Penguin Wins U.S. Decision in Copyright Trial

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.

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.