Silverstein won a summary judgment from Keenan in 2003, culminating with the judge ordering Penguin to recall the book from all booksellers. The book was removed, but Penguin appealed. Silverstein then saw the judgment vacated by the Court of Appeals for the Second Circuit. It returned the case to the district court for trial, saying there existed questions as to whether "Silverstein exercised sufficient creativity in the selection of the poems." The final trial took place in July.
Silverstein sued under an obscure part of copyright law known as the compilation copyright. Since the underlying work is by another author, the editor of the compilation declares a copyright on the originality he brings to his selection of what to include in the anthology. The case hinged on whether Silverstein's decisions entailed creativity and whether that was enough to warrant copyright protection.
In finding for the defendant, Keenan wrote, "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." He added, "Silverstein did not exclude any uncollected Parker poems from the book." The judge said the decision on what to include was based on "historical evidence not creative judgment." Further, he wrote, "Silverstein could not articulate, and the Court cannot discern, any creative principle that guided his determination that a work was a poem or not.""We're disappointed with the ruling, and we're considering our remedies on appeal," Silverstein said after the ruling.