On Remand, District Court Favors Jury Trial In Dorothy Parker Compilation Case

Silverstein v. Penguin Putnam, Inc. (S.D.N.Y. May 3, 2006)

The Plaintiff, Stuart Y. Silverstein, compiled approximately 122 of Dorothy Parker’s previously uncollected works, which were eventually submitted as a manuscript to Penguin Putnam, Inc., in 1994. After rejecting an offer from Penguin to publish the manuscript, Silverstein published his compilation “in the 1996 book Not Much Fun: The Lost Poems of Dorothy Parker (‘Not Much Fun’).” Three years later, “Penguin published Dorothy Parker: Complete Poems (“Complete Poems” ), which includes all of the poems collected and published by Ms. Parker in book form as well as all of Ms. Parker's works collected and published by Silverstein in Not Much Fun.” Furthermore, “[t]he editor at Penguin who prepared [the relevant] section, Dr. Colleen Breese, admitted to photocopying Not Much Fun, and then cutting the poems apart and pasting them into the manuscript for Complete Poems.”

Silverstein sued Penguin for copyright infringement. He initially won in district court, but his initial triumph was lost on appeal when “the Second Circuit issued its decision . . . and remanded for further proceedings to resolve certain factual issues, including ‘whether Silverstein is entitled to any protection for his selection of uncollected poems or whether, in fact, he simply published as many as he could find.’”

On remand, the district court considered renewed cross-motions for summary judgment. After reviewing the Plaintiff’s factual claims, the district court reached, citing Nimmer, the following conclusion:

Whether a particular work possess the quantum of creativity necessary for copyright protection is usually a question of law, but “threshold factual determinations in this regard, of course, are for the jury.” In this case, a threshold factual determination exists: whether Silverstein though he was publishing a selection from a larger body of Parker's uncollected works or as many as he could find. For this reason, the Court denies summary judgment on Plaintiff's copyright claim.

With regard to the Defendant’s summary judgment motion and the Defendant’s factual claims, the district court also resolved that “[t]his same question of fact precludes summary judgment in Penguin's favor.”

Holding: “Having fully considered the arguments made by both parties in this case, the Court denies summary judgment. The parties are to appear before the Court for a scheduling conference on June 28, 2006 at 10:30 AM.”