Not a single Sunday newspaper pundit yesterday mentioned the Dorothy Parker Copyright Fight. Maureen Dowd dropped a Parker quote into her column, however, she was writing about the screenwriters strike. The entire media-publishing blogosphere rolled over and played dead on this one, so I will take a crack at a post mortem.
This past week the copyright trial that centered around two Dorothy Parker books – Not Much Fun: The Lost Poems of Dorothy Parker (Scribner, 1996) and Dorothy Parker Complete Poems (Penguin Classics, 1999) – reached its apogee when a federal judge shot down the plaintiff, Stuart Y. Silverstein. The defendant, Penguin, then crowed to the Associated Press that this was, “a complete vindication for Penguin, and a great victory for all publishers.” But what does this mean?
I want to review the facts of the case, a case that I have been following for eight years. In July, I was the only person to attend the entire trial in federal court; not a single person from the media or publishing world was there each morning.
I emailed media insiders to try and get them interested, such as Sara Nelson from Publisher’s Weekly, the bible of the business. No reply. I begged Emily Gordon, doyenne of Emdashes, the wonderful New Yorker blog, to come to court, because I wanted to sit next to a witty and fun person. She had a real job to report to. I prayed for Lizzie Widdicombe or Ben McGrath to waltz in from Four Times Square. I secretly hoped my favorite Times metro reporter, Sewell Chan, would plop down nearby and whip out a reporter’s notebook. Book beat writer Motoko Rich eventually wrote 750 words for the Times, a by-the-numbers industry piece, which was the only attention the Gray Lady ever gave Silverstein vs. Penguin Putnam. The indefatigable Lawrence Carrel wrote about it some more for The Street.com; he was the first journalist of note to write about Silverstein, in 2001, for the Wall Street Journal. [Full disclosure: Carrel and I have been friends for years. We used to mow lawns with Jesus for beer money, and I handed him the story idea on a platter I got at Tiffany].
I watched the trial alone.
I have come to several conclusions about what the court’s decision means. Since 2000, Silverstein has been telling columnists on the book beat about the case, a case they did not really grasp. And now that their pithy little 500-word summaries have been buried on the inside pages, I want to analyze what happened and what this means. For some reason, the Toronto Globe and Mail, the London Telegraph, and a few bloggers picked up on the case, but no other media. Now that the decision has come down, what happens next?
First, let’s talk about the plaintiff, Silverstein. I first came into contact with him when he sent me an email in the summer of 1999. I had started the web site that is now dorothyparker.com in November 1998, and I owned his book, which was out in hardcover. I did a short email interview with him for the web site, and was thrilled with that. This was before the case against Penguin began. Silverstein is a non-practicing lawyer, which I think is one of the reasons he wanted to battle Penguin in federal court. A researcher or editor who did not posses a law degree probably would have shied away from such a fight. Over the years Silverstein has sent me updates about the case. It was only when the case went the other way that I heard from Penguin’s side. I went to the federal courthouse in 2003 and 2007 to see for myself this legal mess the Parker legacy was involved in.
Silverstein was the one who sat in front of microfilm readers at a dozen libraries and dug up the 122 “lost” poems that make up his book. If he did not do this in 1994, Parker aficionados today would not have the Hate Verses to enjoy, unless we all possessed copies of Life or Vanity Fair from the Twenties. Silverstein located them. It takes a particular kind of researcher to sort through reel upon reel of microfilm, to look up page after page of grainy printed matter from 90 years ago, and make sense of it. He spent countless hours of his time finding these poems. What kind of drudgery is microfilm viewing? Have you ever looked at old newspapers on microfilm? Fifty issues? Two hundred and fifty? If you have done it, you know it is a drag. It is tedious, dull, physically hurts your body and causes eyestrain. This is not like using Google to find something (there was no Google in 1994). But what happened next?
Silverstein presented his research to Penguin Books, after meeting one its top editors, Jane Von Mehren, at a book industry convention in Los Angeles. She talked it up at the Penguin offices in New York, where the fate of Silverstein’s project was decided. Before we go on with what they wanted to do with his manuscript there on Hudson Street, let us examine how Penguin Books got into bed with Dorothy Parker in the first place.
Dorothy Parker’s first publisher was Boni & Liveright. Parker was a dear friend with the publishers Charles Boni and Horace Liveright, who founded the company in 1916; the same year Parker started her professional career. The company folded in 1930. Parker’s first two books came out from Boni & Liveright, then she went to the Viking Press, which was also run by her friends. The Viking Press gave her an advance for a novel, a novel she never wrote. Parker kept the advance. Nonplussed, Viking printed a collection of her work, Laments for the Living, in 1930. In 1944, Viking brought out The Portable Dorothy Parker – a book that has remained in print for more than 60 years. In the mid 1970s, Penguin purchased the Viking Press, and the titles then rolled into Penguin’s backlist. Parker herself never had any dealings with Penguin Books, which started life in London in 1935 as a paperback publisher.
Viking and Penguin never really did much with its Parker books. In the early 1970s, Viking reprinted the Portable with a dreadful introduction by Brendan Gill, the crusty staff member of The New Yorker. This abomination stayed on shelves until 2006, when Penguin Classics finally revamped it and put biographer Marion Meade on the case. Meade is the only biographer who has ever done Parker any justice, and has now written more about Parker than anyone else. In 1998 the company woke up and issued a collection of Parker’s short fiction, titled Dorothy Parker Complete Stories that the editors said collected all of her stories, such as “Big Blonde”. As we learned in court with Complete Poems, they missed some things. But it did well enough, and has since been issued a second time, with a neat cover cartoon from the Al Hirschfeld vault.
Back to Silverstein and his dealings with Penguin. He gave the company a
manuscript of Not Much Fun. He had it in his mind that this would be the “fourth” Dorothy Parker collection of verse, which would follow her own three titles she had brought out in her lifetime: Enough Rope (1926), Sunset Gun (1928), and Death and Taxes (1931). Silverstein wanted to be the compiler/editor/detective of Book #4. He wanted his book on the shelf next to the others.
However, Penguin had other ideas. It wanted to bring out a collection of “all” of Parker’s poems and verse. It wanted a complete volume, not a thin collection of 122 “lesser” Parker pieces. Somewhere along the line, the series editor, Michael Millman, and the head of Penguin, Kathryn Court, decided that Complete Poems would come next in the Parker parade.
As a brief aside, I want to address critics who say these 122 poems are “juvenilia” (a term used by someone) or garbage (another adjective someone said to me). This collection is not a dog’s breakfast. In fact, I believe some of it, such as the Hate Verses, is among Parker’s finest material. “Cassandra Drops into Verse” appeared in the second issue of The New Yorker in 1925, and Parker should have put it into Sunset Gun. It was good enough for Harold Ross. These 122 are better than what passes for poetry in some magazines today.
Since 2000, Silverstein has claimed that Penguin offered him just $2,000 USD for his sleuthing. He told me — and many others — that Penguin’s offer was $2,000 for this feat of uncovering the “lost” poems. This is not true. At the trial I learned Penguin originally wanted Silverstein to be the editor of Complete Poems and the $2,000 would be his fee to be the editor/compiler of the complete collection. Silverstein’s literary agent rejected the offer. Why? I do not know why further negotiations never took place. Why the agent didn’t counter, and ask for more money. This was not in the trial. What happened next, and became a point in the trial, is that Silverstein rejected the deal and then shopped his project around, and Scribner picked it up.
Penguin made him a fair offer (however low, what did it break down to? Five dollars per research hour? I do not know). But consider this: In 1995 Silverstein was a person who at the time had (1) not published any books; (2) was not a professor or literary figure; (3) was an unknown in the publishing industry. One of the biggest publishers in the business was going to hire an undistinguished writer — and entrust one of their bestselling backlist authors with such an important project — speaks volumes. The $2,000 was the standard fee the house paid for such work. Silverstein could have negotiated, and did not. Penguin could have been asked to up its offer, and did not. Silverstein could have gotten his name on the cover of a Penguin collection that would have a long, long shelf life. He could have gotten a lot more attention, immediately, as the editor of Complete Poems and the Indiana Jones of lost Parker material. But he went out on his own and got his own deal, with another publishing house. It is speculation, but if he was the editor of Complete Poems he could have gone on to greater glory as a literary sleuth, instead of spending years buried in legal briefs and cursing at Penguin.
The trial brought out testimony and evidence from all parties concerned in the deal-making of the time that the offer to Silverstein was to be the editor of the Complete Poems, but he wanted his own book, his own project, and on his own terms. This is how Not Much Fun was born.
Penguin of course watched Not Much Fun come out from Scribner in 1996, and said as much in the trial. The freelance editor the company got (for its $2,000) was Colleen Breese, who had about as much credibility as Silverstein at the time. She seems to have been hired solely because she already had been a photocopy whiz at an Ohio commuter college, teaching Parker courses with her own Xerox Dorothy Parker material. Breese did not have a problem taking the $2,000 to photocopy the rest of the Parker canon – Silverstein’s book.
A major — and critically important — argument in the case to remember is that Silverstein never claimed his case was based on the “sweat of his brow” and hard work in finding the 122 pieces. Copyright law does not allow a writer to claim such “sweat of his brow” as a reason to get copyright protection. He was claiming his copyright was violated based on his creativity and subjective decision-making in what went into the compilation. That Penguin can now claim Judge John F. Keenan’s decision is a major “victory” for publishers is laughable. Here is why.
Penguin’s editors were shown in the trial to have been sloppy, lazy, and careless. Mistakes that Silverstein made in his book were copied into Penguin’s book, and never caught. If Silverstein dropped an entire line of a Parker poem (which he did once, by mere oversight) than so does Complete Poems repeat the error. Some of the “lost” poems did not have titles, so Silverstein cooked up new ones. Penguin’s book then picked these up as well. At no time in the editorial process of Complete Poems was any fact checking (or even spot checking) undertaken. Penguin claims “victory” here – victory for what? Victorious for being sloppy?
I encourage you to read the trial transcripts. These are illuminating. Something that struck me at the trial in July was watching the two video depositions of the “experts” in the case, Breese and another professor from the Midwest, Randall Calhoun. As a Parker fan, it saddened me to see that the top two Parker scholars in academia are a part-time adjunct teacher (Breese) and professor who is so far off “tenure track” that he is teaching classes to inmates in the Indiana prison system (Calhoun). For some reason, and I can’t put my finger on it, neither the defense nor the plaintiff could come up with an Ivy League expert. At no time in the trial did it ever come up that both star witnesses had barely enough credentials to get a book contract, much less be the two highest-ranking Dorothy Parker scholars in the country. It may have been a completely different trial if the expert on the stand was by a doctor of American Lit from Harvard or Yale. Watching the video of Breese and Calhoun sit uncomfortably as the big city lawyers grilled them can only be described as sad. If this case goes to the appeals court, is there a professor with a doctorate in English who can show up to testify? Please? [Full disclosure: I am the pot and the kettle. My meager B.A. degree was earned in the land of Mark Twain; I picked up my sheepskin in a river town located between East Jesus and Bumfuck].
The dénouement of this book battle is not over. What can happen next? There is probably a time limit for Silverstein to file an appeal. One of the reasons the case has gone on since 2000 is that Judge Keenan’s decision in 2003 to find in Silverstein’s favor, and force Penguin to withdraw Complete Poems from bookstore shelves, is that Penguin appealed the decision. This sent it to the Court of Appeals, which sent it back down to Circuit Court, and back to Keenan’s courtroom. Last summer when I was at the trial, I spoke with someone who said that the judge would be very careful with his next opinion, because Keenan did not want to see the case appea
led and sent to the Court of Appeals again. And even to a novice like me, if I was a judge on the Court of Appeals, and saw “the Dorothy Parker case” coming at me again, four years later, would I consider it? Would I want to go through this all one more time? The answer is no, because then the case starts all over again. Judge Keenan spent 79 pages laying out his opinion, and his arguments, all backed up with examples, detailing why he found for Penguin in this. But could Silverstein appeal? He can, and he might. Would be find success in the appeals court? That would be for the panel to decide.
Where does this leave Penguin? Can they issue Complete Poems again? Could Barnes & Noble stock the book in time for Christmas? First, Penguin’s in-house lawyer will probably wait and see if Silverstein appeals. They have been sitting on the book for close to five years, so waiting a few more months will not hurt them. However, even if Silverstein’s attorney tells the court there will be no appeal, that does not mean the publisher should open the warehouse doors and begin shipping the dusty old books out to Peoria and Spokane. Here is why.
Complete Poems is flawed. At the trial we learned there are scores of mistakes and errors in it. There is material that has titles that were put on by Silverstein, not Parker. There are editing mistakes, never caught in 1999. But most important of all – this is not “complete” at all. I’m sitting on perhaps five Parker poems that are not in either Not Much Fun or Complete Poems, Parker creations that slipped by Silverstein in his quest in the mid 1990s. One is called “Reformers: A Hymn of Hate” that Parker wrote in 1922, at the zenith of her power at the Algonquin Round Table. This is one of the Hate Verses that Silverstein never found, and then Penguin never published. Parker started it off: “I hate Reformers/They raise my blood pressure.” If she was alive to watch this case, hers would hit 160, or higher.
For Penguin Classics (the division at the company that Complete Poems would fall into) to bring out the book again, it would need to be edited again. Line by line, the book’s complete inventory needs to be checked. Every poem and title must be checked against Parker’s originals, on microfilm, and not from some photocopy that someone dug up, or worst of all, online. I’d also toss out the introduction and hire a poetry authority or a major literary figure to write a fresh one. Pay some good money. Invest more than $2,000 in the damn book. Slap a decent cover on it, like the company did by hiring Seth for the 2006 revision of The Portable Dorothy Parker.
This was a bruising case for both sides. Hundreds of hours were spent in its preparation. The cost must have been more than $1 million. And the fact of the matter is this: the case never needed to come to trial. The case could have been avoided:
IF Silverstein had accepted Penguin’s offer to be the editor of Complete Poems;
IF Penguin would have published Complete Poems and credited Silverstein;
IF Complete Poems’ editors would have used the microfilm reader instead of the Xerox machine in 1998;
IF Dorothy Parker, at age 74, issued a book in 1967 that was titled The Poems of Dorothy Parker I Never Thought Were Good Enough to Collect in the 1930s, But Now That I Am About To Die, Here They All Are.