstein, actually was getting the two most powerful men in the company to come testify. For Makinson, who said he has never even laid eyes on the book at the center of the lawsuit, Dorothy Parker Complete Poems, his testimony was delivered without emotion or drama. He was on and off the stand in about 35 minutes. Shanks spent even less time under oath, about 20 minutes. Neither witness looked comfortable on the stand. Also in the courtroom for the first time during the trial was Alex Gigante, Penguin Group USA’s senior vice president for legal affairs. His name has come up every day in the trial, as he has taken an active part in the case since 2000. However, Gigante was not called as a witness, and departed with the two executives. Silverstein’s lead counsel, Mark Rabinowitz, of Neal, Gerber & Eisenberg, took charge of the case and examining the two witnesses. Shanks went first, leaning into the microphone and giving short, direct answers to the questions. I don’t think he elaborated on more than one response. Shanks said that Penguin USA publishes more than 2,500 books a year, and he does not concern himself with the editorial side of the business. To just about every question that Rabinowitz asked about Complete Poems, Shanks said that people underneath him were overseeing the matter. He was asked about the December 2001 Wall Street Journal article about the case, the first international coverage the lawsuit garnered. Shanks said he didn’t recall it, and that he did not show it to Makinson. He said he only recently discussed the suit with Makinson, after a talk years ago about the substance of the case. Shanks told the court that the company attorneys he spoke to said Penguin had a very good case and he didn’t need to worry about it. Rabinowitz wanted to learn how much Shanks had briefed Makinson on the case. Not much, it turned out. Shanks said he did not talk about Silverstein, the book, or the copyright issues with Makinson. He did speak with Gigante since he is the in-house counsel, but Gigante assured him they had a good case. Shanks said Makinson was “upset that he had to fly from England to testify,” but he did not offer any deeper insight into their discussions of the case. Judge John F. Keenan, who is hearing the case, was the same judge who ordered Penguin to withdraw from sale Complete Poems more than four years ago. Rabinowitz asked Shanks how the book had continued to be published in the years prior to that, knowing that Silverstein was alleging copyright infringement, and was seeking legal redress. “We were advised by Alex Gigante that we could continue to publish the book,” he said, despite the pending trial. Printing history records introduced in court today showed that Complete Poems went through five printings between March 1999 and May 2001, almost a year after the first claim was filed against the company. Penguin issued more copies, ultimately going to a seventh printing in July 2002. The book was a hot seller. Shanks was done on the stand after 20 minutes. Penguin’s lead trial attorney, Richard Dannay of Cowan, Liebowitz & Latman, did not purse a cross-examination, and Shanks left the witness box. The court eagerly anticipated the appearance of John Makinson. Here was the #1 executive for the worldwide company, director of Pearson PLC, the parent company of the Penguin Group, and a man who oversees 20 companies. With perfect silver hair and in a crisp tailored suit and British accent, Makinson was the most polished of any witness in the trial so far. It was as if I was watching a BBC anchor deliver the news, and the news was that he never heard of this book or this man Silverstein, because he was too damn busy running a multinational company. Makinson ticked off his main job duties, none of which entailed keeping tabs on editorial problems and lawsuits emanating from the company’s outpost on Hudson Street. He explained the Penguin corporate structure and where he fits in with the other divisions (Makinson is on top). He said that while coordinating the activities of 20 companies, and since the company comes out with 4,500 books annually, he was not tasked with keeping track of the case. The first time he heard of it was when he read about it “in a press article somewhere.” He could not say if it was the international edition of the Wall Street Journal, which ran Lawrence Carrel’s piece on its front page in May 2001. He said he mentioned it to Shanks, wanting to verify that the case was “being properly addressed.” Makinson and Shanks discussed the merits of the case, but not if the allegations were true. He said he could not concern himself with the details of the case because Shanks was overseeing it. Judge Keenan asked him what “merit” meant, and Makinson replied that the defense of the case had merit. “I had left the matter in David’s hands and felt it was his responsibility to address it,” he said. In addition, Makinson claimed he was not told of the book’s recall; according to Silverstein, the first time this has ever happened at Penguin. Makinson said he became aware subsequently that the book was taken off shelves. Makinson was asked about editor Colleen Breese’s actions in putting Complete Poems together, where she detailed how she had photocopied Silverstein’s book, Not Much Fun. It was no surprise when he told the court he was not aware of this, and does not concern himself with operations at that level. “It concerns me that editors throughout the company act in a responsible manner,” Makinson said. “I think Penguin acted responsibly and with courtesy.” He went on to say that personally, he feels that perhaps Silverstein should have been given attribution in Complete Poems, and given some subsequent credit. His time on the stand drawing to a close, Makinson was asked several pointed questions. He did not discuss the case with Kathryn Court, the Penguin USA publisher, who will be a witness on Tuesday. He did not make any sort of investigation into the case, because it was in the hands of Shanks and corporate counsel. Furthermore, he did not have a role in the book, or any other in the company. “I don’t get involved in any title anywhere in the world,” lawsuit or not, he said. Makinson, who gave a deposition to the court in 2003, had some of his previous statements read back to him. He sat up straight in his chair, and with a steely gaze he spoke directly to Rabinowitz. “I believe Penguin was acting in an ethical manner,” he said. It was at this point that the plaintiff’s attorney asked the witness if he even knew the book that was in question. Makinson said he’d never seen the book, nor looked at it. So Rabinowitz took one off the plaintiff’s table and showed him a copy. With no cross-examination from Dannay, the witness was done. He and Shanks, accompanied by Gigante, promptly left the courthouse.  It was still early enough in the morning that Judge Keenan thought the court could hear the rest of Colleen “Mikki” Breese’s video deposition. Both sides have had this deposition in their hands since December 2001, but the plaintiff wanted all six hours played in open court. It was like watching an infomercial for a product you had no need for. Picking up the testimony where the tape stopped on Friday, Breese was shown her contract with Penguin, signed by Kathryn Court. Breese did not know she was the publisher. She also was shown a letter she sent to Michael Millman, the ex-editor who testified Friday that he oversaw the project. Breese said in the letter that she thought a book that compiled all of Parker’s poems was a good project to follow Complete Stories, which she also had edited. She was asked where the idea came from for the book. “Where does anyone get any ideas from?” she asked the attorney. “The idea came into my head.” Nobody at Penguin Books suggested to her that she compile Dorothy Parker’s poems. “This appears to be my idea,” she said a little proudly. It would be her last book for the company, and in reality, her last book for any other company. Breese said that she was never given Silverstein’s manuscript, which he gave to Penguin in 1994 and they turned down. She said she wasn’t sent it, and was not aware that Penguin had made a previous offer to him. Breese said she purchased a copy of Not Much Fun, and she did see Silverstein’s copyright notice. However, she believed this only covered his introduction to the book, because “he can’t copyright Dorothy Parker’s poems, just the introduction.” At this point, editor Millman told her it was OK to copy Parker’s poems from NMF for Complete Poems. She began work on copying the poems for the book, and assembled the package for Millman. It also came out that she never once met him in person, and seemed surprised to say that she wouldn’t know what he looks like if she ever did. The two did not discuss the legality of photocopying Silverstein’s book. The production of Complete Poems was an exercise in using a copy machine for Breese. She did no actual editing of the book’s contents, or clearing the rights with the estate of Dorothy Parker. She did not discuss specific poems with Millman, or where the titles came from (many, apparently, created by Silverstein). She spot-checked if Dorothy Parker even wrote all them – she took Silverstein’s research at face value, since his publisher, Scribner, was so reputable. If she had the time, she looked some of them up on microfilm, to match the poems with the NMF list of poems. But she definitely did not check the words, punctuation, or formats. Breese did not enter any of the poems into a text document on her computer; she merely made paper copies for Millman. Breese gave a brief history of her involvement with Dorothy Parker. It began in 1988 at the University of Toledo, when she began her dissertation on Parker. This became Excuse My Dust: The Art of Dorothy Parker’s Serious Fiction. She said she amassed a large volume of documents along the way, all photocopies that she obtained at the university library. As she said in earlier testimony, Penguin was open to a book of Parker’s poems, and when they said she could be the editor, she thought, “Wonderful, I already have 50 percent of them copied already.” She began her research back at the library. But the publication of NMF was a Godsend to her, the editor who had to drop a dime into the microfilm reader for every printout she dug up of old Parker poems. As she put it, “I was tired of making copies.” Breese sent the stack of copies off to New York to Millman. She reiterated that NMF was the source of the section of the book called “Poems Uncollected By Parker” and that Millman knew these all came out of NMF. She did not think anything more of this. The next section of her testimony got back to what Silverstein was asked in Day One of the trial: What is a poem, and what is poetry. At this, Breese perked up as if she was back in the classroom. She said this was something she used to discuss with her students. Breese was asked to define free verse, and she immediately quoted Robert Frost: “Free verse is like playing tennis without a net.” She was asked if there were conflicting definitions of what a poem is, and she agreed, with a roll of her eyes. This was something you won’t get by reading the transcript, which is a good reason to play the video in court. Finally, she was asked if she taught free verse to her class. “Yes, I teach Walt Whitman,” she said with a huff. Then she gave a short lecture to the court on poetry. She was asked if she thought Silverstein was a scholar, in her opinion. Breese was dismissive of that. “I used his book as a source to make clear photocopies,” was how she termed the task of assembling Not Much Fun. Breese was shown her dissertation, and page upon page of copies that were used for her bibliography, primary and secondary sources. She said she read all of Parker’s work and all criticism of the work. For the next two hours of the tape, the attorneys reviewed with Breese the work she did on Complete Poems. Time after time, it was shown that she did indeed photocopy NMF, warts and all. Even where Silverstein goofed, she copied that too. In the poem “Oh Look -- I Can Do It, Too” he dropped an entire line from the poem. In Complete Poems, that line is missing as well. Did she mean to leave it out, she was asked rhetorically. “No,” she said, “and I didn’t think he had either.” “I didn’t see that as my job,” she said. “Whomever they got as a copy editor at Penguin” should have gone line by line to check the poems, because Breese didn’t think she should have had to. She did not look at the original source of the materials. “I made Xerox copies from Not Much Fun,” she said. The plaintiff’s attorneys read Parker poems from the original sources and then compared them to what Breese used in Complete Poems. This was very tedious as they talked about Emdashes, capitalization, and line breaks. “Line by line?” Breese asked. “No. I did not do any copyediting in Complete Poems.” After Complete Poems was published in early 1999, Michael Millman sent about five complimentary copies to Breese, with a nice note. That was the last she heard from Penguin until 2001, when Millman called her to say there was a pending lawsuit. Breese was never told if the book was a success or not, and sales figures were never shared with her. No future projects were ever discussed either. On Tuesday, what could be the final live witness in the trial is due to take the stand. Kathryn Court, president and publisher of Penguin Group (USA), will be in court at 10 a.m. The court keeps a box of tissues in the witness box. But I don’t think this case will draw any tears from anybody, unless they are tears of joy when it is all over. Labels: legal, news
Posted by Kevin Fitzpatrick on Monday, July 23, 2007 at 10:21 PM | Permalink | Comments
Friday morning during Day Four of the Dorothy Parker Copyright Trial the courtroom of Judge John F. Keenan did not know what to expect of the first witness. Judge Keenan said, “I have no idea whether he’s hostile or not,” prompted by a memo from one of the attorneys in the case. The air of mystery was around a former Penguin Classics editor who was difficult to locate, didn’t return phone messages, and ultimately had to be served with a subpoena by Penguin to appear in court. This set up a bit of drama for the appearance in the witness box of the editor who had set in motion the events that would lead to Penguin’s ill-fated 1999 book, Dorothy Parker Complete Poems, and the lawsuit brought by the plaintiff in the case, Stuart Y. Silverstein. When the judge was done, and said that we would all have to wait and see if the witness was going to be hostile or not, up stepped the former editor to be sworn in, Michael Millman. Everyone had been anticipating his appearance in court, but after 1 minute I could tell he would be the exact opposite of what a “hostile” witness could be. (I really don’t know what a hostile witness is, except from the movies). Millman was open, friendly, gracious and pleasant. He spoke calmly and evenly as he laid out the events of 12 years ago that brought this case to life. At times he was apologetic and looked eager to please – the judge, the lawyers, the court reporter. He did not look comfortable sitting in the witness box, but he did try to relax. Silverstein’s lead counsel, Mark Rabinowitz, of Neal, Gerber & Eisenberg, asked the first questions. Rabinowitz is getting more relaxed and confident as the days go on. He is a little different from the opening day on Tuesday; I’d say he appears to be more comfortable shooting the questions out. Penguin’s lead attorney, Richard Dannay of Cowan, Liebowitz & Latman, is still the more intimidating of the two, but that is probably because Dannay looks like he has been practicing law for a lot more years than Rabinowitz, and is more of a courtroom veteran. Rabinowitz tried, without a lot of luck, to grill Millman on how hard he had been to find for the trial. Millman gave some personal reasons about why he was not easy to find in Upstate New York. Millman said he left Penguin in March 2006. “Basically I was let go. We came to a parting of the ways after almost 20 years.” He did not give a reason and was not asked if this lawsuit played any part in it. Then he gave a history of how Complete Poems came to become part of the Penguin catalog, and how it was created. Millman was a senior editor in 1996. He said that Penguin editors and authors were given a pamphlet that “sketched out” copyright guidelines, but he had no formal copyright law training. He was asked to read a letter that a Penguin in-house attorney had sent internally that outlined policy and fair use for editors to use copyrighted material. This same line of questioning was used on Wednesday on Jane von Mehren, Millman’s former boss, who also said she did not have very much copyright training at Penguin. Silverstein’s team is trying to show that Penguin told its staff about copyright law, but it did not sink in. Next, Rabinowitz had Millman lay out the specifics of the book. He said he first heard of Silverstein from von Mehren at a staff editorial meeting. He then got a manuscript of Not Much Fun (NMF). Millman said that what made sense to him was not to publish a small selection of poems that Dorothy Parker didn’t want to re-publish, but to have them be published as part of a larger collection of her work. This was discussed with von Mehren, he said. A letter was sent from von Mehren to Silverstein stating that Penguin wanted to publish a larger collection of Parker’s work, and they were inclined to use his manuscript as part of it. They also offered to hire Silverstein as the editor of the larger book, for $2000. This was around the same time as Complete Stories, which Penguin published in 1995 to great acclaim, and was the first “complete” collection of Parker’s short fiction. Millman said they were already thinking of compiling a “complete” collection of Parker poems because of this; it would be a “companion” to the earlier book. His understanding was that Silverstein rejected the proposal. At no time in the trial has it been suggested that there was any negotiations between the two parties; that Silverstein’s agent asked for more money, that Penguin countered with a better offer, or that there was any back and forth between the two. The project just suffered a quick death in 1995. Millman was asked to look at a copy of the Portable Dorothy Parker, which was a book that was on the backlist that he oversaw. He said that when he was first shown Silverstein’s manuscript, “I was very surprised.” He had never seen these 122 poems before. With Complete Stories underway, it reinforced the idea of having a “companion” to it. He was asked about the decision to publish Complete Poems: “I think I was the culprit who said I think we should do this,” but it was the editor-in-chief, Kathryn Court, that approved it. Next came the actual book editorial process. Millman said he often hired outside editors. Midwestern college instructor Colleen “Mikki” Breese came to his attention, as her testimony revealed in Day Three, sometime in 1993, around the time of the centenary of Parker’s birth. Millman then explained how Complete Poems was created. He told the Penguin contracts department that the poems were either controlled by Viking-Penguin or else were in the public domain. He got a signed agreement to publish them from the attorney representing Parker’s estate, the National Association for the Advancement of Colored People. Rabinowitz asked Millman if he had any conversation with anyone at Penguin about Silverstein having a copyright on his collection of uncollected poems and verses. “I just believed the material in question belonged to Mrs. Parker’s estate and Mr. Silverstein had no claim to them,” Millman said. He was asked if he made a decision to ignore Silverstein’s copyright. “As far as I could tell, the poems were all owned by the NAACP, or else had fallen out of copyright,” he replied. Rabinowitz tried to get Millman to say he ignored Silverstein’s copyright notice, but he could not. The timeline of events showed that Millman mailed Breese a copy of “Not Much Fun” when his 2001 deposition was read back to him. “It sounds like me,” he said with a big smile. “Convoluted and confused.” The attorney proceeded. Millman’s correspondence with Breese was read back to him, which shows he brought up NMF with her. Breese then photocopied the pages of NMF to use for Complete Poems. “Cutting and pasting” was first explained in a letter from Breese to Millman, as he explained, “…it was the absolute custom we did with all the Penguin Classics.” Then a letter from Breese was read, saying that she would not want to “direct readers to the competition” by mentioning Silverstein or his book in Complete Poems. Indeed, Penguin has never included Silverstein in any of its Dorothy Parker books’ end matter. Breese then sent the manuscript for Complete Poems to Millman, who ultimately sent it to the production department. The legal department did not vet it. The Complete Poems “A Note on the Text” was read back to Millman. He agreed with the statement that the book did not “faithfully” include mention of NMF’s existence. Rabinowitz then read to Millman the same words he read to von Mehren, which were from the Penguin catalog of the late 1990s and early 2000 that said Complete Poems claimed to present poems that had never been collected before, which was untrue, since NMF had been in print from Scribner since 1996. Next up to bat was Richard Dannay, who at one time, when Millman was still under the wing of Penguin, would have been looking out for Millman’s best interests. Now it appeared Dannay just wanted Millman to do his best to set the record straight, and shore up Penguin’s defense. From Millman’s testimony on Friday, it did not appear Dannay had coached him about what to say. Again, Millman was not “hostile” to the defense today. Millman was first shown an October 1996 memo he had sent to Breese. It was an annotated list of all of Parker’s poems. In fact, this was the “Complete Chronology” that Silverstein had compiled and used at the back to NMF. Then Dannay read the Penguin-NAACP contract that allowed for the publication or all these poems. “We were using Silverstein’s book as shorthand…” Millman said. “I said to Xerox that list to my assistant… we would use it as tear sheets” for the book production. Dannay asked Millman, did Penguin have the right to publish each poem? “Correct,” the witness replied. Letters from 1995 to 1996 were introduced that show Millman and Breese were working on Complete Poems, and that the NAACP had agreed to a contract to publish it. Dannay said the correspondence showed Complete Poems was underway before NMF was published. Rabinowitz had a very brief re-direct of Millman. The witness was shown paperback copies of both Not Much Fun and Complete Poems, held up by Rabinowitz over his head. Physically, he wanted the witness to look at the books, then said NMF retailed for $15 and Complete Poems for $16. However, NMF has half as many poems as Complete Poems, yet retails for $1 less. Were these two books comparable to each other, Millman was asked? “They didn’t seem to rule each other out,” Millman told the plaintiff’s attorney. “They were kind of going for two different markets.” Millman was done. He had corroborated his earlier testimony from 2001, and his remarks lined up almost exactly with what Breese had said. He didn’t think he had done anything wrong, because the copyrights were not in Silverstein’s control. To me, it didn’t look like had added anything new to the case. The courtroom was now ready to resume Breese’s video testimony from 2001. Papers were pushed aside. I should also point out, physically in the courtroom, there are thousands of pages of documents. There are photocopies of entire books and collections in evidence. There are hundreds of pages of evidence, all in big, thick binders, which are passed from attorneys, to judge, to witness. There have also been three court reporters working diligently to get down every word said in court. When all is said and done, there could be a million pages of documents generated from this trial, easily. The plaintiff’s side was now ready to resume playing the Breese DVD. She has about 4 hours of testimony from her 2001 deposition, I think, and the plaintiff wants to play the whole thing in open court. It is pretty boring. There is a lot of page shuffling, stopping, starting, and repeating of questions. About every 5 minutes she says something worthwhile. The judge is going to play a little bit each day, which we will watch, after the real witnesses are done. So on Monday we will see more of her. After watching Breese on the monitor for a few hours now, she is beginning to be a more sympathetic character to me. She looks like my grandmother, taking her reading glasses off and then putting them back on. Breese did not think she was doing anything wrong when she photocopied Parker stories and poems over the years of teaching. She just wanted Parker books to use in her classroom, and, lo and behold, an editor at Penguin said she could have her wish. It must have been exciting for her, a part-time instructor at a small college in Ohio, to be getting faxes and packages sent to her from a prestigious New York City publishing house to the English department offices of her college. Maybe professors in the department saw her working on a book about Dorothy Parker, and then a second one? Breese said that when Penguin flew her to New York to give her deposition, the company put her up at the Soho Grand Hotel. So Penguin spent more on her hotel bill than they did on Breese’s fee to edit their book. At one point on the tape, when she said she was no longer at Toledo University, Breese said she didn’t have an office any more. She looked pretty sad to say it, as if she missed university life. When the DVD fired up again, Breese said that while using photocopied material, it was always a problem to get clear copies, there was an “interest in clarity” to consider. Rather than use second or third generation copies, she wanted to use a clean book: NMF. Breese did not do what Silverstein did, go to microfilm to locate Parker’s poems and verses, she said, because copies from microfilm “are muddy or have spots” and that “none of them are really good.” She said she did not use any poems from original sources, that just photocopies of NMF were used. This would explain how she used the titles Silverstein gave to untitled Parker pieces, as well as using his punctuation and format changes. For others, she used photocopies she got from the Toledo library and others through academic inter-library loans. Breese was not asked and did not say that she actually owned any Parker books to make her photocopies from. Next came the line of questions I was waiting to hear, about when she learned she might be in hot water for editing Complete Poems. She said she did not learn that Silverstein had sent a demand letter claiming copyright infringement to Penguin. Breese said she became aware of the sticky issue much later. “My knowledge begins in May 2001,” she said firmly. Her claim was that during the months Silverstein was asking Penguin for documents, Penguin did not contact her about it. However, in the responses to Silverstein that were sent from Penguin before the lawsuit began, Breese was mentioned, as if she had a hand in helping Penguin explain herself. The trial is also showing what a neophyte to publishing that Breese was. How Penguin could use someone of this caliber to edit one of its most important authors is almost unfathomable. Breese said she did not know what line editors do. That was explained to her. Later, when Silverstein’s attorney asked Breese if she was aware that Penguin had approached Calvin Trillin, the renowned New Yorker writer, to write the introduction to Complete Poems, she said “no” with a blank look. (So Millman, after one of the most famous New Yorker staffers turns him down, he just goes with a women’s studies teacher nobody has ever heard of? Didn’t this raise a red flag with Jane von Mehren? Or Kathryn Court, the Senior Vice-President, Publisher, and Editor in Chief of Penguin Books?) Silverstein’s attorney tried to pin her down to when she learned of the lawsuit. Breese said she saw the May 4, 2001, article by Lawrence Carrel in the Wall Street Journal. However, she saw it first on a link on dorothyparker.com, when she was naturally curious about Parker and did a search for her online. She said dorothyparker.com came up, and she clicked around the site “just for curiosity” and saw information about the lawsuit. Breese said Complete Poems started when Millman called her. Complete Stories had been a success, a book she had compiled by also photocopying for Penguin as many Parker short fiction pieces as she could find by using the Reader’s Guide to Periodical Literature. Millman sent her Silverstein’s Complete Chronology to use; she said she checked it against the Reader’s Guide for any he might have missed. I had to laugh to myself when she said she didn’t locate any that Silverstein may have missed, after hearing testimony for four days about how fanatical he had been about locating “all” of her work. The DVD was shut off for the day, and the trial closed for a weekend recess. I was sad that not a single Parker poem had been read today. The courtroom had heard her words on the previous three days, read by the judge, the attorneys, and the witnesses. I’d like to ask the clerk of the court if he could read a poem of the day, perhaps after he is done with his “all rise” bit at the beginning of the session. The trial resumes at 10 a.m. Monday with some VIPs from Penguin taking the stand. Labels: legal, news
Posted by Kevin Fitzpatrick on Sunday, July 22, 2007 at 1:53 PM | Permalink | Comments
On Day Three of the Dorothy Parker Copyright Trial the mood in the courtroom changed. Possibly this was due to the fact that the court has now heard from two witnesses and moved onto two more, one in the flesh and one on a TV monitor. For a third day in a row, I was again the only spectator who didn’t need to be there. The third day of Stuart Y. Silverstein vs. Penguin Putnam, Inc. began with testimony from Gillian Blake, the executive editor of Bloomsbury Publishing. Blake was the editor at Scribner of Silverstein’s 1996 book, Not Much Fun: The Lost Poems of Dorothy Parker. Blake worked at Scribner for ten years, from 1993 to 2003, rising to the level of senior editor, before she joined Bloomsbury in 2004. Back in 1996 she was an assistant editor who inherited NMF from another editor who had left the company. The book was well on its way to publication when she took it over, Blake told the court. Blake, who has edited Owen King, Douglas Coupland, Andreas Klein, and Joanna Trollope, was confident and relaxed on the witness stand. She was a straight-talking witness who seemed to have a firm grasp of the case. Blake sounds like Kathleen Turner. Blake carefully examined each piece of evidence. Some were pieces of her correspondence from 12 years ago. At one point, as lawyers searched for an exhibit to hand her, she said, “I was just on a grand jury for a month. I know about this.” This is the exterior of the Daniel Patrick Moynihan United States Courthouse. The reason for Blake’s presence in Federal Court was clear: she edited the book that the plaintiff is suing Penguin over. The first questions came from Silverstein’s lead counsel, Mark Rabinowitz of Neal, Gerber & Eisenberg. This part of the testimony was only about one thing, the “Complete Chronology” that is at the back of NMF. This was the section that Silverstein was grilled about when he was on the stand on Wednesday by Richard Dannay, Penguin’s lead in the trial. This section is a list of what is purported to be all of the published poems and verse of Dorothy Parker’s career. Both sides have gone over this repeatedly, over the opening sentence: “This is a chronological list of all of Dorothy Parker’s poems.” The italics have driven everyone batty in this case, and today we learned it was Blake who ordered the italics put in. Here is why. “You can’t put a list like this in the back of a book and not explain what it was,” she said. It was done so readers knew what they were reading, “it was not an index.” She said the italics, she believes, did not exist in an earlier draft of the introduction to the chronology. Blake was shown a bound galley of NMF, and the “all” was not included. “It was my suggestion to clarify,” she said. Then Blake explained the conundrum she faced as editor. When Not Much Fun was sent out in bound galleys (these are preliminary books that are sent to reviewers, the media, and retail buyers) it did not have a clarified Complete Chronology, it was called Sources. This led to confusion, because the long list showed Parker pieces that were not in NMF; Silverstein had included Parker’s entire publishing career. Blake said people receiving the galleys were confused as to what the contents were, what was in NMF, and where it’s from. “We were trying to explain what is in it,” she said. “This is a complete list of Dorothy Parker’s poems, in addition to what is now in NMF.” This opened up a can of worms. And these worms were all squirming about what “all” means in the universe of Dorothy Parker’s oeuvre. According to Blake, this chronology was not meant to be a list of each and every single poem Parker ever wrote, it was merely to show the publishing history of poems that were in print. It was not meant to be as finely detailed as the be-all and end-all of Parker’s output of poems and verse. She was asked if this list was meant to show every piece she’d ever written. “We could never make claim to that,” she said. Another piece of evidence was then given to Blake, a letter that was sent out to all those that received those bound galleys 11 years ago, clarifying what the Complete Chronology meant. It showed that even back then, before the lawsuit, the book was giving the publisher a headache. Even the presiding judge, Judge John F. Keenan, stepped in. “Why was the word “all” there if you didn’t mean it?” he asked Blake. She replied this meant all the compiled poems. Then she gave a common scenario, saying that in publishing “this happens all the time” that when you put a “complete” book out there, another manuscript “comes out of the closet” of something you never knew about. The cross examination for Penguin was conducted by Thomas Kjellberg, of |
