Day Two: More Parker Copyright Trial

Splitting hairs. That is what Day Two of the Dorothy Parker Book Battle was about. This case is going to be decided by the narrowest of arguments when the case is played out. In the follow-up to Day One, plaintiff Stuart Y. Silverstein was grilled by Penguin Books’ lead defense counsel, while the second witness to appear, Random House Vice President and Publisher of Trade Paperbacks, Jane von Mehren, claimed to have been totally in the dark when she was working at Penguin and the disputed book, Dorothy Parker Complete Poems, was published on her watch eight years ago. It was a day of sparring and feints, but not a single bombshell went off in Courtroom 20C of U.S. Federal Court.

When the first day ended, Silverstein’s examination by his attorney, Mark A. Rabinowitz of Neal, Gerber & Eisenberg, was wrapped up. Day Two begin with the cross examination by Richard Dannay, Penguin’s hired gun from Cowan, Liebowitz & Latham. Dannay drilled Silverstein about copyright law and the facts of how he compiled his book, Not Much Fun: The Lost Poems of Dorothy Parker (NMF). Dannay begin by asking Silverstein what he was claiming to copyright in NMF, to which he replied the selection of an item, or not the selection of an item, is subjective. Silverstein said he is claiming his book is an example of subjective selection, and that is why it is copyrightable. Dannay disagreed.

Dannay handed Silverstein a copy of Randall Calhoun’s book, Dorothy Parker: A Bio-Bibliography, a slim blue textbook that is playing as large a part of the trial as the two disputed books are. Calhoun, an assistant professor at Ball State University, published his book in 1993, three years before Silverstein’s book came out from Scribner. Calhoun’s book is essentially a listing of practically every article, story, poem, screenplay, and song that Dorothy Parker ever wrote. Silverstein’s book has a lengthy chronology of 99 percent of every Parker poem or verse; a chronology that Penguin is using as a wedge to hammer into Silverstein’s case.

Dannay asked Silverstein how Calhoun classifies “Figures in American Folklore” which Parker wrote in 1921. Calhoun labels it as prose, while Silverstein calls this poetry. This is one of the key elements of Penguin’s case: that what Silverstein calls a poem or verse, other sources call otherwise. Dannay read the beginning of a disputed Parker piece, a short poem that was written into a guestbook at William Randolph Hearst’s castle at San Simeon. Parker always denied she wrote the poem, and Silverstein said as much in court. He also remarked that many times Parker chose the dramatic over telling the truth, citing a 1968 Esquire profile written by Wyatt Cooper, a close friend of Parker’s.

Silverstein was asked continually to explain why others called Parker pieces poems or prose, when he did not. Dannay asked about one of the gems of NMF, “A Letter to Ogden Nash” that appeared in January 1921 in the Saturday Review of Literature, in an advertisement. (It is a classic, and Nash’s reply underneath it is even funnier). Dannay produced the Reader’s Guide to Periodical Literature from 1929-1932, and pointed out to page 1873 that the Guide called the piece a poem. Silverstein was not fazed. He said it was irrelevant that a “clerk” at the Reader’s Guide “classified” this as a poem, since another Parker item from the same month was called verse, not a poem. He said it was a clerk’s description.

You can see how the morning progressed. Penguin showed repeatedly that what Silverstein called a poem, others called otherwise. Dannay introduced into evidence Marion Meade’s 1987 biography, Dorothy Parker: What Fresh Hell is This? Silverstein said that he read the book before he compiled NMF. It was in Meade’s book, Silverstein said; that he learned of the letter Parker wrote to Robert Benchley in 1920 from a vacation in Maine. He obtained a copy of the five-page letter, and he titled it “Letter to Robert Benchley” for NMF. Dannay pointed out that Meade’s index classified it as a poem, while Silverstein said, in his opinion; it was not a poem at all, but merely a letter.

The second tact that Danay took was a major thrust of the cross-examination: how many Parker poems did Silverstein leave “out” of NMF, and how many other “lost” poems are there in actuality? He asked Silverstein about Calhoun’s book, which Silverstein had said on Day One he had read only after beginning his work on NMF research. Dannay asked how many items in Calhoun’s book appear in NMF? After much back and forth, Silverstein said virtually all of the poems in NMF are also listed in Calhoun’s index. Dannay said 118 of the 122 poems in NMF are also in the Bio-Bibliography; there is one minor discrepancy because the poem “Day-Dreams” that Silverstein called “Lost” had actually been included in “Enough Rope” (Parker’s first book). This is why Penguin used 121 and not 122 NMF poems in its Complete Poems.

More hair splitting was on the way. Silverstein called out the Calhoun compilation, saying it had mistakes in it. There are more disputed poems between the two books, such as “Men I’m Not Married To” and “The Passionate Screen Writer To His Love” that were hit on over and over.

Dannay had a hard time pinning Silverstein down to his most important question of the day: “Is there any work you determined to be an uncollected poem or verse by Dorothy Parker you left out of Not Much Fun?” Dannay asked the plaintiff. The honorable Judge John F. Keenan even phrased the question again: “When you compiled Not Much Fun did you leave out any Dorothy Parker poems or verses that were not previously collected?” It took almost 10 minutes to arrive at Silverstein’s answer: No, he did not. “There is no work I determined subjectively that was a poem or verse,” Silverstein told the court. When asked, he could not tell Dannay the names of other poems that he did not put into the book. The judge asked him again, “You don’t remember any?” to which the witness said he could not, and he collected everything that he determined was a poem or a verse.

Silverstein was asked how many verses did he leave out of the Complete Chronology, which is a section of NMF that details the place and date of almost all of Parker’s poems and verse. Silverstein said there were none. Dannay drove home the fact that Silverstein was claiming that NMF would comprise for the first time all the uncollected Dorothy Parker pieces, that it would be the fourth, the final, and the largest collection of Parker poems and verse. The defense said Silverstein had claimed as much to his agent and his publisher more than a decade ago. Dannay asked him to name the items he found of Parker’s that were uncollected poems or verse that were left out NMF. Silverstein said there were none.

For a second day, the National Association of the Advancement of Colored People, which controls Parker’s estate, was brought up to the witness. Dannay showed that Silverstein had delivered to the NAACP lists that detailed the whole scope of Parker’s poems; however, the list was not 100 percent accurate, Penguin claims. It also came out that since the book was published, the NAACP has not been paid any royalties, and in fact, the only fee paid to the organization has been $275. Dannay also had Silverstein testify that the NAACP would violate his copyright if it published Penguin’s Complete Poems.

The lightest moment of the day came when the defense entered two pieces of online evidence, both from The 1999 Q&A; with Silverstein and a book review of NMF written by Kevin C. Fitzpatrick. Danay read portions of the Q&A; into the record.

Also for a second day, girls with glasses will be happy to know that “News Item” was read in court again. This time by Dannay, who rushed through it to ask what Silverstein thought of it: “it could go either way,” Silverstein said, “as a poem or not.” Danay asked him if “News Item” – probably Parker’s most famous piece — was a poem or not. Silverstein said “News Item” is a wisecrack, not a poem.

Next, Mark Rabinowitz, Silverstein’s lead counsel, took up the rebuttal. He asked Silverstein to read the copyright notice that was on the bottom of every page of the manuscript that was mailed to Jane von Mehren at Penguin in 1994. This set up the next witness: von Mehren.

Von Mehren was a senior executive at Penguin Books from 1994 to 2005; today she is at Random House and oversees scores of imprints, including the entire Modern Library. At the time that Complete Poems was in production in 1997 she was the Associate Publisher. Von Mehren and Silverstein had a correspondence going as he tried to place the book with Penguin.

Von Mehren was questioned by plaintiff’s counselor Christopher D. Mickus of Neal, Gerber & Eisenberg. He proved to be a smooth operator who kept the questions coming quickly. Mickus began by getting von Mehren to explain what the responsibilities of editors and publishers are. She said that when she ended her time at Penguin she was editor in chief. She agreed with Mickus that in her role she would have been in a supervisory role of all facets of book editing, including copyright issues, if needed. Von Mehren also read Penguin’s guide on what is fair use and what the guidelines are for using material under copyright. This established that the executive was aware of Penguin’s policies and standard practices on using copyrighted work, as well as what her duties were in the book production process. The plaintiff’s next step was to put von Mehren there at the scene when Silverstein’s manuscript was on her desk, which she did.

She told the court that she got the manuscript of Not Much Fun in 1994. That summer she went to an editorial meeting with Senior Editor Michael Millman and Editor In Chief and Publisher Kathryn Court. Von Mehren said she presented the book to the entire Viking-Penguin editorial staff during their weekly staff meeting. Not Much Fun was discussed, she said, and Millman saw the manuscript sometime after the meeting. Von Mehren explained that Millman worked on Penguin Classics and “knew something of Dorothy Parker.” However, soon after, they made the decision to publish a more complete book, a collection of all Parker poems and verse, and not just the uncollected one. “It didn’t make sense,” von Mehren said, to issue a volume of not-so-great work, when they could have a bigger volume with all the poems together. They wanted to include the bigger book in the Penguin Classics line, and to have Silverstein edit that collection. They made a $2,000 offer to him, which was the standard fee. No royalties were included.

Von Mehren stated that they felt a selected or collected book made more sense as a publishing house. Millman was given the project as he worked on Penguin Classics. From this point on, von Mehren claimed to know less and less about the ongoing book proposal, despite her position of overseeing the group working on it. She was presented with old Penguin catalogues that listed Complete Poems. The marketing copy trumpets the addition of more than 100 previously unpublished Dorothy Parker poems. However, the catalogs came out four to six years after NMF was published. The witness seemed not to follow along that what the plaintiffs were showing her was that Complete Poems had been put on a fast track in the late 1990s, the same time period that Silverstein was trying to get NMF published with them. After he declined Penguin’s offer, his book came out less than two years later from Scribner, an imprint of Simon and Schuster. According to von Mehren, even though Millman had the manuscript in 1994 and NMF came out in 1996, she never raised the issue of NMF when upcoming Complete Poems were in discussion.

Soon after, Dannay took over and began cross-examination of the former Penguin executive. Von Mehren was asked what she knew about Complete Poems when it was being edited. “Nothing” she said. Von Mehren was not clear on the freelance editor of Complete Poems either, who was Colleen Breese. In fact, in earlier testimony, the editor said what little she knew about the case came from a New York Times piece on Tuesday. Dannay took von Mehren through the copyright review quickly. She said she did not believe Silverstein had a copyright interest on the uncollected poems. However, von Mehren also claimed that in her 23 years in publishing, she has never been trained in copyright or other similar issues.

The trial continues Thursday with more witness testimony.

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