Day Six: Penguin Publisher, Expert, Enliven Parker Copyright Trial

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.

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