Day Three: Witness Enlivens Parker Copyright Trial

On Day Three of the Dorothy Parker Copyright Trial the mood in the courtroom changed. Possibly this was due to the fact that the court has now heard from two witnesses and moved onto two more, one in the flesh and one on a TV monitor. For a third day in a row, I was again the only spectator who didn’t need to be there.

The third day of Stuart Y. Silverstein vs. Penguin Putnam, Inc. began with testimony from Gillian Blake, the executive editor of Bloomsbury Publishing. Blake was the editor at Scribner of Silverstein’s 1996 book, Not Much Fun: The Lost Poems of Dorothy Parker. Blake worked at Scribner for ten years, from 1993 to 2003, rising to the level of senior editor, before she joined Bloomsbury in 2004. Back in 1996 she was an assistant editor who inherited NMF from another editor who had left the company. The book was well on its way to publication when she took it over, Blake told the court.

Blake, who has edited Owen King, Douglas Coupland, Andreas Klein, and Joanna Trollope, was confident and relaxed on the witness stand. She was a straight-talking witness who seemed to have a firm grasp of the case. Blake sounds like Kathleen Turner. Blake carefully examined each piece of evidence. Some were pieces of her correspondence from 12 years ago. At one point, as lawyers searched for an exhibit to hand her, she said, “I was just on a grand jury for a month. I know about this.”

This is the exterior of the Daniel Patrick Moynihan United States Courthouse.


The reason for Blake’s presence in Federal Court was clear: she edited the book that the plaintiff is suing Penguin over. The first questions came from Silverstein’s lead counsel, Mark Rabinowitz of Neal, Gerber & Eisenberg. This part of the testimony was only about one thing, the “Complete Chronology” that is at the back of NMF. This was the section that Silverstein was grilled about when he was on the stand on Wednesday by Richard Dannay, Penguin’s lead in the trial. This section is a list of what is purported to be all of the published poems and verse of Dorothy Parker’s career. Both sides have gone over this repeatedly, over the opening sentence: “This is a chronological list of all of Dorothy Parker’s poems.” The italics have driven everyone batty in this case, and today we learned it was Blake who ordered the italics put in. Here is why.

“You can’t put a list like this in the back of a book and not explain what it was,” she said. It was done so readers knew what they were reading, “it was not an index.” She said the italics, she believes, did not exist in an earlier draft of the introduction to the chronology. Blake was shown a bound galley of NMF, and the “all” was not included. “It was my suggestion to clarify,” she said. Then Blake explained the conundrum she faced as editor. When Not Much Fun was sent out in bound galleys (these are preliminary books that are sent to reviewers, the media, and retail buyers) it did not have a clarified Complete Chronology, it was called Sources. This led to confusion, because the long list showed Parker pieces that were not in NMF; Silverstein had included Parker’s entire publishing career. Blake said people receiving the galleys were confused as to what the contents were, what was in NMF, and where it’s from. “We were trying to explain what is in it,” she said. “This is a complete list of Dorothy Parker’s poems, in addition to what is now in NMF.”

This opened up a can of worms. And these worms were all squirming about what “all” means in the universe of Dorothy Parker’s oeuvre. According to Blake, this chronology was not meant to be a list of each and every single poem Parker ever wrote, it was merely to show the publishing history of poems that were in print. It was not meant to be as finely detailed as the be-all and end-all of Parker’s output of poems and verse. She was asked if this list was meant to show every piece she’d ever written. “We could never make claim to that,” she said. Another piece of evidence was then given to Blake, a letter that was sent out to all those that received those bound galleys 11 years ago, clarifying what the Complete Chronology meant. It showed that even back then, before the lawsuit, the book was giving the publisher a headache.

Even the presiding judge, Judge John F. Keenan, stepped in. “Why was the word “all” there if you didn’t mean it?” he asked Blake. She replied this meant all the compiled poems. Then she gave a common scenario, saying that in publishing “this happens all the time” that when you put a “complete” book out there, another manuscript “comes out of the closet” of something you never knew about.

The cross examination for Penguin was conducted by Thomas Kjellberg, of Cowan, Liebowitz & Latman. After determining that Blake had remained in touch with Silverstein over the years, Kjellberg went straight back to the SNAFU over the Complete Chronology. Had she been brought up to speed about this issue lately? By Silverstein?

“There is a lot of things you forget,” Blake said. “But it was enough of a back-and-forth feedback that I remembered it.”

“My belief was…” she said, “A lot of lost manuscripts are found… though they are not truly “lost”… this list was adding to the compiled list of Dorothy Parker (works).”

Kjellberg went back to the problems of the Complete Chronology, but Blake saw it as just more of what an editor does. “Putting out fires every day, that’s our job,” she told the court.

“None of us ever thought we were making this claim” that this was all the poems Parker wrote, she said. More evidence was presented to her, including marketing copy and “tip sheets” for sales purposes, which stated NMF would be publishing previously uncollected poems. Blake was asked about the accuracy of Silverstein’s claims to his research.

“We don’t even have fact-checkers in book publishing,” she said with a smile, as Kjellberg tried to pin her down of the veracity of a statement Silverstein made in the book’s pre-publication process. “I’m not a Dorothy Parker scholar,” she’d said earlier. The fact that more “lost” poems are out there came up again. “You never know when you are dealing with a (dead) author… that it could come around that there is more out there,” she said. “There could be more Dorothy Parker… this is everything we knew about.”

Blake was just about done, when Kjellberg pulled out something I have been waiting to hear for the whole trial, a little piece of text Silverstein added to NMF that I always thought could be an “Aha!” moment for Penguin. In the endpapers of NMF this sentence appears, alone on an otherwise single blank page:

“Upon hearing of the poet George Crabbe’s death in 1832, the British home secretary (and later prime minister) Lord Melbourne declared, “I am always glad when one of these
fellows dies, for then I know I have the whole of him on my shelf.”

Clearly, to some, this was Silverstein pointing his finger at the world, saying he had located and published “all” of the “lost” poems of Dorothy Parker. It could be a damning little statement to make. However, the question that Kjellberg was going to ask Blake was struck down by Judge Keenan.

Rabinowitz got his turn for a final question. He cut right to the chase with Blake. He asked her if she had any idea how Silverstein chose the selections for the book, or which items he selected. He tried to ask her about one specifically, but she drew a blank, unless she could look at the index. The judge agreed.

Kjellberg got the last question for Blake. He asked her if the Complete Chronology contains the known universe of all Parker poems. Blake looked at him and said, “No, I do not.”

From Blake and her Michelle Pfeiffer looks, the courtroom shifted next to view a video screen for the next witness, who looked like she was in a Coen Brothers movie. We watched the beginning of a video deposition taken in December 2001 from Colleen “Mikki” Breese, a former instructor at the University of Toledo. Breese was the freelance editor who edited for Penguin two books: Dorothy Parker Complete Stories (1995) and Dorothy Parker Complete Poems (1999). The back-story of how Breese, a part-time instructor at a state college in northern Ohio, came to edit two of the most important books on Penguin’s backlist, is a quirky little tale of Xerox machines and phone calls.

Breese said she earned all of her undergraduate and graduate degrees at UT. She also earned her PhD in English literature in Toledo, and taught writing, literature, women’s literature, and women’s history, from 1989-2000. At the time of the deposition, she was a public school substitute teacher in suburban Ohio.

How she came to the attention of Penguin editors in New York City was via U.S. Mail. In her deposition, she said that she taught a course on Dorothy Parker, and routinely photocopied Parker’s works to use in class. “As a teacher it was difficult finding material,” she said. “I was going to Kinko’s making copies all the time… I thought it was time… I thought (a book) was needed.” Breese said she wrote a “To whom it may concern” letter and mailed it to the Viking Press in New York. (Viking was subsumed by Penguin years ago; Viking had published Parker’s books since before World War II. Breese would have been familiar with Viking if she had any of the old Portable Dorothy Parker books, that were part of the Viking imprint for decades). The next step is amazing: Penguin Senior Editor Michael Millman replied to Breese, saying in effect that the company would like to publish new compilations of Dorothy Parker material. By coincidence, Breese already had photocopies of all of Parker’s work. Her dissertation in Toledo was on Parker. And she was available.

“I had already collected all the stories,” she said. “I made copies of them. Made a copy for Michael. I arranged them.” She compiled the stories into one batch of photocopies, and was paid $1,000 for her work. Complete Stories came out in 1995. This would lead to her next project for Millman, Complete Poems, four years later.

The plaintiffs shifted gears with Breese at this point; it appears they are moving onto her work on Complete Poems. First, they showed her a copy of the Viking-Penguin Author’s Guide. This was the first time she’d ever seen it; her editor had never sent her one. The Guide is an outline of do’s and don’ts for authors working with the company, both legally and ethically.

The questions turned to the litigation. She said she first learned that Penguin was being sued over the book she edited and compiled in the spring of 2001, when Millman left her a message on her answering machine. He said a lawyer would call her. Soon Penguin’s lead attorney, Alex Gigante, contacted her and told Breese what the case was about.

The last question played in court was the most explosive of the day. From off-camera, the voice of the plaintiff’s attorney asked, “Do you fear that Penguin will point the finger at you and make you a scapegoat?”

“Absolutely not,” said the former English teacher from Ohio.

Testimony continues tomorrow at 10 a.m. in Courtroom 20C.

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