Day One: Parker Copyright Trial

Dorothy Parker in life was no stranger to courtrooms. In 1927 she ended up in one in Boston while marching against the execution of Sacco and Vanzetti. Years later, in 1955, Parker testified in New York State Supreme Court during the Communist Red Scare. But Tuesday’s proceedings at U.S. Federal Court at 500 Pearl Street were something else. Parker was the subject in the long-running copyright battle Stuart Y. Silverstein vs. Penguin Putnam, Inc. We have been tracking this case for 6 ½ years, which is getting close to the length of time the Algonquin Round Table was in session. Lately the trial has been a headline writer’s dream at The New York Times, Toronto Globe and Mail, Galley Cat, and TheStreet.com.

But the only person to attend the trial today, who didn’t have to be there, was yours truly. Yes, there were 75 empty seats in the gallery of courtroom 20C of the Daniel P. Moynihan Federal Courthouse, United States District Court for the Southern District of New York. High on the 20th Floor, with a sweeping Spider-Man view of four Boroughs and New Jersey, the action began today of what could be a ten-day trial.

For all the background on the case, and why Silverstein is suing Penguin, read our background material here. Now, on with the show.

COMPLETE POEMSIt was exciting to finally get the trial going, after the numerous delays of the last couple years. In open court, the two sides would go at it, in front of the same veteran jurist who began the trial in 2001. Judge John F. Keenan looks like something out of Central Casting of what a federal judge should be, as if he is a New Yorker cartoon judge. Watching him was the best part of the day, as he made faces, cut off lawyers at the knees, rolled around in his chair, and ordered people around. He snapped at everyone today. His best moment was at the very end of the day’s proceedings, when he ordered his clerk to fix the damn courtroom clock, which is running 10 minutes slow. Judge Keenan doesn’t want to waste a minute in this case.

Both the defense and plaintiffs had two attorneys each at their tables. Both sides were armed with copies of the two books in question, Not Much Fun: The Lost Poems of Dorothy Parker (Silverstein’s book, hereby referred to as NMF) and Dorothy Parker Complete Poems (Penguin’s book from 1999, that they were forced to withdraw from sale in the U.S. and Canada by Keenan four years ago). The defense was also armed with a library of Parker material: multiple copies of the new Deluxe Portable Dorothy Parker, Marion Meade’s biography What Fresh Hell Is This? and even the lesser Parker books by Barry Day and John Keats. They have Parker’s life at their fingertips.

I liked that the plaintiffs went to all the trouble of creating giant blowups of Parker material, on big foam-core boards 4 feet high, of New Yorker pages, Parker letters, and book pages. The judge, with a wave of his hand, said without a jury present, he didn’t want to see them on the tripod the lawyers brought, so they sit unused in a corner. I want one. Or two.

Judge Keenan started the trial on time with a smackdown to both plaintiff and defendants. He said, “The animosity… from each side is beginning to burden on hostility and must stop now…” He was furious that the two parties could not come to any pre-trial agreements as he’d asked for, which could stretch the trial into August. He also said he got an “insulting letter” from one of the attorneys, which appeared to tick him off. Then the attorneys began their opening statements.

Silverstein’s attorney, Mark A. Rabinowitz of Neal, Gerber & Eisenberg, laid out his case in about 10 minutes. He said, “such conduct is unheard of” among Penguin’s senior management, all of whom are on the witness list and will be testifying later. He said Penguin possessed “actual knowledge” of the book by seeing its manuscript two years before NMF was published. “Penguin must now be held accountable for its actions,” he said, and that Silverstein is “seeking redress… seeking poetic justice.” His case will be not that he is claming copyright protection for the “sweat of the brow” of Silverstein’s work in locating 122 of the “lost” pieces, or of any copyediting, assigning missing titles, or punctuation. His case is that Penguin violated his copyright of the collection he created.

Next it was the defense turn, headed up by Penguin’s top legal eagle, Richard Dannay of Cowan, Liebowitz & Latham, one of the nation’s top copyright attorneys. He began by saying he was “troubled that after all these years the case was not understood.” Soon after, Judge Keenan said to him, “you should watch what you say,” before letting him continue. His argument was that Parker herself created the “uncollected works” by not choosing them herself to re-publish. His case is that even though Silverstein picked the 122 poems of NMF, that does not matter, because it was Parker who, while living, didn’t act to reprint those poems and pieces: it was Parker who did the “collecting” and not Silverstein. Dannay said that Silverstein’s collection was not copyrightable because he claimed it was “all” of the unpublished Parker poems. As the testimony bore out, this was not true, as Silverstein missed at least two he didn’t know of, and others he did not judge to include.

Danay also said that the National Association of the Advancement of Colored People, which controls Parker’s estate, only got a one-time payment of $275 to use the work in NMF, and are not getting any further royalties. Dannay said that in seven years, Silverstein has not shown a poem that was not collected in NMF.

At this point, Dannay began testing out his strategy, that Penguin was merely collecting the material for Complete Poems as it would any other anthology. Much had been made earlier of a statement by Colleen Breese, the Midwestern professor who edited Complete Poems, that she literally bought a copy of NMF, cut out the pages, and pasted them onto sheets of paper and photocopied them all for the chapter in Complete Poems. Dannay said Silverstein’s principle of uncollected poems is different from Penguin’s, with different selection principles; how can they print a “complete” book and not include uncollected work? Danay also claimed the NAACP is not getting royalties from the work, and would actually be in violation of violating copyright law by printing Silverstein’s work.

By this point, less than an hour into the trial, the judge almost cut him off. “Legally you are not making an opening statement,” Judge Keenan said, “You aren’t telling me what you want to prove.” Dannay wrapped up, saying, “Penguin has not used a single word which it did not have a right to publish.”< br />
NOT MUCH FUNThe first witness called was Stuart Yale Silverstein. He told the court he is a writer based in Los Angeles. He said he came to the project while researching a book on the Round Table, and named many of the members. Silverstein said Parker today is known more for her wit and quips than for her writing. He came to the book that would become NMF while researching Robert Benchley’s infamous reviews for the old Life humor weekly. Silverstein kept coming up with Parker poems from 1920 and 1921 that he’d never seen before, and realized, after checking them against The Portable Dorothy Parker and other Parker books, that these likely had never been reprinted before. He put aside the Vicious Circle book and focused on tracking down more Parker pieces.

A name that will be coming up a lot in this case is Randall Calhoun, another professor from the Midwest, who edited and compiled a book for Greenwood Press in the early 1990s called Dorothy Parker: A Bio-Bibliography. Calhoun and Silverstein are at odds over a number of things, including what is the definition of a poem, what is free verse, and how many Parker pieces are there out in the universe. Silverstein told the court that he first read Calhoun’s book in late 1994 or early 1995, after he was well into the research of NMF. He said he collected “virtually everything” for NMF before he read Calhoun’s book. (Calhoun was deposed and his video will be played during the trial at some point).

Silverstein did quite a bit of work to locate the 122 “lost” poems. He estimated it took 1,000 hours at more than a dozen libraries in Los Angeles and Chicagoland. Among them were the University of Southern California, Cal State libraries, and public libraries in Chicago and Evanston, Illinois. “I was pretty much a microfilm rat,” he said, because not much was on paper. He located lost Parker material in Ainslee’s, Life, the New York Tribune and The New Yorker, among others. This stretched from the spring of 1994 to the spring of 1996.

At this point, about half the day, I estimate, was taken up with one topic: what is poetry. What is a poem? What is free verse? I fear that this will be a major point of the trial, if half of the first witnesses’ testimony was trying to clarify what exactly IS a poem? Silverstein was asked, how did he determine if a piece he found was a poem? “I would make a snap judgment if it was a poem, or not,” he told the court. This was the beginning of one of my favorite parts of the trial, reading Dorothy Parker’s own words into the court record. The first instance of this was a slam-bang selection, taken from one of the brightest spots of her career, when she was Constant Reader for The New Yorker. Silverstein, in a monotone, was asked to read from the January 7, 1928 issue. Part of what Parker wrote:

“There is poetry, and there is not,” Parker wrote. “You can’t use the words good or bad, about it. You must know for yourself. Poetry is so intensely, so terribly, personal. A wise man, a very wise man – well, Hendrik Willem Van Loom, if you must have names – once said to me that if you have any doubt about a poem, then it isn’t a poem. Poetry is for you, for you alone. If, for you, it’s poetry, it will deluge your mind, drain your heart, crinkle your spine. It doesn’t matter whose it is.”

A big portion of the testimony is going to focus on what is a poem, and did Silverstein have a say in what is, and is not, a poem to include in his collection. It was shown that some of the pieces he picked came from letters, from an advertisement, from the insides of a book review, and more. At one point, even the judge got to read some Dorothy Parker, which made most observers at least smile, particularly when he murdered “News Item” until Silverstein corrected him, “Men seldom make passes/At girls who wear glasses.” Which prompted Judge Keenan to ask, “Is it a poem?” Silverstein said Parker would say it was not, it was verse — but he would call it a poem. The highlight of the morning was hearing, from the bench, the judge read out:

Christopher Morley goes hippetty, hoppetty,
Hippetty, hippetty, hop.
Whenever I ask him politely to stop it, he
Says he can’t possibly stop…

I wonder if he hoped for a good gangland murder trial to come onto his docket at this point?

Multiple exhibits were entered in quick succession to the evidence. All were Parker’s original use of the disputed poems, or else the pages of books that reprinted Parker material. Among these from NMF was “Letter to Robert Benchley” which Silverstein said he found in Benchley letters in a Boston library. “It was a letter, but I liked it a lot,” Silverstein said. He also remembered that when he located it that it was around the same time as Alan Rudolph’s feature film, Mrs. Parker and the Vicious Circle, which made a point of the Parker-Benchley relationship. So he wanted to “shoehorn it in” to the book.

The afternoon was bogged down in clarifying the debate about what constitutes a poem, and the judge seemed displeased that the plaintiffs were using scholarly English papers about poetry techniques that were written in 2002, long after NMF was printed. As the day proceeded, the timeline of the case was teased out more. In Los Angeles in 1994 at the ABA convention, Silverstein met Penguin executive editor Jane von Mehren, and pitched her his idea for the book. He told her about the compilation of “lost” poems and she said she was interested. Correspondence for the next several months proved that Penguin would offer him $2,000 for the compilation but not for a book, as the company wanted to print a collection of all her poems. He rejected the offer.

The end of Day One neared as Silverstein recounted for the court his displeasure when he saw Complete Poems on sale in a Los Angeles area bookstore in 1999. He realized, just by reading the table of contents, that the company had lifted his collection practically intact. He estimated that of Complete Poems, 40 to 50 percent of the book is from Not Much Fun, which Penguin published in Complete Poems as one chapter called “Poems Uncollected by Parker.” Silverstein was asked to read Penguin’s “A Note on the Text” from Complete Poems, which says that it is the first collection of all of Parker’s poems. Not exactly true.

Silverstein said that upon learning Complete Poems was using his collection, and going to as many as six or seven printings of the book, he took action and issued a demand letter to Penguin. The lawsuit followed.

The case continues tomorrow.

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