Penguin Wins 'Parker' Lawsuit

Stuart Y. Silverstein isn't having any fun today.

After six years of legal wrangling, the editor of the compilation Not Much Fun: The Lost Poems of Dorothy Parker lost his copyright infringement case against Penguin Group (USA), a division of Pearson ( PSO).

Parker, a literary lion who wrote poems, stories and screenplays, is best known as a humorist and member of the 1920s literary group the Algonquin Round Table. During her lifetime she published three poetry compilations. Silverstein published the poems Parker "lost" or, as some academics say, chose to forget.

In a ruling that came down Wednesday, U.S. District Court Judge John F. Keenan found Penguin not liable on all three causes of action alleged in the complaint -- copyright infringement, unfair competition and unfair and immoral trade practices under New York state law, and the misrepresentation of Silverstein's work as being done by Penguin.

"Penguin Group is, of course, delighted with the District Court's decision," said a company spokesman. "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 had accused Penguin of taking Not Much Fun, copying it "comma for comma" and publishing it as part of a compilation called Dorothy Parker: Complete Poems, without giving him any credit or money. In the course of the trial, it was revealed that the editor of the Penguin edition had literally copied the book on a photocopy machine. But this had little relevance to the final verdict.

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.

TheStreet.com reported on the twists and turns of the case at that time.

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.

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