AP News, November 8th, 2007
A federal judge has ruled that compiling Dorothy Parker's poems was a far less original act than writing them.
The editor of a book of uncollected work by the late author did not show enough "creativity" to claim copyright infringement from a near-identical set contained in a book released by Penguin Group (USA), U.S. District Judge John F. Keenan said Tuesday, contradicting a decision he made four years ago.
Stuart Y. Silverstein's "Not Much Fun: The Lost Poems of Dorothy Parker" was published in 1996 by Scribner, an imprint of Simon & Schuster. The Penguin book, "Dorothy Parker, Complete Poems," came out in 1999 and includes all the 122 pieces assembled by Silverstein, who was not credited. The poems themselves are in the public domain.
"The Court finds that Silverstein simply selected for inclusion in `Not Much Fun' all of the uncollected Parker poems that he could find and that this selection process involved no creativity," wrote Keenan, who in a summary judgment in 2003 had ruled in Silverstein's favor and enjoined Penguin from selling or continuing to distribute its book.
Keenan's ruling was vacated in 2004 by the U.S. Court of Appeals for the Second Circuit, and the case was returned to the U.S. District Court in the Southern District of New York. The appeals court found that a "trial was required to determine if Silverstein had exercised any creativity." The trial was held last July.
"Penguin Group (USA) is, of course, delighted with the District Court's decision," the publisher said Thursday in a statement.
"After six years of litigation, the court has unambiguously rejected every one of Mr. Silverstein's legal claims, and repudiated his attacks on Penguin's conduct and practices. It is a complete vindication for Penguin, and a great victory for all publishers."
Silverstein told The Associated Press on Thursday, "We're disappointed with the ruling and are considering our remedies on appeal."
Penguin spokeswoman Kristin Ilardi said that the publisher had "voluntarily kept the book out of circulation" and that "it will be up to the Penguin Books imprint to decide whether they will begin circulation again."
Keenan's 79-page decision included legal and literary history. He offered a brief description of Parker — "the famous writer who was a member of the Algonquin Round Table" — and a detailed summary of what constitutes a poem.
"A poem sometimes possesses rhyme or meter, though this is not necessary," Keenan wrote. "A poem is typically free from the usual rules of grammar, punctuation and capitalization." In a footnote, he cited testimony that before "World War Two, a poem almost always had rhyme or meter." Now, "the popular definition of poem has become much more lenient."
Among the factors in Keenan's decision: Whether a 1920 letter from Parker to fellow wit Robert Benchley, written in rhyming couplets, was easily defined as a poem. Silverstein testified that it wasn't and that he had demonstrated creativity by including it in his book.
On the contrary, Keenan wrote, "where a line does not fit within the margins, it is indented below and kept apart from the next line in order to preserve the rhyme scheme.
"The Letter to Robert Benchley is objectively recognizable as a poem."
