What Fresh Hell Is This?

An interesting trial opened in the U.S. District Court for the Southern District of New York in Manhattan on Tuesday. It is a case involving copyright, but neither side in the lawsuit owns the copyright.

The case involves the poetry of Dorothy Parker, an American writer and poet best known for her caustic wit. She was often called the wittiest woman in America.

Parker once worked for Vogue magazine and later wrote for The New Yorker. She was one of the founding members of the Algonquin Round Table, a group of New York playwrights, editors, critics and journalists who met for lunch every day between 1919 and 1929 at the Algonquin Hotel in Manhattan.

She is best known for her short poems and pithy comments. Samples are:

Men seldom make passes
At girls who wear glasses

She runs the gamut of emotions from A to B (when speaking of Katharine Hepburn)

You can lead a horticulture
But you can't make her think

She reportedly once responded to the ringing of her phone with the exclamation, "What fresh hell is this?" Thereafter, she used the phrase in place of "Hello" whenever answering the telephone or front door.

During her lifetime, Parker published seven volumes of short stories and verse. According to TheStreet.com, "she let nearly a third of her early works essentially vanish because, according to literary critics, she considered them inferior."

When Parker died at the age of 73 in 1967, she left her estate to the Rev. Dr. Martin Luther King. When he died ten months later, her estate then went to the NAACP (National Association for the Advancement of Colored People). Penguin, her publisher, pays royalties to the NAACP.

Thirteen years ago, a L.A. attorney named Stuart Y. Silverstein discovered the unpublished poems while doing research on the Algonquin Round Table. He edited 122 poems and queried Penguin about doing an additional volume of poetry. Penguin offered to pay Silverstein $2,000 for his work. According to TheStreet.com, they "wanted the collection for a complete compilation of Parker's poetry and to have someone other than Silverstein write the introduction."

Silverstein turned down the Penguin offer, went to Scribner (an imprint of Simon & Schuster) and made the deal. He wrote his own introduction and was credited as the compilation editor. The poems were released as Not Much Fun: The Lost Poems of Dorothy Parker in 1996.

In 1999, Penguin published the anthology they had planned and titled it Dorothy Parker: Complete Poems. They used Silverstein's book in a chapter called "Poems Uncollected by Parker." The editor Penguin selected to work on the compilation, Colleen Breese, admitted in depositions that she purchased Silverstein's book, cut the pages out, photocopied the poems and put them into the Penguin manuscript in chronological order. Penguin did not credit Silverstein as their source or pay him any royalties.

Understandably miffed, Silverstein sued Penguin in 2001 for copyright infringement. According to TheStreet.com, "An editor of a compilation can assert a copyright on the underlying intellectual property if he contributes creativity and material beyond the original work. Sweat-of-the-brow research isn't copyrightable; neither is organizing the list in a typical way, such as chronological or alphabetical."

In April, 2003, U.S. District Judge John F. Keenan found Penguin guilty of copyright infringement and ruled in favor of Silverstein. According to The New York Times (NYT), Keenan said Penguin's "failure to credit him 'was deliberate and not inadvertent'." Keenan ordered Penguin to recall their anthology, run an ad about the recall in Publishers Weekly and to provide reimbursement for the books returned.

Penguin obeyed the ruling, but appealed to the U.S. Court of Appeals for the Second Circuit. In May, 2004, that court decided that "the selection reflected in Not Much Fun was actually Parker's--inasmuch as she decided not to collect these poems in the three volumes [of poetry] she published in her lifetime." (NYT)

The appeals court sent the case back to the original court to decide if Silverstein's decision not to include some of Parker's poems warranted his being "entitled to royalties and other damages." (NYT) The appeals court's opinion was that "material questions of fact exist as to whether Silverstein exercised creativity in selecting the works for his compilation. Those questions must be answered before the creativity, if any, in his selection process can be assessed." (TheStreet.com)

Silverstein appealed to the Supreme Court with a Petition for Writ of Certiorari. According to the Tech Law Journal, this is a "document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court. It includes a list of the parties, a statement of the facts of the case, the legal questions presented for review, and arguments as to why the Court should grant the writ."

On December 13, 2004, the Supreme Court denied certiorari, without opinion. (Tech Law Journal)

So this week, Judge Keenan will hear the case again. It will be a bench trial, meaning Keenan will serve as both judge and jury. If Penguin loses, the financial damages could be significant--perhaps millions of dollars. But some experts believe the damage to Penguin's reputation could be even more expensive.

Peter Jaszi, a law professor, was quoted in TheStreet.com as saying, "Publishers and other enterprises in the creative sector want to be, and need to be, respectful of the talent and creativity of authors . . . if Penguin is found to have ridden over someone who was a creative person, and disregarded their rights, that would be a black eye for its reputation."

Stay tuned for more on this case . . .