Day Four: Ex-Editor Appears in Parker Copyright Trial

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 Mil
lman, 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, when she was naturally curious about Parker and did a search for her online. She said 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.

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