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SILVERSTEIN v. PENGUIN PUTNAM INC.

April 4, 2003

STUART Y. SILVERSTEIN, PLAINTIFF,
v.
PENGUIN PUTNAM, INC., DEFENDANT.



The opinion of the court was delivered by: John F. Keenan, United States District Judge

OPINION and ORDER

Background

Involved here are cross-motions for summary judgment in this copyright infringement and Lanham Act case. Both sides agree that summary judgment is appropriate and that there are no material factual issues as to liability which preclude summary judgment. The issue is whether or not defendant's book, Dorothy Parker: Complete Poems ("Complete Poems") infringes upon plaintiff's work, "Not Much Fun: The Lost Poems of Dorothy Parker" ("Not Much Fun").

Facts

From 1915 to 1944, the prolific American author and early feminist, Dorothy Parker (1893-1967), wrote poetry. Her poems generally appeared in magazines such as "Vanity Fair," "Life," "The Saturday Evening Post," "The New Yorker" and newspapers. The introductions to both Not Much Fun and Complete Poems reflect that over the years, Ms. Parker collected her earlier poems and published them in book form. The poetry books were Enough Rope (1926), Sunset Gun (1928) and Death and Taxes (1931). In 1936, she published Not So Deep as a Well which contained most of the poems published in the earlier three poetry volumes.

Ms. Parker omitted from these books more than one hundred poems and verses that were published earlier in various periodicals. Some 122 uncollected poems and verses were published in book form in 1996 by Scribner in Not Much Fun and have a 1996 copyright notice. These works had been compiled by plaintiff Stuart Y. Silverstein ("Silverstein"), beginning in 1994. In addition to the poems, Not Much Fun contains a detailed introduction written by the plaintiff which supplies much biographical data about Dorothy Parker.

The introduction contains excerpts from some of the Parker poems and many anecdotes about her life and relationships with the literary cognoscenti of between the World Wars America, such as Clare Boothe Luce, Robert Benchley and Franklin P. Adams.

Plaintiff submitted a manuscript of his compilation to defendant Penguin Putnam ("Penguin") in 1994 and was offered $2,000 to publish it as part of a larger collection of Dorothy Parker's poems. Silverstein did not accept this offer and the Silverstein compilation was published in Not Much Fun in 1996 by Simon and Schuster.

In 1999, defendant published Complete Poems which contained 121 of the previously uncollected 122 Parker poems in Not Much Fun. No mention of Silverstein or his compilation was made in Complete Poems which has a section called "Poems Uncollected by Parker." This section runs from page 211 through page 391. Except for one poem, which is omitted, it is the same collection as in Silverstein's Not Much Fun. Dr. Colleen Breese ("Breese"), the editor and author of the introduction to Complete Poems, wrote to Michael Millman, the senior editor of Complete Poems on August 23, 1998 in referring to Silverstein's work ". . . I don't think we want to direct people to the competition . . ." McCabe Exh. 13. Thus, it is clear that the failure to give any credit or attribution to Not Much Fun was deliberate and not inadvertent. Penguin issued five printings of Complete Poems from April 1999 through 2002. McCabe Exh. 12.

Although Silverstein's book, Not Much Fun, has as the first part of its title the words, "The Lost Poems of Dorothy Parker," he used his subjective judgment in compiling it by including therein a series of free verses that are not poems. These are called the "Hate Verses." These verses are all included in Complete Poems and are in the section of that work classified in the Index at the beginning of the book as "POEMS UNCOLLECTED BY PARKER." Plaintiff asserts that in collecting these free verses in the book of poems, he was exercising creative judgment which is protected by the copyright laws.xz

On the page titled "A Note on the Text" of "Complete Poems," it states

The poems that appear here are faithfully reproduced from Dorothy Parker's original collections: Enough Rope (1926); Sunset Gun (1928); Death and Taxes (1931); Death and Taxes and Other Poems in Not So Deep as a Well (1936); The Portable Dorothy Parker (1944); and from Bookman, Life, McCall's, Nation, New Republic, The New Yorker, New York Herald Tribune, New York World, Saturday Evening Post, Saturday Review, Vanity Fair, Vogue, and Yale Review. . . .
At their depositions, Dr. Breese, McCabe Exh. 5 at 242, and Michael Millman, McCabe Exh. 6 at 303, acknowledged that they did not agree with the quoted portion of the text. This is obviously because the previously uncollected poems are not "faithfully reproduced from Dorothy Parker's original(s)" as is pointed out immediately above.

There is no question that when Silverstein met Jane von Mehren in May 1994 when she was defendant's executive editor, he was asserting his copyright and that his compilation had the copyright notice "Compilation 8 1994 Stuart Y. Silverstein. All rights reserved." McCabe Exh. 9 at 68, 69.

Plaintiff now claims that Penguin infringed his work which had previously been presented to defendant. Both parties move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Silverstein moves for summary judgment on the issue of liability for copyright infringement, and Penguin moves to dismiss the complaint. Silverstein seeks an injunction prohibiting the sale and distribution of Complete Poems, an award of damages and other relief including statutory damages for willful copyright infringement and actual damages for Lanham Act violations.

This Court has jurisdiction over this case as it arises under the Copyright Act, 17 U.S.C. § 103, et seq.; the Lanham Act, 15 U.S.C. § 1125, and under the common law of the State of New York pursuant to 28 U.S.C. § 1338 (a) and (b)

Venue is proper based on defendant's corporate headquarters being based in the Southern District of New York.

For the reasons outlined below, plaintiff's motion is granted, and ...


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