Day Five: Penguin’s Top Execs Testify in Parker Copyright Trial

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.

NOT MUCH FUNI 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 Complet
e 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.

COMPLETE POEMSIt 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.

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