In The Matter Of:

STUART Y SILVERSTEIN v PENGUINPUTMAN, INC.

July 17,2007

TRIAL SOUTHERNDISTRICTREPORTERS 500 PEARL STREET NEW YORK., NY 10007 212-805-0300

Original File 77H4SILF.txt, Pages 1-190

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77H7SILI [1] [1] UNITED STATES DISTRICT COURT podium? SOUTHERN DISTRICT OF NEW YORK [2] THE COURT: From the podium, please. [2] ------x [3] MR. RABINOWITZ: Good morning, your Honor. The [3] STUART Y. SILVERSTEIN, [4J evidence will show that after Penguin declined to purchase [4] Plaintiff, [5] Mr. Silverstein's book, and since Mr. Silverstein published it

[5J v. 01 Civ. 309 [6] with Scribner, Penguin simply bought a copy, cut and pasted the

[6] PENGUIN PUTMAN, INC., [7] pages onto paper, and then republished it as its own book. The

[8] evidence will show that such conduct is unheard of in the [7] Defendant. [9] publishing industry. [8] ------x [10] The evidence will establish that Penguin deliberately [9] July 17, 2007 9:30 a.m. [11] denied Mr. Silverstein attribution in order to "avoid directing [10] [12] people to the competition" and it then misrepresented to the Before: [11] [13] public that the items were faithfully reproduced from their HON. JOHN F. KEENAN [12J [14] original publications. District Judge [15J The evidence will show that senior Penguin employees [13] APPEARANCES [16] violated Penguin's explicit written policies by failing to [14] NEAL GERBER & EISENBERG LLP [17] investigate the copyright status of Silverstein1s work, which [15] Attorneys for Plaintiff BY: MARK A. RABINOWITZ [18] they admitted contained an explicit copyright notice, and [16] CHRISTOPHER D. MICKUS [19] failing to seek permission from Mr. Silverstein to use his work [1~] COWAN LIEBOWITZ & LATMAN PC Attorneys for Defendant [20] or provide any attribution to Mr. Silverstein. [18] BY: RICHARD DANNAY THOMAS KJELLBERG [21] The evidence will show that Penguin's senior [19] [22] management failed to remedy its misconduct and instead

[20] [23] deliberately continued to issue new editions. Penguin at first [21] [22] [24] denied that it even copied Mr. Silverstein's work until its (23) [25] editor admitted that she bought it and cut it and pasted it.. [24] [25]

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[1 J (Case called; in open court) [1] Plaintiff will present the testimony of two of

[2] THE COURT: Be seated. Good morning, everybody. [2] Penguin's senior management executives who testified that in

[3] The first observation I would like to make before we [3J their decades-long careers in the publishing industry they

[4J start the trial is that the animosity of counsel towards each [4 J never had heard of an instance in which a publisher published

[5] other in this case, as evidenced by the flock of letters that [5] material on which an author was asserting a copyright.

[6] my chambers has received from each side, the animosity is [6J Your Honor, this is a very simple case at bottom.

[7] beginning to border on hostility, and it should stop during the [7] Mr. Silverstein has a protectable right in his original

. [8] trial of the case. That's number one. [8] creative effort in selecting and compiling the items that are

[9] This animosity has resulted in the fact that there is [9] contained in Not Much Fun, and penguin violated it.

[10] no joint pretrial order, nothing has been agreed to. Proving [10] The evidence will show that in selecting and compiling

[11] that no good deed goes unpunished, my efforts to supply a [11] the items for Not Much Fun, on dozens of occasions

[12] proposed pretrial order were rebuffed by the defense, and then [l2] Mr. Silverstein exercised personal subjective judgment, made

[13] I received· a self-serving and somewhat insulting letter [13] nonobvious choices from a large universe, and protected his

[14] yesterday from Mr. Dannay, so we are proceeding without any [14] original creative efforts by at all times notifying others of

[15] pretrial order. [15] his copyright claim and registering a compilation copyright for

[16] Originally at a pretrial conference I was told that [16] the book.

[17] the trial would last five to six days. Now I am told ten days. [17] The evidence will show that Mr. Silverstein made

[18] If the case is not over by the close of business on July 27, [18] subjective judgments as to whether numerous items were either

[19] 2007, which is a week from Friday, we will resume at 2:15 p.m. [19] ~ritten by Dorothy Parker, whether they then constituted poems

[20] on August 6, 2007 and complete the case by the close of [20] or whether they constituted nonpoetic free versus.

[21] business Tuesday, August 7, 2007. [21] The evidence will also show that Mr. Silverstein

[22] This Thursday our day will begin at 9 a.m. and end at [22] decided that certain items were poems -- and he included them

[23] 12 noon. You may open, Mr. Rabinowitz if you choose to. [23] in his work -- that other scholars had concluded were not

[24] MR. RABINOWITZ: Good morning, your Honor. Would you [24] poems. The evidence will show that Mr. Silverstein decided

[25] prefer for me to address the court. -from here or from the [25] that numerous items that other scholars has classified as poems

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[1) in fact were not in his opinion poems and he then excluded [1] The evidence will show that Penguin had hired an

[2] them. (2) outside editor, Coleen Breeze, and told her to use Not Much Fun

[3) The evidence will show that Mr. Silverstein decided [3) as the source of the material for Complete Poems. Breeze did

[4) that certain items that scholars attributed to Dorothy Parker [4] exactly that. She obtained a copy of Not Much Fun herself, she

[5] in his opinion had not been written by her, and he excluded [5) photocopied the pages, the poems and verses that were in it,

[6] them. (6) she then cut and pasted those photocopies onto new sheets of

[7) The evidence will show that Mr. Silverstein decided [7J paper, and then that was published as Penguin's Complete Poems.

[8) that numerous items that other scholars had considered to be [8] She did it the old way, she testified.

[9] poems, in his opinion were nonpoetic free verses, and he [9] Ms. Breeze did not check the accuracy of the items in

[10) included them in a separate section titled verses. [10] Not Much Fun against the original publications, and we know

[11) The evidence will show that there is in fact an active [11] that certainly because Not Much Fun contained hundreds of

[12) scholarly dispute as to whether free verses are poems, and [12] punctuations, edits, titles and errors.

[13) contemporaneous documents will demonstrate that Silverstein [13) THE COURT: I thought the Second Circuit said that had

[14) explicitly and repeatedly drew that distinction when he was [14) nothing to do with the case.

[15) compiling That Much Fun. [15] MR. RABINOWITZ: The Second Circuit said, your Honor,

[16) The, evidence will demonstrate that Penguin possessed (16) that Mr. Silverstein was not entitled to protect those edits,

[17) actual knowledge that Mr.~ilverstein was employing his own [17) and Mr. Silverstein is not contending that he has any right

[18) subjective judgment in selecting items for his book when [18] to

[19) Penguin in effect reviewed a Not Much Fun manuscript that he [19) THE COURT: As long as I understand you are abiding by

(20) submitted to a senior Penguin editor in 1994, and that was two [20] the Second Circuit ruling. Go ahead.

[21) years before Not Much Fun in fact was published. [21] MR. RABINOWITZ: Exactly, your Honor.

[22] The evidence will also show that Mr. Silverstein [22) Mr. Silverstein is showing only that they copied

[23) identified and selected several items that buried in book [23) they didn't make the same selection themselves. They copied

[24] reviews, a personal letter and a magazine ad. [24] his, because it has all of his edits. That's the only purpose

[25) Mr. Silverstein will prove by a preponderance of the [25] we are using that for.

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[1] evidence that in selecting and compiling the items in That Much [1) Penguin deliberately omitted from Complete Poems any

[2] Fun he exercised personal subjective judgment and that another [2] credit or attribution either to Silverstein or Not Much Fun and

[3) scholar engaging in the same exercise would not necessarily [3) actively concealed the existence of his book because Penguin

[4] select the same literary works. He will establish that Not [4) did not want to "direct people to the competition". Penguin

[5) Much Fun is protectable as an original compilation because he [5) then affirmatively misled the public by misrepresenting that

[6] exercised vastly more than the minimal or slight amount of [6) the poems and verses contained in Complete Poems were

[7) creativity that the U.S. Supreme Court Freist case requires to [7] faithfUlly reproduced from Dorothy Parker's original poems and

[8] find originality and selection. [8) verses when it actually knew they had been copied from Not Much

[9) Mr. Silverstein also satisfies the Second Circuit's [9) Fun.

[10) test annunciated in the Matthew Bender opinion because he will [10) Not Much Fun and Complete Poems were placed in book

[11) e$tablish that another scholar· making the same selection would [11.) stores in the same poetry' section across the country.

[12] not come up with the same compilation. [12) Mr. Silverstein, upon discovering that his work had been

[13) The evidence also will show that Penguin violated [13) copied, retained an attorney who sent a letter to Penguin,

[14) Mr. Silverstein's copyright. It is undisputed that he [143 demanding that they cease and desist. Instead he got a letter

[15) submitted his manuscript to Penguin to a senior editor for [15) back trying to defend their conduct.

[16) consideration in 1994 for publication as a separate volume. It [16J Penguin must be held to account for what it now admits

[17) is undisputed that af,ter Penguin offered to purchase merely the [17) is a deliberate act of copying Mr. Silverstein's work. Itls in

[18) works that were in it for $2,000, Mr. Silverstein declined and [18) violation of its own policies. They withheld attribution to

[19) had his book published separately by Scribner. [19) Mr. Silverstein in order to avoid directing customers to the

[20) It is undisputed that every copy, every edition of Not [20) competition, and then they passed off Mr. Silverstein's work as

[21] Much Fun, contained an explicit compilation copyright notice, [21) their own.

[22) and the evidence will show that after seeing Mr. Silverstein's [22) Penguin has made strenuous efforts to obfuscate and

:23] manuscript PengUin decided to publish its own collection and [23) confuse, but it's a very simple case, and penguin wants to ~ '\).. :24) [24) that it also decided to include everyone of the items that complicate it. ,-"~~.-' :25) were in Mr. Silverstein's book. [25) Much of Penguin's defense is an attempt to confuse the

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[1) evidence by setting up and defeating fictional claims that [1] MR. DANNAY: None is intended.

[2] Mr. Silverstein never made. The court will hear that [2) THE COURT: Then you ought to watch what you say and

[3J Mr. Silverstein has no right to copyright Dorothy Parker's [3) speak what you mean.

[4) poems themselves, but Mr. Silverstein never has asserted such a [4] MR. DANNAY: Your Honor, there is only one arguable

[5) claim. [5] basis on left on which the validity ofMr. Silverstein's

[6] The court will hear that Mr. Silverstein is not [6] compilation copyright claim can be sustained, and that is

[7] entitled to compensation for his sweat-of-the-brow effort and [7) whether he has a protectable selection. His arrangement and

[8) time in searching for the Dorothy Parker works, but [8) copy editing claims have been dismissed from the case.

[9J Mr. Silverstein has never asserted such a claim. [9] Injunctive reliefis also out ofthe case because his asserted

[10) The court will hear that whether Penguin copied Not [10] right to a selection is in any event, as the Court ofAppeals

[11) Much Fun verbatim is irrelevant, because Mr. Silverstein is not [11) said, too slight to support an injunction.

[12) entitled to any rights in Dorothy Parker's word themselves, and [12) It's Penguin's view that that is a very important

[13] Mr. Silverstein has never claimed any right in her words. He [13] context, that the selection right -- which is the only claim [14 ) was merely explaining that Penguin copied his entire personal [14J left in the case as far as copyright is concerned -- is too

[15) selection of poems and free verses including his edits, titles [15) slight, and that's the context in which his claims in this [16) and inadvertent errors. Silverstein's real claim is that in [16) trial have to be evaluated.

[17] selecting and compili;g the items for Not Much Fun Silverstein [17) First, he has to establish that he even made a

[18J exercised personal subjective judgment, made nonobvious choices [18] selection. The Second Circuit found that he has no rights in

[19) from a larger universe, and protected his original creative [19) this selection principle, the uncollected poems, because Parker

(20) efforts by registering a compilation copyright for Not Much [20] herselfmade the selection or created the category by excluding

[21] Fun, and Penguin knew all of this when it copied his work. [21] these works from her own collections. So Parker herself

[22) None of Penguin's misdirection changes the fact that [22J created the uncollected category. That's a very important

[23) Mr. Silverstein exercised subjective creative judgment by [23) factor, because the selection principle does not belong.

[24) selecting 121 items, inclUding several items in a form that are [24] THE COURT: So the Second Circuit pointed out. [25] not generally recognizable as poems. [25] MR. DANNAY: Yes. Moreover, ifNot Much Fun,

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[1) THE COURT: He selected 122; only 121 had not been [1) Mr. Silverstein's book, included all of the works that

[2] collected before. [2] Mr. Silverstein found that he regarded to be uncollected poems

[3] MR. RABINOWITZ: Correct. Accordingly, this court [3) and verses by Dorothy Parker, then too there is no selection

[4) should enterjudgment against Penguin based on its clear and [4) because as the Second Circuit held all is not a selection. And

[5] indefensible misconduct, and award damages in favor of [5) we think he did just that.

[6) Silverstein on his claims for copyright infringement, violation [6] In fact, we think Mr. Silverstein told his readers,

[7] ofSection 43(a) ofthe Lanham Act, and unfair competition and [7) told his publisher, and told the NAACP -- his licensor and the

[8) unfair or immoral business practices under New York law. [8) principle Dorothy Parker copyright owner - that his collection

[9) Silverstein is not seeking to enforce rights in (9) was indeed all and complete. And I can put quotation marks

[10] Dorothy Patker's word orpoems. Mr. Silverstein is not [10) around aU and complete. To his publisher he said, and I

[11) requestingcoinpe:nsation for the sweat ofhis brow in searching (11) quote, "The collection was as complete as I could make it,

[12) for the Parker items. Mr. Silverstein is seeking redress for [12J though there is always the haunting possibility that I missed

[13) Penguin's knowing and deliberate theft ofhis original creative [13) some source somewhere. And he also told his publisher, "No

[14) work. Mi. Silverstein is seeking poetic justice. [14) one, no one has cataloged the full inventory ofMrs. Parker's

[15) THE COURT: Thank you. Mr. Dannay, do you wish to [15] uncollected poetry and verse, or considered compiling and [16J open?' [16) editing it to form a comprehensive and cohesive whole until

[17) MR. DANNAY:Thahk you, your Honor. Good morning. [17) now. And that is what Not Much Fun, the lost poems ofDorothy

[18] Before I start, your Honor, I would like to say that I regret [18) Parker is, the fourth and final and largest volume ofDorothy

[19) very much ifyour Honor intcrpreted my letter from yesterday as [19] Parker collected poetry."

[20] being offensive. No offense was intended. I must say though I [20) And he told his readers essentially the same thing,

[21) was and am troubled by the fact that I think after all these [21) because the book's final section is called "The Complete

[22) years our case, Penguin's case, is not well understood, and he [22] Chronology." The first sentence, as we know, explains without

[23J hope to remedy that situation not only at the trial but in my [23) any qualification whatsoever that "This is a chronological list

[24) opening remarks. [24) ofall ofDorothy Parker's poems and verses." [25] THE COURT: That's also insulting. Go ahead. [25] And the book's cover itselfannounce that is Dorothy

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[lJ Parker collected most ofher poems and verses in three volumes [1] protectable creativity to support a selection copyright. To do [2J ofpoetry, as we know, and "the remaining poems and verses" [2J that, Mr. Silverstein undertook to prove a scholarly dispute '<") I [3] from Parker "make up this volume." [3J with professor Randall Calhoun. Professor Calhoun is /

[4 J The Second Circuit understood very well what this [4J identified by the Second Circuit as we all know now as a [5] message was intended to communicate when they said, "The clear [5] foremost Parker scholar, and it was remanded in part for that [6] impression conveyed by Not Much Fun is that there was no [6] issue to be explored. [7] principle ofselection at work other than all or completeness." 17J Mr. Silverstein claimed that he and Professor Calhoun [8] The court weIit on to say, "Thus, anyone wishing to [8J disagreed significantly about what were poems by Parker and [9] compile a complete collection ofthe poems could conclude that [9J that those disagreements supported Mr. Silverstein's claim of [10J Silverstein's selection ofall was unprotected because all is [10J creativity and his own designations. But the video of [l1J not a selection." [l1J Professor Calhoun's deposition will show that there is no [12] And he told the NAACP -- the copyright owner, the [12J meaningful scholarly dispute at all between the two ofthem. [13] principal Parker copyright owner, which gave Mr. Silverstein a [13J Their disagreements, it turned out -- it's on the tape -- were [l4] nonexclusive license for.a mere $275 flat one-time payment, no [14] trivial, ifany. Moreover, Professor Calhoun provided vivid [15J royalty -- he told the NAACP the very same thing. His contract [15J judgments on dispositive matters that Mr. Silverstein never [16J with the NAACP obligated Mr. Silverstein to deliver as a [16J asked Calhoun in the phase when the parties obtained their [17J condition ofthat license "~omplete list ofDorothy Parker's [17J separate declarations before the deposition, and that is [18] poems," and Mr. Silverstein fulfilled that obligation by [18] that -- and this is critical -- that Calhoun concluded that [19] delivering to the NAACP what he called "my chronological and [19J all, all ofthe poems reprinted in Not Much Fun were originally [20] alphabetical lists ofDorothy Parker's poems and verses." [20J published in newspapers and magazinesin a form that makes them [21J And the complete -- that's right, the complete -- list [21J objectively recognizable as poems. [22J that he delivered to the NAACP is identical, identical to the [22] And all ofthe poems that were reprinted in Not Much [23] complete chronology that appears in Not Much Fun. And the [23J Fun are by Dorothy Parker, testified Professor Calhoun. And [24] NAACP in fact relied on the completeness ofthat list when it [24J the Second Circuit agreed that little judgment inheres in [25] authorized Penguin to published Complete Poems full circle. [25] classifYing works as poems by Parker in thes.e circumstances,

····""'1 ,....' Page 14 Page 16 , .. j

[1 J And all it is, your Honor, as we will show, [lJ and plaintiffs own exhibit in this case ofthe Not Much Fun [2J Mr. Silverstein has not been able to name in seven years of [2J poems in their original published form, in magazines, [3] litigation, so far as I can tell, even one work that he [3] newspapers, etc., shows that each is objectively recognizable [4] regarded to be an uncollected poem or verse by Dorothy Parker [4J as a poem and each is signed by Dorothy Parker in her name or [5] that he left out ofNot Much Fun, seven years oflitigation, [5J under one ofher well known pseudonyms. Their assembly could [6] and despite the claim -- which we think is an extravagant [6J not thus entail any copyrightable creativity. [7J claim -- ofa vast universe ofpossible candidates from which [7] But Professor Calhoun also concluded that all ofthe

[8J he selected his 122 or 121 Not Much Fun poems. [8J poems reprinted in Not Much Fun, all ofthem should be included [9] And Mr. Silversteinis not alone in this, because as [9J in.any properDorothy Parker complete poems collection, and he [1OJ you will see on theyi~e9sthat will be played later this week, [10J testified that he did not know ofany uncollected poem by [l1J ndtherProfessor Calhoun nor Coleen Breeze has found or knows [l1J Parker that is not included in Not Much Fun and is not included [12J ofany uncollected poem 01" verSe by Dorothy Parker that Not [12J in Complete Poems, with one possible exception ofan item [13J Much Fun omitted. [13J questionably attributed to Parker and which Parker herself [14J Mr. Silverstein, like any normal researcher would do, [14J strongly denied writing as Not Much Fun, and other books

[15J left out only what he concluded did not belong, works he did [15J report.

[16J not consider to bepoems or verses by Dorothy Parker. He told [16J Calhoun's deposition testimony refutes completely,

[17] his readers, he told his publisher, and he told the NAACP that [171 completely, Mr. Silverstein's claim ofa scholarly dispute.

[18J Not Much Fun was complete, and he was right. He intended to [18J And his testimony, together with many published works in the

[19J include all, he did include all, and he represented to the [19J field, show that Not Much Fun does not creatively designate any

[20] world that he included all, and he would at a minimum, as we [20J work as poetry that might otherwise be deemed something else -- [21J contend, be barred by the fact estoppel doctrine from claiming [21J to borrow language from the Second Circuit. '22J otherwise for litigation purposes. [22J In fact, Mr. Silverstein's bold faced four works -- :23] But even ifwe ignore all ofthis overwhehning [23J two verses in two book reviews, and two letters in the form of ") :24J evidence which I just sketched for the court, Mr. Silverstein [24J poems, one ofthem published in an ad -- are recognizable as

:25] cannot overcome the second hurdle ofshowing that there is [25J poems on their own terms and have been so recognized by others,

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[lJ including Calhoun before and after Not Much Fun. [1 J THE COURT: Well, that's fine, but you are still not ;,', [2J In fact, Professor Calhoun, recognized virtually all [2J permitted to make legal argument in an opening statement. [3] ofthe works as poems in his Biobibliography that preceded Not [3J MR. DANNAY: It's what we're going to show. [4] Much Fun. [4] THE COURT: Excuse me. The purpose ofan opening [5] But even apart from the protectable selection issue, [SJ statement is to show me and to tell me what you are going to [6J your Honor -- and this is very critical to our case -- there [6J prove. Go ahead. [7J could be no finding ofinfringement in this case for anoth~r [7] MR. DANNAY: Your Honor, I have not repeated "what the [8J reason. Mr. Silverstein's selection principle ofuncollected [8J evidence will show" before each ofmy statements. [9J poems, which we know from the Second Circuit belongs to Parker [9J THE COURT: You don't have to repeat that the evidence (10) and not to Mr. Silverstein, is entirely different from [10] will show. All I'm saying is you are giving me legal argument.

[11] Penguin's selection principle ofComplete Poems, which as the [Ill Are you not telling me what the facts will prove. Go ahead. [12] Second Circuit said owes nothing to Mr. Silverstein. [121 MR. DANNAY: The facts will show that ifindeed the [13J The different selection principles present questions [13] copyright is sustained in this case it would be in effect [14J that we submit are absolutely unanswerable in this litigation, [14J telling the NAACP that it too could be a copyright infringer if [lSJ namely how can you tell a publisher that has the indisputable [lSJ it published the Complete Poem volume, that it licensed to [16J right to publish each and every poem in its complete poems [16] Penguin to publish, containing poems the NAACP owns the [17J volume that it cannOl'do so in a single complete volume, and [17] copyrights in and in which Mr. Silverstein has no copyright [18J how can a publisher, any publisher, not just Penguin, but any [18J interest or exclusive right as the evidence will show. [19] publisher, do a complete poems volume without including the [19] Indeed, under Mr. Silverstein's theory, the NAACP, I [20J lesser category ofuncollected poems? Such results would be [20J think the evidence will show, would be a copyright infringer [21J bizarre legally in my view and in the publishing world; and a [21J merely by having authorized Penguin to publish Complete Poems. [22] finding against Penguin here would lead to another extremely [22] This we think would be nonsense and would make a mockery of [23J bizarre result, equally ifnot more unacceptable. [23] copyright law. [24J IfPenguin's Complete Poems volume infringes [24] Let me tum finally to what I think are the strident [25] Mr. Silverstein's selection copyright, then indeed Penguin's [2SJ slogans we have heard in this case: Cutting and pasting and.

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[lJ licensor, the NAACP, the owner ofthe Parker copyrights, would [lJ verbatim copying. The only cutting and pasting, as the

[2] infringe as well ifit decided to publish Complete Poems [2] evidence will show, was done to put the uncollected Parker

[3) itself, which it could well do. [3] poems in a noninfringing chronological arrangement. That all

[4] Having given Mr. Silverstein only nonexclusive rights, [4J comes from one letter ofColeen Breeze, and the purpose ofthe

[5] no copyright right, and for the nominal flat sum payment of [5] cutting and pasting was to rearrange the poems that Penguin had [6J $275 the NAACP would be a copyright infringer ifit published [6J a right to publish in a chronological arrangement, which is [7J its own complete poems that included the uncollected poems. [7J unquestionably noninfringing and which the Second Circuit has

[8J That would be indeed a strange and unacceptable result, in our [8] found to be noninfringing. [9J view; amounting in effect towhat would be Mr. Silverstein's 19J The only words that were copied, as the evidence will [10J adversepossessionoftheNAACP'scopynghts -- ifI can borrow [10J show, the only words copied verbatim were Parker's own word, [11) a term from another area ofthe law ~-andit won't do to say Ill] which Penguin had the right to publish. [12J that the NAACP is, asl'msitre wewill hear, free to assemble [12J Earlier in the case, as we all know, Mr. Silverstein [13] its own selection ofuncollected poems. [13] claimed that Penguin also copied his punctuation which was a 114J There is no other selection, because it is, as [14 J gloss on the words. And that's a claim, as we know, the Second [15] Mr. Silverstein said candidly to his publisher long before any [15J Circuit dismissed. [16J litigation was around, his collection was "as complete as I [16J ArJd, finally, having acquired ownership ofthe 117] could make it," a conclusion that Professor Calhoun and Coleen [17J physical book Penguin could dispose ofthe physical book its [18J Breeze agreed with completely. 118] pages as it saw fit. [19J ArJd ifthis court [mds that Mr. Silverstein has a [19J Penguin put together its collection the very same way, [20J valid selection copyright that Penguin infringed, it would be [20J the evidence will show, that other publishers put together [21] telling in our view the NAACP, the copyright owner ofDorothy [21J their anthologies, using pages as text source and as [22J Parker's poems -- [22J typesetting copy, where they have the rights as here in the [23] THE COURT: You are arguing now legally. You are not [23] material on those pages. [24J making an opening statement now. [24J Based on the Second Circuit rulings, Penguin hasn't [25] MR. DANNAY: Well, I'm almost done. [25] used a single word for which it can be liable. As Judge Winter

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[1 J said in oral argument, the only thing Penguin copied verbatim [lJ Q. What year was Not Much Fun published? [2] is was what Dorothy Parker wrote. [2] A. 1996.

[3] And I will close, your Honor, by saying this: Just [3J Q. Which publisher published it?

[4 J consider the pages ofNot Much Fun, individual pages. Three [4J A. Scribner. It's an imprint ofSimon Schuster, which is a [5] things appear on those pages or as part ofthose pages, three [5] division ofViaeom. [6J things. There are words. All of those words were Dorothy [6J Q. Was it published in hardcover or paperback? [7] Parker's, all ofthose words both sides had a right to reprint. [7] A. It was originally published in hardcover.

[8] There was punctuation. That punctuation has been [8] Q. And was it subsequently published in paperback? [9J thrown out ofthe case. It's not a factor in this case. [9] A. Yes, in 2001. [10] And the third thing on that page is just the page, [10J Q. Could you pick up the volume ofexhibits that you have that [11] it's the physical page, it's the pulp that was turned into [11] would be labeled volume 2 -- sorry. Volume 1. [12J paper. And we had a perfect right to use that. [12] A. Yes. [13] There is nothing on the pages ofNot Much Fun that [13] Q. And could you look at Exhibit 2, please. [14 J Penguin made use offor which it can be held liable. Thank [14J A. Yes. [IS] you, your Honor. [15J Q. Do you recognize that document? [16] THE COURT: Thank you, Mr. Dannay. [16) A. Yes, it's a photocopy ofNot Much Fun. [17] Your first witness, Mr. Rabinowitz. [17) Q. The hardcover or the paperback?

[18] MR. RABINOWITZ: Thank you, your Honor. The plaintiff [18) A. The hardcover edition.

[19] calls to the stand Stuart Silverstein. [19) Q. And this is a copy ofthe book that was published by [20] THE COURT: OK. [20) Scribner in 1996, is that right? [21J MR. RABINOWITZ: We have, as you know, multiple [21] A. Without looking at every single page, yes, it appears to [22] volumes ofthe exhibits. Can I place a set up by the (22) be. [23] witness's -- [23J MR. RABINOWITZ: The pJaintiffmoves for admission of [24 J THE COURT: Yes, you can. [24) Exhibit 2, your Honor.

,25J [25] MR. DANNAY: No objection.

Page 22 Page 24

[1] STUARTY. SILVERSTEIN, [lJ THE COURT: Received, Plaintiffs Exhibit 2 in

[2] the plaintiff, having been duly sworn, [2J evidence. [3] testified as follows: [3J (Plaintiffs Exhibit 2 received in evidence) [4J THE COURT: All right. You may proceed. [4J Q. Please look, Mr. Silverstein, at Exhibit 3. Do you

[5J DIRECT EXAMINATION [5] recognize that?

[6J BY MR. RABINOWITZ: [6) A. That appears to be a photostat ofthe soft cover, the

[7J Q. Good morning, Mr. Silverstein. [7] paperback edition ofNot Much Fun.

[8) A. Good morning. [8) Q. Is that in the form ofwhich it was published by Scribner?

[9) Q. Where do you reside? [9] A. Well, besides being a photostat, yeah. Yes. 10) A. Los Angeles, Cfllifornia. [10] MR. RABINOWITZ: Plaintiffmoves for admission of

11J Q..And from what college, what year and with what degree did [11] Exhibit 3, your Honor. 12J you graduate? [12] MR. DANNAY: No objection. 13) A.I got a Bachelor ofArts in history from UCLA 1976; Master [13] THE COURT: Received. 14J ofJoumalismfrom Berkeley 1981; Juris Doctor from Loyola Law [14) (plaintiffs Exhibit 3 received in evidence) 15] School, Loyola Marymount University in 1981. (15) Q. Are you working on any projects now, Mr. Silverstein?

16] Q. And what is your occupation? [16) A. Yes, I'm working on a book about baseball around the tum 17J A. A writer. [17) ofthe 20th Century, and 1am still doing some ongoing work on 18J Q. Have you had any works published? [18] history ofthe Algonquin roundtable.

19] A. Several articles in National Law Review, Los Angeles Law [19) MR. DANNAY: I am now having a little trouble hearing 20J Journal, The National Review, and Not Much Fun. Also, the [20] him. 21) Oxford English Dictionary Magazine. [21] THE COURT: Try to keep your voice up. It's very

22) THE COURT: Move just a little closer to the [22] important, because all that's going to happen ifyou don't keep

23) microphone. Ifyou have any difficulty hearing, just raise [23) your voice up is you are going to be asked to repeat, and it's 24J your hand. (24) just going to delay things and elongate things. So, keep your 25J MR.DANNAY: lwas before. Thank you for asking. (25) voice up. Ifyou need water, I think we have water for you.

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[1] lust speak loud. Nobody is going to be mad at you because you [1) offnear the end ofthe decade. It was a self-selecting group

[2] are speaking too loud. Go ahead. (2) ofyoung people who were trying to get attention in the New

[3) Q. Mr. Silverstein, what is Not Much Fun? [3) York literary journalistic and artistic and performing worlds,

[4) A. Well, the term itselfwas a re-plus from Dorothy Parker to [4] and they used to meet irregularly at the Algonquin Hotel on

[5) a bartender who asked what she was having. What the book is a [5) 44th Street for lunch: Various members would come various

[6) compilation ofmy selection ofitems that I determined to be [6) days, and they would save up their favorite quips from the

[7] poems and free verses written by Dorothy Parker that had not (1) previous days, and they would regale each other with each

[8] been previously collected by Dorothy Parker. [8] other's quips, and those ofthem that were in the media would

[9] Q. And who is Dorothy Parker? [9] take great care in publishing them, and they very soon became

[10) A. Dorothy Parker is a major literary figure from the first [10) very famous as pretty much as symbolic ofthe flapper flaming

[11) halfofthe 20th Century. She is probably best known as a wit [11) '20s youth from the literary scene.

[12) and as a supplier ofquotations. She also was a drama [12) Q. What types ofworks did Dorothy Parker write?

[l3) reviewer, a playwright, a film writer, a short story writer, [13J A. She wrote what she called verse. She wrote verses, she

[14] and she wrote poems, and she wrote free verses, and she wrote (141 wrote free verses, she wrote dramatic reviews, she wrote short

[15) other various items ofindeterminate quality. (IS) prose, pieces she wrote. She wrote short stories. She

[16) MR. DANNAY: I'm really sorry to interrupt, but some [16) wrote --later on she wrote screenplays, she wrote a couple

[17) of the words seemed to trail away, and I wonder ifthere is [17) plays.

[18) just some way-- (18) Q. Did she write under any pseudonyms?

[l9) THE COURT: Can we tum the microphone up? [l9] A. She wrote under at least two, perhaps three. She wrote at

(20] MR. DANNAY: I am hearing some, but I'm not hearing (20] least one item under the pseudonym Henriette Russo. She wrote

(21) all. Sorry to interrupt. [21) several items for the Saturday Evening Post under the pseudonym

[22) THE COURT: You needn't apologize, because he does [221 Helen Wells, which was probably a play on hell on wheels. And

[23] drop his voice at some points. [23] she might have written several items for the New York World

[24) So, keep the volume up, Mr. Ryan. [24 J newspaper in the later '20s under the pseudonym Squidge. It's

[25] DEPUTY COURT CLERK: Yes, Judge. [25) unclear.

Page 26 Page 28

[ll THE COURT: Thank you. [1] Q. In what publications did her works occur? [2) Do you want the last answer read back? [2] A. Her works probably appeared in dozens, but some ofthe more

(3) MR. DANNAY: I don't think I need that, your Honor, [3J notables ofthose would be the New York Tribune, Vanity Fair, (4) but I wanted to anticipate other answers. [4) Vogue, The New York World, The New Yorker, The New York Herald [5) Q. Who are her contemporaries? [5] Tribune, the Saturday Evening Post.

[6) A. In poetry I would say probably Eleanor Wylie and Edna St. [6J THE COURT: What was the last one? [7] Vincent Millay. In terms ofher friends and the people that (7] THE WITNESS: The Saturday Evening Post. [8) she dealt with, especially around the Algonquin roundtable you [8] THE COURT: Thank you. (9) have Franklin P. Adams, the colulIDlist; Robert Benchley, the [9] Q. In your opinion, Mr. Silverstein, what was she best known [10) critic and humorist; MarcCortnelly, the playwright and also [10) for? (11) journalist; George S. Kaufnian, joumalisfand dramatic critic [11) A. For her wit. 1 think she is best known for some very

[l2) and piaywright;Heywood Broun, columnist; Robert Sherwood, (12] famous put downs and some very famous lines, more than any of

[13) critic and latera famous playwright and screenwriter; (13J her individual works.

[l4) Alexander Woollcott, critic and later an actor. [14) Q. Why did you decide to compile Not Much Fun?

[15) MR. DANNAY: Sorry. I didn't hear the last. [15] A. It was sort ofthrust upon me. In the course ofdoing the

(16) THE WITNESS: AlexanderWoollcott. [16J research for the Algonquin book I was going through the (17) THE COURT: 1 didn't hear it either. Later what? (17) original Life magazines and microfilms at the UCLA research

[18) THE WITNESS: Originally a dramatic critic, later an (18) library, looking for a series ofcapsule reviews written by

[19) actor. [19J Robert Benchley. He was the dramatic critic for the old Life

[20) MR. RABINOWITZ: Can I suggest that you lean into the [20) magazine, and one ofhis duties was to write a short, you know,

[21) microphone. (21) snippet, two or three lines, maybe one line, about each play

[22) THE WITNESS: I'm trying to. I'm sorry. [22] that was in production on Broadway, and one ofthe plays that

[23) Q. You mentioned the Algonquin roundtable. What was that? [23J was appearing at that time was called Abbie's Irish Rose, which [24] A. It was a literary coterie that formed around lune 1919 and [24] was a dramatic comedy about a young Irish girl who falls in [25) existed more or less for most ofthe '20s, although it trailed [25] love with a young lewish boys and how their families handle the

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[1) whole thing. It's very stereotypical, and it's really a pretty [ll any scholarly works about Dorothy Parker?

[2J horrible piece ofwork, but it was extremely popular, and it [2] A. I had read the basic biographees. I read, well, first the

[3) was breaking all the Broadway's records for the longevity of [3] Scholarly Biography by Arthur Kinney which appeared in 1978.

[4J its run. It ran year after year. I think it ran more than [4 ) He has since updated it with a new one in 1998, but that had [5) five years in the early '20S, and one ofBenchley's [5) not been released at that time. [6] responsibility was every week to write a one or two line [6] I read Marion Meade's 1987 biography. I read the [7] snippet about that play, and it had to be different every week, [7] first major biography ofher which was written by John Keats in [8] and he absolutely hated this play, and so he took some pleasure [8] 1970. And 1had read the Leslie Fruen biography which appeared [9] out ofmaking these little snippets as funny as he could each [9] in the mid-80s. (10) week, and subsequently the biographers not only for Benchley [10] Q. And had you read Randall Calhoun's Biobibliography?

[l1J but many ofthe other Algonquin -- [11) A. Not at that time.

[12) MR. DANNAY: I am now having trouble hearingagain. [12J Q. Who is Professor Calhoun?

[13] Could you just slow down a little bit? [13) A. Professor Calhoun. [l4] THE COURT: Yeah. It would be better ifyou did speak [14] THE COURT: When you say now, I want to get something [15] a little slower. [15] straight in my mind. You said not at that time. What time (16) MR. DANNAY: Thank you very much. [16) that you had not read Calhoun?

[17] THE COURT: And again, Mr. Ryan, see ifwe can get the [17) THE WITNESS: 1had not read Calhoun when I started [18] mike any louder. [18] collecting Dorothy Parker poems and verses. [19] But just speak slowly. [19] THE COURT: OK. And what yearwas that? [20] THE WITNESS: Sorry, your Honor. [20) THE WITNESS: That was in 1994.

[21J THE COURT: I'm not being critical. Just try. Go [21] THE COURT: Go ahead. [22) ahead. [22] Q. When did you first become familiar with Professor Calhoun's

[23] I think we should get the last answer read back. [23J book? [24) (Record read) [24) A. I'm not sure ifit was later in '94 or '95. [25] THE COURT: Your next question. (25) THE COURT: When he said "familiar with the book,"

Page 30 Page 32

[1 ) Q. Mr. Silverstein, why was it you decided to compile That [1] when you became familiar with the book, does that mean that you (2) Much Fun? [2) became aware ofits existence and title, or does that mean that [3] A. In the course oflooking up all ofthese Benchley snippets, [3] you read it, or what does it mean?

[4) I was going through these original Life magazines, and 1found [4J THE WITNESS: In this case it would be pretty much all [5) several items written by Dorothy Parker which did not appear [5) ofthose simultaneously. I first became aware ofit when I

[6] familiar to me. I compared them to her -- I'm not sure ifI [6) first saw it at the library. I took it out, and I read it at (7) compared it to her first major compilation ofcompilations [7) that time.

[8) which was titled Not So Deep As A Well, or whether I compared [8) THE COURT: And that would be, you believe, late in

[9J it toone·ofthe earlier editions ofT:he Portable Dorothy [9) 1994 you are saying.

:10) Parker. In either case I found that these items had not been [10J THE WITNESS: Either late 1994 or early 1995. :11) c;ollected, and atthat point Ldecidedl:wouldstart to collect [Ill MR. DANNAY: Sorry. Early 1995? :12J tlIem,andlstartedgoingthrough the Life magazines, which (12) THE WITNESS: Either late '94 or early 1995.

:13J were not indexed, page by page and issue by issue. [13J Q. What point in your compilation ofNot Much Fun did you do "14J THE COURT: Next question. [14 ) those things? :15J Q. Which anthologies did Dorothy Parker publish? [15) A. I virtually compiled everyiliingin That Much Fun by the

:16) A. Well, her poetry compilations, her original compilations [16J time I got to the Biobibliography.

17]. were Enough ,Rope, which appeared in 1926, Sunset Gun, which [17J Q. But you read the Biobibliography before the publication of

18) appeared in 1928, Death and Taxes, which appeared in 1931. She [18J the not That Much Fun?

19J compiled those compilations after subtracting a few ofthe [19] A. Yes. 20J items she no longer wanted to be remembered, 1assume, in 1936 [20) THE COURT: For record purposes, the Biobibliography 21] in a book called Not So Deep as a Well. [21) is the Calhoun work, is that correct?

22J In 1944 the items contained in Not So Deep as a Well, [22J THE WITNESS: Yes, that's correct. 23) as well as some ofher short stories and some ofher other work [23) THE COURT: Go ahead. 24J were compiled in the first Portable Dorothy Parker. [24) Q. Who is Randall Calhoun?

25) Q. At the time that you compiled Not Much Fun, had you read [25J A. Randall Calhoun has been since 1986 an assistant professor

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[1) ofEnglish at Ball State University in Monsey, Indiana. [1 ) Highland Park public library in Illinois, the Evanston public (2) Q. What type ofwork is the Biobibliography? [2) library in Illinois. I might be forgetting a few libraries. I

[3] A. It's essentially a list oflists. It's a compilation of [3J visited every library pretty much -- I believe I went to the [4] citations by and about Dorothy Parker. It organizes her [4) Arlington Heights library in Illinois also. This is about 12, [5] citations that she wrote by publication, and in many ofthose [5) 13 years ago, so I can't recall precisely which ones, but I [6] publications it characterizes various items as prose, or poems, [6] visited pretty much any library I thought might possibly have [7] or short stories, or I think screenplays in some cases. He has. [7] something I could find. [B] different criteria for different publications. [B] Q. What did you do with the information? [9] Q. So it actually classifies her works in different [9) A. I went through the paper versions ofmagazines and

[10] categories? [101 newspapers ifthey were present, which in very few cases they

[l1J A. Explicitly. [11] were. And I can't even remember offhand besides UCLA any of [12) Q. Were you ever asked to make any type ofscholarly [12) the libraries that did have anything in paper, but I was pretty [13) presentation regarding Dorothy Parker? [13) much a microfilm rat. I was going through microfilm ofany [14] A. Yes. The BBC contacted me. BBC Radio 4 contacted me in [14J number ofmagazines that were available in various libraries, [15) late 1995 to appear on an arts show about Dorothy Parker. I [15) because different libraries have different things. And I was [16) think it was a halfhour or hour show. It was hosted by one of [16) looking through the magazines I mentioned before, magazines [17] the leading BBC presenters, a woman named Francine Stock. [17) like Ainsley's, and I believe there was a magazine called

[lBJ Q. What was discussed during the show? [lBJ Everybody's magazine. There were probably a couple dozen [19) A. It was pretty free ranging. They asked me about her work, [19) magazines and several newspapers, and I just went through them [20) they asked me about her life. I think it was more about her [20) all. [21) life than about what she had actually written, because I think [21) Q. What were the main titles ofthe magazines that you looked [22) that that is what interests people more than the literary (22) at? [23J examination. [23) A. Well, I think the ones, the most target-rich environments [24J Q. How long was the show? [24) would have been -- well, the New York Tribune is where she [25J A. As I said, I can't recall ifit was a halfhoUf or an hour. [25) first got a lot ofher stuffpublished. The first stuffcame.

Page 34 Page 36

[lJ Q. What was the full title ofNot Much Fun? [1) in Vanity Fair and Vogue, but she became -- she tried to become (2) A. The full title was Not Much Fun: The Lost Poems ofDorothy [2) friendly with Franklin P. Adams, who was a noted columnist, you (3) Parker. [3) know, before the first world war and between the wars. And

[4] Q. What was your goal in compiling Not Much Fun? [4) from 1913 I believe to InI he was at the New York Tribune, so

[5J A. My goal was to compile as complete a list ofitems that I [51 I went through every issue ofthat newspaper day to day because [6) determined to be poems written by Dorothy Parker. I later [6) there were no indexes to make the process any easier.

[7) decided that I would try to add to it free verses which I did [7) It was in one ofthose newspapers I found an odd item

[BJ not regard to be poems, that I also had determined to be [BJ where Franklin P. Adams accused her ofcommitting plagiarism in

[9J written by Dorothy Parker, eventhough they did nottechnically [9J regard to an item she published I believe in Vanity Fair, which

[10J 'conform to the fonnat ofthebdok, becaiise it Was pretty much a [10J I don't think any ofthe biographers had everfound before,

[l1J whim. I just thought it wouldbe nice to put them in, and I [l1J because there was no way to find it, because this was just a [12] just liked them, and I put them in. Essentially what I did was [12] newspaper that was moldering in microfilm, and unless you were

[13J I put in apples in my compilation oforanges. [13J looking through this newspaper in the original microfilm you

[14J Q. What steps did you take to prepare Not Much Fun? [14J would never have found anything in it.

[15J A. I visited probably close to a dozen'libraries in California [15J Q. Why did you look at those particular publication? How did

[16J and Illinois, major university libraries at Northwestern at [16J you know?

[17J . Evanston, Illinois; at the University ofCalifornia Berkeley; [17J A. I didn't know. The problem was you don't know where you're

[lB] several libraries at UCLA. [lBJ going to find, what you're going to Imd. So, I generally

[19J I believe I visited I think the University ofSouthern [19J looked in the places where I thought it was most likely I would

[20J California library near downtown Los Angeles. I think I [20J Imd various items from Dorothy Parker.

[21J visited the Cal State Northridge and Long Beach libraries. I [2lJ I knew that later on, a few years after that, when the

[22J didn't put them down in my earlier response, but I think I did [22J Algonquin roundtable started, she became very friendly with

[23) make visits to those two also. [23J Franklin P. Adams, so I related back from that to Franklin P.

(24) I visited several local libraries including the Los [24J Adam's earlier columns in the same newspaper.

[25J Angeles public library, the Chicago public library, The [25J Q. Did you use professor Calhoun's Biobibliography in locating

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[lJ any ofthe items? [lJ Q. What was your personal definition or opinion ofwhat a poem [2J A. I had almost completed my collection at the time I went to [2] was? (~ [3J -- I saw Randall Calhoun. And I am a bit unsure about the [3] A. It wasn't overly precise. I know there are basic J [4J chronology. There is one item I know that he had, that I had [4] definitions, dictionary definitions ofpoems. They are not

[5] missed from a later issue ofLife magazine. I think that c- [5J necessarily complementary to each other, they do contradict to [6] I'm not going to speculate as to why I missed it. It was on a [6J an extent, one of which is technically something that has meter [7] page with some artwork, and it was kind of-- it was not easy [7J and rhyme; another one is something that has some vague [8J to see on the microfilm, but that's not an excuse. I was [8] artistic undertone to it that prose doesn't have which is by [9J appalled I missed it. But he did have that one. He was [9] its very nature extraordinarily subjective. [10J missing in his list several that I had. And then there are a [10J THE COURT: Let me interrupt. What you have just done [l1J few items from the Saturday Evening Post that he had which I [l1J is told us, as I understand it, is told us what other people [12J didn't have. However, at almost the same time -- I am not sure [12J defined poems as. The question before you is how do you define [13J about the exact timing -- as I said, this is '94, '95, so it [13] a poem, not what other people say, how do you define a poem. [14] was 12, 13 years ago, and I simply cannot recall the precise [14] Isn't that your question. [15J chronological sequence as this happened -- but at the time, [15J MR. RABINOWITZ: Yes, your Honor. [16J around the time I found the Calhoun book, I was also actively [16J THE COURT: Tell us how you define a poem. [17J negotiating with the Saturday-Evening Post for permissions for [17] THE WITNESS: At the time 1was trying to determine [18J those items, and they had their own very, very exhaustive [18] what I should consider to be a poem or not or free verse or [19J records about who wrote what. And I got -- some ofthe items [19J whether or not a free verse was a poem or not. I did a little

120J that I found in Calhoun I also got in a letter or in a phone [20J research at the time. I spent a lot oftime at the library [21J call, I'm not sure, from the Saturday Evening Post at the same [21J looked through various dictionaries. At the time I was [22J time. So, whether I found them in Calhoun first or whether I [22J becoming a rather active contributor to the Oxford English [23] got them in the Saturday Evening Post first, I cannot tell you, [23J Dictionary. I asked them, called them up, asked them what they [24J but it was pretty much simultaneously. [24J thought. They said we don't know what a poem is either, our [25J (Continued on next page) [25] defmitions are so hopelessly --

(..~) Page 38 Page 40

[lJ Q. How long did you spend performing your search? [1] Q. What was your defmition ofa poem? [2J A. Close to two years. I was looking for things right up [2J A. My defmition of a poem after doing some research was [3J until -- [3] pretty much that it had some kind ofrhyme, it had some kind of [4 J THE COURT: The answer is close to two years. [4] meter maybe, but maybe not. These were general guidelines but [5J Your next question. [5] they were not carved in stone, not sharply etched, more like [6J Q. Over what period did your search extend? [6J guidelines rather than standards. [7J A. From the spring of 1994 to the spring of 1996. [7J Q. Did Dorothy Parker to your knowledge express an opinion on [8J Q. How many hours per week on average would you say you spent? [8] what she believed a poem was? [9J A. I can't say per week. It was I estimate several years, [9J A. Yes, she did, explicitly in 1928, constituted a review from :10J llbout,$l,000 total, SOme weeks I would be.there 60, 80 hours, [10J one ofher book reviews. She signed her book reviews Constant 'l1J ..SODle weeks a lot less. [l1J Reader from New Yorker. 12J Q~ Approximately how many items did you review and consider? [12) Q. Binder4, Exhibit 54. 13) A. Several hundred, not counting her previously collected [13) THE COURT: Volume 4, Exhibit 54 for identification. 14) poems, not counting her previously collected short stories or [14 ) MR. DANNAY: Could we have a moment to get that. 15) previously collected book reviews. I would say 4, 500; I can't [15] THE COURT: Sure. 16J break it down any more than that. [16] Let them know when you have found it. 17) Q. What did you do when you located an item you believed [17) MR.DANNAY: We have it, your Honor, thank you. 18) Dorothy Parker had written? [18) A. I was right, it was 1928, from New Yorker, the issue dated 19) A. First I would determine whether or not I considered it to (19) January 7, 1928, pages 77 through 79. 20) be a poem or a verse. Second, maybe sometimes first I would [20) Q. What portion ofthat article in that -- it was written by 21J determine whether or not I thought she had written it. There [21J Dorothy Parker, is that right? 22) were several instances where items that published sources had [22] A. You will see on the middle ofpage 79, left-hand column, 23J credited to her I decided were not written by her. Then I (23] it's signed with I think they call it a tag line, signed by '\ 24) would compare it to the collections to determine whether or not [24) Constant Reader, which was Dorothy Parker. It has been ,-,~) 25J those items had been previously collected. [25J universally accepted to be Dorothy Parker. In 1970, after her

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[11 death, they put out a collection ofher excerpts, it's called [1] poetry experts will say it has some higher artistic merit to it [21 Constant Reader, so, yes. [2] over ordinary prose, but I would suggest that from my [3J Q. First page, page 77, on the right-hand column, read the [3] perspective and from a whole lot ofother people's [4J paragraph beginning with "There is poetry?" [4 J perspectives, ifit looks like, ifit's just put in that [5J A. Midway in the paragraph, the starting paragraph on that [5J format, it's a free verse. And pretty much any piece ofprose [6J column says, quote: "There is poetry, and there is not. You [6] can be made into free verse. You could take the Page 6 column [7J can't use the words good or bad about it. You must know fo~ [7J in today's New York Post and change it, put each sentence into [B] yourself Poetry is so intensely, so terribly personal. A [BJ a separate line and break it down into stanzas, and you will [9] wise man, a very wise man -- well, Hendrik Willem Van Loon, if [9J find lot ofpeople say, yes, that's a free verse. [10J you must have names -- once said to me that ifyou have any [10J THE COURT: Thank you. [11] doubt about a poem, then it isn't a poem. Poetry is for you, [11] Q. Can you look at back at Exhibit 2 in volume I, your [12] for you alone. Iffor you it's poetry, it will deluge your [12] hardcover ofNot Much Fun? [13J mind, drain your -- [13J A. Excuse me. [14J THE COURT: So the record is clear, the record could [14J THE COURT: Exhibits 2 in volume I, the hardcover copy [151 come out delude. It's not delude; it's deluge your mind, like [15] ofNot Much Fun. [16J a flood, it will deluge your mind -- [16] Q. Can you tum to page 65 please. [17J A. -- drain your heart, crinkle your spine." [l7] A. I can and I will. [lBJ Q. That's fine. Thank you. When you were reviewing an item, [lBJ Q. That's contained within the introduction ofyour book, [19J Mr. Silverstein, how did you determine whether you believed it [19J right? [20] was a poem? [20J A. Yes, that's the last page ofthe introduction. [21] A. I wish I could say that I went through this hard-and-fast [21J Q. Can you read the last paragraph beginning with the word [22J process, what I did, like I had a checklist or something. [22J "those." [23J Basically I had a general idea what a poem was based on what [23J A. "Those precarious undertakings called quote or unquote are [24J told you before. I would make a snap judgment, do I think this [24] considered and judged through intensely personal yet hazy [25] is a poem or not. Ifnot, is this a free verse or not or is [25J prisms ofemotion, taste and experience. This collection will

Page 42 Page 44

[1] this neither or not or this written by Dorothy Parker or not. [lJ ultimately be measured on those grounds. Enjoy." [2J That was pretty much my, that was pretty much my judgment [2) End ofparagraph. [3J process. [3] Q. What was your intention in writing those words? [4 J Q. Did you select and include in Not Much Fun every item that [4] A. I was saying this is intensely subjective; ifyou think [5J you considered? [5) it's a poem and you enjoy it, enjoy it. [6] A. No. [6] Q. Were all ofthe items that you selected immediately [7J THE COURT: Did you select and include in Not Much Fun [7] recognizable to you as a poem? [BJ every item that you considered to be a poem that was written by [BI A. No. As this paragraph says it's hazy. The very nature of [9JDorothyParker thatso far as yoU could determine had not been [9) this is that it's hazy and very, very, I hate to keep using the [lOI'previously collected? [10) .word subjective, it's an accurate word to describe what we are

[11) THE WITNESS: Aftet I made several preliminary [11) trying to talk about here. [12] judgments, A, whether! thought it was a poem or not, B, [12) Q. Did you select any items that were contained, select any [13) whether or riot Ithoughfit was written by Dorothy Parker, C, [13) items as poems that were contained in a longer item that you

[14J whether or not I thought it was a free verse or not, and D, [14) did not immediately recognize as a poem? [15] whether ornot it was collected, after I made all those (15) A. I hadto decide several items that might not necessarily [16J preliminary judgments, only the latter one which was hard and [16) have been objectively considered poems by someone else, I [17) fast because I could refer to what she had already collected. [17) consider to be poems. For example, there was an extract from a [lBJ THE COURT: You have used the term several times since [lB) letter that Dorothy Parker wrote I believe in 1920 to Robert [19) you have been on the witness stand, free verse. Since we have [19] Benchley when she was out camping, she was in some kind of [20) tried to get a definition ofwhat apoem is would you tell me [20J resort in Maine. I believe it was characterized as a letter, [211 what you consider a free verse to be. (21) not as a poem in Marion Meade's book where I first heard ofit. [22J THE WITNESS: Free verse is something that looks an [22] It was written in rhyme and it was goof'y and some ofthe rhymes [231 awful lot like prose but it is formatted in a way that tends to (23) were not really rhymes either, and I decided I wanted to put it [24) look like a poem in that each line, each sentence has its own [24J in the book, I decided to characterize it as a poem. [25) line and it can be broken down into stanzas, and some ofthe [25) There was something else, let's see, there was a thing

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[1) in 1931, advertisement that Simon & Schuster published for its [1 ) ladies with glasses, I am not sure which it is. Is that a poem [2) author Ogden Nash, he had a book coming out. They ran a stunt, [2) or not, whether it's ladies or women's?

[3) they ran two items, letters from Dorothy Parker to Ogden Nash, [3J THE WITNESS: Are you asking me. [4 J from Ogden Nash to Dorothy Parker, and they were kind ofin [4 ) THE COURT: I am asking you. [5) rhyme also, and I chose the Dorothy Parker one from this ad as [5) THE WITNESS: First ofall, that was a particular sore· [6J a poem. [6) spot. Whenever anyone misquoted that, she said she was going [7J I did notice, I did find out later on that Reader's [7) to hit them with her handbag. [B) Guide characterizes it as a poem also, but I also noticed that [8) THE COURT: Does that mean she didn't write that? [9) Reader's Guide, it was for a three-year period, page 1800 or [9) THE WITNESS: No, she wrote it, but it was in a [10J something out of2500 for this one volume, I figured out how [10) slightly different form. She wrote "men seldom make passes at

[11) many different items that they categorized every day. It comes [11) girls who wear glasses." [12) out to a couple 100 items every day that they categorized. [12) THE COURT: The statement "men seldom make passes at [13) The other Dorothy Parker items in that list, they [13) girls who wear glasses," all I want to know is that a poem. [14 ) called it all different kinds ofthings, even ones that are [14 J THE WITNESS: She said it wasn't. [15J undoubtedly poems that she previously collected in earlier [15) THE COURT: Was? [16J books, they called them verse, didn't categorize them as [16) THE WITNESS: She said it wasn't. [17J anything. It was pretty IllYCh luck ofthe draw what that [17J THE COURT: Was not. [18J particular clerk called it, he might have called it a poem. [18) THE WITNESS: She categorized all her verses, she was [19J But it was catch as catch can really. [19) once asked ifshe categorized these things as poems; she said, [20J MR. DANNAY: I object to the answer to the extent it [20) no, they are verses. [21J speculates about what Reader's Guide actually categorizes. [21) THE COURT: She said that was a verse not a poem. [22J THE COURT: I am going to let the answer stand; there [22) Thank you. [23J is no jury here. [23J Q. Why do you think the -- !24 ) A. As a practical matter -- [24) THE COURT: One minute. Let me ask the follow-up !25) THE COURT: Vou don't answer unless you are asked [25J question. She characterized it as a verse not a poem, the

Page 46 Page 48 )

[lJ question. [1) thing of"men seldom make passes at girls who wear glasses,"

[2) Q. Look at volume 4, Exhibit 15. [2] what would you categorize it as, a poem or not a poem?

[3) MR. RABINOWITZ: Your Honor, I have an enlargement of [3J THE WITNESS: I would say it was a poem.

[4J that item on th~ easel. [4) THE COURT: You would say it was a poem, even though

[5J THE COURT: There is no jury. I have the volume, [5) she said it wasn't?

[6J fif. Dannay has the volume, the witness has the volume. [6] THE WITNESS: Yes.

[7) Q. Vou have the exhibit? [7) THE COURT: Thank you. [BJ THE COURT: What you are going to refer to, it's [8J Q. This book review is two pages, right? [9J highlighted on the blow-up, is the Christopher Morely thing. [9J A. Page and a half, yes, extends over two pages. 10J q. r>0yqu recog?ize this item on Exhibit 15? [10J Q. Itjust was these four lines you identified as a poem? 11 J A. Yes; This will be a continuation ofmy previous answer [11) A. Yes, I extracted that one part. 12) that items .that arepart oflarger items I decided were poems, [12) Q. What about it, why did you think it was a poem? 13J there were two Constant Reader book reviews where I extracted [13) A. To tell you the truth right now lam not sure iflwould 14 J very small snippets from those book reviews and decided they [14) have selected it now. I think ifI were to reselect it now, I 15J were poems. They had ever been regarded as poemshyanyone [15] would have not have called it a poem. At the time something 16J previously. [16) about it just struck me, I thought it was diverting, and I kind 17J THE COURT: You regard the following as a poem. I am (17) ofliked the meter in it, but it's very trivial and it's very 18J going to read it into the record. "Christopher Morley goes [18) light, and technically somebody could call it a poem, somebody 19) hippety hoppety, hippety hippety hop. Whenever I ask him [19) could say it wasn't a poem. 20J politely to stop it, he says he can't possibly stop it." [20) Atthe time I thought, gee, I kind oflike this thing, 21) You view that as a poem? [21 J I want to put it in. This is a larger point in terms ofmy

22) THE WITNESS: Yes, I do. [22) selection. I put a lot ofthings in there perhapsifI was 23J THE COURT: Probably the most famous quote from [23J being stricter I shouldn't have put in. I just liked the way 24 J Dorothy Parker that people know ofis the one which I think is (24) they sounded even they though I really didn't think they were, 25J "men do not make passes at women with glasses." Maybe it's (25) that they had that artistic sense that I should use. I put it

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[1] in there anyway. This was just plain out-and-out whim. [lJ THE WITNESS: I am saying that at the time, I was

[2 J O. At the time you first read it, did you know ifanybody else [2] trying to fit it into a template to make it a poem just because

[3] had descnbed those four lines as a poem? [3] I wanted to put it in. Do I think it's a poem, not really, but

[4] A. As far as I knew, no one had. [4] at the time I was trying to force it into a poem because I [5] O. To your knowledge has anyone ever previously described [5} wanted to put it in.

[6] those four lines as a poem? [6] THE COURT: So you included it.

[7] A. No. [7] THE WITNESS: So I did include it.

[B] Q. Are these four lines individually titled in the book [B] O. Do you know whether anyone has described those 2 lines as a

[9] review? [9} poem?

[10] A. Yes, I think-- [10] A. Not to my knowledge.

[11] Q. In the original book review? [11] THE COURT: Do you know whether Mr. Calhoun has

[12] A. Excuse me? [12} characterized it as a poem?

[13] Q. In the original book review? [13] THE WITNESS: No, Mr. Calhoun characterized it both

[14] A. No, in the original book review this was part ofa larger [14] this and the previous book review as book reviews explicitly.

[15] book review. [15] MR. DANNAY: Objection; I think the video will show [16] Q. How did that item appear in Not Much Fun? [16J that's quite incorrect.

[17] A. I extracted it, I-put it on a separate, each item on a [17] THE COURT: Then I wiJIlook at the video. That's the

[lB] separate page ofNot Much Fun, and I gave it a title. I think [lB] trouble with both ofyou. You are objecting, he is objecting

[19] I called it Chris-Cross, because the tenor ofthis book review [19] to things you do, you are objecting to things he does. When I

[20] tends to draw some confusion between Christopher Morley and [20] see the video, the video will speak for itself. He speaks and

[21] Christopher Robin, so I said Chris-Cross, it's a pun. [21] the video speaks. Often people contradict each other. That

[22] MR. DANNAY: Objection. I will move on. The titiing [22] doesn't mean that the answer should be stricken.

[23] ofpoems is not an issue remaining in this case. [23] Next question.

[24] THE COURT: Thank you. [24] MR. RABINOWITZ: Mr. Calhoun--

[25] MR. DANNAY: Ifit's asserted as a claim, I therefore [25] THE COURT: I will see the video when I see the video,

Page 50 Page 52

[1] object. [lJ MR. RABINOWITZ: Exactly.

[2] MR. RABINOWITZ: It's not asserted as a claim; you [2] THE COURT: Next question.

[3] know that. [3] MR. RABINOWITZ: I move the admission ofExhibit 15

[4] THE COURT: The objection is overruled. [4J which the was one we looked at a moment ago.

[5] _ Put your next question. [5] THE COURT: That's the Christopher Morley Higgledy [6] Q. Look at Exhibit 16. [6J Piggledy.

[7] A. It's another Constant Reader book review from May 30, 1931. [7J MR. DANNAY: No objection.

[B] O. Did you consider this book review as an item for inclusion [B] THE COURT: 15 is received.

[9} inNotMtich Fun? [9] (PlaintiffExhibit 15 received in evidence) [Hi] A:'; No. It'sa:bookreviewnota poem. [101 BY MR. RABINOWITZ:

[11]0. As you werereviewing the item did you determinethat a [11] Q. Mr. Silverstein, were these two lines at the end ofthe

[l2] portion ofit mightbe a poem? [12} book review titled in the original publication?

[13} A. UItimately! looked through the book review, and 1looked [13] A. No, they were not.

[14} through the bookreview in the original form, the way that she [14] Q. How did they appear in Not Much Fun?

[15] compiled these things, the book reviews were edited, sothey [15] A. They appeared on a separate page as a separate item which I [16J were much shorter. This one, yes, I saw these tWo lines at the [16) characterized at that point as a poem.

[17] end ofit which I decided I wanted to put in, it's more ofa [17) THE COURT: For record purposes we are referring back

[18} literary thing than as a poem even though there is technically [lBJ to Plaintiffl6.

[19] a rhyme, I put it in because I tend to agree with her [19) MR. RABINOWITZ: Correct.

[20} philosophical literary stance about Theodore Dreiser. This was [20) Q. Did you title that item in Not Much Fun?

[21] also somewhat ofa whim. (21) A. Yes, I titled it After Dawn because it refers to the fact

[22} THE COURT: I am confused. What you are referring to [22) that this book review is about a book called Dawn, and it's the

[23} is the end ofthe review on page 72 and it reads Theodore [23] end ofthe book review, so it's After Dawn.

[24] Dreiser should ought to write nicer. Are you saying that's a [24J MR. RABINOWITZ: I move the admission of 16.

[25] poem or not a poem. [25) MR. DANNAY: No objection.

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[1) THE COURT: Thank you. No objection 16 is received. [1) A. I recognize this photocopy which I received from the Mugar (2) (PlaintiffExhibit 16 received in evidence) [2] Library at Boston University I believe. It is a photocopy of a [3) Q. Was that item ever published before Not Much Fun? [3] letter that was written by Dorothy Parker to Robert Benchley in [4) A. Yes, it was. The book review, not these two lines by [4] the summer of 1920. [5) themselves but an edited version ofthis book review I believe [5) Q. Did you consider it for inclusion in Not Much Fun? [6) was published in the portable and also in the Constant Reader [6] A. Yes, I did.

[7) book which I mentioned a few minutes ago, the collection of [7J Q. Why?

[8] some ofher Constant Reader book reviews edited. [8) A. Despite the fact it doesn't rhyme in many places, it does [9) Q. Look at volume 6, Exhibit 259, beginning at page 520. [9) kind ofrhyme in other places and it wasn't attempting to [10] THE COURT: You want to go page 524. [10] rhyme. It was a letter. I just liked it a lot. I think it [11] MR. RABINOWITZ: 520, we will wind up at 524. [11] underscored the relationship between Robert Benchley and [12] Q. Do you recognize this document, page 520? [12] Dorothy Parker which has been a big subject in literature, and [13] A. Yes, I recognize it. That appeared in the most recent [13) a movie had just come out in 1994, a feature film, called Mrs. [14] portable Dorothy Parker. [14 ) Parker and the Vicious Circle. The central theme ofthe whole [15] Q. What is this, it's entitled Words, Words, Words? [15) movie was the unrequited love affair between Dorothy Parker and [16) A. Yes, it's edited, it's edited, I believe it's an edited [16) Robert Benchley. Here I had this letter written by her to him, [17] review ofa copy ofthat r€Wiew we just referred to. [17) relatively intimate, I was quite intent on shoe-homing it in, [18J Q. Page 524, those two lines you identified and selected and [18) to figure out some pretext to put in the book.

[19) titled as After Dawn published in Not Much Fun, does that (19) Q. Did you believe it was a poem at the time you considered [20) appear? [20) it? (21) A. Yes, it does. [21) A. I categorized it as a poem so I could put it in the book. :22] Q. It is part ofthe longer review? [22] Is it actually a poem, no, it's really a letter. It does rhyme :23] A. Yes, it is. [23) but it's letter, but I deliberately changed my definitions :24] Q. Were you aware ofanywhere those 2 lines have appeared [24) around at the time just because I wanted to put it in the book. :25] alone as a poem? (25) Q. At the time you first read it, did you know whether anyone

\ > J Page 54 Page 56 /

[1) A. In Not Much Fun, then ofcourse Complete Poems photocopied [1] else had described it as a poem?

[2] my book, it appears in Complete Poems. [2J A. No, the only other person who described it as anything at

[3] MR. RABINOWITZ: I moveto admit 259. [3) all was Marion Meade, and she described it explicitly as a

[4] MR. DANNAY: No objection. [4] letter.

[5) THE COURT: Received. [5] Q. Has anyone ever published this letter as a poem?

[6] (PlaintiffExhibit 259 received in evidence) [6] A. I put in into Not Much Fun, ofcourse, Penguin photocopied

[7] Q. Have you ever heard ofthe 2 lines at the end of the [7J it and put it in Complete Poems.

[8J Theodore Dreiser quip described in terms other than as a poem? [8) Q. Is the letter titled?

[9] A. I have never heard them described in any terms besides what [9) A. No. It has a letterhead. It was published on stationery

10] I see in front ofme here and what! described them as and in [10] from the resort where she was staying. It was not really a

:11) thebpokreview. [11) title.

12)Q. Had you ever heard ofthem described as a clerihew? [12) Q. Was it titled in your compilation?

13) A. I believe it referred to that here, also in some of [13) A. Yes, I titled it the letter to Robert Benchley I believe.

14) Penguin's moving papers, I can't recall where. (14) THE COURT: Let's take a break for the court reporter.

15) Q. What is your understanding what clerihew is? [15) We will resume at 10 after 11.

16) A. Well, I seem to recall that Bentley's famous definition was [16) MR. RABINOWITZ: Can I move to admit the exhibit

17] a formless form ofverse, it's formless. He usually used it [17) before we do that.

18) for writing humorous biographical snippets..He was very famous [18) MR. DANNAY: No objection.

19) for this early in the century. [19) THE COURT: Plaintiff 18 received without objection.

20) Q. In your opinion is clerihew a poem? [20] (PlaintiffExhibit 18 received in evidence) 21) A. No. [21J (Recess)

22) Q. Look back at volume 4, Exhibit 18 please. [22) MR. RABINOWITZ: I believe I missed moving to admit

23] A. Clerihew was Bentley's middle name; that's where the word [23) Exhibit 54, which was the Parker poem definition. Do you show 24 J comes from. [24) that as admitted already.

25) Q. Do you recognize that document? [25] THE COURT: 54 is not admitted.

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[1) Any objection. [1) MR.DANNAY: No objection. [2) MR.DANNAY: No objection. [2) THE COURT: Received. [3) THE COURT: Received 54. [3) (plaintiffExhibit 17 received in evidence) [4) (PlaintiffExhibit 54 received in evidence) [4) Q. Did you select and include in Not Much Fun any items that [5) BY MR. RABINOWITZ: [5) you determined were poems that were not in a fonnat ofmetered

[6) Q. Mr. Silverstein, would you, we are still in volume 4, tum [6J lines and stanzas?

[7) to item 17, Exhibit 17. Do you recognize that document? [7J A. Yes, there were a couple. The Milne take-off, I can't [8) A. Yes. (8) recall the title, When We Were Very Young, very young was what [9) Q. What is it? [9) Milne says, When We Were Very Sore, would that be correct. [10) A. A page from Saturday Review ofLiterature. [10) Q. We will look at that. Was there another one too?

[11) Q. Did you consider any portion ofthat page for inclusion in [11) A. Yes, there was Excursion Into Assonance, which wasn't, by [12) Not Much Fun? [12) the way. (13) A. Yes, I had selected the first item in the left-hand column [13) Q. Look at 62, volume 4, do you recognize that document? [14J from Dorothy Parker to Ogden Nash as a letter. [14) A. Yes, that's When We Were Very Sore, in the original [15) Q. Why you, did you conclude that it was a poem? (15) publication in New York World, a photocopy ofit at least. [16) A. I shoe-homed it in as a poem because it really isn't a (16) Q. Did you consider that item for inclusion in Not Much Fun? (17) poem, but I decided irwas a poem anyway because I wanted to (17) A. Yes, I did. Not only that, I did include it in Not Much [18) put it in. [18) Fun. (19) Q. What about it seemed like a poem or not? [19) Q. Does that appear in metered rhyme, metered lines and [20) A. For example, it supposedly rhymes, but look at the first [20) stanzas? [21) line, old subscriber to vers libre, it doesn't rhyme. It's got (21) A. No.

[22) some kind ofweird approximation. But it's a funny little (22) MR. RABINOWITZ: I move the admission of62. (23) thing; I just wanted to put it in. [23) MR. DANNAY: No objection. [24) Q. At the time you first read it did you know whether anyone [24) THE COURT: Received. [25) else had described it as a poem? [25) (PlaintiffExhibit 62 received in evidence)

Page 58 Page 60

[1) A. No. Well, let me rephrase that. I might have seen the [1) Q. Exhibit 63, what is that document?

[2) Reader's Guide listing, I simply don't recall, but I didn't (2) A. It's a photocopy from the New York World; the date's not on [3J think it was a poem, really. [3) it. (4) Q. Was this item titled? [4) THE COURT: Wait a minute. This is in the New York

[5) A. Well, it is titled here. It's got a subtitle, a letter [5J World, not The New York Times.

[6) from Dorothy Parker to Odgen Nash. I changed that to letter to [6J THE WITNESS: No, New York World. (7) Ogden Nash. (7) THE COURT: I understand that. I am asking, you are (8) Q. Is that how it appeared in the book? (8) you saying this page is from the New York World. (9) A. Somewhat. I took out the prefatory material regarding [9) THE WITNESS: Yes, it is. (10) where ifwaswritten from and the· date. [10) THE COURT: Thank you. (11) Q •. HasPiofessotKinney in his biography ofParker, did he [11] Q. Did you consider the Excursion Into Assonance for inclusion

[12) describe this item? (12) into Not Much Fun?

[13) A. I don't think he does, no. (13) A. Yes, I did. [14) Q. Do you recall his describing it as irregular rhyme and [14) Q..Does Excursion Into Assonance contain metered lines and (15) verse? [15) stanzas? [16) A. Yes, he did. Sorry about that. (16) A. It does have meters and it does have stanzas.

[17) Q. Would you consider that to be a poem, Professor Kinney's (17) Q. Does it have rhyme?

(18) description? (18) A. No. Assonance is a weird form ofwhat poets consider (19) A. I consider it to be an accurate description, but whether or (19) rhyme, what no nonnal person would. Assonance is in essence -­ (20) not it's a poem, it's a rhyming verse. [20) first ofall, this is necessary to understand this, your Honor. [21) THE COURT: Hold on please. [21) Generally a rhyme would be that the last vowel sound and the (22) A. I see several instances in here where it doesn't rhyme. I (22) last consonant sound in a line matched the last vowel sound and

[23) gave you one before. Ifyou go down a little further, he tries (23J the last consonant sound in a subsequent line. It could the [24) to rhyme I am and mayhem. (24) next line or it could be one line after the next line usually. [25) MR. RABINOWITZ: We move the admission ofExhibit 17. (25) Assonance is trying to be clever. What it says is

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[1) that either the last vowel sound or the last consonant sound [1] THE COURT: Fine. This has nothing to do with

[2) can rhyme, but it doesn't require both. However, in this [2] anything Dorothy Parker wrote, right.

[3) instance she is apparently trying for assonance but she doesn't [3] MR. RABINOWITZ: Not directly. It does corroborate

[4] make it. It's not assonance, it's really nothing. It's got (4) Mr. Silverstein saying free verses are not poems.

[5) rhyme and meter, but doesn't have rhyme, even assonance rhyme. [5) THE COURT: OK.

[6) MR. RABINOWITZ: I move the admission of63 into [6) MR. RABINOWITZ: That's the only purpose for which

[7) evidence. [7] it's offered.

[B) MR.DANNAY: No objection. [S) THE COURT: Received.

[9) THE COURT: Received. [9) (PlaintiffExhibit 74 received in evidence)

[10) (PlaintiffExhibit 63 received in evidence) [10) Q. Exhibit 75, that too is in a similar vein; do you recognize

[11) Q. We talked about what free verse was. Have you read any [11) this document?

[12) scholarly articles that discuss the distinction between poems [12) A. It was taken offline; it's an extract from Poetry Now

[13) and free verse? (13) Magazine, issued June 24, 2002.

[14) A. I have seen several. I have read extracts from them. (14) Q. Read the second page, the last sentence, in the fIrst [15) Q. Exhibit 74, the same volume. [15) paragraph.

[16) A. Yes. [16J THE COURT: You are going to offer this in evidence in

(17) Q. The second page ofthat; read the second paragraph that (17) a couple ofminutes. The lawsuit started, Mr. Dannay likes to

[lB] begins more generally, the third sentence? [lB) say, seven years ago, probably six and a half, maybe six, but

[l9) A. I am sorry, repeat that. [19) whether it's six, six and a halfor seven, it started in 2001.

[20) Q. The second page, the paragraph that begins more generally, [20) This is an excerpt from a magazine, June 24, 2002. Aren't we

[21) second paragraph. [21) interested in his state ofmind back when he collected the

[22) A. Yes. (22) Dorothy Parker items that are included in Not Much Fun.

[23) Q. Third line, fourth line, third sentence, for some readers? [23] MR. RABINOWITZ: Yes, your Honor.

[24) A. For some readers even now, free verse is not poetry. This [24J THE COURT: What are we doing in 2002.

[25) is wrong-headed, but the free verse WIiters also have to [25) MR. RABINOWITZ: He already testifIed what his ""-'~)". ------il------'\? ." . Page 62 Page 64 " .:::>'

[1] inquire about the border between their work and prose. [1) understanding was concerning the distinction between free verse

[2) Q. In your opinion is free verse poetry? [2) and poems. These are scholarly discussions that corroborate

[3) A. No. As I said before I think basically free verse is prose (3) that, even though they are after the fact. They are only

[4] that has been reformatted. [4) offered more in the nature ofauthority; they certainly don't

[5) MR. RABINOWITZ: I move the admission of74. [5] relate to the underlying events.

[6) MR.DANNAY: No objection. [6) THE COURT: Go ahead, just so long as you understand I

[7] THE COURT: Received -- hold it so that I not be (7) understand the case started in 2001 and we are talking about

[B) accused ofnot understanding what's going on. [B] decisions that he made make in 1994, now we are taking in a

[9) Who wrote this Exhibit 74. [9) June 24, 2002 article.

[10] MR. RABINOWITZ: Are you asking me. [10) MR. RABINOWITZ: The document that shows there is

'11) THE COURT: The witness. [11) dispute in the literature. Weare not contending that he

:12) THE WITNESS: From what I can read here on the first [12) considered this at the time. :13) page, left-hand column, it says this is a personal and cultural [l3) THE WITNESS: I know it's not my place -­

:14) and political web journal ofGeorge M. Wallace, an attorney [14) THE COURT: Then don't say it. :15) practicing in Pasadena, California. [l5) Next question.

:16) MR. RABINOWITZ: The first paragraph on the first page [16) MR. RABINOWITZ: We cited this in our briefs. These

:17) indicates it was Justin Quinn. [17) are documents that post-date the events. I don't have to go

IB) THE WITNESS: That's right. This particular excerpt [lB) through them and try to introduce them in evidence.

19) is from Justin Quinn. It says that on the fIrst page. [19) THE COURT: Fine.

20] THE COURT: There is no objection so ifthere is in no [20) MR. RABINOWITZ: Would you prefer that I do it that 21) objection it's received. This has nothing to do with Dorothy [21) way. 22] Parker. You are putting it in to show what the witness thinks [22) THE COURT: I will let you try your case. You make

23) free verse is. (23) offers, you make offers, then Mr. Dannay indicates whether he (

24) MR. RABINOWITZ: To show there is scholarly [24] objects or not, ifthere is no objection, it's going to be

25] disagreement. (25) received. At some point in time somebody ought to look at Rule

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'.-: ....~, [1) 403 ofthe Rules ofEvidence. Go ahead. [1) MR. DANNAY: No objection. c [2] BY MR. RABINOWITZ: [2] THE COURT: Received. [3) Q. Page 2 ofExhibit 75, read the last sentence on the first [3] (Plaintiffs Exhibit 77 received in evidence) [4] paragraph. [4] Q. OK. Mr. Silverstein, look at Exhibit 51, ifyou would, [5] A. "At some point, most experienced poets tend to veer towards [5] same volume. (6) a particular style but tend not to fall into the ridiculous two [6) A. Yes. 17] opposing camps that say 'free verse is not poetry' or 'rh)'II!e [7) Q. And do you recognize that document? (8) (with or without meter) is not poetry'." [8) A. Yes. I made a photocopy and a PDF ofit. It's a photocopy [9) MR. RABINOWITZ: Move the admission of75. [9) from microfilm ofa Scottish magazine called Fortnightly

[10J MR. DANNAY: So the defendant's position is not [10] Review, the issue dated November 1, 1869. [11) misunderstood, while we do not object, I would like to note at [11] Q. OK. And is this a poem, verse, something else, in your

[12J this point that Penguin's position is that there can be [12] opinion? [13) absolutely no protectable creative combining free verse with [13) A. It's prose. It's turgent prose. It's prose. [14) poetry or combining free verse with essentially anything. We [14 ) Q. Now look at page 507. [15) are permitting these to go in. We don't want to seem to be [15] A. Oh, and it's written by Walter H. Pater, by the way. [16J impeding. [16] Q. On page 507, the first full sentence that appears that

[17J THE COURT: You are not waiving your position. [17) begins she is older. Do you see that? [18) MR. DANNAY: Certainly not. Our position is clear in (18) A. OK. At the very top of507, the second line, the passage [19) our papers. I won't to repeat it again. I just want to make [19) reads, "She is older than the rocks among which she sits." [20] it clear at this juncture. [20) Q. And then it continues on. Are you aware ofthe [21) THE COURT: Thank you. [21] significance ofthat passage? [22] Plaintiff75 is received without objection. [22] A. It's a passage from this book. It's a passage from this [23] (PlaintiffExhibit 75 received in evidence) [23) article which was a famous article, and other writers have [24) (Continued on next page) [24) commented upon this article. [25) [25) Q. Now, look at Exhibit 60.

Page 66 Page 68

[1] 77H7SIL3 Silverstein - direct [1] A. But it's definitely prose. [2] BY MR. RABINOWITZ: [2) Q. Exhibit 60 is the Oxford Book ofModem Verse by W.E. [3] Q. Exhibit 76, Mr. Silverstein, on the left-hand side ofthat [3] Yeats? [4 ) page, could you just read the quotation. [4] A. Well, it's edited by W.B. Veats, yes.

[5] A. On the left-hand side ofthe page? Oh, "It is mostly free [5J Q. And ifyou look at the extract there entitled "Mona Lisa" [6J verse, and free Verse is not poetry but prosody, or often [6] by Walter Pater; that the same extract that we were just [7) simply pensees, or thoughts." [7) looking at? (8) Q. That indicates that's the opinion ofTed Melnechuk, who is [8] MR. DANNAY: Excuse me. Where is that?

[9] an Amherstpoet scientist and philosopher? [9J THE COURT: Hold it. We are at Exhibit 60. [10) A" Yes, that's his way ofsaying thatthe issuewhether free [10) THE WITNESS: Are you referring to page 8, [11) verse is poetry is in dispute. [11) introduction page 8 or the actual item? [12) MR. RABINOWITZ: We move for the admission of76. [12) MR. RABINOWITZ: The item. [13) MR. DANNAY: No objection. (13) THE WITNESS: OK. That's on page 1, I think it is. [14) THE COURT: Received. [14) THE COURT: Maybe it would be better ifwhen I'm [15) (Plaintiffs Exhibit 76 received in evidence) [15) talking you didn't interrupt me, sir. Thank you. [16) Q. Exhibit 77, the extract fromthe Journal ofAesthetics and [16) THE WITNESS: I think that's a great idea. (17) ·Art Criticism. Could you please look at page 280 and read four [17) THE COURT: As I understand it, Mr. Dannay, we are in [18) 'lines down,just the sentence that begins "From a definition of (18) Exhibit 60, which consists oftwo pages. I think we are on the [19) poetry..." [19) first ofthe two pages. [20] A. The bracketed items, is that correct? [20) MR. RABINOWITZ: I'm on the page, your Honor -­ [21) Q. Yes? [21) THE COURT: Except that we have to go over to the

[22) A. "From a definition ofpoetry as requiring versification, a [22) second page because then ifwe compare what Walter Pater had to

[23) writing in free verse is not poetry." [23] say in Exhibit 5I concerning the notes on Leonardo di Vinci, [24J MR. RABINOWITZ: We move for the admission ofExhibit [24) the text ofExhibit 51 is apparently the same as the text at [25) 77. [25) page 2 ofExhibit 60. That's what he is talking about.

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[1) MR. DANNAY: Yes, I now understand, your Honor. Thank [1) verses? / .. , .~ ... [2) you. [2) A. Yeah. I added four items called the Figures in American "') [3) THE COURT: Now, is the portion that begins "She is [3J Folk Lore, which was included in the manuscript which I sent to

[4) older than the rocks" and ends "tinged the eyelids and the (41 Penguin and upon which Penguin made an offer.

[5] hands," is that poetry free verse, doggeral or prose? Doggerel [5] Q. Look at Exhibits 40 through 43.

[6] being a yet-undefined tenn, not that either poetry or free [6] A. Which book is that in? [7] verse has been defined yet either. But what in your view is [7] Q. Same volume. [B] that portion that is headed here in Exhibit 60 "Mona Lisa," [B) A. Oh, I'm sorry.

[9J what is it? [9) Q. Do you have it? [10) THE WITNESS: Well, this underlines the point I was [10] A. Yes, he do. [11) trying to make earlier, that free verse is essentially prose [11] Q. And there are four separate items entitled Figures in [12) refonnatted. This is specifically labeled, almost 70 years [12) American Folk Lore?

[13] after it was written, the editor Yeats, a famous poet, in the [13) A. Yes.

[14] introduction page, right before this page, Roman numeral 8, [14] Q. Tell me again, you originally considered these to be poems, [15) refers to this as about halfway down the page, he refers to it [15] is that right? [16) about halfway down the page as verse libra, which is the French [16) A. No. I originally considered them some kind offree verse

[17) tenn for free verse. [17) or maybe not, because in the introductory, page 2 ofthat

[lB) And ifyou look at the actual item what he has done [lB] manuscript, I described them as a third category, although

[19] here, classically what I said was he took a block ofprose out [19] according to the class, to my definition offree verse, I could

[20) ofa long prose piece, right out ofthe middle ofthe [20J have called them free verse also because they meet the format [21) paragraph, cut it out, put it on a separate sheet ofpaper, [21] requirements, but I think I called them I think harangues and [22) changed the format by making each sentence into a separate [22) diatribes in the introductory page. I did include them both in

[23) line, and said, voila, this prose is now free verse. [23J index to that manuscript, and I actually included these items [24] THE COURT: All right. Go ahead. [24) in the manuscript which I sent to Penguin in June of 1994.

[25] BY MR. RABINOWITZ: [25] Q. Did you change your mind subsequently? \ ~ .,,/ Page 70 Page 72 'c._

[ 1] Q. How did you detennine, Mr. Silverstein, whether an item was [1] A. Subsequently I just decided I didn't like them, and I [2) free verse when you were compiling Not Much Fun? [2] decided I could have kept them, but I just took them out. [3) MR. DANNAY: Sorry. I missed the question. Could I [3) MR. RABINOWITZ: We move for the admission ofExhibits

[4] have it repeated. [4] 40 through 43.

[5J (Record read) [5] MR.DANNAY: No objection.

[6) A. Well, given the defmition that I just described, I looked [6] THE COURT: 40 and 43 are received. [7J generally for the fonnat, and then I looked for some other [7) THE WITNESS: 40 through 43.

[B) quality that made me want to collect it. [B) THE COURT: I thought it was 40 and 43.

[9) I\IIR. DANNAY: .1 didn't hear answer. I'm sorry. [9) MR.RABlf'.IOWITZ: 40 through 43. :10) A. ThenI loo~edfor some otherqu(ility in itthat made me [10) THE COURT: 40 through 43, all right, fme, all

:11) want to collect it. [11) received.

:12) I mean someofthl:: Dorothy Parkerfree verses, or the [12) (plaintiffs' Exhibits 40 through 43 received in

:13) items that I characterize as free verses, are really horrible [13J evidence)

:14) stuff, yet they were clever. And I did not have any specific [14) Q. In the same volume, could you look at Exhibit 79, please.

15) criterionon these things. I did decide I wanted these [15] A. Yes.

16) particular items, but again I shoe-homed them in, because [16J THE COURT: Could I ask a question, please, about 42

17) pretty much, as I said, any piece of-- the defmition offree [17) and 43? Was 42 the portion that is under the heading lithe

1B) verse, although the poets will fight me until my dying day [lB) author" on the same page ofthe September 1st Life magazine as

19) because they claim it has to have some -- [19) 43?

20) THE COURT: Do you remember the question? [20) THE WITNESS: Yes, 42 and 43.

21) THE WITNESS: Yes. He asked me what made me think [21) THE COURT: In one they are just xeroxing the left

22) these items were free verse. [22] side and in the other we're just xeroxing the right side, is

23) THE COURT: Next question. [23] that right? . ''!,. I 24] Q. Did you review and consider any items for inclusion in That [24) THE WITNESS: That's correct. And the same with 45 .- 25) Much Fun that in your opinion were neither poems or free [25) and 46 too. Wait a second.

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[1] THE COURT: We're only through 40 to 43 so far. Now [IJ Q. How many items did you ultimately include in That Much Fun? [2] where are we going? [2J A. 122. [3] THE WITNESS: I'm sony. [3J Q. OK. And those were all items that you had concluded

[4J THE COURT: That's all right. [4] Ms. Parker had not previously collected?

[5] MR. RABINOWITZ: Your Honor, apparently I didn't move [5] A. Well, it was erroneously -- I was wrong about one. It was

[6] to admit Exhibits 51 and 60, which were the Pater documents. [6] 121 plus one that actually had been collected in Enough Rope [7J If! have not done that, I would like to do that at this time: [7J titled Day Dreams. [BJ THE COURT: All right. That's the Mona Lisa thing, [BJ Q. Ofthose 121 or 122 items, how many ofthem did you [9J right? [9J consider to be free verses? [10J MR. RABINOWITZ: Correct. [10] A. 19.

[llJ THE COURT: Any objection? [11] Q. And so the remainder were poems in your opinion at that [12J MR. DANNAY: No objection. [12J time?

[13] THE COURT: Received. [13J A. They were items that I either considered to be poems or I [14J (Plaintiffs' Exhibits 50 and 61 received in evidence) [14J was intent on shoe-homing into the category ofpoerns because J [15] Q. OK. We are now at Exhibit 79. Do you have that, [15] wanted to put them in for some reason. [16] Mr. Silverstein? [16J Q. Why did you include free verses in Not Much Fun ifthe [17] A. Yes, I do. [17J title says the lost poems ofDorothy Parker? [IB] Q. What is that document? [IB] A. Because I wanted to include them, but I knew that they

[19J A. This is a photocopy ofthe cover letter and the prologue [19] didn't qualifY under the terms ofthe compilation. [20J and the manuscript which I sent to Jane von Mehren ofPenguin [20] Q. Did you do anything to segregate or label the free verses? [21] on June 6, 1994. [21] A. I mentioned poems. and verses or poems and free verses

[22] Q. OK. And where in this document do the items Figures in [22] repeatedly through the introduction at least five, six, seven [23] American Folk Lore appear? [23] times. I am not sure how many times. It can be easily [24] A. Well, first ofall in the prologue, which is page 184, [24 J determined. Further more, which docliment number is Not Much [25] according to the numbers on the bottom here, the prologue [25) Fun? I'm sony, Exhibit 2? Hold on, let me look for it.

Page 74 Page 76

[IJ mentions third paragraph from the bottom, it mentions four [lJ Q. First volume. [2J random diatribes in the second sentence. The next paragraph, [2J A. Yeah, I understand. Also, in Not Much Fun I went to -- no, [3J the first sentence says poems, free verses and the harangues. [3J it's not Exhibit 1. [4] So the harangues would also be identifYing those. [4 J Q.2. [5] Go forward a few pages to this second page ofthe [5] A. OK. I went to great lengths in Not Much Fun to segregate [6] contents page -- excuse me -- the third page ofthe contents [6J them. I divided the text ofNot Much Fun into two major [7J page, you have verses, and then you have a couple lines of [7J sections: Poems and the hate verses. The title page for the [B] spacing, and then you have those items mentioned there also. [B] poems section appears on page 67. I will wait until you and [9] 'That would indicate my ambivillenceabout whetherJ should call [9] the court gets to it. And the title page for that section is [10] them 'free verses or not orwhetberthey wereins()Illecompletely (10) titled "The poems and some "modernist" verse." [11] differeritcategoiy that I just wanted tomelude them for. (11] Q. What did you mean by that? [l2j Then ifyou go to thi:frequisite pages that are [12] A. Well, by poems it's selfexplanatory. By "some modernist [13] mentioned in that index, you will fmd those actual items [13] verse," it refers explicitly to -- I have to fmd the page. [14] reprinted, under pages 130 through 134. [14J Sony. I'm having trouble fmding the page here. [15] Q. These items were included in the manuscript as you [15] OK. Page 76, there is an item which I deteffilined was [16] originally prepared it? [16J free verse and the title is "Oh, look M-I can do it, too." [17) A. Yes, they were. And as I deliveredit to Penguin. [17] The subtitle is "Showing that anyone can write modernist [IB) 'Q.And in That Much Fun, the actual final version did not [IB] verse." That's the title ofthat item which I determined was [19) contain these items because you changed your mind? [19) free verse. And the title ofthe section explicitly refers to [20] A. Yes, I took -- I ultimately decided to deselect them. [20] that item by putting in quotes modernist verse which directly [21] MR, RABINOWITZ: Move for the admission, your Honor, [21] corresponds with the subtitle ofthat item. It was an explicit [22] ofExhibit 79. [22J reference, and it was done very deliberately for that specific [23] MR. DANNAY: No objection. [23J and sole purpose. So that way J was saying in this section you [24J THE COURT: All right. 79 is received. [24] have poems and one item that is modernist verse, and this is [25] (Plaintiffs Exhibit 79 received in evidence) [25] the item because it has the same title that I'm referring to in

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[1) this section head. [1] published evidence was that Dorothy Parker wrote it, yet I just

[2) Q. Did you include any other free verses in Not Much Fun? [2J did not believe it, and I did not select it for Not Much Fun,

[3) A. Yes, I did. As I said, that was one oftwo major sections [3J although I had published authority which would have allowed me

[4) in the text ofNot Much Fun. The other major section in the [4] to do so. [5) text ofNot Much Fun was to be found-- [5] Second, there was an item which is known as the

[6) Q. Page 187? [6] so-called Madonna item which is a famous item that was [7) A. -- there was a title page at 186, and that refers to the [7] apparently written in the guest book or in a bathroom or [B) hate verses, and that has the 18 items which Dorothy Parker [BJ someone at San Simeon, where William Randolph Hearst had his [9) published under the titles ofhate songs, or hate verses, or a [9) famous house, and it referred to Marion Davies, his paramour. Hymn ofHate. [10) This has been widely attributed to Mrs. Parker, including by

,11) So, I very, very carefully segregated all ofthe free [11] Arthur Kinney, one ofthe authorities which Penguin has used in

:12) verses from the poems in the book. One section was poem and [12] the past. At other times it has been said that Mrs. Parker 13) one section was free verses, and the one exception in the poems [13J herselfdenied having written it. However, also Mrs. Parker

14) was explicitly described in the cover page for the poems. [14) has been known -- had been known not to scrupulously honor the

15J Q. In preparing Not Much Fun, did you locate any items that [15) truth. So the fact that she mayor may not have denied it is

16J other sources had attributed to Dorothy Parker that you [16] not determinative either. 17J determined had not been written by her? [17J Several sources have attributed to her, including I 1BJ A. I can think ofactually seven offhand. Excuse me. Written [lB) believe a memoir ofHollywood by Jesse Lasky. I can't recall

19J by Dorothy Parker? Yeah, there were three at least. One was [19) the title. It might have been Whatever Happened to Hollywood. 20) the so-called From the Ladies item, which appeared in a [20] I believe it was picked up by several anthologies including

21] biography ofEdna Ferber written by Julie GoldSmith Gilbert. [21l Clifton Fadiman's Thesaurus ofAnecdotes or Little Brown Book

22) It was attributed to -- it was signed by -- it was I think an [22) ofAnecdotes. I'm not sure what the title is.

23J 80th birthday card or 70th birthday card to Franklin P. Adams. [23) Again, there is no authority one way or the other that 24) There were a series ofthem from various people that he knew. [24] is conclusive on that item. There is published authority

25J This one was signed "Squidge," and Ms. Gilbert the biographer [25J stating that she did write it. Nonetheless, I refused to

------f------,'.~--') Page 78 Page 80,·'

[1) had I believe in brackets but in some typographical manner had [1] select it because I was not convinced, and I don't think she [2) written Dorothy Parker. [2J wrote it.

[3J I determined that it probably wasn't written by (3) Third, there was an item that was sent to me by the

[4J Dorothy Parker. I had no proofwhatever on that. The sole [4) NAACP's attorney Ned Himmelrich, who handled the Dorothy Parker (5) published record ofit claimed it was by Dorothy Parker from [5J legal matters for the NAACP. I don't have a copy ofthe letter [6J that book. I thought it unlikely that it was written by Parker [6J in front ofme. It's probably in one ofthe exhibits, but he

[7) because there were several items that were published in [7) got a letter from a correspondent that wanted authority for IB) Mr. Adams' Conning Tower column in the mid to late '20s that [SJ Dorothy Parker having written an item about Elinor Glyn, a

[9J were signed bya so-called pseudonymous Squidge. (9) famous and deservedly forgotten 1920s writer who wrote what the 10J TH,I;(;OU~T: Could yOlJspelIthat7 [10J British called bodice rippers. There was a short rhyme about 11J nfE'WITNi:ss: S-Q-U+D~G:-E. [11) her, and this correspondent to Mr. Himmelrich wanted authority 12J THI;COURT:Thankyou. (12) that Dorothy Parker had written it. And there have been other 13) A. And none ofthose had been collected by Mrs., Parker in her [13J sources that I do not recall that have attnbuted that item to

14J original three compilations. However, she had also published [14) her. I decided that she had not written it. 15) severalitems years before for the Saturday Evening Post also [15) I was aware she had written a famous book review as a 16) under a pseudonym., In that instance the pseudonym was Helen (16) constant reader regarding a book by Elinor Glyn. Nonetheless, 17) Wells-- whichI believe is a play on hell on wheels -- and [17) I don't think she wrote this item. So, even though I had 1BJ none ofthose had been collected by Mrs. Parker for her earlier [lB) authority again to have included this as an item by Dorothy 19J compilations either. [19J Parker, I chose not to select it. 20J So, even the fact that the Squidge items had not been [20J Q. Look at Exhibit 52, Mr. Silverstein. volume 4, 1believe.

21) collected by Mrs. Parker was not really evidence that they [21) It's an excerpt from the Ferber biography you referred to a few 22) weren't actually written by her, because ultimately I had [22) moments ago.

23) determined and had selected the Helen Wells items as written by [23] A. Yes, it is.

24J Dorothy Parker. [24] Q. OK. And on page 185 there is an item titled From the 25J So, basically as far as that item goes, the only [25) Ladies. Is that the piece that you described a moment ago as

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[1) having been attributed to Mrs. Parker that you concluded she [1) A. Yes, it does. [2) had not written? [2] Q. That is the one that despite some attribution to her, as [3) A. Yes. As far as I know, this is the sole published [3) you descnbed you concluded she had not written? [4) attribution ofthis item, and it does attribute it to Dorothy [4) A. Yes. [5) Parker. [5) MR. RABINOWITZ: We move for admission ofExhibit 97, [6) Q. And you have decided for the reasons you stated not to [6) your Honor. [7) include it. [7) MR. DANNAY: No objection. [8) 'A. Yes. [8) THE COURT: Received. [9) Q. Because she had not written it. [9) (Plaintiffs Exhibit 97 received in evidence) [10) THE COURT: Which one is the one that you decided not [10) Q. Did you inform Mr. Himmelrich ofyour opinion that she had [11) to include? There are several pieces on this page 185. [11) not written this piece? [12) THE WITNESS: On the right side ofthe page there is [12) A. Yes. [13) an item entitled From the Ladies. [13) Q. During the course ofyour research, did you review anything [14) THE COURT: That's what you decided not to include? [14 ) that led you to believe that Professor Calhoun had detennined [15) THE WITNESS: Yes, and it's signed by Squidge, better [15) that certain items were poems that you had determined were not?

[16) known as Dorothy Parker. [16) A. Yes. Once I saw his book obviously, yes. [17) MR. RABINOWITZ: We move for the admission ofExhibit (17) Q. And which items had Professor Calhoun in your opinion [18) 52. [18) classified as poems that you concluded were not poems and did [19) THE COURT: It's in. You put it in before. [19) not include?

[20J MR. RABINOWITZ: 52? [20) A. Well, the seven I can recall specifically right now -- and [21) MR. DANNAY: I have no objection in any case. [21] I might have forgotten some -- but the seven I can recall

[22) THE COURT: Well, I have it as in. All right. It's [22J specifically are the item --

[23J in twice. OK, fine. Plaintiffs Exhibit 52 is in for the [23) THE COURT: Louder, please. [24) second time. [24) A. The seven I can recall, the item called Playing Safe and

[25J (Plaintiffs Exhibit 52 received in evidence) [25) six items that were under the overall title Standardized Song

Page 82 Page 84

[lJ Q. Look at Exhibit 53 ifyou would. Is that the excerpt from [11 Sheet for Get-together Meetings. [2) Jesse Lasky's biography ofMs. Parker that you referred to [2J Q. Let's take them one at a time. Let's look at Exhibit 38.

[3) earlier? [3J THE COURT: Before you get to 38, could I ask a

[4J A. Yes, it is. [4J question, please?

[5J THE COURT: This is the one that starts "Now on my [5) On Exhibit 97, the letter from Mr. Himmelrich, the

[6J honor." Right? [6) lines that read "Would you like to sin on a tiger skin with

[7J THE WITNESS: Yes, it is, yourHonor. [7) Elinor Glyn? Or would you prefer to err with her on another

[8J THE COURT: Fine. (8) fur," now your conclusion is that it was not written by Dorothy

[9) \Q. And you concluded that despite attribution ofthat item to [9J Parker, correct?

[10J Ms, Parker thatshe hadnotwritteJi it, and you excluded it [10J THE WITNESS: Yes, your Honor.

[11) from Not MuchFun,right? [11) THE COURT: How did you conclude that? Tell me how

[12i ·A: Yes. Itwas also attnbuted to her by Arthur Kinney, [12J you concluded that.

[13) Professor Kinney who wrote two ofthe academic studies of [13) THE WITNESS: I had seen it several times attributed

[14J Dorothy Parker. [14 J to her before, but it just did not appear to be something that

[15) MR. RABINOWITZ: Move admission ofExhibit 53. [15J she would have written. I had no knowledge. It was a

[16J MR. DANNAY: No objection. [16) subjective decision. There was no categorical documentary [17) THE COURT: Received. Thank you. [17) evidence either way.

[18] (Plaintiffs Exhibit 53 received in evidence) [18) THE COURT: So, in other words, the decision that it

[19J Q. Look at Exhibit 97. [19] was not written by her is not from the six lines that are

[20J Is that the letter from Mr. Himmelrich that you [20) reproduced here but, rather, from external information and data

[21J mentioned earlier? [21) that you received, is that correct?

[22J A. Without the lines, yes, it is. The lines were caused by [22J THE WITNESS: No, there was no external data whatever.

[23) the electronic transmission, but, yes, that's a copy ofthe (23) THE COURT: And that's how you came to the conclusion

[24J letter I received from Mr. Himmelrich. [24J that she didn't write it.

[25J Q. And that mentions the Elinor Glyn piece at the bottom? [25) THE WITNESS: No, there was no external data whatever,

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[IJ your Honor. I simply looked at that and I had no reason to [IJ MR. DANNAY: No objection to it.

[2J [2] C··- .' -_" believe she had written it. It does not seem to me like THE COURT: All right 3 is received. Thank you. ~:"~".' ....:, 13J something she would have written. And she also wrote -- I also [3] (Plaintiffs Exhibit 38 received in evidence) [4] recognize that she had written a long and scathing book review [4J Q. In what issue -- first ofall, what publication did Playing [5] about Elinor Glyn, and she didn't include it in that either, [5J it Safe appear? [6] and so-- [6J A. It appeared in Life magazine, January 19, 1922, on page 12.

[7J THE COURT: OK. [7J Q. Did you select any items that appeared in that periodical

[8J THE WITNESS: So I had no evidence, your Honor, so I 18J during that period that you included in That Much Fun? [9J was making -- it was informed speculation, your Honor. [9J A. I cannot tell you ofthand whether I chose anymore from this THE COURT: Thank you. You have explained it. Thank [10J precise issue, but I absolutely -- I'm sure that I collected :11) you very much. [11] half a dozen within a couple weeks either side ofit.

'12] Now you were going to 38. Sorry I interrupted you. [12J Q. Look at Exhibit 2, which is your hardcover ofNot Much Fun.

MR. RABINOWITZ: Thank you, your Honor. [13J A. Let me just go into the chronology in the back and fInd

Q. Exhibit 38, do you recognize that item, Mr. Silverstein? [14J out. A. Let me get to it fIrst, please. [15] Q. Page 246. Can you tell me ifyou included any other items THE COURT: It's entitled Sanctum Talk. [16) from Life magazine on the exact day that Play it Safe occurred? MR. RABINOWITZ;. Playing it Safe on the right. [17) A. All right. This appeared on January 19, 1922, according to THE COURT: Playing is Safe. [18) my list. Yes, I picked Figures in Popular Literature, The A. Yes, I recognize that item. [19) Sheik. Q. Were you aware ofand familiar with that item at the time [20) MR. DANNAY: Can you speak up, please. you were compiling That Much Fun? [21) A. Sorry. In that same issue I found Figures in Popular A. Absolutely. In the fIrst few years ofthe '20S, I went [22J Literature, The Sheik, on page 24. In other words, I2.pages through every single page ofevery issue ofLife magazine. [23J later, I found another item the issue before, I found another

There were no indexes, and she wrote a great deal ofstufffor [24J item the issue afterward. those issues, and so I literally went through every page, and [25) Q. OK.

Page 86 Page 88

[IJ so, yes, I absolutely positively did see that. [1] A. So, you know, I defInitely saw this.

[2) Q. And what did you conclude about whether this was a poem? [2) MR. RABINOWITZ: Did we move on 38, your Honor?

[3] A. At fIrst I didn't know how to categorize it. And, again, [3) MR. DANNAY: Yes.

[4J it looked to me -- it didn't look like free verse to me either, [4) THE COURT: 38 is in evidence.

[5) and I just decided that it was just a piece ofprose and rather [5J MR. RABINOWITZ: Thank you. [6J rotten prose at that. [6J Q. Could you look at Exhibit 8, Mr. Silverstein. Now that is [7J Q. And you did not include it in That Much Fun? [7J going to be in volume 2.

[8) A. No, I looked at it, and I said no. [8) A. Did you say item 8?

[9] Q. So, contrary to what -- you heard Mr. Dannay say you have [9) Q. Exhibit 8.

10) not identifIed a single piece that youdidn't include. Is this (10) THE COURT: Do you have it, Mr. Dannay? 11) [l1J MR. DANNAY: Yes, we do.

12) A. I do recall him saying something. I cannot recall his [12) Q. Do you recognize that document, Mr. Silverstein? 13J exactwords. [13) A. Yes, it's a photocopy ofProfessor Calhoun's book, or

14) Q. So Playing it Safeis an itemthat you identified as having [14) extracts from it, I guess. 15) been written by Ms. Parker which you excluded from Not Much [15] Q. Could you look at page 71.

16] Fun. [16) Do you see Playing it Safe listed in Mr. Calhoun's--

17) A. Yes, absolutely. (17] Professor Calhoun's biography?

18] MR•.DANNAY: I am just going to state it misstates [18) A. Yes, I am looking at page 71, the section is titled -- it's

19) what I said, but the record will make that clear. [19] a listing ofitems that appeared in New York Life, under

20) THE WITNESS: Well, my answer made that clear too. [20) section 8, poetry. Under January 19, 1922 he lists Play it 21) THE COURT: There is no need to comment on Mr. (21) Safe as poetry. 22) Dannay's objection or statement. So, I have heard your [22J Q. So he classifIed that as a poem? 23J observation, and the record is what the record is. And you are [23J A. Yes, he did explicitly.

24] going to offer, I take it, Exhibit 38, is that right? [24) MR. DANNAY: I'm going to object as to "he 25) MR. RABINOWITZ: Yes. [25J classifIed." The book contains the reference.

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[1] THE COURT: That is a more accurate description, what [lJ putting certain things in than I was other things. I was not [2J Mr. Dannay said. [2J trying to expand the defmition for this item.

[3J MR. RABINOWITZ: I will adopt his clarification. [3] Q. These items appeared in the July 27, 1922 issue ofLife, is [4J THE COURT: Fine. [4] that right?

[5J THE WITNESS: The book speaks for itself, your Honor. [5J A. That's correct.

[6J Whatever he wants. [61 Q. Did you select any other items for inclusion in Not Much [7J THE COURT: Thank you. IfI needs any help from you, [7J Fun from that issue or anything during the same approximate

[8] I will ask for it. Thank you. [8] time? Look at Exhibit 2, page 246 and 7.

[9] Q. Mr. Silverstein, could you look at Exhibits 44 through 50. [9] A. I'm sorry. All right. These items appeared in the July

[10) THE COURT: Are you offering 8? [10J 27, 1922 issue. I did not have any other items from that

[11 J MR. RABINOWITZ: Yes, your Honor. I was going to get [l1J issue, however, I had one from the issue before and several

[12) to it again several times, but, yes, we will offer 8 at this [12] others from a couple months before that. At that time

[13) point. [13] evidently she was publishing most ofher stuffin the Saturday

[14) MR.DANNAY: 8 being the entire Calhoun [14J Evening Post. But I did -- you know, I was looking through

[15] Bio-bibliography? [15J every issue at that time. I did at least see the item Folk

[16] MR. RABINOWITZ: Yes. [16] Song from the issue before that, and, yes, I did see this item,

[17J MR.DANNAY: No objection. [17] and as I said I did debate including it.

[18J MR. RABINOWITZ: It's not the entire book. It's just [18] MR. RABINOWITZ: We move for the admission ofExhibits

[19J the primary Bio-bibliography section. [19J 44 through 50.

[20] THE COURT: 8 is received. Where are we going now? [20J MR.DANNAY: No objection.

[21J (Plaintiffs Exhibit 8 received in evidence) [21] THE COURT: Received. [22] THE COURT: Where are we going now? [22J (Plaintiffs' Exhibits 44 through 50 received in [23J MR. RABINOWITZ: Exhibits 44 through 50, your Honor. [23] evidence)

[24J THE COURT: Thank you. [24] Q. Look back again at Exhibit 8, which is the Calhoun [25] MR. RABINOWITZ: Once again I will note that several [25] bibliography. Look at page 72, ifyou would.

Page 90 Page 92

[1] ofthese items appeared on the same page. They were separated [1 J A. Which volume would that be in? [2J out with xeroxing just to isolate the items. [2] THE COURT: Volume 2. [3J THE COURT: OK. Thank you for explaining that. [3] A. OK. What page? [4J see. Thanks. I understand what you mean. [4] Q.72. [5] All right, 44. [5J A. Yes. [6J Q. Do you recognize Exhibits 44 through 50? [6J Q. Does Professor Calhoun's Bio-Bibliography show Standardized [7] A. Yes, I do. [7] Song-sheet on that page? [8] Q. What are they? [8] A. Yes, it's also part ofthat same poetry section as that [9J A. It's 11 series ofitems under the master title Standardized [9J previous item. It's just on the next page. (10J Song-sheet for GeHogether Meetings~. 110J Q. Look at Exhibit 39 ifyou would, still on volume 4. [l1J Q.Andwere you aware ofand familiarwith those items ~t the [11] A. All right. [12J time you were compiling NotMuch Fun? [12J Q. Do you recognize that document? [13J A. Yes, I was. [13J A. Yes, it's the introduction written by Somerset Maugham to [14J Q. How do you know that? (14] the original Portable Dorothy Parker. [15J A. Because J was thinking about including them, selecting them [15J Q. Page 600 there is a piece that begins Higgledy Piggledy. [16J for Not Much Fun. [16) Do you recognize that item? What's its significance? [17J Q. And do you recall that? [17J A. Basically it was a little table game. Dorothy Parker was (18J A. Yes, I explicitly recall that. [18J sitting next to Somerset Maugham. He challenged her to write [19J Q. Why did you decide that they were not poems? [19J what he characterized as a poem, and she wrote a four line item

[20J A. Well, there is a lot ofrhyme in there and there is a lot [20J in two parts: "Higgledy Piggledy, my white hen; she Jays eggs [21] ofmeter in them. Nonetheless, J decided they were more second [21] for gentlemen... You cannot persuade her with gun or lariat to [22J rate parodies ofsong lyrics. As I said before, I chose [22J come across for the proletariat." [23J favorites. I mean I tried to shoe-hom in things I liked, and [23J THE COURT: Now this is what is supposedly happened at [24J I did not have as much interest in being so lax in terms of-- [24J a dinner party. [25J that's not the best word -- but I was more interested in [25J THE WITNESS: I think that's the circumstances he is

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[1) talking about here. Yes, the beginning ofthis introduction it [1] Ifyou want to do it now--

[2) says here. [2) MR.DANNAY: That's fine, your Honor. Look at s"·tD-_~__'_-_-_--, <- .-" [3) THE COURT: OK, thank you. [3J Exhibits 20 through 37, Mr. Silverstein.

[4) THE WITNESS: Yeah. For the record, this was taken [4) THE COURT: What volume are they in, sir?

[5) from a new edition ofthe book, 1973 or '76 edition, this [5) MR. RABINOWITZ: They are in volume 4.

[6) particular photocopy. [6) THE WITNESS: Would it be all right if] amplified my

[7) Q. So this item was attributed to Dorothy Parker? (7) previous answer, your Honor?

[8) A. Yes, by Mr. Maugham firsthand. He said that he had had [8) THE COURT: No. At the recess, confer with your

[9) this experience with her. [9) lawyer, and ifhe thinks it's important -- [10) Q. And what opinion did you have as to whether this was a [10) He wanted to know ifhe could amplify a previous

[11) poem? [11) answer. My response was, no, at the recess he can confer with

[12) A. Well, this on the other hand I decided it wasn't a poem. I [12) his lawyer, and ifhis lawyer thinks it's important enough,it

[13) thought it was a cute little wisecrack. It rhymed, it had [13) can be amplified. [14) meter and all those other elements, but I just didn't think it [14) Where are we now?

[15] was a poem, so I did not select it for a poem. In retrospect I [15) MR. RABINOWITZ: I forgot to admit Exhibit 39, if!

[16) probably would have collected it for a poem but not included [16) can, which is the Higgledy Piggledy item.

[17) some ofthe other items I tlid pick. So, there you are. [17) THE COURT: 39. [18J Q. Look back to Exhibit 8, which is Professor Calhoun's [18) THE WITNESS: Where do you want me to go to next?

[19) Bio-Bibliography at page 63. Professor Calhoun's book shows [19) THE COURT: 39 is received without objection, correct?

[20) Higgledy Piggledy as a miscellaneous work, is that right? [20) MR.DANNAY: Correct.

[21) A. Yes, he does. [21) (Plaintiffs Exhibit 39 received in evidence)

[22) Q. And did you-- [22) Q. 20 through 37.

[23) A. It's number 7. [23) A. All right.

[24) MR. DANNAY: Excuse me. I didn't hear the last. [24) Q. Do you recognize those pieces, Mr. Silverstein?

[25) A. It's number 7. The items in the miscellaneous work are [25) A. Yes. These are the famous hate verses.

Page 94 Page 96

[1) numbered, and just to make it easier it's number 7 on that [lJ Q. OK. And did you include them in your compilation?

[2) list. [2J A. Yes,! did, and I segregated them in the hate verses

[3) THE COURT: I think what you are looking for is page [3J section apart from the poems.

[4) 53 ofExhibit 8 is the list. Am I right so far? [4) Q. And so you considered them to be free verse rather than

[5) MR.DANNAY: No, it's page 63. [5] poem?

[6) Q. Did you review Professor Calhoun's first declaration in [6J A. Yes. [7J this case? [7J Q. Look at Exhibit A. First ofall, why did you consider them

[8) A. Yes, I did. [8) to be nonpoetic? [9J Q. And in that declaration how does he classify Higgledy [9J A. They fit my standard defmition offree- verse. It's

10J Piggle.!iY? [10) essentially prose that's been reformatted. 11J MR. DANNAY: I object. [l1J Q. Look at Exhibit 8, Professor Calhoun's Bio-bibliography. I 12J THE COURT: Sustained. [12J would like to refer you to pages 71, 72 and 79. Could you tell 13J One witness can't characterize another witness's [13J me whether Professor Calhoun, his book lists any ofthe hate 14J testimony. That's the reason the objection is sustained. (14) verses in any particular category? 15J M~~RABINOWITZ: Will you pennit me to show him the [15J A. He lists each and every one ofthem as under -- well, once 16J declaration? [16J for New York Life on pages 71 through 70 --71 through 72. He 17J THE COURT: As! understand it, the whole thing is 117) describes -- he puts them under the category ofpoetry. And as 1SJ going to be shown to me. Sure you can refer to that part of [18) to the Vanity Fair item, which is on 79, also under the 19J the declaration, but it's not for him to decide. [19J category ofpoetry.

20J MR. DANNAY: And, your Honor, the declarations, both [20] Q. Lookat Exhibit 19, ifyou would. 21J declarations, are exhibits to that deposition, so they will be [21J A. All right. 22 J included. [22J Q. Do you recognize that? 23J THE COURT: Fine. [23J A. Yes, this is a photocopy ofthe original publication of

24J MR. DANNAY: As well as the Bio-bibliography. [24) free verse we discussed before, Oh, Look, I Can Do It Too,

25J THE COURT: Fine. It would seem to me to do it then. [25J showing that anyone can write modernist verse.

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.''':.::--, [1] MR. RABINOWITZ: Move Exhibit 19. [1] Six. That's the last item on page 76. [2] MR. DANNAY: No Objection. [2] Q. And what category does that appear?

[3] Q. That one was included in your book, right, Mr. Silverstein? [3J A. Constant Reader Book Reviews. [4] A. Yes, that's the one "modernist" verse I put in the poetry [4] Q. And then same exhibit, look at the next page, do.es the [5] section. [5] piece, the essay, the book review from which you extracted the

[6J THE COURT: Plaintiffs Exhibit 19 is received without [6] After Dawn piece appear on that page, that list page 777 [7] objection. [7] A. The individual piece does not appear there, but the book [8] (Plaintiffs Exhibit 19 received in evidence) [8] review itself appears under the data 30th ofMay 1931 titled [9] MR. RABINOWITZ: Exhibit 20 to 37, did I not move to [9] VVords, VVords, VVords. [10] admit those? [10] Q. In what category? [11] MR. DANNAY: No objection. [l1J A. Also under Constant Reader Book Reviews. [12] THE COURT: Plaintiffs 20 through 37 are admitted. [12] Q. Are you aware ofany additional items today that you could [13] Receive. [13] have selected as a poem or verse that you did not? [14] (Plaintiffs' Exhibits 20 through 37 received in [14] A. I wasn't finished with my previous answer, things that he [15] evidence) [15] did not include. He also didn't have Men I'm Not Married To. [16] Q. Am I correct, Mr. Silverstein in Exhibit 19 -- well, fIrst [16] Q. OK. [17] ofall, how did you Characterize, Oh, Look, I Can Do It Too"? [17] Are you aware ofany additional items that you could [18] A. I categorized it as a free verse. [18] have selected as a poem or verse that you did not? [19] Q. Why was that? [19] A. Yeah, there were several items I guess I could have [20] A. Because it essentially looks like prose that has been [20] selected. I mentioned a few ofthem. I just chose not to. I [21] reformatted. I mean also it has a little bit ofan artistic [21] could have chosen the Standardized Song-sheets if] wanted to. [22] quality to it, but, you know, it's a free verse. [22] I decided they were not poems. I could have decided that they [23] Q. Look at Exhibit 80 then which is Professor Calhoun's [23] were poems. [24] Bio-bibliography at page 79. Tell me ifyou see how Oh, Look, [24] Q. Let's look at Exhibit -- it's going to be in binder 6 -­ [25] I can Do It Too is listed in that book? [25] 287. It's one ofthe ones we recently added. It should be.at

Page 98 Page 100

[1] A. It's listed under poetry. [1] the very back ofthe last volume. [2] Q. Did you locate -- strike that. Did you consider and [2] MR. DANNAY: Sorry. Could you repeat? [3] select, Mr. Silverstein, any items that in your opinion [3] A. VVhat volume would that be in. [4] Professor Calhoun had determined were not poems but which you [4] Q. Volume 6, last piece -- last two pieces.

[5] determined were? [5J A.Oh,OK.

[6] MR. DANNAY: Could I have that repeated again? [6J THE COURT: I think the next to last one there. [7] THE COURT: Sure. [7] THE WITNESS: Actually I don't have a 286 here. I [8] (Record read) [8] have a 285 and 287. [9] A. I Seem torecallhe did notcategorize the two items that I [9] THE COURT: Sorry. I thought you said 287.

[10] extracted from bookieviewsto'bepoems;heconsidered those to [10J MR. RABINOWITZ: 287. [11] be booktevi~\vs. Thdse wotild'beCrissCToss and After Dawn. (11] THE COURT: 287. [12] Q. Look at Exhibit 8 on page 76. (12] THE WITNESS: OK. There is no 286 here. [13] A. Page 76, OK. [13] THE COURT: But do you have 2877 [14] Q. Does the item that you titled Crisscross appear on page 76? [14] THE WITNESS: Yes, I do. [15] A. VVell, being that I am the one who titled it and his book [15] THE COURT: Fine. Your question, sir. [16] came out before -- [16] Q. That piece is titled Pollyanna Gets The Air? [17] THE OOURT: No, no, that's not an answer to the (17] A. Yes, it is. [18] 'question. [18] Q. Does that meet your criteria for a poem or not?

[19J A. No, it doesn't appear on here, your Honor. [19] A. Yes, it does.

[20] THE COURT: Thank you. [20] Q. OK. And you did not include that?

[21] THE WITNESS: Sorry. (21] A. No, I did not.

[22] THE COURT: That's all right. [22] Q. Exhibit 288 -- [23] A. The larger book review in which it appears does appear. [23] THE COURT: Well, then, why didn't you include it? [24] Q. Under what title? [24] Q. Why didn't you include it? [25] A. Mr. Morely Capers on a Toadstool - Mr. Milne Grows to be [25] THE COURT: You think it's a poem. Did you think it

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[1 ) was a poem in 1994? [1) on Dorothy Parker's works at the time you compiled this? [2) THE WITNESS: I didn't know it was cited. [2) A. Most ofthem were public domain. Some ofthem were bluny.

[3) THE COURT: You didn't know it existed. All right, [3) The rest were owned by the Saturday Evening Post or the NAACP. [4 ) OK. [4) Q. What ifanything did you do to obtain nonexclusive licenses [5) MR. DANNAY: I object then to the answer and the [5) from the copyright holders to use the pieces?

[6) question. [6) A. I contacted them, I negotiated with them, I cut them [7) THE COURT: Well, the objection is overruled. He (7) checks, we signed deals.

[8) wasn't aware ofit at the time he compiled Plaintiffs Exhibit [8) Q. OK. Did you receive nonexclusive licenses and permissions [9) 2. Go ahead. [9) from every holder ofa copyright to the poems that were not [10) MR. RABINOWITZ: One ofthe issues is what is the [10) already in the public domain that you used?

[11) total universe we're dealing with here. [11) A. Yes, I did.

[12) Q. Exhibit 288, Mr. Silverstein, do you see that? [12) Q. I'm going to show you Exhibit 83. [13) A. Yes, I do. [13) MR. DANNAY: 83? [14) Q. And the piece is entitled Reformers; A Hymn ofHate. [14 ) MR. RABINOWITZ: Yes, that's volume 4.

[15) A. Yes. [15) I'd like to suggest, I can move through this more

[16) Q. Do you believe that's a poem? [16) quickly, there is a whole series ofletters that [17) A. No, I believe it's a fre&-verse. It's one ofher hate [17) Mr. Silverstein sent to various copyright holders and responses [18) verses. [18) he got back. I can go through them one by one. I don't know (19) Q. Were you aware ofthat at the time you compiled Not Much [19] that there is any objection to them. But ifyou would like to [20) Fun? [20] expedite things, I can have him review several at a time.

[21) A. No, I was not. [21) THE COURT: I would love to expedite things, but I [22) Q. Would you have included it ifyou had been? [22] don't know what Mr. Dannay's position is. [23) A. Yes. (23] MR. DANNAY: I think my position would be is ifhe [24) MR. RABINOWITZ: Move for the admission ofExhibits [24] wants to put in en masse all ofthe positions, including all of [25) 287 and 288. (25) the NAACP and SEP permissions, and they are identified on the

Page 102 Page 104

[1] MR. DANNAY: I'm going to object to those, because [1] record, and the documents are identified so that we know the

[2] they're not relevant to the time he completed Not Much Fun, and [2] numbers. I will be happy to stipulate they exist. But ifhe

[3) I don't see any point in looking back. He had not found them, [3] is going to do it only on a partial basis, then I would like to

[4] he wasn't aware ofthem. They're not relevant here. [4) hear why that's the case.

[5) THE COURT: Objection sustained. [5] MR. RABINOWITZ: Do you have any problem with my

[6) MR. RABINOWITZ: In the court's proposed pretrial [6] leading him as to these letters, which are really not

[7) order one ofthe issues that was cited was what was the [7] controversial? I will just show him the letters and ask him

[8) universe ofitems. [8J about them. [9] THE COURT: My proposed pretrial order is not the [9] MR.DANNAY: I'm lost. I thought I had just --

[10] pretrial order that's operative. Itwas notagreed to. I made [10] THE COURT: I am lost too. Ill] an effort to prepare a joint pretrial order for you, it wasn't [11] You are starting with Exhibit 83, correct?

[12] agreedto,so as. far as the case is concerned it doesn't exist. [12] MR. RABINOWITZ: It's the fIrst ofa number of

[13] MR. RABINOWITZ: Your Honor, I am only pointing out [13] letters.

[14) that-- [14] THE COURT: And how far do you want to go? 83 through

[IS] THE COURT: You don't have to point out anything. I [15] what?

[16] have ruled it's not relevant. He wasn't aware ofthese two [16) MR. RABINOWITZ: Well, they jump around a little. 83, :17] things in 1994 when he made his compilation which ended up as [17) 84,86, 88.

[18] Exhibit 2. He wasn't aware ofthem. They're not relevant to [18) MR. DANNAY: Could you just slow down, please, so we

'19) what was going on back then. (19) can follow this?

[20] Q. Mr. Silverstein, do you own the copyrights to Dorothy [20] MR. RABINOWITZ: Should I just do it one by one?

[21] Parker's poems and free verses themselves? [21] Maybe that's the simplest thing. [22] A. No, I don't. [22] THE COURT: No, we still may be able to save time.

23) Q. Have you ever claimed that you do? [23) MR. DANNAY: I just have to hear the numbers. :24] A. No. [24) THE COURT: First ofall, you are offering them not

:25] Q. What was your understanding ofthe status ofthe copyrights [25) for the truth ofwhat is contained in them, is that correct?

Page 101 - Page 104 (26) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v PENGUIN PUTMAN, INC. July 17, 2007 Page 105 Page 107

[1) MR. RABINOWITZ: Well, I'm offering them merely to [1) (PlaintiffExhibit 85 received in evidence)

[2) show that he made requests, he was granted certain rights, and [2) Q. Did you pay the required fee?

[3) here they are. And I don't think there is any dispute that [3) A. Yes.

[4) that happened. [4) Q. Exhibit 86, do you recognize that?

(5) THE COURT: You see, I may have been a little short [5) What do you ask for in that letter?

(6) when I started this morning, but ifyou fellows had spent a [6J A. Other media opportunities that might come up with the book.

[7) little time talking to each other instead ofwriting these (7) MR. RABINOWITZ: Move to admit 86.

(8) letters, this could have all been ironed out, because you knew [8) MR. DANNAY: No objection.

[9J that you were going to offer these. All you had to do was go [9) THE COURT: Received.

(10) over it with Mr. Dannay. I guess we're going to have to do it [10) (PlaintiffExhibit 86 received in evidence)

(11) one by one, because it's impossible for him to agree to things (11) Q. Did you receive any other requests from any other entities?

[12) when he doesn't know what is in which particular letter. [12) A. NAACP.

[13) MR. RABINOWITZ: OK. [13) Q. Exhibit 84, do you recognize that letter?

[14) THE COURT: So, go ahead. You are starting with 83. [14) A. Yes.

[15) That's a letter that he wrote to Mr. Pettinga ofthe Saturday [15) Q. Did you send to Mr. Himmelrich at the NAACP?

(16) Evening Post. Go ahead. [16) A. Yes. [17) (Continued onnextpage) [17) Q. On or about the date that appears?

[18) (18) A. Yes.

[19J [19) Q. Did you request permission to publish -- did you request a

[20) [20) non-exclusive license to publish the poems that are indicated?

[21) [21) A. Yes, I received the rights to publish all these. I amnot

[22) (22) sure all these were under copyright owned BY NAACP at the time.

[23) (23) It was not worth disputing it.

[24) [24) Q. Did you request permission or non-exclusive license to

[25] [25] publish?

Page 106 Page 108

[1) BY MR. RABINOWITZ: [1) A. Yes, I did.

[2] Q. Do you recognize that letter? (2) MR. RABINOWITZ: I move the admission ofExhibit 84.

[3) A. Yes. (3) MR. DANNAY: No objection.

[4) Q. What do you say in your letter in general? [4) THE COURT: Received.

[5) A. It's just a list ofthe items that I thought Saturday [5) (PlaintiffExhibit 84 received in evidence)

[6) Evening Post had copyright to, I wanted to get rights. [6) Q. What ifany response did you receive?

[7) MR. RABINOWITZ: I offer Exhibit 83 in evidence. (7) THE COURT: Ifhe goes to Exhibit 88, he will know the

[8) MR. DANNAY: No objection. (8) answer.

[9) THE COURT: Received. (9) MR. RABINOWITZ: We will get to 88.

(10) (PlaintiffExhibit 8Jieceivedin evidence) (10) A. Eventually we negotiated a contract, I think a standard

[l1)Q. What irany-response did you receive? (11) form they had, and my agent wanted the additional language

(12) A. I seemed to recall that I got a letter back from him, [12) regarding other media that we talked about with Mr. Pettinga at [13J either a letter or phone call back that -- let me rephrase [13) the Saturday Evening Post.

(14) this. Basically we made a deal; I don't remember, I can't (14) Q. Does Exhibit 88 reflect NAACP's agreement to grant you the [15) remember what the amount was. [15) non-exclusive license?

[16) Q. Exhibit 85, is that the response you got back? [16) A. Yes.

[17J A. Yes. [17) MR. RABINOWITZ: Move to admit 88.

[18) Q. What did Mr. Pettinga's letter say. [18) MR. DANNAY: No objection.

(19)A. Basically it's an invoice. He is saying, giving me (19) THE COURT: Received.

[20) non-exclusive rights, permission to republish 18 Dorothy Parker (20) (PlaintiffExhibit 88 received in evidence)

[21) poems for $500. [21] Q. Did you pay the required fee?

[22J MR. RABINOWITZ: Move to admit 85. [22) A. Yes, I did. I think we added a few items subsequent to

(23) A. He also asks for a specific credit line. [23) that to the list after that, and I paid a higher fee.

[24] MR. DANNAY: No objection. [24) Q. Exhibit 89.

[25) THE COURT: Received. (25) A. That's what I am talking about.

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[1 J Q. Did you write the letter reflected in that exhibit? [lJ THE COURT: Ifyou want for some reason to use, let's [2J A. Yes, I did. [2] hypothetically say PlaintiffExhibit 91 is your Exhibit T, [3J Q. Turn to the executed agreement. [3J let's say, so, when you are using it on your case or on f) [4J A. Yes. I assume whatever the letter says, that's what I did. [4J cross-examination, ifyou want to use your exhibit,just call [5J Q. Did you pay the increased fee? [5] it 91 and T, that's all. [6J A. Yes. [6] MR.DANNAY: I may not remember the 91; I will [7J MR. RABINOWITZ: Move Exhibit 89? [7] remember the T. [8J MR.DANNAY: No objection. [8J THE COURT: Fine, so long as it's an exhibit in [9J THE COURT: Received. [9J evidence. :10J (PlaintiffExhibit 89 received in evidence) [10J MR. DANNAY: I am only saying this so I don't have to :11] Q. Did you request a non-exclusive license from the Boston [11] go through the exercise ofoffering it to be admitted. :12] University Mugar Library for the handwritten letter to Robert [12J THE COURT: That's a colossal waste oftime. :13] Benchley? [13J Thank you. We will resume at 2:00. :14J A. Yes. They were not asserting any kind of, I do not believe [14J (Lunch recess) :15J they were asserting a copyright right to it, but they did sole [15] (Continued on next page) 16J physical copy ofthe letter and they required credit for it. [16J 17J Q. Look at Exhibit 90. - [17] 18J A. So I gave them whatever credit they wanted. I signed [18J 19J whatever they wanted. They didn't want any money; they just [19J 20] wanted the credit. [20J 21J Q. Exhibit 90, is that the letter you sent? [21] 22] A. Yes. [22] 23J Q. Is that a copy ofthe letter that you sent to the library? [23J 24J A. It's a photocopy ofit, yes. [24J 25] Q. Requesting permission to use the letter? [25]

) Page 110 Page 112 j

[lJ A. Yes. [1] (2:00 p.m.) [2] MR. RABINOWITZ: We move the admission ofExhibit 90. [2] STUART Y. SILVERSTEIN, resumed. [3J MR. DANNAY: No objection. [3J BY MR. RABINOWITZ: [4] THE COURT: Received. [4] Q. You understand that you are still under oath, is that [5] (PlaintiffExhibit 90 received in evidence) [5] correct? [6J Q. Exhibit 91, do you recognize that? [6J A. Yes, it is; I understand. [7J A. That's the form that they asked me to fill out. [7J Q. This morning one ofthe items that we talked about was the [8J Q. Did you submit this to the library? [8J Higgledy Piggledy item; do you recall that? [9J A. Yes, Ld~d. [9] A. Yes. 10J9,,»,jWB~rmissiontopublish theJetter? [10J Q. Did you mention that item in the book Not Much Fun even 11J ,A. Yes,iti~. [llJ though you didn't actually include the item? 12J THECpURT: Why don't we break for lunch now. [12J A, I didn't include it as one ofthe poems or verses; I did 13J MR. DANNAY: I have no objection to that. [13J mention it in an anecdote in the introduction as a footnote. 14J THE COURT: Fine. [14 J Q. Did you look at Exhibit 2 which is your copy ofNot Much 15J MR. RABINOWITZ: Movefor the admission of91. [15J Fun. Directing your attention to page 43, footnote 77. You 16J THE COURT: Received. [16J included a discussion ofthe Higgledy Piggledy item, is that 17J (PlaintiffExhibit 91 received in evidence) [17] right? 18J MR. DANNAY: May I make one request. Defendants have (18) A. Yes. 19J a great number ofexhJbits that correspond to exactly to the [19J Q. Am I correct you certainly knew ofthis item at the time 20J exhibits being admitted. Could we have a statement so 1don't [20] you wrote the book since you mention it? 21J have to correlate all the numbers with the letters where [21J A. Yes. 22J exhibits hadbeen admitted that our copies under letters will [22J Q. My recollection is that when we broke we had looked at 23J be admitted so I can use those. [23J Exhibit 91 which was a letter, an application for permission to 24J THE COURT: Sure. Once they are in, they are in. [24] use the Benchley letter from the Mugar Library. Did you 25J MR. RABINOWITZ: For all purposes. [25] receive a response? Look at Exhibit 92.

'age 109 - Page 112 (28) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v PENGUIN PUTMAN, INC. July 17,2007 Page 113 Page 115

[1] A. Yes, I did. [1) A. I can't recall the precise number. [2) Q. Exhibit 92 granted you the permission you requested to use [2] Q. Approximately? [3] the Benchley item? [3] A. I don't know, 15, I simply don't recall.

[4] A. Yes, it did. [4) Q. Why did you assign titles to some of the items? _

[5J Q. It was a non-exclusive license? [5) A. I assigned titles to the items that didn't have titles, [6) A. Yes. [6) such as Chris-Cross. [7) MR. RABINOWITZ: Move exhibit 92. [7] THE COURT: Louder. You assigned titles to some of [B] MR. DANNAY: No objection. [B] the items that didn't have titles such as Chris-Cross. [9] THE COURT: Received. [9) Continue. [10] (PlaintiffExhibit 92 received in evidence) [10) A. And After Dawn, letter to Robert Benchley, letter to Ogden [11) Q. After you compiled the items that you selected for Not Much [11] Nash. I changed the titles, I assigned numbers to some ofthe [12) Fun, what did you do next to prepare the book? [12] titles for items that had identical titles so they could be (13) A. I wrote the introduction. [13J differentiated. [14) Q. Did you prepare a manuscript ofthe items as well as the [14) Q. Exhibit 79, we looked at this a while ago, volume 4, do you [15) introduction? [15) recognize this? [16) A. Yes, I did. [16) A. That's a manuscript I sent to Jane von Mehren in 1994, yes. [17) Q. In what form did-you prepare the manuscript; did you type [17J Q. The first page after the cover is a letter to Ms. von [IB] it, handwrite it? [IB) Mehren, right? [19] A. I input it into a computer. [19) A. Yes. It's a cover letter dated June 6, 1994. [20) Q. Did you actually input the text ofeach ofthe items you [20] Q. Second page is titled Compilation to Prologue? [21) had selected? [21] A. Yes. [22) A. Yes, I did. [22) Q. What was your purpose in writing that? [23) Q. The editing and punctuation changes that you mentioned [23) A. The prologue was essentially a pitch designed-­ [24] earlier, which is not a basis for your claim, did you input [24] MR. DANNAY: Difficult hearing. (25) those as well? [25] THE COURT: The prologue was essentially a pitch.

Page 114 Page 116

[1) A. Yes, I did. [1] A. The prologue was essentially a pitch designed to interest [2] Q. How many items did you assign titles to that previously [2] Penguin in the book. [3) were not titled? [3] Q. What types ofworks did this manuscript contain? [4J MR. DANNAY: Objection. I am going to put an [4] A. According to the prologue it contained poems and free [5) objection on the record as to all testimony or exhibits [5) verses and/or other items. [6] relating to punctuation, titling, copy-editing more broadly. [6) Q. Read the first sentence on the first page ofthe [7] think that's out ofthe case for all purposes. [7] manuscript. [8) THE COURT: I overrule your objection to this [B] A. The prologue page? [9) question. Editing and copying is out ofthe case. I [9) Q. Yes. [10) understand .that. [10) A. "During the early years, the years when she struggled to, [11) MR. DANNAY: I would like to have it reflected that I [11) quote, keep body and soul apart, close quote, Dorothy Parker [12) have an ongoing objection. [12) sold more than 125 poems and verses to popular magazines." [13) THE COURT:· No, because I never know what a continuing [13) Q. What did you intend to convey by using the terminology [14) objection is. The record then becomes imprecise. Ifyou don't [14) poems and verses? [15] object and you say, well, I had a continuing objection, if [15) MR. DANNAY: Objection. [16) there are subsequent proceedings, then there becomes an issue [16) THE COURT: Read the question. [17) whether the continuing objection covers the more specific [17) (Record read) [18] objection. I think it's better that you object. [IB] THE COURT: Objection overruled. [19) I understand what's in the case and what's out ofthe [19) A. I was explicitly attempting to distinguish between poems [20) case. I have a marked underlined copy ofthe Second Circuit [20) and free verses; that was the sole purpose. [21) decision in my right hand, it's right here in front ofme, and [21] Q. You then have a table ofcontents that follows the [22) so, there is plenty oftalk about editing and punctuation, I [22J prologue? [23) understand that that has nothing to do with the case. [23] A. Yes, I do. [24) Go ahead, Mr. Rabinowitz. [24) Q. You divided it into two sections, is that right? [25) Q. How many items did you assign titles to? [25) A. Yes, I do.

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[1] Q. What are the two sections? [1) the Viking Penguin booth. She was interested. Thenext day or

(2] A. Titled poems or poem and verse. [2) maybe two days later] came back and gave her a sheet ofthree

[3J Q. Why did you have separate sections? [3] or four sample items.

[4) A. Because] was distinguishing between poems and free verses. [4) Q. You spoke with her at the Viking Penguin booth and she was

[5) Q. In the third from last paragraph ofthe prologue, back a [5) interested; what was said?

[6) couple ofpages, it talks about four random diatribes; do you [6) A. I don't recall the precise words, but she expressed

[7) see that? [7) interest, she was very interested in seeing more from me during [8) A. Yes. [8) the convention.

[9) Q. What were you referring to with those words? [9] Q. She was interested in what?

[10) A. I was referring to the four figures in American Folklore [10] A. I told her I was assembling a compilation ofpoems by [11) items. [11) Dorothy Parker that I characterized as lost.

[12) Q. Next paragraph you described poems, free verses and [12) Q. She said she was interested; what was the rest ofyour [13] harangues; do you see that? [13) response?

[14) A. Yes. [14) A. She said she was interested and wanted to see more.

[15) Q. What are you referring to by harangues? [15) Q. What did she do in terms offurther contact with Ms. von

[l6) A. Four figures in American Folklore items. [16] Mehren?

[17) Q. Did Scribner do anything to protect your rights? (17) A. I printed out a couple ofthe items, I can't recall which [18) A. They filed a registered copyright for Not Much Fun in 1996 [18) ones, and] brought them to her next day or the day after that, [19) as a compilation copyright in my name. [19] at some point during the convention. It was a 3-day [20) Q. At the bottom ofyoUf manuscript Exhibit 79, what does it [20) convention, so it had to have been within that 3-day period.

[21) say at the bottom ofeach page? [21) Q. Did you tell her at that time that you also had written a

[22J A. There is what they call a running foot which is a standard [22] biographical essay?

[23J line that will appear through the course ofa document or part (23) A. No. [24) ofa document, and in this instance it says on each page, Not [24] MR. DANNAY: What was the answer. [25) Much Fun, The Lost Poems ofDorothy Parker, compilation, C in a [25) THE WITNESS: No.

Page 118 Page 120

[1) circle, 1994 S.Y. Silverstein. [1) Q. Did you tell her that you wanted to publish the pieces as a

[2) Q. You indicated Scribner filed a copyright registration, is [2] separate item, separate volume?

[3] that right? [3) A. I don't think we got to that point at that point.

[4) A. Yes. [4] Q. What did you then do?

[5] Q. Look at Exhibit 9. [5] A. I brought her those sample items, she was very interested,

[6) THE COURT: Exhibit 9 in volume 2. [6J I suggested I send her the larger draft compilation, she was

[7) Q. Do you recognize Exhibit 9? [7] very interested, she gave me her card and told me to send it to

[8] A. This is a copy ofa certificate ofregistration issued by [8] her.

[9) the Office ofCopyrights, by the Copyright Office. [9) Q. Did you send it to her?

10) Q. Forwhat item? [10) A. Yes, I did.

11).· A.·· Thetitle o{the workJor which it'sregistered is NotMuch (11) Q. That's the document we looked at, Exhibit 4, I believe it

12)' Fun, previous alternative titles, Lost Poems ofDorothy Parker. [12) was, 79.

13J Q. It includes a name? [13) A. It was a draft that came with the June 4, 1994 cover

14) A. Name ofauthor, Stuart Y. Silverstein. (14) letter.

15J MR. RABINOWITZ: Move the admission of9 in evidence. [15) Q. Exhibit 79?

16) MR. DANNAY: No objection. [16] A. All right.

17J THE COURT: Received. [17) Q. Look at the cover letter ifyou would. It says per other 18) (PlaintiffExhibit 9 received in evidence) [18) our telephone discussion oflast Friday, enclosed please find

19) Q. What steps did you take to have Not Much Fun published? (19) my compilation. Volume 4,79. 20) A. First I met Ms. von Mehren at the American Booksellers [20) A. Yes, I see that.

21) Association convention in Los Angeles, California during the [21) Q. Did you have a telephone conversation with her that

22) Memorial Day weekend in 1994. [22) preceded your sending this?

23) Q. Who is she? [23) A. Yes, I assume there was an intervening telephone

24) A. They was then, I am not sure what her precise title was, I [24) conversation between the meeting at the booksellers convention

25) think a senior editor at Viking Penguin. I spoke with her at [25J and the time I sent this to her.

'age 117 - Page 120 (30) Min-U-Script® TRlAL STUART Y. SILVERSTEIN v PENGUIN PUTMAN, INC. July 17,2007 Page 121 Page 123

[1] Q. Did you get any kind ofresponse from Ms. von Mehren? [1 J making an offer for the work?

[2] A. Yes, I did, I simply cannot recall the character ofit. I [2J A. Basically he asks her to put up or shut up. He says, he

[3] think I got a fax or a letter; I am really not sure. [3J wants to know whether they are prepared to make a convincing [4] MR. DANNAY: Could you keep your voice up. [4] offer, in his words. [5] A. I said I did get some sort ofresponse; whether it was a [5] Q. He sent you a copy ofthis letter at the time he sent it? [6] letter or phone call next, I don't recall. [6] A. Yes.

[7] Q. Exhibit 8, that's a letter from Ms. von Mehren to you dated [7J Q. You were shown as a blind carbon copy ofthe letter?

[BJ August 4, 1994. Did you receive that letter from on or about [BJ A. Yes. [9] the date it bears? [9] MR. RABINOWITZ: Offering 81. [10] A. Yes, I received it a few days after that date. [10] MR. DANNAY: No objection. [11] Q. The letter states, does it not, that we are inclined to [11] THE COURT: Received. [12] think about doing a selected or collected volume rather than [12] (PlaintiffExhibit 81 received in evidence) [13] simply the works you sent us; do you see that? [13] Q. What was your next communication with Ms. von Mehren?

[14] A. Yes, I do see it, yes. [14 J A.From then on the communications were done via my agent [15] Q. She then asked you for information about the copyright [15] Peter Lampack. [16] status? [16] Q. Did Mr. Lampack ever advise you what Penguin's position was [17] A. Yes. Penguin wm> concerned about the copyright status at [17] regarding your proposal? [lB] the time. [lB] A. He reiterated that they wanted to do it as part ofthe

[19] Q. PD status, what does that refer to? [19J larger volume. [20] MR. DANNAY: Objection to the cherry-picking ofthe [20] Q. What was your response? [21J letter. Read the whole thing. [21] A. No. [22] THE COURT: You are right really. [22] MR.DANNAY: Objection to the last answer; was that

[23] Are you going to offer this letter. [23J his response to the agent or the response to Penguin. [24] MR. RABINOWITZ: Yes. [24] THE COURT: You want the answer clarified. [25] MR. DANNAY: No objection to offering. [25] Who was the no to.

Page 122 Page 124

[1] THE COURT: Offer the letter. He said there was no [lJ THE WITNESS: I told Mr. Lampack to tell Penguin that

[2] objection. [2] I was not interested in that offer.

[3] MR. RABINOWITZ: Move the admission ofExhibit 8. [3] THE COURT: Thank you. [4] THE COURT: Exhibit 8 is received. [4J Q. Exhibit 82, it's a letter to Mr. Lampack from Ms. von

[5] (PlaintiffExhibit 8 received in evidence) [5] Mehren, right?

[6] THE COURT: Give me an opportunity to read it now, [6J A. I believe a fax from her but yes. [7J then that will save probably several questions. [7] Q. Fax ofa letter. Did you receive copy ofthis from Mr.

[B] (Pause) [B] Lampack?

[9]'Q; Did this requestfor youto send -­ [9] A. Yes, I did.

[10) J\IIR.,DANNAY: The judgeis'reading the letter. (10J Q. What does the letter say about Penguin's position regarding

[111'· (Pause);' [11] your proposal?

[12] THE COURT: There was aquestion,and Idon't think [12] A. They reiterate that they want to include it in the larger

[13] thereis an answer to it. [13] selection, not as a standalone volume.

[14] What is PD status; what does PD status mean. [14] Q. What did they say in terms of, what did Penguin say in

[15] THE WITNESS: PD status is short for public domain, no [15] terms oftheir position as to what role you might have in the

[16] longer a copyright. [16] project?

[17] THE COURT: Publicdomain. Thank you. [17] A. They apparently say that my sole role would be to assemble

[lB] Q. Did you respond to Ms. von Mehren's request for information [lB] the material.

[19] about the copyright status ofthe items? [19] Q. In return for what kind ofconsideration? [20] A. I don't have a specific recollection but I am sure I did (20) A..For $2,000.

[21] either directly or through my agent Peter Lampack. [21] Q. It says that in the second to last paragraph?

[22] Q. Exhibit 81, Mr. Lampack responds to Ms. von Mehren and [22] A. Yes, it does.

. [23] encloses a copyright search, is that right? [23J MR. RABINOWITZ: Plaintiffoffers Exhibit 82 into ) [24] A. Yes, that's what the letter states. [24] evidence.

[25] Q. What did Mr. Lampack say to Ms. von Mehren about Penguin [25] MR. DANNAY: No objection.

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[1] THE COURT: 82 is received. [1] copyright registered with the Copyright OffIce. [2] (PlaintiffExhibit 82 received in evidence) [2] Q. Exhibit 3, your paperback edition, the same page number [3] Q. Could you read the fIrst sentence in the third, fourth [3] right before the contents, does that also contain a copyright {4 ] paragraph in the beginning that begins Mr. Silverstein? [4 ) notice? [5] A. "Mr. Silverstein could pull together the lost poems and the [5] A. Yes, identical language. [6] attending permissions and perhaps also select the other poems [6] THE COURT: Keep your voice up please. The court [7] to be included in the book." [7] reporter who is only four feet from you is shaking her head. [8] Q. What did you understand the word select to refer to? [8) You have to keep your voice up. [9] A. I assumed Mr. von Mehren was explicitly allowing me to [9) Q. Go back to Exhibit 2, page 245, there is a section there [10] select the poems that would appear in the book, a plain reading [10] that is called complete chronology, is that right? [11] ofthe words. [11] A. Yes. [12] MR. DANNAY: Objection. [12] Q. The fIrst paragraph begins: This is a chronological list [13] THE COURT: The words speak for themselves. The [13) ofall Dorothy Parker poems and verses? [14] objection is therefore sustained. The document is in evidence. [14) A. Yes. [15] Q. What was your response to this letter? [15) MR. DANNAY: That's not quite correct; I object. (16] A. I reiterated to Mr. Lampack -- (16) MR. RABINOWITZ: What was wrong. [17] MR. DANNAY: I am sorry. (17) MR. DANNAY: The word "all" is italicized in both [18] A. I reiterated to Mr. Lampack my lack ofinterest in pursuing [18) books. [19] this deal with these parameters and I think I also expressed (19) MR. RABINOWITZ: The words are correct; I agree it's [20] some interest to him that Penguin seemed to be so concerned [20] italicized.

[21] about the underlying copyrights. [21J Q. Is that right, Mr. Silverstein? [22] Q. Did he tell you whether he had communicated your position [22) A. Yes. [23) to Penguin? [23) Q. Then it goes on, it talks about, it says most ofthese [24) A. He told me he would do so. [24] originalIy appeared in magazines or newspapers and were later [25) Q. Did he tell you that he did do so? [25] collected in one offour books, and it lists four books, is

Page 126 Page 128

[1] A. Yes, he did eventually. [11 that right?

[2] Q. Did Simon & Schuster -- in addition to hardcover, they [2) A. Yes.

[3] publish paperbacks, right? [3) Q. Who wrote this paragraph?

[4] A. Yes, they do. [4] A. This fInal draft was written by Gillian Blake.

[5] Q. We looked at that as Exhibit 3? [5) Q. Who was that?

(6) THE COURT: Exhibit 3, correct. [6) A. My editor at Scribner.

[7] Q. Did the paperback edition, Exhibit 3, also contain a [7] Q. Do you have any personal knowledge ofthe circumstances

[8] copyright notice? [8] under which Ms. Blake wrote that sentence?

[9] A. Yes, it did. [9) A. Yes. It was partofalong process that took several [10] g. ,Qid yOJIrhardcover contain a copyrightllotice? [10] months. It was triggered mainly by some confusion by reviewers (11] A~ Yes, it did. (11) who received the bound galley or the earlier prepublication

[12)- Q. Look. at Exhibit 2, the pagethat immediately precedes the [12) bound edition ofthe book who were unclear, basically who had

[13) table ofcontents, the hardcover version in volume 1. [13) questions why all the items in this list were not in the book [14) A. Which page? [14) Not Much Fun. We wanted to make it clearer that this list was

[15] Q. The page immediately before the contents. [15) a list ofall ofherprevious compilations as well as Not Much

[16) _ A. Yes. [16) Fun. That is what the "all" referred to.

(17] Q. Do you see a copyright notice on there? [17] MR.DANNAY: Objection.

[18) A. Yes. [18J THE COURT: Objection overruled.

[19] Q. What does it say? [19] A. This is -- [20] A. It says copyright, c 1996, by Stuart Y. Silverstein, [20] THE COURT: You have answered. I have overruled his

[21] evidently referring to the registration for the compilation and [21) objection. You are a lawyer. Ifyou weren't a lawyer I might

[22] introduction that was registered by Scnbner. [22) not be as strict with you. You are a lawyer. You are up here,

[23) MR. DANNAY: I couldn't hear any ofthat. [23] you are answering things that you are not asked. Just answer

[24) A. It states copyright, c 1996, by Stuart Y. Silverstein, [24] what you are asked, Mr. Silverstein. Keep your voice up

[25] evidently referring to the compilation and introduction [25J please. What is the word next to each ofthe poems --

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(1 J MR.DANNAY: Your Honor, I couldn't hear you. [1) A. Actually prior to the publication ofthe bound galley of (2] THE COURT: What is the word next to Any Porch, in (2) Not Much Fun. (3) parentheses, which is in italics, the word Fun, what does that (3J Q. On page 3, item 7, the third sentence says, I have, (4) refer to, what does that mean in this context. (4) however, written up a better introductory paragraph, is that (5J THE WITNESS: This refers to the original compilation (5) referring to the complete chronology? (6) where it appeared. Each ofthe four compilations is (6) A. Yes. The original chronologyjust gave a legend; it did (7) abbreviated to a single word. Enough Rope is abbreviated t~ (7) not have any explanatory paragraph. It just had the legend [B) Rope, Sunset Gun is abbreviated to Gun, Death and Taxes is [B) that appears in the ftnal book after that introductory [9) abbreviated to Taxes, and this collection Not Much Fun is (9) paragraph. (10) abbreviated to Fun. So, after each individual item, the word [10) Q. The very first version said the complete chronology then

(11) in italics afterwards refers to the compilation in which it [11) had a list ofitems? [12) appears. (12) A. No, it explained the legend, how they were portrayed. [13) THE COURT: Thank you. (13) have to go back to Exhibit 2 to show you. [14J Q. What did the ftrst draft ofthis section look like? [14) Q. That's the book. [15) MR.DANNAY: Objection. I don't know what we are [15) A. Exhibit 2 is the final draft ofNot Much Fun. On page 245 (16) referring to. [16) you have the complete chronology introductory paragraph. If (17) THE COURT;I think we are referring to the complete (17) you look at that paragraph there is a paragraph, then there is (lB) chronology which begins on page 245. [lB) a 2-line essentially legend which says original title, then [19) Am I correct, Mr. Rabinowitz. [19) bracket, collected title at different, close bracket, open (20) MR. RABINOWITZ: Yes, your Honor. [20) paren, collection compilation, close paren, then original [21J THE COURT: All right. (21) publication, date, page. The purpose ofthat is -- [22) MR. DANNAY: My objection was as to draft, whether it (22) MR. DANNAY: Excuse me, I don't know what exhibit you

(23) was the Penguin draft or the bound galley, I don't know what [23J are referring to. (24) draft we are talking about. That was my objection. Sorry. [24) THE COURT: Exhibit 2. (25) THE COURT: You don't have to be sorry. My [25) THE WITNESS: I am referring to the actual copy ofNot .

Page 130 Page 132

(1) understanding, they are talking about the original draft ofthe [1) Much Fun.

(2) introduction which is entitled complete chronology which was [2) THE COURT: Exhibit 2, the page is headed chronology.

(3) written by the woman whom he has identified. (3) MR.DANNAY: In the book itself. [4) Is that right, Mr. Rabinowitz. [4 ) MR. RABINOWITZ: Yes.

[5) MR. RABINOWITZ: Yes, your Honor. [5) THE WITNESS: Shall I continue my answer.

[6J Q. There was more than one draft ofthis section, is that (6) THE COURT: Yes. Go slowly. [7) right. (7) A. Originally we didn't have this introductory paragraph; we

[8) A. Yes, there were several drafts ofthis introductory [B) just had that 2-line legend explaining the format for how those [9) paragraph. (9) things were laid out underneath. I am not sure ifit was [10J THE COURT: Werethey sent tOyOll for approval, the [10] precisely in that form, but that's generally what it was.

[11) drafts. (11) Someone at Scribner, I am not sure ifit was Gillian or one of [12) THE WiTNESS: Not for approval. We basically sent (12) her superiors, said that was not quite clear enough, suggested [13) drafts back and forth and she ultimately wrote the draft that [13) we write an introductory paragraph. That's where this March [14) appeared ftrst in the bound galley and then the one that [14) 13, 1996 letter comes in. [15) appeared here..But it should be made clear that it was a [15) Q. Exhibit 98.

[16J 'back-and-forth thing. We were trying to address a speciftc [16) A. Yes, and to start with I wrote this paragraph which appears

[17) identifiable issue that was brought up by reviewers who were [17) immediately thereafter on the next page. It was just a (18) complaining about it being ambiguous. [lB] starting place; it wasn't intended to be any kind offtnal

[19) BY MR. RABINOWITZ: [19J draft, it was just a starting place for us to try to determine (20) Q. Look at Exhibit 98 also in volume 4. Is that a letter that (20) what the language ofthat paragraph should be. This came out [21) you sent to Ms. Blake? [21) in late March of 1996 and the bound galley came out either

[22) A. It's a copy ofone, yes. [22) later that month or at the very beginning ofApril 1996.

(23) Q. Dated March 13, 1996? [23J Q. Read please the paragraph that you were suggesting to (24) A. Yes. (24) Ms. Blake. [25) Q. This is prior to the publication ofNot Much Fun? (25) THE COURT: What exhibit are you going to be reading

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[1) from. 11) THE WITNESS: No, this was '96, and this was in March

[2) MR. RABINOWITZ: 98, the last page, your Honor. [2) of'96.

[3) THE COURT: Is this paragraph 7 you are going to read [3) THE COURT: In Exhibit 98, on page 4, what you just [4] on 98. 14) read into the record, I thought you told me you wrote that. [5] MR. RABINOWITZ: Next page. (5) THE WITNESS: Yes, I did.

[6] THE WITNESS: The page after that. [6) THE COURT: How could you have written that and she

(7) THE COURT: In Exhibit 98, on page 3. [7) have written the other thing, because the verbiage is exactly

[8) THE WITNESS: No, it's the page after page 3. [8] the same until it gets to the chronology follows this format,

[9) THE COURT: All right. This is entitled new paragraph 19) and what you read it reads the index follows this format.

110) Not Much Fun, page 253, right. [10) That's the only different word up until then.

[11) THE WITNESS: Yes. [11) MR. RABINOWITZ: Except for the most important word of

[12] THE COURT: Go ahead. [12) all, which is "all" in the first sentence is not in the draft, [13] A. This is the paragraph that I suggestedjust to start with, [13] but it is in the final.

[14] for us to start working from before we came up with the final [14] THE COURT: All right. You are right. You are right. [15] paragraph. You want me to read it. [15) Go ahead. You wrote this 98 and she ultimately you claim added

[16) Q. Please. [16) "all," is that right.

117) A. "This is a chronologicaHndex ofDorothy Parker's poems [17) THE WITNESS: Actually, it gets more complicated than

[18) and verses. Most ofthese originally appeared in magazines or (18) that. It went through two more renditions beforehand. They

[19] newspapers and were later collected in one offour books, [19) are here also chronologically. This is a give-and-take, it

[20] Enough Rope (Rope), Sunset Gun (Gun), Death and Taxes (Taxes), 120) went back and forth. We do not have her drafts except for the

[21) and this collection, Not Much Fun (Fun). In some instances the [21) final drafts in the books.

[22) titles were altered when they were collected. Most of the [22] THE COURT: But the book was published as your book. [23) poems that appear in the first three collections were later [23] THE WITNESS: Yes. [24] complied in Not So Deep As A Well (Well). The full contents of [24) THE COURT: Which had "all" in it, correct. [25] Well, and one edition, were reprinted in the Portable Dorothy [25) THE WITNESS: Yes.

Page 134 Page 136

[1) Parker. Therefore, excepting that one edition, the Portable is [11 THE COURT: Go ahead.

[2) not listed here. Any item that is contained in Well also [2] Q. In your draft, Mr: Silverstein, Exhibit 98, does the word

[3) appears -- [3] "all" appear in the first sentence?

[4] MR. DANNAY: I think you misread. [4) A. No, it does not.

15) Any poem, not any item. (5) Q. What was your intent in drafting this paragraph?

[6) THE COURT: You are right. [6] A. We were just trying to clarify what the contents ofthe

[7] THE WITNESS: I thought I said poem. [7] list that followed contained.

[8) A. "Any poem that is contained in Well also appears in the [8) MR. RABINOWITZ: Move Exhibit 98.

19) Portable. The index follows this format." (9) MR. DANNAY: No objection. ,10) Thell we1;lave th,es

:13) complete chronology so-called is that instead ofit reading in [13) letter Exhibit 98 and your proposed paragraph at the end ofit?

:14) the actual book that was published, iUs written: The index [14) A. Yes, we did.

15) follows this format, in 98, and the actual book, it reads, the [15) Q. What was the substance ofthose discussions?

16] chronology follows this format. Is that correct. [16) A. We are going back and forth over particular language before 17) THE WITNESS:. I have to actuaIly compar.ethembut it (17) shehad to submit the final language for the bound gaIley which

:18) sounds right. (18) was coming out within the next couple ofweeks.

19) THE COURT: The reason I am asking, maybe I misheard [19) Q. It's the next version ofthis paragraph contained in the

20) you, I thought you said that Colleen Breese wrote what is [20) bound galley?

21) contained inExhibit 2,at page 245. [21) A. Yes, it is.

22) THE WITNESS: NO,1 said Gillian Blake. [22) Q. Exhibit 11, at the end ofthe book, there is a section

23] THE COURT: I am sorry, you are 100 percent right. [23) tAitleyd souIrcdes, about ten pages in, do you see that? ....,.....) 24) You said Gillian Blake. That's my mistake. But you just told [24) • es, o. . ..0" 25) me, if! understand it, that you wrote what is in 98. [25) Q. Is that the section that ultimately was retitled complete

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[1) chronology in the final version? [1) Q. Not poems?

[2) A. Yes, it is. [2] A. No. There was an identifiable issue. The sole purpose of

[3) Q. This draft that's in the bound galley was the product of [3] this paragraph from beginning to end was not to make any kind

[4] whose writing? [4) ofvainglorious representation about how comprehensive the book [5J A. As I said we went back and forth but ultimately the final [5] was. It was merely to try to address the inherent confusion

[6) language was submitted by Gillian Blake; this would be [6) about having a list ofa lot ofdifferent items that mayor may

[7] Gillian's language after we discussed it. [7J not have been included in the book itself. That was always the

[8]Q. Does the word "all" appear in the first sentence? (8) purpose ofthis list, ofthat explanation.

[9] A. No, it doesn't. [9] THE COURT: Fine. We have gone through this. We have [10) MR. DANNAY: I object. I object the word "complete" [10J been going through this basic subject here for about 15

[11) appears there. That's very much misleading. [11) minutes. What ultimately came out in the hardcover compilation [12) THE COURT: The question is does the word "all" [12] as published and in the softcover compilation as published is

[13) appear. The question is not is the word "complete" not there. [13J the paragraph with the word "all" in it, is that correct. [14) The question is is the word "all" there. [14] THE WITNESS: Yes, it is. [15) MR.DANNAY: You are right. [15] THE COURT: Thank you.

[l6) THE COURT: Objection is withdrawn. Fine. [16J Q. Exhibit 101, volume 4, it's a letter from you to Ms. Blake. [17]Q. What was yourmtention in drafting this paragraph? [17) A. Yes. [18J A. It was to explain what was going to be coming next, and if [18] Q. It's dated May 17, 1996. Did you send this letter to her [19J there was a list of items from all four ofher compilations, [19J on or about that date? [20J and the "complete" doesn't modify the poems, it modifies list. [20) A. Yes, I did. [21] Q. So you were meaning to list, I am sorry you were meaning to [21] Q. Read the first sentence. [22J explain what with that sentence? [22J A. "Per our telephone conversation ofa few minutes ago, I [23J A. We were trying to explain that, obviously there is somebody [23) suggest that the only way to clear up the problem regarding -­ [24] at Scribner, I have no idea, who obviously, they thought that [24] re confusion over the source list, and I think it could [25J the list being attached at the end ofthe book containing a [25J potentially be a serious one, is to send a letter containing.

, -' Page 138 Page 140

[1) list ofa huge number ofitems that did not actually appear in II] the following information to all publications that have [2] that book needed some explanation. [2J received galley copies ofNot Much Fun." [3J SO we were struggling to come up with an explanation [3] Q. Read what follows. [4] to explain why this list contained many more items than [4J A. "Sir/madam: You have received a bound galley ofNot Much [5J appeared in the book. That was the sole purpose ofthis [5J Fun: The Lost Poems ofDorothy Parker. Please be assured that [6] paragraph, to explain that perceived confusion or what they [6] the poems and verses that comprise this volume are collected [7] expected to be confusion. [7J here in book form for the first time. There has been some [8) MR. RABINOWITZ: Move the admission ofExhibit II. [8J confusion regarding the source list at the back ofthe book. [9J MR.DANNAY: No objection. [9) Please understand that this list provides publication [10] THE'COURT: Exhibit 11 received. [10J information for all ofMs. Parker's poem and verses, not only (11) (PlaintiffExhibit 11 received in evidence) [l1J those contained in Not Much Fun." [12) "Q. Did you have any further communications with Ms. Blake [12] MR. DANNAY: I have an objection because I think there [13J about this paragraph? [13) should read the underscoring of"all." [14) A.. Very soon thereafter because the Scribner publicity [14] THE COURT: You have corrected it; now your objection [15) department a got few calls from reviewers who were sent this [15] is unnecessary. There is no question "all" is underscored. [16) bound galley for review puiposes, and they complained, this is [16) Q. What was your intention, what did you intend to convey by [17) "sbcondhand,what GilJian told me had happened, they complained 117] that paragraph you drafted? (18) 'that the reviewers wanted to know why all ofthe items in this [18) MR. DANNAY: Objection; speaks for itself. [19) list were not contained in the book. So she was instructed by (19) THE COURT: Overruled. [20] her superiors to again change the paragraph to try to make it [20] You may answer. [21) more clear that the items in this list were all ofher [21] A. Yet again it was to say that, and the reason "all" was used [22J compilations, not merely this compilation. [22] there, the reason, the purpose, the sole purpose ofthis was to '\ [23J Q. The word "complete" in this Exhibit II was meant to modify [23) address explicitly identified confusion over what the contents / [24J what otherword? [24] ofthat list was, whether it was only Not Much Fun or all her [25J A. List. [25] other compilations. We wanted to make clear it was all her

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[1) compilations, not that it was all the poems that she ever [lJ fmal volume under your name to mean?

[2) collected. It referred to the number, to compilations, not to [2) MR. DANNAY: Objection.

[3) the poems. [3) THE COURT: Overruled.

[4) MR. RABINOWITZ: Move the admission of 101. [4) You may answer.

[5) THE COURT: You want those records indolent cretins in [5) A. It was always intended merely to try to explain to anyone

[6) with it, I take it. [6) reading the book that the list included all the compilations,

[7) MR. DANNAY: We do. [7J not merely Not Much Fun.

[B) THE COURT: I am asking Mr. Rabinowitz. [B) Q. Did it ever occur to you that that language could be

[9J MR. RABINOWITZ: I don't think I have a choice. [9) construed to mean that you included all ofthe poems that

101 THE COURT: 101 received without objection. [10) Dorothy Parker had ever written?

11) (PlaintiffExhibit 101 received in evidence) [11) MR. DANNAY: Objection.

12) Q. Did the version that appears in Exhibit 101 appear in the [12) A. No one ever wanted -- 13) final version ofNot Much Fun or was it changed? [13) THE COURT: Objection overruled, the answer as begun

14) A. It was changed. [14) not responsive.

15) Q. Who wrote the final version that appeared in Not Much Fun? [15) Read the question to the witness.

16) A. Gillian Blake did. [16) Please answer the question. 17) THE COURT: In the sense, ifwe are going to-- [17) (Record read)

1B) MR. DANNAY: Objection. [lB) A. I don't think it can be construed that way.

19) THE COURT: To the answer. [19) THE COURT: You don't think that the sentence, this is

20) MR. DANNAY: Yes. [20) a chronological list ofall, in italics, ofDorothy Parker's

21 J THE COURT: In the context ofeverything that has been [21) poems and verses, you don't think that can be construed as

22) said about this, your objection is overruled, because it's (22) meanings all her poems.

23) clear to anybody that has listened to this or anyone who might [23) THE WITNESS: Are you asking for a response. 24J read this record, there is a tremendous amount ofcontribution [24) THE COURT: Yes.

25) to the paragraph by the witness himself as evidenced by the [25) THE WITNESS: I think that with the rest ofthe

Page 142 Page 144

[1) portion that he read in about 6 or 7 minutes ago. So, he may [1) paragraph, I think it's very clear that it relates only to the

[2) characterize it as having been written by Gillian Blake, but it [2) compilations. It's clear under the context ofwhat follows

[3) seems there is a certain amount ofcoauthorship. Go ahead. [3) that's what it's talking about. No one ever brought it up

[4) In any event, the book as publishedrefers to a [4] until Penguin needed a defense.

[5) compilation on the cover ofthe book, compiled and with an [5) MR. DANNAY: Objection.

[6) introduction by Stuart Y. Silverstein. So he seems to have [6) THE COURT: Objection sustained.

[7) adopted whatever Gillian Blake contributed to it. [7) Strike the answer, the gratuitous part ofit anyway.

[B) Q. Did you approve the fmal version ofthe complete [B] Thank you.

[9) chronology? [9) Q. Exhibit 2, the introduction at page 62, there are two

10) A. No.I.didp't,se,e,it,untila.fteritwasprinted.. [10) paragraphs that I would like you to read portions of. You can 11) THE COORT:Pidyou object to it after it wasprinted. [11] read the whole thing ifMr. Dannay insists.

12) TJ;lEWIT~E~S: I neversaw it before it was printed. [12) MR.DANNAY: I don't know what we are talking about. 13) THE COURT: Did you ever change it in the paper [13) Q. Starting with Dorothy wrote more than 330 poems and free

14) edition. [14) verses, then I propose skipping some ofthe second paragraph,

15) THE WITNESS: It never occurred to anyone -- [15) but in the interests ofnot fighting over this, read 62, the

16) THE COURT: I didn't ask you that, did 1. [16J paragraph that begins Dorothy wrote, then the next paragraph. 17J THE WITNESS: No, you didn't, your Honor. [17) A. "Dorothy wrote more than 330 poems and free verses in the IB) THE COURT: Did you ever ask anybody to change it in [lB) 30 years from 1915.. She published nearly 300 ofthese during

19) the paper edition. [19) the twenties, an average ofmore than one poem or free verse

20) THE WITNESS: No, I didn't. [20) every two weeks. It was a prolific but necessary achievement,

21) THE COURT: Did you ask anybody to change it or [21) because the poems and verses were her primary source ofincome,

22) retract it in the hardcover edition. [22] at least until she became Constant Reader in 1927.

23) THE WITNESS: No, I didn't. [23J "Dorothy originally published these poems and verses

14] THE COURT: Thank you. [24) in at least twelve newspapers and magazines, first in Vanity

15) Q. What did you understand the paragraph as appeared in the [25) Fair (1915-19, 1926) and Vogue (1916), then in Life (1920-27),

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[1] the Saturday Evening Post (1922-23), Frank Adam's Conning Tower [1] unintentionally the witness left out the numbers that appeared

[2] in The World (1923-31), and later the New York Herald Tribune [2] after each publication that was listed, the numbers referring

[3] (1931-35), The New Yorker (1925-44), and the Bookman (1927-28). [3] to the number ofpieces that were in each publication.

[4] "She also published single pieces in The New Republic [4] THE WITNESS: My apologies, your Honor.

[5] and McCall's (both in 1927) and the Yale Review (1930), and she [5] THE COURT: Your apology is accepted.

[6] even wrote a rhyme for a Simon & Schuster advertisement that [6] Q. Did Simon & Schuster or Scribner issue any foreign edition

[7] appeared in the Saturday Review ofLiterature in 1931. [7] ofNot Much Fun?

[8] "At least two ofher pieces were unpublished. Most of [8] A. No, they didn't.

[9] her pieces appeared in Life, the Conning Tower, The New Yorker, [9] Q. Did any publisher issue a foreign edition?

[10] Vanity Fair, and the Saturday Evening Post. She was probably [10] A. Yes. In 1999 Duckworth in the UK issued an edition. I

[11] unpaid for all ofthem -- (11) believe it might have been called the Uncollected Dorothy

[12] THE COURT: She was probably paid. [12] Parker. I'm not sure. And I think in 200212003 a French

[13] THE WITNESS: Excuse me. [13) publisher called Phebus issued an edition ofthe hate verses

[14] A. "She was probably paid for all ofthem except the Conning [14) only in French.

[15] Tower and the unpublished pieces, and she collected most of [15] Q. Did you ever learn that anyone else published Not Much Fun

[16] them -- mOre than 200 in all -- in her three books oforiginal [16) or its contents without your permission?

[17] poetry and two subseqtJent compilations. The other 122 poems [17) A. Yes, Penguin did Complete Poems in 1999.

[18] and free verses -- the forgotten ones -- are collected here for [18] MR.DANNAY: Objection.

[19] the first time." [19J THE COURT: Well, that's his contention, so the

[20] Q. What did you mean to communicate by that last sentence? [20] objection is overruled.

[21] MR.DANNAY: Objection. [21] Q. How did you learn that Penguin had published the items that

[22] THE COURT: Overruled. [22J are contained in Not Much Fun? [23] (Continued on next page) [23) A. I saw the Complete Poems in a bookstore in Los Angeles, and [24] [24] I leafed through it, and I saw that they had a section titled [25] [25] Poems Uncollected by Parker, which was identical to my

Page 146 Page 148

[1) BY MR. RABINOWITZ: [1) compilation, with the exception ofthe one item that I

[2) Q. And what did you mean to communicate by that last sentence? [2] inadvertently included that had previously been collected.

[3] MR.DANNAY: Objection. [3J Q. Look at Exhibit 4, ifyou would. It's in volume I. Do you

[4) THE COURT: Overruled. You may answer. [4) recognize that document?

[5] A. That was distinguishing yet again explicitly between poems [5] A. Well, it's a photocopy ofComplete Poems.

[6) and free verses and that this was the first compilation that [6] Q. Is this the book that you saw in the bookstore and

[7) would collect them. [7] purchased?

[8) Q. Did you mean to communicate anything in these two [8] A. Well, it's a copy ofthe same book, yes.

[9) paragraphs about the content ofyOur book and the complete [9] Q. Go to the table ofcontents, ifyou would.

[10] chronology? [10) A. Yes.

[1'1)' MR; DANNAY:Objeetion. (11) Q. The page bearing Roman numeral XI, what portion ofthe

[12] THE COURT: Overruled. [12] material as indicated in the table ofcontents replicated what

[13] A. Yes. I was trying to say that -- I was trying to make -- I [13] was in Not Much Fun?

[l4] was trying to describe in some detail how complicated her [14) A. Well, the Poems Uncollected by Parker section is precisely

[15] publishing history was and that was why the complete chronology [15) the make-up ofNot Much Fun, copied verbatim, with the

[16] was necessarily so complex and had to be explained, because (16) exception ofthat one item, and with slight rearrangement of

[17) . 'therewere dozens - there are dozens ofnewspapers involved, [17) the poems and versus.

[18] . dozens ofmagazines, and there were several different [18) Q. How many total pages is Complete Poems, excluding the -­

[19) compilations. Some ofthe compilations compiled some ofthe [19] THE COURT: Insofar as this line ofquestioning is

[20] other compilations, and it was a rats nest, it was very, very [20] concerned, I just want the record to be perfectly clear that I

[21] difficult to unravel, and I was trying to do it as clearly as I [21] am aware ofthe paragraph ofthe Court ofAppeals decision that

[22J could. [22] begins "In 1991 Penguin published Dorothy Parker Complete

(23) Q. Who wrote the word on pages 62 and 63? [23] Poems," and it goes on to explain that "Exhibit 4 contained 121 [24] A. I did. [24] ofthe I22 poems printed in Silverstein's book ordered [25] THE COURT: And the record should reflect that quite [25] chronologically rather than in Silverstein's more subjective

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[1) arrangement." The last bit I read is a quote from the Court of [1) MR. RABINOWITZ: OK. [2) Appeals decision, so I am aware ofthe Court ofAppeals [2) Q. Was there anything about Complete Poems -- strike that. ;~.'.'.'.:. ~ [3) decision. [3) When you first saw Complete Poems, did it occur to you that .... .J

[4 ) Go ahead with your examination, but just be aware that (4) Penguin had merely performed the same selection and compiled [5) I understand what the Court ofAppeals wrote there. [5) the same items as you did? [6) Go ahead. [6) MR. DANNAY: Objection. [7) Q. How many total pages is Complete Poems, Mr. Silverstein, [7) THE COURT: Sustained. [8) excluding the index? [8] Q. Is there anything contained in Complete Poems other than [9) A. 391. [9J the actual original text from Dorothy Parker's works, that led [10] Q. And the poems under the section Poems Uncollected by Parker [10) you to believe that it was copied directly from your book? Ill) represent -- every one ofthe poems that are contained in Poems [11) MR. DANNAY: Objection. ,12) Uncollected by Parker section, beginning at page 2I I and going [12) THE COURT: Objection sustained. ,13) to 391, were in Not Much Fun? [13) Q. Did you-- A. Yes, they were. [14) THE COURT: The reason I'm sustaining these objections Q. So the first 210 pages were in Ms. Parker's prior [15) is you are asking for his opinion. I understand that he is compilations, is that right? [16) bringmg a lawsuit. That's why we're all here. But his A. Well, not quite. It staNs on page 3, but, you know, [17) opinion is not something that is binding on me, and I am the pretty much, yeah. [18) trier ofthe facts. Q. So then approximately, does it appear to you approximately [19) MR. RABINOWITZ: I am asking for his actual visual

halfofthis book constitutes the poems that appeared in Not [20) observation. :21) Much Fun? [21) THE COURT: Oh, I didn't hear that. All I heard

:22) A. Between 40 and 50 percent, yeah. (22) was -- :23) Q. And when you first saw this book, Complete Poems, what did [23) MR. RABINOWITZ: I apologize. :24) you look at first? [24] THE COURT: Your apology is accepted. 25) A. I went to see -- first I saw the title was Complete Poems, [25) Q. Let me try again. In your version ofComplete Poems you

-----,------/------,") Page 150 Page 152

[1) so the first thing I went to look for was to see a listing for [1) testified you had made editing changes, right-­

[2) Not Much Fun, and there was none. But then I sawall the items [2) A. Yes.

[3) from Not Much Fun in a section titled Poems Uncollected by [3) Q. -- from Dorothy Parker's original works?

[4) Parker. [4) A. Yes.

[5) Q. What was your reaction? [5) Q. You had made punctuations changes?

[6) A. Well, I was surprised among other things, because the other [6) A. Yes.

[7) major sections were titled with the title ofthe original [7) Q. That you had put in titles that you created, right?

[8J compilation. So, the first thing I noticed about this was that [8) A. Yes.

[9) Penguin was deliberately.concealing the provenance ofthe [9) Q. Did those appear in Complete Poems?

10) material. [10) A. Yes. When I first saw Complete Poems I saw -- objectively

11) IV!~. PA,N~AY: Objection. (11) I saw several reasons to believe that they had copied my book 12) TH~ COURT: I will strike that answer. That's your (12) directly.

13) conclusion. The answer is stricken. (13) Number one, all the title changes which I had made

14) . MR. RABINOWITZ: We move for the admission ofExhibit (14) appear here. The only place they could have gotten them was

15) 4, your Honor. (15) from Not Much Fun.

16) M,R. DANNAY: No objection. (16] Other poems had numbers after them when they were

17] THE COURT: Exhibit 4 is received. [17) identically named in the original publications. They had my

18) (Plaintiff's Exhibit 4 received in evidence) [18) numbers there for those.

19) Q. Could you tell whether Penguin had made the same selection [19) They used my format for the hate verses, the titles.

20) ofthese items themselves or merely taken them from your book? (20) So, even in looking in the table ofcontents, even

21) MR. DANNAY: Objection. [21) before I looked at the text ofthe items, I could tell

22) THE COURT: That calls for his opinion, his [22) conclusively that they had taken it from my book.

23) conclusion, and I will sustain it. [23) MR. DANNAY: Objection. 24J MR. RABINOWITZ: Sorry? [24) THE COURT: The end ofthe answer is stricken.

25] THE COURT: I said sustained. [25) Q. Did you make any inadvertent errors in Not Much Fun?

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[1) A. Well, I later detennined I had. At the time I didn't [1) Q. And do you recognize that document? [2) realize it, but then when I went back to check I found that [2) A. Yeah, it's an extract from Not Much Fun with notations on [3) there were several inadvertent errors in the book. [3] it, and from the exhibit number that's been either attached to [4 ) Q. Such as? [4) it or stamped on it it would appear to match the date fOf the [5) A. In one ofthe items, I can't recall which one, I omitted an [5) court deposition. [6) entire line. (6) Q. And who prepared -- who wrote the handwritten notations [7) Q. From one ofDorothy Parker's original works? [7) that appear on the items? [B) A. Yes, between the original -- [B) A. I did.

[9) MR. DANNAY: I am objecting to this. [9) Q. What did you intend to record? [10) THE COURT: The objection is overruled. He is going [10) A. These were the editing changes between the original [11) to tell me about the line ofthe poem that he left out. [11) publications and the final version ofNot Much Fun. [12) A. Yes. [12) Q. And did these changes that appeared in Not Much Fun also (13) THE COURT: Or free verse. Go ahead. [13) appear in Complete Poems? [14) What line did you leave out? [14) A. Yes. (15) THE WITNESS: ] cannot recall which item it appeared [15) Q. Did you ever count them? [16) in, but I went through some ofthe items line by line, between [16) A. I might have at the time. I probably did at the time. I [17) the original publicattbn photocopies and Not Much Fun, and I [17) simply don't recall the number. [lB) found that in one ofthe longer items I had completely left out [lB) THE COURT: OK. We will take a ten-minute recess now

[19) one ofthe lines inadvertently, and I compared it to Complete (19) and resume at 3:30 by your watches. As I told you, the

[20) Poems, and they left out the same one. [20) courtroom clock is five minutes slow. Offthe record.

[21) THE COURT: Thank you. (21) (Discussion held offthe record)

(22) THE WITNESS: And there were other typographical [22) (Recess)

[23) errors. That's the most egregious ofthem. But there were [23) THE COURT: All right. You may continue and hopefully

[24) other typographical errors, and they were all faithfully [24J conclude examination, Mr. Rabinowitz. [25) reproduced in Complete Poems. [25) MR. RABINOWITZ: ] will race to the conclusion, your.

Page 154 Page 156

(1) THE COURT: Do you recall the names ofthe 122 items [1) Honor. [2) that were in Not Much Fun which had previously been compiled [2) THE COURT: I don't want you to race. Hopefully we

[3) and been in another compilation? [3) will conclude direct examination. Go ahead. [4J THE WITNESS: Yes, one. [4] STUART SILVERSTEIN, resumed. [5) THE COURT: What was it? [5) DIRECT EXAMINATION (Continued) [6) THE WITNESS: Day Dreams. [6) BY MR. RABINOWITZ: [7) THE COURT: DayDream. [7) Q. Did Complete Poems, Mr. Silverstein, contain any credit or [B) THE WITNESS: Day Dreams, I believe. [B] attribution to you or Not Much Fun? [9) THE COURT: And did that appear in the section in [9) A. No, it did not. IlO) Complete Poems, Exhibit 4, that is headed Poems Uncollected by [10) Q. Did Complete Poems state from what source Penguin had [11) "Parker? [11] obtained the text ofthe items?

[12) THEWITNESS: No, it did not. [12] A. There was a note on the text that claimed -- well, the best

[13) THE COURT: Thank you. [13) evidence I guess would be the actual text.

[14) Q. Did you prepare a document that recorded the individual [14) Q. Look at Exhibit 4, ifyou would. Ibelieve it appears at [15) edits, punctuation changes and titles that you created at any [15) page, the following page, Roman 37. [16) time? [16] A. Did you say Roman 37? [17) A. Yes, I believe I did for one ofthe depositions. I can't (17) Q. Yes. [lB) recall which one. It might have been Kathryn Court, but I [lB) A. The page isn't technicaHy numbered, but it would appear (19) can't remember which one. [19) after 35, so I assume it's 37. [20) Q. Was that document produced during the court deposition to (20) Q. Did you find a note on the text? [21) Penguin? [21) A. Yes, I have. (22) A. I believe it was. I wasn't at that deposition, so I can't [22) MR. DANNAY: I'm going to object, your Honor, to any [23) state, but I believe it was. [23) testimony on a note on the text. It's directly related to the ) [24) Q. And I am showing you what has been marked as Exhibit 10. [24] copy editing claim, and it's quite clear that what -- (25) A. Yes. [25) THE COURT: Well, first ofall, before I can rule on

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[1] your objection, I have to find what we are talking about, and I [I] (Plaintiffs Exhibit 10 received in evidence) [2] can't find it. There is an be Exhibit 4 on Roman numeral 37, [2) THE COURT: Next we are at this note on the text in

[3] right? [3] Exhibit 4, correct? [4] MR. RABINOWITZ: Following 37. [4] MR. RABINOWITZ: Yes. [5] THE COURT: Sorry, following 37. [5] THE COURT: All right. And you were starting to refer

[6] MR. RABINOWITZ: Before the very first item. [6] to it, Mr. Dannay objected, we had some colloquy, and you

[7] THE COURT: Well, to me follows 37 reads A Note on the [7] pointed out you haven't yet asked a question, so now put your [8] Text. [8] question. [9] MR. RABINOWITZ: That's it. [9] Q. Would you please read the note on the text.

[10] THE COURT: What are you objecting to, sir? [10] THE COURT: Do you want to read it into the record, is [11] MR. DANNAY: Your Honor,] am objecting to A Note on [11] that it? Read it into the record. [12] the Text because A Note on the Text is just a corollary to the [12] A. "A note on the text. The poems that appear here are [13] copy editing claim which has been dismissed. [13] faithfully reproduced from Dorothy Parker's original [14] THE COURT: It's part ofthe exhibit that's in [U] collections: Enough Rope (1926); Sunset Gun (1928); Death and [IS] evidence, so it's in evidence already. [15J Taxes (] 93]), Death and Taxes and Other Poems in Not So Deep as [16] MR. DAN NAY: The copy editing exhibit was not offered [16] a Well (1936); The Portable Dorothy Parker (1944); and from [17] into evidence. [17] Bookman, Life, McCall's, Nation, New Republic, The New Yorker, [18] THE COURT: Exhibit 4 was offered in evidence. [ 18] New York Herald Tribune, New York World, Saturday Evening Post, [19] MR. DANNAY: Oh, Exhibit 4, yes. But I'm objecting to [19] Saturday Review, Vanity Fair, Vogue, and Yale Review. In ]936 [20] the testimony, your Honor. It speaks for itself. [20] Parker added one poem to Enough Rope and five to Death and [21] THE COURT: That's a whole different objection. [21] Taxes and renamed the collection Death and Taxes and Other [22] MR. RABINOWITZ: I haven't asked a question yet. [22] Poems. In ]944 she added only one previously uncollected poem [23] THE COURT: Well, let's hear the question. Let's hear [23J to the portable Dorothy Parker, 'War Song'. The text and order [24] the question. [24] ofthe poems in the original collections are retained intact; [25] MR. RABINOWITZ: Well, before] do that, if] have not [25] the additions that appear in Not So Deep as a Well are included

Page 158 Page 160

[1] moved to admit 45, I do move to admit 45. [1] at the end ofeach collection. Parker continued to write for

[2] THE COURT: Now we're going back? Hold it now. We're [2] magazines until her death in 1967, but there was no complete

[3] going back to 45. [3] collection ofher work until Penguin's Complete Stories in [4] MR. MICKUS: 45 is in. [4] 1995. This volume is the first complete collection ofher

[5] MR. DAN NAY: Wait a minute. You're referring to the [5] poems."

[6] deposition number, I think. [6J Q. Now, you testified a few moments ago, Mr. Silverstein,

[7] THE COURT: 45 is in evidence. 45 is a long, long [7] about the punctuation changes, the edits, the titles that were

[8] trail. That got in evidence this morning. [8] in Not Much Fun that you had created, and those appeared in

[9] MR. RABINOWITZ: I'm sorry, Judge. [9] Complete Poems, is that right? :10J THE COU~T:It's all right. Take your time. Takeit [10J A. That's correct. '11] easy. [l1J Q. Those modifications, I will call them, did those appear in

:12J MR. ~BINOWITZ: Exhibit 10 I'm referring to. [12J the original publications ofthe Dorothy Parker works? 13J THE COURT: Exhibit 10. [13J A. No, they did not. :14] Exhibit,lOis the,one that's titled The Poems, right? [14J Q. Did they appear in the compilations that are referred to

IS] MR. RABINOWITZ: Yes, and it contains the editing [15J here in the collections Death and Taxes, Sunset Gun, etc.?

16] changes Mr. Silverstein testified about, which we are not [16] A. No, they did not.

17] claiming is the basis ofany kind ofprotection but merely [17J MR. DANNAY: And again, your Honor, I will record my 18] shows the verbatim copy. [18J objections to all ofthese questions. 19] THE COURT: You're offering 10. [19] THE COURT: Objection is noted. Overruled. 20J MR. RABINOWITZ: Yes. [20J Q. So were the poems as they appeared here faithfully

21] THE COURT: Is there an objection to 1O? [21] reproduced from Dorothy Parker's original collections?

22] MR. DANNAY: There is an objection to that exhibit, [22] A. No, they were not. 23] your Honor. [23] Q. Last sentence on A Note on the Text says, "This volume is

24] THE COURT: lOis received over objection. All right, [24J the first complete collection ofher poems." Had the poems ) 25] fme. [25] that were contained in the Uncollected Poems by Parker section

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[1) appeared in the collection before? [1) be no resolution ofthis matter in the near future. Please [2) A. No, they had not. [2] contact me at your earliest convenience with your response." [3) Q. What about Not Much Fun? [3) MR. RABINOWITZ: Plaintiff moves for the admission of [4] A. Besides Not Much Fun, ofcourse. (4] Exhibit 12l. [5] Q. Well, that's what I'm referring to. [5J MR. DANNAY: Objection.

[6J MR.DANNAY: I'm frankly lost as to what the question [6J THE COURT: Well, the language in it is terribly self [7J is. [7) serving. It is also lawyers language, and some ofit has [8] THE COURT: Would you please read back the question, [8] already been ruled upon by the Second Circuit, so to that [9) Mr. Griffing, and the answer, so that Mr. Dannay has both the [9J degree I'm going to sustain the objection. [10) question and the answer. [10J MR. RABINOWITZ: It merely demonstrates the demand,

[l1J (Record read) [11) your Honor. [12) Q. So did the poems that appeared in the Poems Uncollected by [12) THE COURT: Well, you see, I harken back to this old [13) Parker section ofComplete Poems appear in Not Much Fun? [13J problem about the pretrial order. Do you dispute that a demand

[14J A. Yes, they did. [14 J was made, Mr. Dannay? Do you dispute that there was a demand?

[15) Q. What did you do after you discovered and learned about [15] MR. DANNAY: Are you addressing that to me? [16) Complete Poems? [16) THE COURT: Yes. [17) A. I contacted a laWyer. [17J MR. DANNAY: No, your Honor, we know a demand was [18) Q. What did your lawyer do? What did you instruct your lawyer [18J made. [19) to do? [19] THE COURT: You will stipulate that a demand was made? (20) A. The lawyer'S name was Glen Kulik, and he sent a demand [20) MR. DANNAY: Absolutely. [21) letter to Penguin I believe dated May 17, 2000. [21J THE COURT: Absolutely. [22) Q. Look at Exhibit 121, ifyou would. [22] THE COURT: OK. Fine. The demand was made. You have [23) A. Excuse me. Which number? [23J proven it. The objection to the exhibit is sustained. [24) Q. 121 in volume 4. [24) Q. Did you or your attorney receive a response to your [25) A. Hold on, please. OK. [25] attorney's letter?

Page 162 Page 164

[1) Q. Do you recognize that letter? [lJ A. Yes, we received a response from Alexander Gigante in July [2) A. Yes. That was the demand letter I just referred to. [2J of2000. I don't know the date. [3J Q. Could you read the last paragraph ofthe first page, [3J Q. What was the substance ofMr. Gigante's response? (4) please. [4} MR. DANNAY: Objection. [5) A. "Penguin published a compilation ofDorothy Parker's poems [5] THE COURT: Well,1 mean will you stipulate that you [6J entitled Dorothy Parker: Complete Poems (Complete Poems)n [6J on behalfofthe defendants deny liability? [7) 1999. To Mr. Silverstein's shock Complete Poems contains a [7) MR. DANNAY: Correct. [B) lengthy section entitled Poems Uncollected by Parker that is a [8J THE COURT: All right, fine. [9] mere reproduction ofNot Much Fun, copying both the selection [9J MR. DANNAY: Yes, we still do. [10] ofDorothy Parker poems in Not Much Furi· and the internal [10J THE COURT: There is no issue about this at all. [li] . editing ofthe poems themselvesdone by Mr. Silverstein. Even [11] You notified them -- when Isay you, I mean the [12] to a casual observer, it would be obvious that Penguin copied (12) plaintiff-- through his first lawyer, notified the defense [13] Mr. Silverstein's work." [13) that he felt his rights were being violated. They said, no, [14) Q. And then in the last paragraph, what reliefor remedy does [14) they're not, and we're not responsible for anything and any (15) your attorney request? [15J wrongdoing. Both sides agree that that's their position, is [16) A. I believe it's in the next to last paragraph, on page 2. [16) that correct? [17) Q. Right. [17) MR. DANNAY: Yes. [lB) A. "Based on the foregoing, we demand that Penguin immediately [lBI THE COURT: OK. They both nodded yes. Go ahead. [19) cease and desist the continued publication ofComplete Poems [191 Next. (20) and withdraw all unsold copies currently in circulation. We [201 MR. RABINOWITZ: I guess we have a pretrial order (21) also demand that Penguin pay Mr. Silverstein for damages [21] then. [22J already incurred as Complete Poems has infringed on [221 THE COURT: No, ifwe had a pretrial order we might [23] Mr. Silverstein's rights in Not Much Fun and diminished the [23J have saved a little time. But go ahead. [241 value ofthe market for that work. Mr. Silverstein has [241 Q. Did you subsequently discover that Penguin had published [251 instructed us to proceed vigorously on his behalfshould there [25] any further editions ofComplete Poems?

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[1) A. Yes, I did. [lJ THE WITNESS: Exhibit 6 would be from the sixth [2) Q. And how did you discover that? [2) printing, which -- [3) A. Because I know how to determine -- it's not editions but [3) THE COURT: Thank you. Next question. [4J it's reprinting we are talking about. It's possible to [4) Q. Is this exhibit a photocopy from the copyright page ofa [5J detennine in most American books which particular.printing is (5) volume that you purchased ofComplete Poems? [6J in your hands actually by looking for a line ofnumbers that [6) A. Yes, it is. [7J appear, they're one through ten usually, or ifit's' [7J Q. Please look at Exhibit 7. [8J best-seller it could be 20 to 30, whatever. The smallest [8J First ofall, I move for the admission ofExhibit 6. [9J number that still is on this list is that printing. As each [9) THE COURT: I take it there is an objection to Exhibit [10J printing is released theyjust take offone ofthose numbers. [10) 6.

[11 J Q. But how did you end up with another presenting in your hand [l1J MR. DANNAY: Yes. [12) is the question? [12) THE COURT: Is that correct? [13J A. I repeatedly went to bookstores around the country, in [13) MR. DANNAY: Yes, your Honor. I'm sorry. Yes. [14) Chicago, New York, the Bay Area, I think in New York, and I [14J THE COURT: Your apology is accepted. The objection [15) found that as time passed I was buying books or seeing books [15) is overruled. Exhibit 6 is received. [16) from later printings, successively later printings. [16J (Plaintiffs Exhibit 6 received in evidence) [17) MR. DANNAY: Obj-eetion on the ground ofrelevance [17J THE COURT: All right. Now we are at Exhibit 7. [18J among other things, your Honor. The number ofprintings is [18J Q. Do you recognize it? [19) completely irrelevant. [19) A. Yes, I prepared it. [20) THE COURT: Objection is overruled. [20J Q. What is it? [21) Q. Look at Exhibit 5 -- Exhibit 6. I'm sorry. [21) A. This is a photocopy ofthe copyright page ofComplete Poems [22) THE COURT: Sorry. We are on Exhibit 6, is it? (22) from a printing from an issue from the seventh printing. [23J MR. RABINOWITZ: 6, correct. [23) Q. And how did you get it? [24) THE COURT: Thank you. [24) A. Excuse me? [25) MR. RABINOWITZ: Volume 2. [25J Q. How did you get the book?

\ j Page 166 Page 168

[lJ THE WITNESS: Yes, I found it. Thank you. [lJ A. I bought it. [2) Q. Do you recognize that? [2J Q. Where? 13) A. Yes, that's the copyright page for a sixth printing. [3J A. I cannot recall where I bought it. [4J Q. And can you tell what year that was published? [4J Q. Do you buy it at a pop stand? [5) A. I can tell-- well, the book was originally published in [5J A. I bought it at a bookstore. [6J 1999, but you cannot determine from this page what year the [6J MR. RABINOWITZ: Move for the admission ofExhibit 7. [7 J reprint was issued. [7J MR. DANNAY: Same objection. [8) Q. And this was the sixth printing? [8J THE COURT: Exhibit 7 is received over objection, (9) A. Yes, it was. (9) becauseI know Mr. Dannay is objecting. [101 Cl, Istpis.~qpj~Qfrom a,.- is this-- (10) (Plaintiffs Exhibit 7 received in evidence) [11) lYIB, D~.N~AY:,Excuse me. I'm going to object to all of [l1J Q. Did you ever observe Not Much Fun being offered for sale in 112Jthis. ldon':t\glQw,hQwMr. Silverstein can possibly know how [12J a bookstore? [13J many prinqngsthere are from Penguin's book. [13J A. Yes, I did. ,14J THE WITNESS: Because it's standard policy. [14J Q. On how many occasions? i15) THECQURT: Did he ask you a question? Diel he? Now, (15) A. Dozens oftimes. :16) come on. You're a very intelligent fellow. I toldyou this (16) Q. In how many book stores? :17J about three Qr four times now. Don't answer unless you are [17 J A. Every bookstore I visited for years. Dozens ofbook [18J asked a question. [18J stores. [19J MR. RABINOWITZ: He already testified, your Honor, you [19J Q. Did you ever observe Complete Poems being offered for sale :20J can tell from the copyright page. [20J in a bookstore? :21J THE COURT: I always find it happier if! run my [21J A. Yes, I did. :22J courtroom and if! make my rulings, and ifthe witnesses and [22J Q. On how many occasions? :23J the lawyers abide by what I tell them. [23) A. Dozens. 'J :24J The objectionis overruled. [24J Q. In how many bookstores? /' 25J What printing was it? (25) A. The same, dozens.

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[1 ) Q. In which section ofthe bookstores was Not Much Fun [1 ) MR. DANNAY: Yeah, just -- let us just look at them. [2) displayed? [2) THE COURT: Take your time and look at them, and if [3) A. In those bookstores in the poetry section, I believe it [3) the lawyers have to confer, take a copy ofthe exhibits over to [4J would be in the poetry section. In some stores it would be in [4) the side and sit down next to each other and confer. [5J a literary section. [5) MR.DANNAY: Which volume? [6J Q. Which section of the bookstores was Complete Poems [6) MR. RABINOWITZ: That would be in volume 5.

[7J displayed? [7) MR. DANNAY: This is my problem. Let me explain my [B) A. The same sections, depending on how the store was laid out. [B) problem. I don't want to be an obstructionist here. It's a [9) Q. What ifany compensation did you receive for sales ofNot [9) two-part answer. I really don't have an objection to the [10) Much Fun? [10) royalty statements as such as coming from the various [11) A. I can't calculate what I received. I received periodic [11) publishers. I assume they are authentic. I hope they're [12) royalty statements and checks. I'm not going to speculate as [12) complete. I can't really do that computation here. But the [13J to the total amount. [13) problem I have is I don't think they show clearly the answer [14 J Q. From whom? [14 ) that Mr. Silverstein cannot supply and indicated, that is, what

[15J A. I receive the statements and the checks from my agent Peter [15J royalties he has been paid.

[16) Lampack. [16) You cannot tell from these documents really -- they're [17) Q. And where werethe royalties being paid -- strike that. [17) unclear as to what the royalty payments are. Ifthere was [lB) By whom were the royalties being paid? [lB) somebody here from the publishers to state that, that would be (19) A. By the respective publishers, be it either Scribner through [19) fine. Ifwe could get together somehow and figure this out, I [20) Simon Schuster its parent company or by Duckworth UK or by [20) would be willing to stipulate it ifI knew it, but I am a [21J Phebus business in France. [21) little troubled by the fact that Mr. Silverstein -- who paid [22J Q. Did you have an agreement with Simon & Schuster for the [22) income taxes and must indeed have some records, or at least [23) payment ofroyalties for sales ofNot Much Fun? [23) secondary records as to what his royalties were -- is unable to (24) A. Yes, there were royalty rates both for the hardcover and [24J say what his royalties were, and to some extent is even unable [25J for the softcover. I simply cannot recall what the precise [25) to say what his royalty rates were, because they vary.

Page 170 Page 172

[1) percentages were. I know it was a smaller percentage for the [1 ) I'm not unsympathetic, and I'm not even being

(2) softcover per industry standard. [2J critical, because having represented publishers for 40 years I [3J Q. Are those rates reflected in the royalty statements that [3) know how complicated royalty statements can be to get that [4 J you received? (4) infonnation, and how you need that interpretation. [5J A. I think they are, but I cannot specifically recall seeing [5) So, I don't have an objection to the documents as [6J them in a recent statement, so I don't want to state it [6) such, but I will have an objection to any statements that seem

[7J categorically. [7) to compile what the royalties were from that, because it's got [B) Q. What ifany records did you receive relating to the payment [B) to be shown to me how one does that. [9) ofroyalties? [9) I must say that ofthe papers -- [10) A. I received periodic royalty statements from Mr. Lampack. I [10) THE COURT: All we're at at this stage --

[11) believe they carne twice a yearfor the Scribnerbook and after [11) MR. DANNAY: I don't want to waive my objection as to

[12] the royalty had been -- after the advance had been burned [12) the amount, that's all.

[13) through by royalties. I am not sure how often I get the [13) THE COURT: Fine. All we are at at this stage is an

(14) royalty statements from Duckworth and from Phebus. I do know [14) offer ofcertain documents by number in evidence.

[15) that whenever they do come, Mr. Lampackdeposits the funds, [15J MR.DANNAY: OK.

[l6J deducts his commission and sends me a check and copies ofthe [16J THE COURT: You're telling me you are not objecting to

[17J ·'statements. [17J those documents, those documents are then received.

[lB) MR. RABINOWITZ: There are approximately 80 royalty [lBJ Everything after that we will rule upon as we get to [19) statements, your Honor, that we have put in the exhibit books, [19) it. [20J and I believe we have stipulated to at least the admissibility [20) My understanding from the proposed pretrial order of [21) and authenticity ofthese documents with Penguin. I would like [21) the plaintiffis that the agent for Mr. Silverstein -- I [22J to be able to not walk through them one by one, ifthat's OK. [22) thought the agent was on the witness list. Maybe I'm wrong.

[23) THE COURT: I would much prefer that you didn't walk [23J MR. DANNAY: No, he is not, your Honor. The person on I [24) through them one by one ifwe can agree that they're [24) the witness list that you may be thinking ofis Mr. Angelini (25) admissible. [25) who is Penguin's controller, and he was subpoenaed by

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[1] plaintiffs, although we had offered him as a witness. [1] THE COURT: I read the name in the pretrial order. He [2) MR. RABINOWITZ: We also have a declaration which Me [2J is not a listed witness. The documents are received. He can't [3] Dannay got from Simon & Schuster authenticating his records. [3J tell me what the total amount ofthe royalties was because he [4] MR. DANNAY: But that's not my objection. [4J doesn't have it at his fingertips. [5] THE COURT: There is no objection to the documents. [5J (Pause) [6] You list the documents by name or by number. [6J BY MR. RABINOWITZ:

[7] You can list the documents again by name or number in [7J Q. The royalty statements that you received that are marked as [B] a moment. [BJ Exhibits 140 through 202, did they also show the number of

[9] On the question on the total amount ofroyalties -­ [9) sales ofNot Much Fun at the various price points? [10] MR. RABINOWITZ: It's a matter ofmathematics. [10] A. Yes, they did.

[11] THE COURT: That is, as you put it-- [11] Q. Look at Exhibit I please. Do you recognize that document. [12] MR. DANNAY: May I add one thing, your Honor -- I [12] A. Yes. [13] don't want to interrupt you -- [13J Q. What is it? [14] THE COURT: Go ahead. [14J A. It's a set oforiginal microfilm, photocopies from the [15] MR. DANNAY: There was -- and perhaps Mr. Rabinowitz [15J original microfilms ofthe various works that appear in Not [16] will remember the exact title ofthe document -- there was a [16J Much Fun. [17] sort ofsupplemental respoose to our interrogatories. There [17J Q. These are photocopies from the periodicals, newspapers, and [lB] were several, so I don't remember the exact title ofthis at [lBJ magazines in which the items that appear in Not Much Fun were [19J the moment, that I thought purported to update and contain a [19J originally published by Ms. Parker in the '20s and '30s? [20] completed summary in that form of the unit sales ofNot Much [20] A. Yes. ,21] Fun and the royalties ofNot Much Fun. [21] MR. RABINOWITZ: Move the admission ofExhibit I. :22] MR. RABINOWITZ: I think we have interrogatory answers [22J MR. DANNAY: No objection. :23J like that. I can't imagine why this would be an issue. [23J THE COURT: Received. :24] MR. DANNAY: No, but my point was that when I tried to [24J (PlaintiffExhibit 1 received in evidence) :25J reconcile that document with the royalty statements you [25J Q. Did you compile Exhibit 1 during your selection and

Page 174 Page 176

[1] provided, I could not do it. (lJ compilation ofNot Much Fun? [2] Now, math is not my strongest subject, so perhaps it [2J A. I made the original photocopies during that period; I am [3] was 1. [3J not sure I put the cover sheet on it at that time. [4 J THE COURT: Suppose we do this. What are the [4] Q. The actual photocopies were copies you worked off in [5J documents you are offering? Number them. [5] compiling Not Much Fun? [6] MR. RABINOWITZ: 140 through 202. [6] A. Yes. [7] THE COURT: So that's 63 documents, right? [7] MR. RABINOWITZ: Your Honor, do you have Exhibit 93 as [B] MR. RABINOWITZ: Correct. [BJ having been admitted or introduced. [9J THE COURT: There is noobjection to those documents. [9J THE COURT: 93, there has been no offer. :10J MR.DANN.AY: Your Honor, no objection as long as I do [10J Q. Look at exhibit 93 in volume 4. :11J not WaiVelD,y opjectionto what they-- [llJ THE COURT: You stopped at 92. ·12] THE COURT: -- the total amount, you are reserving [12) Q. Do you recognize that? 13J your objection. The documents arereceived. (13) A. Yes. ·14J (Plaintiffs' Exhibits 140 through 202 received in [14J Q. Did you receive that letter from Mr. Himme1rich on or about 15J evidence) [15J the date it bears? .16] THE COURT: There has been some reference to the fact [16) A. Yes. 17J that he had an agent, and he has mentioned the agent. What is [17) MR. RABINOWITZ: Move the admission 93. 1BJ the agent's name again? [lB) MR. DANNAY: No objection. 19J THE WITNESS: Peter Lampack. [19] THE COURT: Received. 20J THE COURT: Peter Lampack. [20] (PlaintiffExhibit 93 received in evidence) 21J (Continued on next page) [21J Q. Exhibit 95, do you recognize that document? 22J [22J A. Yes. 23J [23) Q. Did you send that letter to Mr. Himmelrich on or about the \ 24] [24) date it bears? .J 25J [25] A. Yes.

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[1] MR. RABINOWITZ: Move the admission ofExhibit 95. [lJ Q. What was the response?

[2] MR.DANNAY: No objection. [2] MR.DANNAY: Objection.

[3J THE COURT: Received. [3] THE COURT: You are objecting to 119; I want to make

[4J (PlaintiffExhibit 95 received in evidence) [4] sure I have the right exhibit.

[5] Q. Exhibit 96, did you receive that letter from Mr. Himmelrich [5) MR.DANNAY: No, to the question and answer, what was

[6] on or around the time it's dated? [6) the response from Simon & Schuster to his request about their

[7] A. Yes. [7] participation in the lawsuit.

[B] MR. RABINOWITZ: Move the admission ofExhibit 96. [B] THE COURT: That's 119. What is the pending question.

[9J MR.DANNAY: No objection. (9) MR. RABINOWITZ: What was the response you received

[10] THE COURT: Received. [10] from Simon & Schuster.

[11] (PlaintiffExhibit 96 received in evidence) [11] THE COURT: You are objecting to the response.

[12] Q. Exhibit 99, did you send that letter to Mr. Himmelrich on [12J MR.DANNAY: I think he is going to testify to

[13] or about the date it bears. [13] testimony. Ifit's a letter, I won't have a problem.

[14) A. Yes. [14] THE COURT: The response I believe is Plaintiff 119.

[15) MR. RABINOWITZ: Move the admission ofExhibit 99. [15) MR. RABINOWITZ: Let me withdraw the question.

[16] MR. DANNAY: No objection. [16) Q. Look at Exhibit 119.

[17) THE COUR"F: Received. [17] A. Yes.

[lBJ (PlaintiffExhibit 99 received in evidence) [lB) Q. Did you receive that letter on or about the date it bears?

[19) Q. Exhibit 102, did you send that letter to Mr. Himmelrich on (19) A. Yes.

[20] or about the date it bears? [20) Q. From Emily Remes.

[21] A. Not quite. At the bottom, there was something wrong with [21] A. I am sorry. Yes, I did.

[22] fonnatting, obviously; this reproduced the letterhead at the [22) Q. What does the letter say?

[23) bottom again. As far as the text goes, I am sure it's [23] A. It says in somewhat -- it waives the right to, it waives

[24] perfectly accurate, but -- [24) Simon & Schuster's right to participate in any action I might

[25J Q. Did you send that letter to Mr. Himmelrich on or about the [25) take against Penguin Quinn.

Page 178 Page 180

[1) date it bears? [1] MR. DANNAY: I object. I think the letter speaks for

[2] A.With the exception ofthe fact that the letterhead has been [2] itself. I object to the testimony but I don't object to the

[3J reproduced at the bottom again, yes. [3) letter.

[4) MR. RABINOWITZ: Move the admission of 102. [4) THE COURT: Are you offering the letter. [5] MR.DANNAY: No objection. [5) MR. RABINOWITZ: Yes.

[6J THE COURT: Received. [6J THE COURT: Received. Your objection to the [7) (PlaintiffExhibit 102 received in evidence) [7] characterization ofthe contents ofthe letter is sustained.

[8J Q. Exhibit 103, did you send that letter on or about the date [BJ The answer is stricken. The letter is received and the letter

[9) .it bears to Mr. Pettinga The Saturday Evening Post? [9J speaks for itself.

[10) A. Yes, (10) (PlaintiffExhibit 119 received in evidence)

[11J MR~RABIN(ijWITZ: Move the admission of103. [11J Q. Look apartment Exhibit 120, did you receive that letter on

(12) MR. DANNAY: No objection. [12) or about the date it bears?

[13J THE COURT: Received. [13) A. Yes.

(14) (PlaintiffExhibit 103 received in evidence) [14J Q. From Emily Remes?

[15] Q. Did you communicate with your publisher, Scribner Simon & [15) A. Yes. [16J Schuster about whether they had any desire to participate in [16) MR. RABINOWITZ: Offer 120.

[17) this lawsuit? [17J THE COURT: Any objection.

[l8J A. Yes, I did. [18J MR.DANNAY: No objection to the letter. (19) .Q. What communication did you have; did you make any requests (19) THE COURT: Received.

[20] ofthem? [20J (PlaintiffExhibit 120 received in evidence) [21) A. I made a request. [21) MR. RABINOWITZ: Could I have a moment to regroup.

[22] Q. Which was? (22) THE COURT: You may.

[23J A. That they waive any rights. [23] (Pause)

[24J Q. Did you receive a response? [24) BY MR. RABINOWITZ:

[25J A. Yes, I did. [25] Q. Mr. Silverstein, could you look at Exhibit 146, volume 5;

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[1) do you recognize that? [1 J criminal case I will interrupt. I suppose what Mr. Dannay is ."."",",\ [2) A. Yes, this is one ofthe cover letters and royalty [21 going to tell me is that he would like to begin cross tomorrow j [3) statements I received from my agent Peter Lampack. [3] morning assuming you finish direct at 4:29, and that

[4] Q. Attached to it is a Simon & Schuster document entitled [4] application will be granted.

(5) royalty statement? [5) MR. DANNAY: Thank you, your Honor. It will take us [6) A. Yes. [6) some time to move our stuffoffthe table. [7) Q. I am not going to show you all the 80 or so ofthese, but [7] THE COURT: We don't need the tables. You can leave [8) did you receive these on a periodic basis from Mr. Lampack? (8] your stuffhere. Ifwe finish a little early, I want to see [9] A. Yes, I did. [9) counsel. Ifwe don't fmish early, I will still see counsel. [10) Q. They were accompanied by a check that represented your [10) Let's try to finish direct. [11) royalties for the sales ofNot Much Fun? [11] BY MR. RABINOWITZ: [12] A. Yes, the figure represented on the front page. [12) Q. Look at Exhibit 255, which is in volume 6. Did you send [13) Q. And the attachment was what Mr. Lampack had received from [13] that letter to Ms. Tysie Whitman on or about the date it bears? [14) Simon & Schuster in the ordinary course ofbusiness, is that [14] A. Yes.

[15) right? [15) Q. Who is Ms. Whitman? [16) A. Yes. [16] A. Tysie Whitman was an editor at Scribner who was one ofmy [17) Q. Those royalty statements-o;howed the actual number ofsales [17] editors taking care ofmy book before she left in January 2000, (18) ofNot Much Fun, isn't that right? [18] rather 1996, and was replaced by Gillian Blake.

[19) A. Yes, they did. [19) Q. She was Ms. Blake's predecessor? [20] Q. Did you rely on these statements in receiving and [20) A. Yes, on this project.

(21) depositing your royalty statements? [21] Q. Did Ms. Whitman have any input in the drafting and (22) A. Absolutely. The figures always corresponded. (22) preparation ofthe complete chronology paragraph at the end of

~23) Q. Your testimony on that point applies to the remainder of [23] Not Much Fun?

:24] the royalty statements? [24] A. I don't think so no.

:25) A. Yes. I relied on my agent's honesty and the cover page. [25) MR. RABINOWITZ: Move the admission ofExhibit 255.

'->.';~

Page 182 Page 184 J

[1 ) Q. And the Simon & Schuster pages attached? (1] MR. DANNAY: No objection. [2) A. I occasionally looked through those to see the number of (2) THE COURT: Received. (3) copies sold, but yes. [3) (PlaintiffExhibit 255 received in evidence) [4) MR. RABINOWITZ: One moment, your Honor. [4] Q. This letter just discusses various issues about the (5) (Pause) [5) production ofthe book, is that right? [6) MR. RABINOWITZ: Your Honor, we received a second set [6] A. Yes. There are a lot ofthem. [7) ofroyalty statements from Simon & Schuster actually at [7] Q. But it does not concern or address the complete chronology [8) Mr. Dannay's request, Exhibit 266 to 285. My partner reminds [8) section? [9) me that that wasn't within the number range we stipulated to [9] A. No, it was more about typesetting. 10) before. Ifwe can gothrough the. same exercise, these are [10) Q. Exhibit 256 is a letter from you to Ms. Blake, I think, 11] particular ones thatwere verified by the declarations that you [11) January 31, 1996. Did you send that letter on or about that 12) gentlemen got. [12] date to her? 13] MR. DANNAY: Your Honor, I have no objection to the [13) A. Yes, I did. 14) exhibit but with the same reservation I had before as to [14) Q. Does this once again concern just production issues about 15] calculating what was actually paid. [15) the book? 16] THE COURT: All that is being offered is the exhibits. [16] A. No, more typesetting things, yes. 17) Exhibits 266 to 285 received without objection. [17) Q. Not the complete chronology? 18) (PlaintiffExhibits 266 to 285 received in evidence) [18] A. No. 19) MR. RABINOWITZ: Your Honor, I understand you have [19) MR. RABINOWITZ: Move the admission of256. 20] something going on here at 4:30. I am very close to finishing, [20) MR. DANNAY: No objection.

21] so we are inquiring as to your pleasure. [21] THE COURT: Received.

22] THE COURT: I would like to see you finish. Ten [22) (PlaintiffExhibit 256 received in evidence)

23) minutes is a lot ofpages ofthe record. Keep going. [23) THE COURT: Educate me, Mr. Silverstein, what do the

24] MR. RABINOWITZ: We didn't want to-- [24] initials FPL stand for. 25) THE COURT: You are not. When we are ready with the [25) THE WITNESS: Figures ofPopular Literature, that was

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[1] a series ofitems that appeared in the book. [1) (Discussion offthe record) [2] THE COURT: Thank you. (2) THE COURT: You can step down. [3] BY MR. RABINOWITZ: [3] (Witness excused)

[4] Q. Exhibit 257, did you send that document on or about the [4] (Trial adjourned to July 18, 2007, 10 a.m.)

[5J date it bears to Ms. Gillian Blake? [5) [6) A. Yes, I did. (6) [7) Q. Does that letter likewise concern production issues with [7] [B] the book but not the complete chronology? [B) [9] A. It doesn't refer to the complete chronology. It's a fax (9) [10) also I should say. It's mainly devoted to the questionnaire. [10) [11) MR. RABINOWITZ: Move the admission of257. [11) [12) MR. DANNAY: No objection. (12) [13] THE COURT: Received. [13] [14] (PlaintiffExhibit 257 received in evidence) [14]

[15J Q. Exhibit 258 is another letter from you to Ms. Blake, April [15)

[16J of'96. Did you send that on or about the date it bears? [16] [17) A. Yes. [l7] [lB] Q. Does that also deal with production issues and not the [lB) [19] complete chronology? [19) [20) A. Yes. [20) [21) MR. RABINOWITZ: Move the admission of258. [21) [22) MR. DANNAY: No objection. [22] [23) THE COURT: Received. [23]

[241 (Plaintiff Exhibit 258 received in evidence) (24) [25) MR. RABINOWITZ: Exhibits 262 and 263 are the [25]

Page 186 Page 188

[1) declarations that I alluded to earlier that Simon & Schuster [1 ) INDEX OF EXAMINATION [2) provided that authenticated the royalty and sales statements. [2] Examination of: Page

[3] I am asking Penguin ifthey would stipulate to the admission of [3J STUARTY. SILVERSTEIN [4) those. [4 ) Direct By Mr. Rabinowitz...... 22 [5] MR. DANNAY: I don't have any objection. [5] Cross By Mr. Dannay 186 [6] THE COURT: No objection, 262 is received. [6] PLAINTIFF EXHIBITS [7] I take it there is no objection to 263; it is also [7) Exhibit No. Received [B) received. [B) 2 24

[9) (PlaintiffExhibits 262, 263 received in evidence) [9) 3 24 [10) MR. RABINOWITZ: One moment, your Honor. (10) 15 52

(11) (Pause) [l1J 16 53 [12) MR. RABINOWITZ: That's all we have, your Honor. [12) 259 54 [13) THE COURT: Thank you. [13) 18 56 [14) lam going to direct you to begin cross-examination. (14) 54 57 [15) You will understand why in about 30 seconds. [l5) 17 59 (16) Begin cross-examination. (16) 62 59 [17) CROSS EXAMINATION [17) 63 61

[lB) BYMR: DANNAY: [lB) 74 63

[19) Q. Mr. Silverstein, I would like to go over some ofyour [19) 75 65

[20) testimony as to what items in Not Much Fun are Exhibits A and [20J 76 66

[21 ) B, the hardcover editions ofNot Much Fun. (21) 77 67

[22) THE COURT: They are already in as 2 and 3 as [22] 40 through 43 72 \ [23) plaintiffexhibits. That's what you want to start with. [23) 50 and 61 73 1 [24) We will recess for the day. Thank you very much. (24) 79 74

[25) Offthe record. [25) 52 81

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[1] PLAINTIFF EXHIBITS

[2] Exhibit No. Received

[3] 53 82

[4] 97 83

[5] 38 87

[6] 8...... 89

[7J 44 through 50 91

[8] 39 95

[9] 19 97

[10] 20 through 37 97

[11] 83 106 [12] 85 107

[13] 86 107

[14] 84 108 [15] 88 108 [16] 89 109

[17] 90 110

[18] 91 110

[19] 92 113

[20] 9...... 118

[21] 8 122

[22] 81 123

[23] 82 125 [24] 98 136

[25] 11...... 138

Page 190

[1] PLAINTIFF EXHIBITS

[2] Exhibit No. Received

[3] 101 141 [4] 4...... 150 [5] 10 159

[6] 6...... 167 [7] 7...... 168

[8] 140 through 202 174 [9] 1...... 175

[10] 93 176

[11] 95 177

[12] 96 177 :13] 99 177

'14) 102 178 :15] 103...... 178 :16] 119 180 :17] 120...... 180

18) 266 to 285 182

:19) 255...... 184

20) 256...... 184 21) 257...... 185

22] 258...... 185

23) 262, 263 186 :24)

:25)

~age 189 - Page 190 (48) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v , PENGUIN PUTMAN, INC. July 17,2007

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TRIAL Min-U-Script® (1) $1,000 - 83 STUART Y. SILVERSTEIN v July 17,2007 PENGUIN PUTMAN, INC.

16;105:14;106:7,10;189:4, action 179:24 138:20;140:21;146:5; 25;118:21;147:23 104:16;165:13;177:6 11 active 39:22 151 :25;160:17;173:7; Angelini 172:24 arrangement 11 :7;20:3, 34104:17;107:13;108:2,5; actively 37:16 174:18;177:23;178:3; announce 12:25 6;149:1 189:14 actor 26: 14,19 184:14 answered 128:20 Art 66:17 35 106: 16,22;107: I; actual 68:11;69:18;74:13, Again 79:23 anthologies 20:21 ;30: 15; Arthur 31 :3;79:II;82: 12 189:12 18;131 :25;134:12,14,15; against 10:4;17:22; 79:20 article 40:20;64:9;67:23, 36104:17;107:4,7,10; 151 :9,19;156: 13;176:4; 179:25 anticipate 26:4 23,24 189:13 181:17 agent 108:11 ;122:21; anymore 87:9 articles 22:19;61:12 37189:5 actually 33:9,21 ;45:21; 123:14,23;169:15;172:21, apart 17:5;96:3;116: II artistic 27:3;39:8;43: I; 38104:17;108:7,9,14,17, 55:22;71 :23;75:6;77:18; 22; 174: 17,17;18-1:3 apartment 180: II 48:25;97:21 W;189:15 78:22;112:11 ;113:20; agent's 174:18;181:25 apologies 147:4 arts 33:15 39 108:24; I 09:7, 10;189:6, 134: 17;138:1 ;165:6;182:7, ago 35:5;37: 14;52:4;53:7; apologize 25:22;151 :23 Arts 22:13 16 15 63:18;80:22,25;115:14; apology 147:5;151:24; artwork 37:7 Actually 100:7;131:1; 139:22;142: 1; 160:6 167:14 assemble 18:12;124:17 9 135:17 agree 50: 19; I 05: II; appalled 37:9 assembling 119:10 ad 16:24;45:5 127:19; 164: 15;170:24 apparently 61 :3;68:24; assembly 16:5 } 118:5,6,7,15,18;189:20 Adams 26:9;36:2,8,23; agreed 15:24;18:18; 73:5;79:7; 124: 17 asserted 11 :9;49:25;50:2 }O 109:17,21;110:2,5; 77:23 102:10,12 Appeals II:IO;148:21; asserting 109:14,15 189:17 Adam's 36:24;145:1 agreement 108:14;109:3; 149:2,2,5 assign 114:2,25;115:4 }1 110:6,15,17;III:2,5,6; Adams'78:8 169:22 appear 21 :5;30:5;33:15; assigned 115:5,7,11 112:23;189:7,18 add34:7;173:12 ahead 10:25;19:6,1 I; 49: 16;52: 14;53:20;59:19; assistant 32:25 }2 1I2:25;1I3:2,7,10; added 71 :2;99:25;1 08:22; 25:2;29:22;31 :21 ;32:23; 73:23;84: 14;87:5;98:14, 19, Association 118:21 176:11;189:19 135: 15; 159:20,22 64:6;65: I ;69:24;101:9; 23;99:2,6,7;117:23;125:10; assonance 61 :3,4,5 }3176:7,9,1O,17,20; addition 126:2 105:14,16;114:24;133:12; 133:23;136:3;137:8,13; Assonance 59: 11 ;60: 11, 190:10 additional 99:12,17; 135:15;136:1 ;142:3;149:4, 138:1 ;141 :12;149:19; 14,18,19,25 }4 31 :24;32: 12;37: 13 108: II 6; 153: 13; 156:3;164: 18,23; 152:9,14;154:9;155:4,7,13; assume 30:20; I 09:4; )531:24;37:13;176:21; additions 159:25 173:14 156: 18;159:12,25;160:11, 120:23;156:19;171 :II 177: 1,4;189:8;190:11 address 130: 16; 139:5; Ainsley's 35: 17 14;161 :13;165:7;175: 15,18 assumed 125:9 }6 135: I ,2; 177:5,8,11 ; 140:23;184:7 Air 100:16 appeared 28:2;30:17,18, assuming 183:3 185: 16;190:12 addressing 163:15 Alexander 26: 14,16; 18;31 :3,8;52:15;53:13,24; assured 140:5 }7 82: 19;83:5,9;84:5; adjourned 187:4 164:1 58:8;77:20;87:6,7,17; attached 137:25;155:3; 189:4,9,10 admissibility 170:20 Algonquin 24:18;26:8, 88: 19;90: 1;91 :3,9;127:24; 182:1 )8 130:20;132:15;133:2,4, admissible 170:25 23;27:4;28: 16;29: II;36:22 129:6;130: 14,15;133:18; Attached I 81 :4 7; 134: 12,15,25;135:3,15; admission 23:23;24:10; allowed 79:3 138:5; 141 :15;142:25; attachment 181 :13 136:2,8,10,11,13;189:24 52:3,24;58:25;59:22;61 :6; allowing 125:9 145:7,9;147: I ;149:20; attempting 55:9;116:19 }9177:12,15,18;190:13 62:5;65:9;66: 12,24;72:3; alluded 186: I 153:15;155: 12;160:8,20; attending 125:6 74:21 ;81: 17;82: 15;83:5; almost 18:25;37:2,12; 161:1,12;185:1 attention 27:2;112:15 A 91 :18; I 01 :24;1 08:2;11 0:2, 69:12 appearing 28:23 attorney 62:14;80:4; 15; 118: 15;122:3;138:8; alone 14:9;41:12;53:25 appears 13:23;23:21; 162:15;163:24 \bbie's 28:23 141 :4;150:14;163:3;167:8; alphabetical 13:20 24:6;54:2;67: 16;76:8; attorney's 163:25 lbbreviated 129:7,7,8,9, 168:6;175:21;176:17; altered 133:22 98:23;99:8;107:17;129:12; attribute 81 :4 10 177:1,8,15;178:4,11 ; alternative 118:12 131 :8;132:16;134:3,8; attributed 16:13;77:16, lbide 166:23 183:25;184:19;185:11,21; although 26:25;70: 18; 137: 11;141:12;156:14 22;79: I 0,17;80:13;81: I; Ible 14:2;104:22;170:22 186:3 71 :18;79:3;173: I apples 34: 13 82: 12;84: 13;93:7 Ibsolutely 17:14;29:8; admit 54:3;56:16,22;73:6; always 12:12;139:7; application 112:23;183:4 attribution 81 :4;82:9; )5:13;86:1,17;87:10 95:15;97:10;106:22;I 07:7; 143:5;166:21 ;181:22 applies 181 :23 83:2;156:8 \bsolutely85:22;163:20, 108:17;158:1,1 ambiguous 130: 18 approval 130:10,12 August 12]:8 ~1 ;181 :22 admitted 56:24,25;97:] 2; ambivalence 74:9 approve 142:8 authentic 171: 11 lcademic 82: 13 110:20,22,23;11 ]:11;176:8 American 71:2,12;73:23; approximate 91:7 authenticated 186:2 Iccepted40:25;147:5; adopt 89:3 117:10,16;118:20;165:5 approximately 149:]9, authenticating 173:3 51:24;167:14 adopted 142:7 Amherst 66:9 19;170:18 authenticity 170:21 lccompanied 181: I 0 advance 170:12 among 67:19;150:6; Approximately 38: 12; author 45:2;72: 18;118: 14 Iccording 71:19;73:25; adverse 18:10 165:18 115:2 authorities 79: I] :7:17 advertisement 45: I; amount 106:15;14]:24; approximation 57:22 authority 64:4;79:3,23, \ccording 116:4 145:6 142:3;169:13;172:12; April 132:22;185:15 24;80:7,1 ],18 \ccordingly 10:3 advise 123:16 173:9;174: 12; 175:3 area 18:11 authorized 13:25;19:2] Iccurate 44: 10;58: 19; Aesthetics 66:] 6 amounting 18:9 Area 165:14 available 35:14 :9:1;177:24 affair 55:15 amplified 95:6,13 arguable 11:4 average 38:8;144:19 ICCused 36:8;62:8 afterward 87:24 amplify 95: 10 arguing 18:23 award 10:5 Ichievement 144:20 afterwards 129:11 and/or 116:5 argument 19:2,10;21:1 aware 32:2,5;53:24; Icquired 20:16 again 29:12,17;65:19; anecdote 112: 13 Arlington 35:4 67:20;80: 15;85:20;90:11; Icross 92:22 70: 16;71:14;80:18;86:3; Anecdotes 79:21,22 around 12:10;18:16; 99:12,17;101 :8,19; I 02:4, \ct 10:7 89: 12,25;91 :24;98:6; Angeles 22:]0,19;34:20, 24: 16;26:8,24;37:16;55:24; 16,18;148:21;149:2,4

14 - aware (2) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v PENGUIN PUTMAN, INC. July 17,2007

away 25:17 besides 24:9;35:11 ;54:9 139:4,7;140:7,8;142:4,5; casual 162: 12 awful 42:23 Besides 161:4 143:6;146:9;148:6,8,24; C cataloged 12: 14 best 25:11 ;28:9,11 ;90:25; 149:20,23;150:20;151: I0; catch 45:19,19 B 156:12 152: II ,22;153:3;166:5,13; Cal 34:21 categorical 84:16 best-seller 165:8 167:25;168:16,17;170:11; calculate 169: II categorically 170:7 Bachelor 22:13 better 29:14;68:14;81 :15; 183: 17;184:5,15;185:1,8 calculating 182: 15 categories 33:10. back 26:2;29:23;36:23; 114:18;131:4 Book 68:2;79:21;99:3,11 Calhoun 14:11;15:3,3,7, categorize 45: 16;48:2; 43:11 ;52:17;54:22;63:21; bibliography 91 :25 Bookman 145:3;159:17 14,16,18,23;16:7;17:1,2; 86:3;98:9 87: 13;91 :24;93: 18; I00: 1; big 55:12 books 16:14;45:16; 18:17;31 :12,13,16,17; categorized 45:11,12; 102:3,19;103:18;106:12, binder 99:24 127: 18,25,25;133: 19; 32:21,24,25;37:3,16,20,22; 47:18,19;55:21 ;97:18 13,16;117:5;119:2;127:9; Binder 40: 12 135:21;145:16;165:5,15, 51:11,13,24;83:14,17; categorizes 45:21 130:13;131 :13;135:20; binding 151:17 15;170:19 89: 14;91 :24;96:13;98:4 category 11:20,22;17:20; 136:16;137:5;140:8;153:2; Biobibliography 17:3; book's 12:21,25 Calhoun's 15:11;16:16; 71 :18;74:11;75:14;96:14, 158:2,3;161 :8;163:12 31: I0;32:16,17,20;33:2; booksellers 120:24 31: I0,22;36:25;88: 13, 16, 17,19;99:2,10 back-and-forth 130: 16 36:25 Booksellers 118:20 17;92:6;93:18,19;94:6; caused 82:22 bad41:7 Bio-bibliography 89: 15, bookstore 147:23;148:6; 96: II ;97:23 cease 162: 19 Ball 33:1 19;94:24;96:11 ;97:24 168:5,12,17,20 California 22: I0;34: 15, central 55:14 barred 14:21 Bio-Bibliography 92:6; bookstores 165: 13; 17,20;62:15;118:21 century 54: 19 bartender 25:5 93:19 168:24;169: I,3,6 call 37:21 ;40:23;48:18; Century 24:17;25:11 baseball 24: 16 biographees 31 :2 booth 1] 9: 1,4 74:9;106:13;111 :4;1] 7:22; certain 83:15;91:];105:2; based 10:4;41:23 - biographer 77:25 border 62:] ]2]:6;160:1 ] ]42:3;172:14 Based 20:24;162:]8 biographers 29: I0;36:] 0 borrow] 6:21 ;18: 10 called 12:2];13:]9;27:13; certainly 64:4; I]2: 19 basic 3]:2;39:3;139:10 biographical 54:18; Boston 55:2;]09:11 28:23;30:21 ;35: 17;39:23; Certainly 65: 18 basically 62:3;78:25; 119:22 both 2] :7;5]:] 3,18;61 :2; 41:1 ;43:23;45:14,16,18,18; certificate 118:8 128: 12;130: 12 biography 31 :6,7,8; 71 :22;94:20;127: 17;145:5; 48: 15;49:19;52:22;55:13; challenged 92: 18 Basically 41 :23;92:17; 58: II ;77:21 ;80:21 ;82:2; 161 :9;162:9;164:18;169:24 67:9;71 :2,20,21 ;80: I0; change 43:7;71 :25; 106:14,19;123:2 88:17 Both 164:15 83:24;127:10;147:11,13 138:20;]42:]3,18,21 basis] 1:5;104:3;113:24; Biography 31:3 bottom 73:25;74:] ;82:25; calls 2]:]9;138:]5;150:22 changed 55:23;58:6; 158:17;]81:8 birthday 77:23,23 117:20,21;177:2],23;178:3 came 35:25;84:23;98:] 6; 69:22;74:] 9;] 15:11; bathroom 79:7 bit 29:13;37:3;97:2];149:1 bought 168:1,3,5 ] 19:2; 120: 13; 132:20,2]; 141:13,]4 Bay 165:14 bizarre 17:21,23 bound 128:] I,] 2; 129:23; 133:14;139:] ];170:11 changes 113:23;152:1,5, BBC 33:14,14,17 Blake 128:4,8;130:21 ; 130:14;131:1 ;132:21; camping 44: 19 13;154:15;155:10,12; Beach 34:21 132:24;134:22,24;136:12; 136:17,20;137:3; 138: 16; camps 65:7 158:16;160:7 bearing 148:11 137:6;138:12;139:16; 140:4 can II :6;12:9;14:3;17:15, character 121:2 bears 121:9;176:15,24; 141 :16;142:2,7;183:18; boys 28:25 18;18:10;20:25;21 :14,24; characterization 180:7 177: 13,20; 178: I,9; 179: 18; 184: I0; 185:5,15 bracket 131:19,19 29: 17;42:25;43:6,17;45: 19; characterize 44:24; 180: 12; 183: 13;185:5,16 Blake's 183:19 bracketed 66:20 61 :2;62: 12;65: 12;75:23; 70: 13;94:13;97: 17; 142:2 became 27:9;32:1,2,5; blind 123:7 brackets 78:1 76: 16,17;77:18;83:20,21, characterized 44:20; 36:1,22;144:22 block 69:19 break 38:16;43:8;56:14; 24;94:18;95:11,13,16; 47:25;51 :12,13;52: 16; become 31:22;36:1 blOW-Up 46:9 110:12 96:25;97:25; 103: 15,18,20; 92:19;119:11 becomes 114:14,16 blurry 103:2 breaking 29:3 104:19;110:23;143: 18,21; characterizes 33:6;45:8 becoming 39:22 bodice 80:10 Breese 134:20 144: 10; 156:25;166:4,5,12, check 153:2;170: 16; beforehand 135:18 body 116:11 Breeze 14:11; 18: 18;20:4 20;170:24;172:3;173:7; 181:10 begin 183:2;]86:14 bold 16:22 briefs 64:16 182:10;183:7;187:2 checklist 41 :22 BetJiri 186: 16 . book 12:1;16:23;20: 17, bringing 151:16 Can 21:22;25:19;26:20; checks 103:7;169:12,15 beginning 41 :4;43:2]; 17;23:19;24:16;25:5; British 80: 10 43:11,16,21;56:16;87:15, cherry-picking ]21:20 53:9;93:] ;]25:4;132:22; 28: 16;30:21 ;31 :23,25;32:]; broadly] 14:6 20;96:24;97:] 7 Chicago 34:25;]65:14 139:3;]49:12 34: I0;37:] 6;38: 15;4·0:] 0, Broadway 28:22 candidates 14:7 choice 141:9 begins 61: 18,20;66:] 8; 10;43:18;44:21,24;45:2; Broadway's 29:3 candidly 18: 15 chose 45:5;80:19;87:9; 67: 17;69:3;92:15;125:4; 46:13,14;48:8;49:8,1 ],13, broke 112:22 Capers 98:25 90:22;99:20 127:12;]29:18;]44:16; 14,15,19;50:7,8,] 0,] 3,]4, broken 42:25 capsule 28:18 chosen 99:21 148:22 ]5;51 :14,]4;52:12,22,22, brought 119:18;120:5; carbon 123:7 Chris-Cross 49:19,21; begun 143:13 23;53:4,5,7,8;54:2,1] ; 130: 17; 144:3 card 77:23,23;120:7 115:6,8 behalf]62:25;] 64:6 55:] 8,21 ,24;58:8;67:22; Broun 26:12 care 27:9;183:17 Christopher 46:9,18; belong 11:23;]4:15 71 :6;77: 12;78:6;79:7; brow 10:11 carefully 77: II 49:20,21 ;52:5 belongs 17:9 80: 15,16;83:] 6;85:4;88: 13, Brown 79:21 carved 40:5 chronological] 2:23; Benchley 26:9;28:] 9; 25;89:5,18;93:5,] 9;96: 13; burned 170:12 case 10:22,22;11:8,9,14; 13:] 9;20:3,6;37: 15; 127: 12; 29:10;30:3;44:19;55:3,11, 97:3,25;98: 10,11 ,15,23; business 10:8;169:21; 16: I;17:6,7;19: 13,25; 133:17;143:20 ]6;56:13;109:13;] 12:24; 99:5,7;107:6;] 12:10,20; 181:14 20:12;21 :9,9;30:1 0;32:4; chronologically 135:19; \ '! 113:3;115:10 I] 3:12;] 16:2;] 25:7, I0; buy 168:4 49:23;64:7,22;81 :2] ;94:7; 148:25 Benchley's 29:5 128:12,13; 131 :8,14;132:3; buying 165:15 102:12;104:4;1] ]:3;114:7, chronology 13:23;37:4; Bentley's 54:]6,23 134:14,]5;135:22,22; 9,19,20,23;183:1 87:13;127: 10;129:18; Berkeley 22:]4;34:17 136:22;137:25;138:2,5,19; cases 33:7;35:10 130:2;13] :5,6,] 0,] 6; 132:2;

TRIAL Min-U-Script® (3) away - chronology STUARTY. SILVERSTEIN v luly 17, 2007 PENGUIN PUTMAN, INC.

34:12,13,16;135:8;137:1 ; collecting 31 :18 complained 138:16,17 consideration 124: 19 conveyed 13:6 42:9;146:10,15; 183:22; collection 12:8, II;13:9; complaining 130: 18 considered 12: 15;38: 19; convinced 80: I 84:7,17;185:8,9,19 16:9;18:16;20:19;37:2; complementary 39:5 42:5,8;43:24;44:16;55: 19; convincing 123:3 :;hronology 12:22 41 :1;43:25;53:7;129:9; complete 12:9,I0, II; 64:12;71: 14,16;75: 13;96:4; copied 20:9, I0, 13;21: I; ;ircle 13:25;118:1 131 :20;133:21 ;159:21; 13:9,17,21,21,23;14:18; 98:10 148:15;151 :10;152:11; :;ircle 55:14 160:1,3,4,24;161 :1 16:9;17:16,17,19; 18:7,16; consists 68: 18 162:12;166:10 :;ircuit 11:18,24;12:4; collections II :21 ;38:24; 34:5;127:10;129: 17; 130:2; consonant 60:22,23;61: I copies 110:22;140:2; 3:4;15:4,24;16:21 ;17:9, 133:23;159: 14,24; J60: 15, 131:5,10,16;134: 13; constant 80: 16 162:20;170: 16;176:4;182:3 2;20:7,15,24;114:20; 21 136:25;137: I0, 13,20; Constant 40: 10,24;41 :2; copy II :8;20:22;23:19; 63:8 Colleen 134:20 138:23;142:8;146:9,15; 46:13;50:7;53:6,8;99:3,11; 43: 14;53:17;80:5;82:23; ;irculation 162:20 college 22: II 160:2,4,24;171: 12;183:22; 144:22 109:16,23;112:14;114:20; ;ircumstances 15:25; colloquy 159:6 184:7,17;185:8,9,19 constituted 40:9 118:8;123:5,7;124:7; 12:25;128:7 colossal 111 :12 Complete 12:21 ;13:25; constitutes 149:20 130:22; 131 :25;148:8; ;itations 33:4,5 column 40:22;41 :3,6; 16: 12;17:11 ,24;18:2; 19: 15, construed 143:9,18,21 156:24;157:13,16;158:18; ;ited 64:16;101:2;102:7 43:6;57:13;62: 13;78:8 21 ;54:1 ,2;56:7;147:17,23; contact 119:15;163:2 171:3 ;Iaim 11:6,13;14:6,7;15:9; columnist 26:9,12;36:2 148:5,18,22;149:7,23,25; contacted 33:14,14; copy-editing 114:6 .6: 17;20:14;49:25;50:2; columns 36:24 151 :2,3,8,25;152:9,1 0; 103:6;161:17 copying 20:1;114:9;162:9 70:19;113:24;135:15; combining 65:13,14 153: 19,25;154:1 0;155: 13; contain 60:14;74:19; copyright 10:6; II:6,14; .56:24;157:13 comedy 28:24 156:7,10;160:3,9;161: 13, 116:3;126:7,10;127:3; 12:8;13: 12,13; 15:1 ;17:25; ;Iaimed 15:7;20:13;78:5; coming 45:2; 136: I8; 16; 162:6,6,7,19,22;164:25; 156:7;173:19 18:5,6,20,21 ;19: 13,14,17, 02:23; 156: 12 137:1'8;171 :10 167:5,21 ;168:19;169:6 contained 30:22;43:18; 20,23;103:5,9,17;106:6; ;Iaiming 14:21;158:17 comment 86:21 completed 37:2;102:2; 44:12,13;104:25;116:4; 107:22;109:15;117:18,19; ;Iaims 10:6;11:8,15 commented 67:24 173:20 134:2,8,21;136:7,19;138:4, 118:2;121:15,17;122:16, ;Iarification 89:3 commission 170: 16 completely 16: 16,17; 19;140:11;147:22;148:23; 19,23;126:8,10,17,20,24; ;Iarified 123:24 committing 36:8 18:18;74:10;153:18;165: 19 149:11;151 :8;160:25 127: I,3;166:3,20;167:4,21 ;Iarify 136:6 communicate 13:5; completeness 13:7,24 containing 19:16;137:25; Copyright 118:9; 127: I :Iass 71:19 145:20;146:2,8;178: 15 complex 146: 16 139:25 copyrightable 16:6 :Iassically 69: 19 communicated 125:22 complicated 135: 17; contains 88:25;158:15; copyrights I8: I, I0; ;Iassified 83:18;88:22,25 communication 123:13; 146:14;172:3 162:7 19:17;102:20,25;125:21 :Iassifies 33:9 178:19 complied 133:24 contemporaries 26:5 Copyrights 118:9 :Iassify 94:9 communications comprehensive 12:16; contend 14:21 corollary 157:12 :Iassifying 15:25 123:14;138:12 139:4 contending 64:11 corrected 140:14 :Iear 10:4;13:5;41:14; company 169:20 comprise 140:6 content 146:9 correlate 110:21 i5: 18,20;86:19,20;130: 15; compare 38:24;68:22; computation 171:12 contention 147:19 correspond 110: 19 32:12;138:21 ;139:23; 134:17 computer 113:19 contents 74:6,6;116:21; corresponded 181 :22 40:25;141 :23;144:1 ,2; compared 30:6,7,8; concealing 150:9 126:13,15;127:3;133:24; correspondent 80:7,11 48:20;156:24 153:19 concern 184:7,14;185:7 136:6;140:23;147:16; corresponds 76:21 :Iearer 128:] 4 compensation 10: II; concerned 11:14;102:]2; 148:9,12;152:20;] 80:7 corroborate 63:3;64:2 :Iearly 146:21;17l :13 169:9 121 :17;125:20;148:20 context II:13,15;129:4; coterie 26:24 :Ierihew 54:12,15,20 competition 10:7 concerning 64: I;68:23; 14]:2];144:2 counsel 183:9,9 ;Ierihew 54:23 compilation II :6;25:6; 136:12 continuation 46:] I count 155:15 :Ierk 45:]8 30:7;32:] 3;33:3;34:] 3; conclude 13:9;57:15; continue 132:5;155:23 counting 38:13,]4 ;LERK25:25 56:12;75:] 9;96: I;] 02:17; 84:1 ];86:2;155:24;156:3 Continue 115:9 country 165: 13 :Iever 60:25;70:14 1]7:]9,25;119:10;120:6, concluded 14:15;15:18; continued 160: 1; 162:] 9 couple 27:]6;35:18; ;Iifton 79:2] 19;126:21,25;129:5,11; ]6:7;75:3;81:1 ;82:9;83:3, Continued 37:25;65:24; 45: 12;59:7;63:17;74:7; :loc~155:20 131 :20;138:22;139:11 ,12; 18;84:12 105:]7;]] ]:15;145:23; 87:] 1;91: 12;] 17:6; 119: 17; :Iose 2]:3;34:]5;38:4; ]42:5;146:6;]48:1;150:8; conclusion]8:] 7;84:8, ]56:5;174:21 136:]8 16: 11;] 3]:19,20;182:20 154:3;]62:5;]76:1 23;150: 13,23;1 55:25 continues 67:20 course 28: 15;30:3;54:]; ;Iose 38:2 Compilation 115:20 conclusive 79:24 continuing] ]4:13,15,17 56:6;83:13;] 17:23;]6]:4; :Ioser 22:22 compilations 30:7,16,16, conclusively 152:22 contract 13:15;108:10 18] :14 :o3uthorship 142:3 19;78:14,19;128: 15;129:6; condition 13:17 contradict 39:5;51 :21 court 10:3;13:8;14:24; :ohesive 12: 16 137:19;138:22;140:25; confer 95:8,11 ;171 :3,4 contrary 86:9 18:] 9;56:14;76:9;127:6; ;oleen 14:11;18:17;20:4 141 :1,2;143:6;144:2; conform 34:10 contributed 142:7 154:20;155:5 :ollect 30:II ;70:8,11 ; 145:] 7;146:19,19,20; confused50:22 contribution]41 :24 Court 11:10;]48:21; 46:7 149:16;160:14 confusion 49:20;128:10; contributor 39:22 149: I,2,5; 154: 18 :ollected 10:2;12: 19; compile 13:9;28:14;30: I; 138:6,7;139:5,24;]40:8,23 controller 172:25 COURT 10:1,15,25;11:2, 3:];25:8;30:11;38:13,14, 34:5;172:7;175:25 Connelly 26: 10 controversial 104:7 24;] 8:23; 19: 1,4,9;21: 16, 5,25;42:10,15,17;45:15; compiled 30: 19,24,25; Conning 78:8;145:1,9,14 convenience 163:2 20,24;22:4,22;24: 1,13,21; ;3:21 ;75:4,6;78:13,18,21; 32:]5;50:15;101 :8,19; consider 14: 16;21 :4; convention 118:21; 25:19,22,25;26:1,17;28:6, ;7:10;93: 16;]21 :12; 103:1;113:11 ;142:5; 38: 12;39:18;42:21 ;44: 17; 119:8,19,20;120:24 8;29:14,17,21,25;30:14; 27:25;] 31 :19;133:19,22; 146:19;151 :4;154:2 50:8;55:5;57:11 ;58:17,19; conversation 120:21,24; 31 :14,19,21 ,25;32:8,20,23; 40:6;14] :2;]45:15,18; compiling 12:15;34:4; 59: 16;60: II ,18;70:24;75:9; 139:22 38:4;39: I0,16;40:13,15; 48:2 70:2;85:21 ;90: 12; 176:5 96:7;98:2 convey 116:13;140:16 41 :14;42:7,18;43:1 0,14;

:hronology - COURT (4) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v PENGUIN PUTMAN, INC. July 17,2007

45:22,25;46:5,8,17,23; covers 114:17 128: 17;129:1 ,15,22; 94:20,21;182:11;186:1 39: 17;41: 19;42:9;50: II; 47:4,8,12,15,] 7,21,24; created II :20,22;]52:7; 131 :22;]32:3;134:4;136:9; deducts 170: 16 70: I;132: 19;]65:3,5;166:6 48:4,7;49:24;50:4,22;5] :6, ]54:15;]60:8 137: I0,] 5;138:9;140: 12, deemed 16:20 determined 25:6;34:6,8; 11,17,25;52:2,5,8,17;53:1, creative I0: 13;65: 13 18;141:7,18,20;]43:2,11 ; Deep 30:8,21,22;133:24; 59:5;75:24;76:15,18;77:17; 10;54:5;56:14,19,25;57:3; creatively 16: 19 144:5,12;145:2];146:3,11; 159:15,25 78:3,23;83:14,15;98:4,5; 58:21 ;59:2,24;60:4,7,10; creativity 15:1,10;16:6 ]47:18;150:11 ,16,21; defendants 164:6 153:1 61 :9;62:7,11,20;63: I,5,8, credit 106:23;109: 16,18, 151:6,11;]52:23;]53:9; defendant's 65: I0 devoted 185: 10 16,24;64:6,14,19,22;65:]7, 20;156:7 156:22;]57:1] ,16,19; Defendants 110:18 di 68:23 21 ;66:14;67:2;68:9,14,17, credited 38:23 ]58:5,22;160:17;161 :6; defense 144:4;]64:12 diatribes 71 :22;74:2; 21 ;69:3,24;70:20,23;72:6, cretins 141:5 163:5,15;17,20;164:4,7,9, define 39:12,13,16 117:6 8,10,]6,21 ;73:1 ,4,8,11,13; criminal 183:1 17; 165:17;166: II ;167:11, defined 39:12;69:7 dictionaries 39:21 74:24;78:10,12;81:10,14, crinkle 41 :17 13;168:7;171:1,5,7;172: II, definitely 68: I;88: I dictionary 39:4 19,22;82:5,8,17;83:8,23; Crisscross 98:11,14 15,23;173:4,]2,15,24; definition 39: I;40: I,2; Dictionary 22:21 ;39:23 84:3,11,18,23;85:7,10,]6, criteria 33:8;100:18 174: I0;175:22;176:18; 42:20;54:16;56:23;66:18, different 17:10,13;29:7; 18;86:21 ;87:2;88:4,I0; criterion 70: 15 177:2,9,16;178:5,12;179:2, 22;70:6,17;71: 19;91 :2;96:9 33:8,8,9;35: 15,15;45: II, 89:],4,7,10,20,22,24;90:3; critic 26:10,11,13,14,18; 5,12;180: I,18;182:13; definitions 39:4,4,25; 14;47:10;74:II;131: 19; 91 :21 ;92:2,23;93:3;94:3, 28:19 183:5;184:1,20;185:12,22; 55:23 134: II;135: I0; 139:6; 12,17,23,25;95:4,8,17,19; critical 15:18;]7:6;29:2]; ]86:5,18 degree 22:1] ;163:9 146:18;157:21 97:6,12;98:7,17,20,22; ]72:2 Dannay's 86:22;103:22; delay 24:24 differentiated 115: 13 100:6,9,1 ],13,15,23,25; _ Criticism 66: 17 ]82:8 deliberate 10: 13 difficult 146:21 101 :3,7;1 02:5,9,] 5;1 03:21; cross 183:2 data 84:20,22,25;99:8 deliberately 55:23;76:22; Difficult] 15:24 104: I0,14,22,24;1 05:5,14; Cross 188:5 date 58:10;107:17;121:9, 150:9 difficulty 22:23 106:9,25;]07:9;1 08:4,7,19; CROSS 186:] 7 10;131 :2] ;139:19;155:4; deliver 13:16 diminished ]62:23 109:9; II 0:4,12,14,16,24; cross-examination ] 64:2;176:15,24;177: 13, delivered 13:22;74:17 dinner 92:24 111:1,8,12;113:9;114:8,13; I] 1:4;]86:14,16 20;178:1,8;179: 18;180:12; delivering 13:19 direct 66: I; 156:3;183:3, 115:7,25;116:16,18;] 18:6, cultural 62:13 183:13;184:12;185:5,16 delude 41:15,15 ]0;186:14 17;121 :22;]22:1 ,4,6,12,17; currently 162:20 dated 40:18;67:10; deluge 41:12,]5,16 Direct] 88:4 123:] 1,24;124:3;125:1,13; cut 69:21;103:6 ] 15:19;121:7;139:18; demand 161 :20;162:2,18, DIRECT 22:5;156:5 126:6;127:6;128:18,20; cute 93:13 ]61:21;177:6 21; 163:1 0,13,14,17,19,22 Directing 112:15 129:2,13,17,21,25;130: I0; cutting 20: 1,5 Dated 130:23 demonstrates 163:10 directly 63:3;76:20; 131 :24; 132:2,6,25;] 33:3,7, Cutting 19:25 date's 60:2 denied 16:14;79:13,]5 122:2];151:10;152: 12; 9,12;134:6,1] ,19,23;135:3, Davies 79:9 deny 164:6 156:23 6,14,22,24;136: I,10; D Dawn 52:21,22,23;53:19; department 138: 15 disagreed 15:8 137:12,16;138: I0;139:9, 98:11 ;99:6;115:10 depending 169:8 disagreement 62:25 15;140:14,19;]41 :5,8,1 0, damages 10:5;162:21 day 36:5,5;45:1 ],12; depositing 181 :21 disagreements 15:9,13 ] 7,19,21;142:1] ,13,] 6,18, Dannay 10:15;21:16; 70:18;87: 16;119:1,18,18; deposition 15:11,17; discover 164:24;165:2 21,24;143:3,13,19,24; 46:6;63:17;64:23;68:17; 186:24 16: 16;94:21;154:20,22; discovered 161:15 144:6;145:12,22;146:4,12, 86:9;88: I0;89:2; I05: I0; Day 75:7;] 18:22;154:6,7,8 155:5;158:6 discuss 61 :]2 25;147:5,19;148:19; 144:11 ;159:6;161 :9; days 27:6,7;119:2;121:10 depositions 154: 17 discussed 33:] 8;96:24; 150:12,17,22,25;151 :7,12, 163: 14;168:9;173:3;183:I; deal 85:24;106:]4;125:19; deposits]70: 15 137:7 14,2] ,24; 152:24;153: I0, 188:5 185:18 DEPUTY 25:25 discusses 184:4 13,21 ;154:1 ,5,7,9,13; DANNAY 10:17;1]:1,4, dealing 101: 11 describe 44:10;58:]2; discussion 112:16; 155:] 8,23; 156:2,25;157:5, 25;18:25;19:3,7,12;22:25; deals 103:7 146:14 120:18 7,10,14;1'8,21 ;23;158:2,7, 23:25;24:12,] 9;25:16,20; dealt 26:8 described 49:3,5;51 :8; Discussion 155:21;187:1 I0,J:3i19,2'l;24;159:2,S,1 0; 26:3,15;29:12,16;32: II; death 41:1;160:2 54:8,9,10,12;56:1,2,3; discussions 64:2; 160:f9;f6J':'8;l63:6,12,i6, 40:14,17;45:20;49:22,25; Death 30:18;129:8; 57:25;70:6;71:18;77:14; 136:12,15 19,21;2i;i64:5,8,10;18,22; 51: ]5;52:7,25;54:4;56:18; 133:20;159:14,15,20,21 ; 80:25;83:3;117:12 dismissed 11:8;20:15; 165:20;22,24;166:15,21; 57:2;59:1,23;61 :8;62:6; 160:15 describes 96: 17 157:13 167:3,9,12,14,17;168:8; 65: I0,18;66:13;67: I;68:8; debate 91:17 describing 58:14 displayed 169:2,7 170:23;]7]:2;]72:] 0,13, 69: I;70:3,9;72:5;73: 12; decade 27:] description 58:] 8,19; dispose 20: 17 16;173:5,11,14;]74:4,7,9, 74:23;8] :21 ;82: 16;83:7; decide 28:14;44:15; 89:1 dispositive 15:]5 12,]6,20;]75:1,23;176:9, 86:18;87: I,20;88:3,11 ,24; 70:15;90:19;94:19 deselect 74:20 dispute 15:2,12;16:17; 11,19;177:3,10,17;178:6, 89: 14,17;91 :20;93:24;94:5, decided 18:2;30:1,11; deservedly 80:9 64:11;66:11;105:3;163:13, 13;179:3;8,11,]4;] 80:4,6, 11,20,24;95:2,20;97:2,1 ]; 34:7;38:23;44:23,24;46: 12, designate ]6:19 ]4 17,]9,22;182:16,22,25; 98:6;] 00:2;] 01 :5;102:1; ]4;50:]7;57:17;72: 1,2; designations 15: I0 disputing 107:23 183:7;184:2,21 ,23;185:2, ]03: 13,23;I04:9,18,23; 74:20;80:14;81 :6,1 0,14; designed 1]5:23;116:1 distinction 61:12;64:I 13,23;186:6,13,22;187:2 106:8,24;107:8;108:3,18; 86:5;90:21 ;93: 12;99:22,22 desire 178: 16 distinguish 116:19 courtroom 155:20; 109:8;] 10:3;13,18;111:6, decision 84:16,18; desist 162:19 distinguishing 117:4; 166:22 10;113:8;114:4,11;115:24; 114:21;]48:21;149:2,3 despite 14:6;82:9;83:2 146:5 court's 102:6 I]6: 15;118: 16;119:24; decisions 64:8 Despite 55:8 diverting 48:16 cover 12:25;24:6;73:19; 121 :4,20,25;122:10; declaration 94:6,9,16,19; detail 146:14 divided 76:6;116:24 77:14;115:17,19;120:13, 123: I0,22;124:25;125: 12, 173:2 determinative 79:16 division 23:5 17;142:5;176:3;181 :2,25 17;126:23;127:15,17; declarations 15:17; determine 38:19,21 ,24; Doctor 22:14

TRIAL Min-U-Script® (5) courtroom - Doctor STUART Y. SILVERSTEIN v July 17,2007 PENGUIN PUTMAN, INC. c10ctrine 14:21 drama 25:12 elements 93:]4 178:9 exhaustive 37: 18 c10cument 23:15;53:12; dramatic 26: 11,18;27:14; Elinor 80:8,16;82:25; event II :10;142:4 exhibit]6: 1;46:7;56: 16; 54:25;57:7;59: 13;60:]; 28:19,24 84:7;85:5 events 64:5,17 99:4;109:1;111:4,8;113:7; 53: II ;64:] 0;67:7;73:] 8,22; draw 45: 17;49:20 elongate 24:24 eventually 126: 1 131 :22;132:25;155:3; 75:24;88: 12;92:12;117:23, Dream 154:7 else 16:20;44: 16,25;49:2; Eventually 108: 10 ]57:14,16;158:22;163:23; 24;120:11;125:14;148:4; Dreams 75:7;154:6,8 56:1;57:25;67:11 ;147:15 Everybody's 35:18 167:4;170:19;176:10; 154: 14,20;155: I;173:16, Dreiser 50:20,24;54:8 Emily 179:20;] 80: 14 evidence 14:24;19:8,9, 179:4;182:14 25;175: I] ;176:21 ;181 :4; drop 25:23 emotion 43:25 18,20;20:2,9,20;24:2,3,14; Exhibit 23:] 3,24;24:1,3,4, 185:4 Duckworth 147:10; en 103:24 52:9;53:2;54:6;56:20;57:4; 11,]4;40:12,13;43:11;46:2, c10cumentary 84: 16 ]69:20;170:]4 enclosed 120:18 59:3,25;61 :7,10;63:9,16; 10;50:6;52:3,9;53:2,9;54:6, c10cuments 64:17;73:6; duly 22:2 encloses 122:23 64: 18;65:23;66:15;67:3; 22;56:20,23;57:4,7;58:25; 104:] ;170:21 ;171 :16; during 33:] 8;87:8;91 :7; end 27:1 ;50:17,23;52:1], 72:] 3;73:14;74:25;78:2]; 59:3,25;60: 1;61: 10,] 5; 172:5,14,] 7,17;173:5,6,7; ] 18:2];1]9:7,] 9;]44:] 8; 23;54:7;136:] 3,22;] 37:25; 79: I;81 :25;82:] 8;83:9; 62:9;63:9,10;65:3,23;66:3, 174:5,7,9,13;] 75:2 ]54:20;175:25;] 76:2 139:3;152:24;] 60: 1; 84: 17;85:8;87:3;88:4; ]5, 16,24;67:3,4,25;68:2,9, :foggeral 69:5 During 83:13;116:10 165:11;183:22 89:21 ;91 :23;95:2] ;97:8,]5; 18,23,24,25;69:8;72:] 4; Doggerel 69:5 duties 28:20 End 44:2 106:7,10;107: 1,10;108:5, 73: 15;74:22,25;75:25;76:3; :fomain 103:2,10;]22:]5, dying 70:18 ended 102:17 20;109:10;] 10:5,17;111:9; 80:20;81: 17,23,25;82:],] 5, 17 ends 69:4 113:]0;] 18:]5,18;122:5; 18,19;83:5,9;84:2,5;85:] 4; :fone 18:25;20:2;39:10; E enforce 10:9 123:12;124:24;125:2,14; 86:24;87:3,12;88:6,9; 59:] 8;73:7;76:22;123: 14; English 22:21 ;33: 1;39:22 136:11 ;138:11 ;141: II; 89:21 ;91 :8,24;92: 10;93:] 8; 162:] ] earlier 30:9;34:22;36:24; enjoy 44:5,5 ]50:] 8;] 56:] 3;157: 15,15, 94:4;95:]5,21;96:7,] 1,20; Dorothy 10: 10; 12:3,8,17, 45: 15;69:] 1;78: 18;82:3,2]; Enjoy44:1 ]7,18;158:7,8;159: I; 97: 1,6,8,9,16,23;98:12; 18,24,25;13: 17,20;14:4,12, ] 13:24;] 28: 11;] 86: 1 enlargement 46:3 167: 16;168:1 0; 172: 14; 99:24;100:22;101 :8,]2; 16;15:23; 16:4,9;18:21; Earlier 20: 12 enough 95:12;132:12 174:15; 175:24;176:20; 102:18;103:12;104:11; Z1:2,6;25:4,7,8,9,10;27:12; earliest 163:2 Enough 30:17;75:6; 177:4,11,18;178:7,14; 106:7,10,16;107:1,4,1 0,13; 30:5,9,15,24;31:] ,18;33:4, early 29:5;32: 10,12; 129:7;133:20;159: 14,20 180:10,20;182:18;184:3, 108:2,5,7,14,20,24;109:7, 13,15;34:2,6,9;36:20; 54:] 9;116: 10;183:8,9 entail ]6:6 22;185:]4,24;186:9 10,17,21 ;110:2,5,6,17; 38: 18;40:7,21,24,25;42:], Early 32:] I enter 10:4 Evidence 65:1 111:2,2;112:]4,23,25; ),13;44:18;45:3,4,5,13; easel 46:4 entire 89: 14,18; 153:6 evidenced 141 :25 113:2,10;115:14;117:20; l6:24;53: 14;55:3,12,15; easier 36:6;94:1 entirely 17: 10 evidently 91 :13;126:21, 118:5,6,7,18;120:] 1,]5; 57:14;58:6;62:21 ;63:2,22; easily75:23 entities 107:11 25 12] :7;]22:3,4,5,22;123:]2; 70: 12;75:] 7;77:8,16,19; easy 37:7;158:] 1 entitled 53: 15;68:5;71: 11; exact 37: 13;86: 13;87:] 6; 124:4,23; ]25:2;] 26:5,6,7, 78:2,4,5,24;79:] ;80:4,8,] 2, edited 50: 15;53:5,8,16, 8] :13;85:] 6;1 OJ :14;130:2; 173:]6,18 12;127:2,9;]30:20;131: 13, 18;81 :4,16;82: 14;84:8; 16,16;68:4 133:9;162:6,8; 181 :4 exactly 110:19;135:7 15,24;] 32:2,] 5; 133:7; )2: 14, 17;93:7;] 02:20; editing 11:8;12:]6; environments 35:23 Exactly 52:1 134: 12,2] ;135:3;136:2,8, 103:] ;106:20;116:11; 113:23;114:22;152: 1; equally 17:23 examination 33:23; ] 1,13,22;138:8,10,] 1,23; 117:25;118:12;119:11; 155: 10;156:24;157:13,16; err 84:7 149:4;155:24;156:3 139:16;141: II,] 2;144:9; 127:13;133:17,25;140:5; 158:15;162:11 erroneously 75:5 Examination 188:2 148:3,23;150:14,17,18; 143: 10,20;144: 13,16,17, Editing 114:9 errors 152:25;153:3,23,24 EXAMINATION 22:5; 154: 10,24;156: 14; 157:2, ~3;147:] 1;148:22;15]:9; edition 23: 18;24:7;93:5,5; especially 26:8 156:5;186: 17;188:1 18,19;158:12,13,14;159: I, 152:3;153:7;159:13,16,23; 126:7;127:2;128: 12; essay 99:5; 119:22 example 44:17;57:20 3;161 :22;163:4;165:2] ,21, 160: 12,2];162:5,6,10 133:25;134:1 ;142:14,19, essence 60: 19 except 135:20;145:14 22;167: 1,7,8,9,15,16,17; :Ioubt 41:11 22;147:6,9,10,13 essentially 12:20;33:3; Except 68:21;135: II 168:6,8,10;175:11,21,24, :Iown 29:13;34:22;38:16; editions 30:9;164:25; 65: 14;69: II ;96: I0;97:20; excepting 134: I 25;176:7,20,21; 177:1 ,4,5, 12:25;43:8;58:f 3;66:18; 165:3;186:21 115:23,25;116:1;131:18 exception 16:12;77:13; 8,11,12,15,18,19;178:7,8, ;9:15,16;104:18;171 :4; editor 69:13;I 18:25; Essentially 34:I2 148:1,16;178:2 14;179:16;180:10,1 1,20, 187:2 128:6;183:16 establish 1I: I7 excerpt62: 18;63:20; 25;182:8;183:12,25;184:3, :Iowns 28:12 editors 183:17 estimate 38:9 80:21;82:1 10,22;185:4,]4,]5,24; :Iowntown 34:20 edits ]54:]5;]60:7 estoppel 14:21 excerpts 4 I:] 188:7;] 89:2; 190:2 :Iozen 34:15;35:]8;87:]] Edna26:6;77:2] etc 16:3;160:] 5 excluded 82:10;86:]5 exhibits 21 :22;23:10; :Iozens 28:2;]46:]7,17; Educate ]84:23 etched 40:5 excluding II:20;I48:] 8; 80:6;94:2I;1]0: I9,20,22; 8;168:25 effect]8:9;1 9: 13 evaluated] 1:]6 ]49:8 1]4:5;] 71 :3;1 82: 16;1 86:23 )ozens 168:]5,]7,23 effort 102:11 Evanston 34:17;35:1 exclusive 19:] 8 Exhibits 43:]4;71 :5;72:3, :Iraft 120:6,13;]28:4; eggs 92:20 even 11:17;14:3,23;17:5; Excursion 59:] ];60:] ], ]2;73:6,] 4;89:9,23;90:6; 29: 14,22,23,24;130:],6, egregious 153:23 34:9;35:11;45:]4;48:4,24; 14 91:18,22;95:3;97:14; 3;13]:15;132:]9;135:]2; either 26: 17;30:1 0;39:24; 50: 18;6] :5,24;64:3;78:20; excuse 37:8;74:6 10] :24;1 74:]4;1 75:8; 36:2;137:3 44:23;6]:];69:6,7;75:] 3; 80:]7;1 ]2:10;145:6; Excuse ]9:4;43:13;49:12; 182:] 7,18;] 85:25;186:9,20 frafted 140:] 7 78:] 9;79: 16;84:] 7;85:5; 152:20,20;171 :24;] 72: 1 68:8;77: I8;93:24;131 :22; EXHIBITS 188:6;189: 1; frafting 136:5;137: 17; 86:4;87:11;106:13;122:2] ; Even ]62:]] ]45:13;]61:23;166:11; 190:] 83:21 132:2];155:3;]69:19 Evening 27:2] ;28:5,7; 167:24 exist 102:12;104:2 frafts 130:8,] ],13; Either 32:10,]2 37:11,]7,21,23;78:]5; excused 187:3 existed 26:25;1 OJ:3 35:20,21 Eleanor 26:6 9] :14;1 03:3;1 05:16;] 06:6; executed 109:3 existence 32:2 frain 41: 13,17 electronic 82:23 108:13;145: 1,] 0;]59:18; exercise]] 1:] 1;182:10 expand 91:2 loctrine - expand (6) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v . PENGUIN PUTMAN, INC. July 17, 2007

expected 138:7 102:12;104:14;177:23 104:12;115:17;116:6,6; four 16:22;48: I0;49:3,6,8; 10,23;173:21,21 ;175:9,16, expedite 103:20,21 fast 42:17 125:3;127:12;129:14; 66:17;71 :2,11 ;74:1 ;92:19; 18;176:1,5;181 :11 ,18; experience 43:25;93:9 favor 10:5 130: 14; 131: I0; 133:23; 117:6,10;119:3;127:7,25, 183:23;186:20,21 experienced 65:5 favorite 27:6 135: 12; 136:3;137:8; 25;129:6;133:19;137:19; funds 170: I5 experts 43:1 favorites 90:23 139:21 ;140:7;144:24; 166:17 funny29:9;57:22 explain 137:18,22,23; fax 121:3;124:6;185:9 145:19;146:6;149:15,23, Four 117:16 fur 84:8 138:4,6;143:5;I48:23; Fax 124:7 24,25; I50: I,8;151 :3; fourth 12:18;61:23;125:3 further 58:23; I 19: I5; 171 :7 feature 55: 13 152:10;1 56:25;1 57:6; FPL 184:24 138: I2; I64:25 explained 85:10;131:12; fee 107:2;108:21,23;109:5 160:4,24;162:3;164:12 France 169:2I Further 75:24 146:16 feet 127:7 First ]]:"17;38:19;41:3; Francine 33:17 future 163:1 explaining 90:3;132:8 fellow 166:16 47:5;76: I;96:7; I04:24; Frank 145:1 explains 12:22 fellows 105:6 118:20;167:8 Franklin 26:9;36:2,8,23, G explanation 138:2,3; felt 164:13 firsthand 93:8 23;77:23 139:8 Ferber 77:21 ;80:21 fit 20: I8;5 1:2;96:9 frankly 161:6 galley 128: I I; I29:23; explanatory 76: I2; I31:7 few 30: I9;35:2, I0;36:2 I; five 29:5;75:22;155:20; free 18:12;25:7,14;27:14; 130: 14;1 31:1;132:21; explicit 76:21 37: II;53:7;74:5;80:2 I; 159:20 33: I9;34:7;39: I8,1 9;41 :25; 136: I7,20; I37:3; 138: I6; explicitly 40:9;51 :14; 85:22;99:20;I08:22; flaming 27:10 42: I4, 19,2 1;43:5,6,9; 140:2,4 56:3;76:13,19;77:14;88:23; 121 :10;138:15;139:22; flapper 27: I0 61:1 I,13,24,25;62:2,3,23; game 92:17 90:18;116:19;125:9; 160:6 flat 13:14;18:5 63:4;64:1;65:7,13,14;66:5, gave 13:13;49:18;58:23; 140:23;146:5 field 16:19 flood 41:16 6,10,23;69:5,6,11,17,23; 109: I8;1 19:2;120:7;131:6 Explicitly 33: II - fight 70:18 Folk 71:3,12;73:23;91:15 70:2, I2,1 3, I7,22,25;71: I6, gee 48:20 explored 15:6 fighting 144:15 Folklore 117:10,16 19,20;74:3,10;75:9,16,20, general 40:4;41:23;106:4 express 40:7 figure 25: I0;55: 18; follow 104: 19 21;76:16,19;77:2,11,13; generally 36: 18;6I: I8, expressed 119:6;125:19 171:1 9;1 81: 12 followed 136:7 86:4;96:4,9,24;97:18,22; 20;70:7; I32: I0 extend 38:6 figured 45:10 following 46:17;140:1; 101:17;102:21;116:4,20; Generally 60:21 extends 48:9 figures 117:10,16;181:22 156:15;157:5 I 17:4,12;144:13,17,19; gentlemen 92:2 I; I82: I2 extent 39:6;45:20; I71:24 Figures 71:2,11;73:22; Following 157:4 145: I8; I46:6; I53: 13 George 26:1 1;62:14 external 84:20,22,25 87:18,21;184:25 follows 22:3;1 16:21; Free 42:22 gets 76:9;135:8,17 extract 44:17;63:12; filed II 7: 18; 118:2 134:9,15,16;135:8,9;140:3; French 69:16;147:12,14 Gets 100:16 66: I6;68:5,6;155:2 fill 110:7 144:2;I57:7 Friday 120: I8 Get-together 84: 1;90: lO extracted 46: I3;48: I I; film 25:13;55:13 follOW-Up 47:24 friendly 36:2,22 Gigante 164:1 49: I7;98: I0;99:5 final 12: 18,2 I;74: I8; foot 117:22 friends 26:7 Gigante's 164:3 extracts 61:14;88:14 128:4;131 :8,15; I32:1 8; footnote 112:13,15 front 54: I0;80:6; I 14:2 I; Gilbert 77:21,25 extraordinarily 39:9 133:14;135:13,21;136:17; force 51:4 181:12 Gillian 128:4; I32: I I; extravagant 14:6 137:1,5;141:13,15;142:8; foregoing 162: 18 Fruen 31:8 134:22,24;137:6;138: I7; extremely 17:22;29:2 143:1;155:1 I foreign 147:6,9 fulfilled 13: 18 141 :16;142:2,7; I83:18; eyelids 69:4 finally 19:24;20: I6 foremost 15:5 full 12:14;13:25;34:1,2; 185:5 find 35:7;36: I I,18,18,20; forgetting 35:2 67:16;133:24 Gillian's 137:7 F 43:9;45:7;74: I3;76: I3; forgot 95:15 Fun II:25;12:17;13:6,23; girl 28:24 87: I3; I20: I8; I56:20; forgotten 80:9;83:21; 14:5,8,13,18;15: I9,23; girls 47:1 1,13;48:1 faced 16:22 157:1,2;166:21 145:18 16:1,8,1 1,14,19;17: I,4; give-and-take 135: I9 fact 10:21;12:6;13:24; finding 17:7,22;76: I4 form 12:16;15:20;16:2,23; 21 :4,13;22:20;23:1,16; given 18:4;70:6 14:21;16:22;17:2;52:21 ; finds 18:19 24:8;47:10;50:14;54:17; 24:7;25:3;28: I4;30:2,25; giving 19:10;106:19 55:8;64:3;78:20;79: I5; fine 19:1;41:]8;72:10; 60: 18; 108:11; I 10:7; 32:13,15,18;34: 1,2,4,14; glasses 46:25;47:1,1 I, 171 :21 ;174:16;178:2 81 :23;95:2;158:25;164:8; 113:17;132:10;140:7; 42:4,7;43: 12,1 5;49: I6,18; 13;48:1 factor II:23;21:9 171:19 173:20 50:9;52:14,20;53:3,19; Glen 161:20 facts 19:11,12;151 :18 Fine 63:1;64:19;82:8; format 34:10;43:5;59:5; 54:1;55:5;56:6;57:12;59:4, gloss 20:14 Fadiman's 79:21 89:4;94:23,25;I00: 15; 69:22;70:7;71 :20; 132:8; 16,18;60: I2;63:22;70:2,25; Glyn 80:8,16;82:25;84:7; Fair 28:3;36:1,9;96: I8; 110:14;111 :8;137:16; 134:9,15,16;135:8,9; 74: 18;75: I, I6,25;76:2,5,6; 85:5 144:25;145:10;159:19 139:9;163:22;172: 13 152:19 77:2,4,5,15;79:2;82:1 I; goal 34:4,5 faithfully 153:24;159:13; fingertips 175:4 formatted 42:23 85:21 ;86:7,16;87:8,12; goes 46:18;78:25;108:7; 160:20 finish 182:22; I83:3,8,9, formatting 177:22 90:12,16;91 :7;101:20; 127:23;148:23;177:23 fall 65:6 10 formed 26:24 102:2;112:10,15;113:12; GoldSmith 77:21 falls 28:24 finished 99:14 formless 54:17,17 117:18,25;118:12,19; good 41:7 familiar 30:6;3 I:22,25; finishing 182:20 forth 130:13;135:20; 128:14,16;129:3,9,10; Good 10:17;22:7,8 32: I;85:20;90: II first 12:22;21:17;25:10; 136:16;137:5 130:25;13 I:2, I5; I32: I; goofy 44:22 families 28:25 30:7,24;31:2,7,22;32:5,6; Fortnightly 67:9 133:10,21,21 ;140:2,5,1 I, graduate 22:12 famous 26:13;27:10; 35:25,25;36:3;37:22,23; forward 74:5 24; 14 I: 13,15;143:7;147:7, grant 108:14 28:12,12;46:23;54:16,18; 38:20;44:21 ;49:2;55:25; found 11:18;12:2;14:1 I; 15,22;148:13,15;149:13, granted 105:2;113:2; 67:23;69: I3;79:6,9;80:9, 57: I3,20,24;60:20;62: I2, 20:8;30:4,10;36:7,10,14; 2I;I50:2,3; I52: I5,25; 183:4 15;95:25 16,16,I9;63:14;65:3;67:16; 37:16,20,22;40: I6;77:5; 153:17;154:2;155:2,11,12; gratuitous 144:7 far I I: 14;14:3;42:9;49:4; 68:19;73:24;74:3;85:15,22; 87:21,23,23;102:3;153:2, 156:8;160:8;161 :3,4,13; great 27:9;68: I6;76:5; 73:1;78:25;81 :3;94:4; 86:3;87:4;94:6;97: I6; 18;165:15;166:1 162:9,10,23;168:1 I;169:1, 85:24;110:19

TRIAL Min-U-Script® (7) expected - great STUART Y. SILVERSTEIN v July 17,2007 PENGUIN PUTMAN, INC.

Griffing 161:9 Heights 35:4 humorist 26: I0 indefensible 10:5 124:2 ground 165:17 held 12:4;21:14;155:21 humorous 54: 18 indeterminate 25: 15 interests 33:22;144: 15 grounds 44: I Helen 27:22;78: 16,23 hundred 38:13 index 71 :23;74: 13; internal 162: I0 group 27:1 hell 27:22;78:17 hurdle 14:25 133: 17;134:9,14; 135:9; interpretation 172:4 Grows 98:25 help 89:7 Hymn 77:10;101:14 149:8 interpreted 10: 19 guess 88:14;99:19; hen 92:20 hypothetically 111:2 INDEX 188:1 interrogatories 173: 17 105: I0;156: 13;164:20 Hendrik 41 :9 indexed 30:13 interrogatory 173:22 guest 79:7 Henriette 27:20 I indexes 36:6;85:24 interrupt 25: 16,21 ;39:10; Guide 45:8,9,21 ;58:2 Herald 28:4;145:2;159:18 Indiana 33: I 68:15;173:13; 183: I guidelines 40:4,6 herself 11:20,21;16:13; idea 41 :23;68: 1-6; 137:24 indicate 74:9 interrupted 85:12 gun 92:21 79:13 identical 13:22,22; indicated 107:20;118:2; intervening 120:23 Gun 30:17; 129:8,8; Heywood 26: 12 115:12;127:5;147:25 148:12;171:14 intimate 55:17 133:20,20;159: 14;160:15 Higgledy 52:5;92:15,20; identically 152:17 indicates 62: 17;64:23; into 21 :11 ;26:20;42:25; 93:20;94:9;95:16;112:8,16 identifiable 130: 17; 139:2 66:8 43 :6,7,8;46: 18;51 :2,4;56:6; H higher 43:1 ;108:23 identification 40: 13 indisputable 17: 15 60: 12;61 :6;65:6;69:22; Highland 35:1 identified 15:4;48: I0; individual 21 :4;28:13; 75:14;76:6;87:13;113:19; half 25: II ;33: 16,25;48:9; highlighted 46:9 53:18;86:10,14;103:25; 99:7;129: I0; 154: 14 116:24;124:23;135:4; 53:18,19;87:11 ;149:20 Himmelrich 80:4,11; 104:1 ;130:3;140:23 individually49:8 157:17;159:10,11 halfway 69:15,16 82:20,24;83: I0;84:5; identifying 74:4 indolent 141:5 Into 59:11;60:11,14 hand 22:24;93:12;114:21; 107:15;176:14,23; 177:5, ignore 14:23 industry 170:2 introduce 64:18 165:11 12,[9,25 Illinois 34:16,17;35:1,2,4 inform 83:10 introduced 176:8 handbag 47:7 himself 141:25 imagine 173:23 information 35:8;84:20; introduction 43: 18,20; handle 28:25 hippety46:19,19,19 immediately 44:6,14; 121 :15;122: 18;140:1,10; 68: II ;69: 14;75:22;92: 13; handled 80:4 history 22: 13;24: 18; 126:12,15;132: 17;162: 18 172:4 93:1;112:13;113:13,15; hands 69:5;165:6 146:15 immoral 10:8 informed 85:9 126:22,25;130:2;142:6; handwrite 113:18 hit 47:7 impeding 65:16 infringe 18:2 144:9 handwritten 109: 12; hold 62:7 important 11: 12,22; infringed 18:20;162:22 introductory 71: 17,22; 155:6 Hold 58:21 ;68:9;75:25; 24:22;95:9,12;135:11 infringement 10:6;17:7 130:8;131 :4,8,16;132:7,13 happen 24:22 158:2;161:25 impossible 105:11 infringer 18:6; 19: 14,20 inventory 12:14 happened 37:15;92:23; holder 103:9 imprecise 114:14 infringes 17:24 invoice 106:19 105:4;138:17 holders 103:5,17 impression 13:6 inherent 139:5 involved 146:17 Happened 79: 19 Hollywood 79: 18,19 imprint 23:4 inheres 15:24 Irish 28:23,24 lappier 166:21 honesty 181 :25 inadvertent 152:25;153:3 initials 184:24 ironed 105:8 lappy 104:2 honor 79: 14;82:6 inadvertently 148:2; injunction 11: II irregular 58:14 larangues 71 :21 ;74:3,4; Honor 10:17,18,19;11:4; 153:19 Injunctive 11:9 irregularly 27:4 117:13,15 14: I;17:6;19:7;21 :3,15,18; inclined 121:11 input 113: 19,20,24; irrelevant 165: 19 lard 42:16 23:24;24: II ;26:3;29:20; include 14:19,19;42:4,7; 183:21 isolate 90:2 lard-and-fast 41 :21 39: 15;40:17;46:3;60:20; 51 :7;59:4,17;71 :22;74: II; inquire 62: 1 issue 15:6;17:5;30:13,13; lardcover 23:6,7,17,18; 63:23;68:20;69: I;73:5; 75:1,16,18;77:2;81 :7,11, inquiring 182:21 36:5;37:5;40: 18;49:23; B:12,14;87:12;126:2,10, 74:21 ;82:7;83:6;84:1 0; 14;83:19;85:5;86:7,10; insists 144:11 66: 10;67: I0;85:23;87:4,1 0, 13;139:11 ;142:22;169:24; 85: I,8,9,13;88:2;89:5, II, 96: 1;99: 15; I00:20,23,24; Insofar 148:19 21,23,24;91 :3,7,I0,11 ,II, 186:21 23;94:20;95:2,7;98:19; 112:11,12;124:12 instance 61:3;78:16; 15,16;114:16;130:17; larken 163: 12 102: 13;129:1,20;130:5; included 12:1;14:20; 117:24 139:2;147:6,9;164: 10; late 44:9;76:7;77:8,9,9; 133:2;142:17;147:4; 16:8,11,11;18:7;51:6; instances 38:22;58:22; 167:22;173:23 )5:25;96:2,13; I01 :17; 150:15;156:1,22;157:11, 63:22;71 :3,23;74:15;80:18; 133:21 issued 63:13;118:8; 147:13;152:19 20;158:23;160:17;163:11, 87:8,15;93:16;94:22;97:3; instead 105:7;134:13 147:10,13;166:7 iate 77:10;101:14 17;165:18;166:19;167:13; 101 :22;112:16;125:7; instruct 161:18 issues 85:25;101: 10; lated 29:8 170:19;172:23;173:12; 139:7;143:6,9;148:2; instructed 138:19;162:25 102:7;184:4,14;185:7,18 launting 12: 12 174: 10; 176:7;182:4,6,13, 159:25 insulting 10:25 italicized 127:17,20 lazy 43:24;44:8,9 19; 183:5;186:1 0, 12 includes 118: 13 intact 159:24 italics 129:3,11;143:20 lead 77: 1;127:7 hop46:19 including 17:1,19;34:24; intelligent 166:16 item 16:12;27:20;36:7,9; leaded 69:8;132:2; hope 10:23;171:11 79:10,17,20;90:15;91 :17; intend 116:13;140:16; 37:4;38:17;41:18;42:4,8; 154:10 hopefully 155:23 103:24 155:9 44: 13;46:4,10;49:16,17; leading 72: 17 Hopefully 156:2 inclusion 50:8;55:5; intended 10:20; II:1; 50:8,11 ;52: 15,20;53:3; lear 18: 12;26:15,17;70:9; hopelessly 39:25 57:11;59:16;60:11;70:24; 13:5;14:18; 132: 18; 143:5 57:7,13;58:4,12;59:16; )3:24;104:4,23;126:23; hoppety 46: 19 91:6 intensely 41 :8;43:24;44:4 68: 11,12;69:18;70:1;76:15, .29: 1; 151 :21; 157:23,23 horrible 29:2;70: 13 income 144:21;171:22 intent 55:17;75:14;136:5 18,20,21,24,25;77:20; leard 19:25;44:21 ;54:7,9, hosted 33:16 incorrect 51 :16 intention 44:3; 137: 17; 78:25;79:5,6,6,24;80:3,8, 2;86:9,22;151 :21 Hotel 27:4 increased 109:5 140:16 13,17,18,24;81 :4,13;82:9; learing 22:23;24: 19; hour 33:16,16,25,25 incurred 162:22 interest 19:18;90:24; 83:22,24;85:14,19,20; !5:20,20;29:12;115:24 hours 38:8,10 indeed 12:9;17:25;18:8; 116: 1; 119:7;125: 18,20 86: 14;87:23,24;88:8;91 :2, iearst 79:8 house 79:9 19:12;171 :22 interested 63:21 ;90:25; 15,16;92:9,16,19;93:7; leart 41:17 huge 138:1 Indeed 19:19 119:1,5,7,9,12,14;120:5,7; 95: 16;96: 18;98:14;99: 1;

:;riffing - item (8) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v , PENGUIN PUTMAN, INC. July 17,2007

112:8,10,11,16,19;113:3; Kathryn 154: 18 145:2;153: 1;165:16,16 liable 20:25;21:14 29:9,13,15;39:19;57:22; I 18:10;120:2;129: I0; Kaufman 26: II Later 26:17 libra 69:16 58:23;92:17;93:13;97:21; 131 :3;1 34:2,5;148:1,16; Keats 31:7 latter 42:16 libraries 34:15,16,18,21, 104:16;105:5,7;164:23; 153:15;157:6 keep 24:21,22,24;25:24; law 10:8;18:11 ;19:23 24;35:2,12,14,15 171:21;183:8 items 10:12;25:6,15; 44:9;116:11;121:4;127:8 Law 22:14,19,19 library 28: 18;32:6;34:20, Little 79:21 27:21,23;30:5,10,20,22; Keep 127:6;128:24; lawsuit 63:17;151 :16; 25,25;35: 1,2,3,4,6;39:20; local 34:24 33:6;34:5;36:20;37: I,ll, 182:23 178:17;179:7 109:23;110:8 locate 77: I5;98:2 18,19;38:12,22,25;44:6,12, kept 72:2 lawyer 95:9,12,12;128:21, Library 55:2;I09: I2; located 38:17 13,15;45:3,11,12,13;46:12, kind 37:7;40:3,3;44: 19; 21,22; 161: 17,18,18;164:12 112:24 locating 36:25 12;59:4;63:22;66:20;70: 13, 45:4;48: 16,20;55:9;57:22; lawyers-163:7;166:23; Iibre 57:21 long 18:15;33:24;38:1; 16,22,24;71 :2, II ,23;73:22; 71 :16;1 09: 14;121:1; 171:3 license 13:14,17;107:20, 64:6;69:20;85:4;1 I 1:8; 74:8,13,15,19;75:1,3,8,13; 124: I9;132:1 8;1 34: I0; lawyer's 161 :20 24;108:15;109:11;113:5 128:9; I58:7,7;174: I0 77:8,15;78:7,15,20,23; 139:3;158:17 lax 90:24 licensed 19: 15 Long 34:21 83:15,17,25;87:7,15;88:19; kinds 45:14 lays 92:20 licenses 103:4,8 longer 30:20;44: I3;53:22; 90:1,2,9,11;91:3,6,9,10; Kinney 31 :3;58: 1I;79: 11; lead 17:22 licensor 12:7;18:1 122:16;153:18 93: I7,25;98:3,9;99:12,17, 82:12,13 leading 33: 17; 104:6 life 33:20,21 longevity 29:3 19;102:8;I06:5;108:22; Kinney's 58:17 leafed 147:24 Life 28:17,19;30:4,12; look 23: 13;24:4;36: I5; 112:7;113:11,14,20;114:2, knew 36:21 ;49:4;75:18; lean 26:20 37:5;72:18;85:23;87:6,16; 42:24;43:11;51:17;57:20; 25;115:4,5,8,12;116:5; 77:24;105:8;112:19;171:20 learn 147:15,21 88:19;91 :3;96: I6;144:25; 59: I0;64:25;66: I7;67:4,14, 117:11,16;119:3,17;120:5; _ knowing 10: 13 learned 161:15 145:9;159:17 25;68:5;69: 18;72: 14; 122:19;128:13;131:1 1; knowledge 40:7;49:5; least 27: 19,20;59: I5; Iight48:18 75:25;76: I6;84:2;86:4; 137:19;138:1,4,18,21 ; 51:1 0;84:15;128:7 75:22;77:19;91:15;144:22, liked 34: 12;48:17,23; 88:6,15;89:9;99:4,24; 139:6;147:21 ;150:2,20; known 16:5;25:11;28:9, 24;145:8;170:20;171 :22 55:10;90:23 112:14;129:14;131 :17; 15 1:5;152:21 ;153:5,16,18; 11;79:5,14,14;81 :16 leave 153:14;183:7 likely 36: 19 149:24;150: 1;167:7;171:1, 154:1;155:7;156: II; knows 14:11 led 83:14;151:9 likes 63:17 2;180:25 175:18;185: 1; 186:20 Kulik 161 :20 left 11:5,14;14:5,15;72:21; likewise 185:7 Look 46:2;50:6;53:9; it's' 165:7 147:1 ;153:11,18,20;183:17 line 28:21;29:6;40:23; 54:22;59:13;71 :5;80:20; L left-hand 40:22;57: 13; 42:24,25;43:8;57:21 ;60:22, 82:1,19;87: 12;91 :8,24,25; J 62: I3;66:3,5 23,24,24,24;61 :23,23; 92: I0;93: 18;95:2;96:7,I I, label 75:20 legal 19:2,10;80:5 67: 18;69:23;92:19; I06:23; 20,24;97: 17,23,24;98: 12; Jane 73:20;115:16 labeled 23:11;69:12 legally 17:2 I;18:23 117:23;148:19;153:6,11, 109:17;112:25;118:5; January 40: I9;87:6, I7; lack 125:18 legend 131:6,7,12,18; 14,16,16;165:6 120:17;126:12; 130:20; 88:20; I83: I7; 184: 11 ladies 47: 1,2 132:8;134: I0 lines 28: 12,21 ;48: I0;49:3, 148:3;156:14;161 :22; Jesse 79: 18;82:2 Ladies 77:20;80:25;81: 13 lengths 76:5 6,8;50:16;51 :8;52:11 ;53:4, 165:21;175:11;176:10; Jewish 28:25 laid 132:9;169:8 lengthy 162:8 18,24;54:7;59:6,19;60: 14; 179:16;180: II ;183: 12 John 31:7 Lampack 122:21,22,25; Leonardo 68:23 66: 18;74:7;82:22,22;84:6, looked 35:21 ;36:19; joint 102:11 123: 15, 16;124: I,4,8; Leslie 31:8 19;153:19 39:21;50:13,13;52:4;70:6, journal 62: 14 125:16,18;169:16;170:10, less 26:25;38: II Lisa 68:5;69:8;73:8 7,10;85: I;86:4,8;1 12:22; Journal 22:20;66: I6 15;174:19,20;181 :3,8,1 3 lesser 17:20 list 12:23;13:17,21,24; 115:14;120:11;126:5; Journalism 22:14 language 16:21;108:1 I; letter 10: 19;20:4;37:20; 33:3;34:5;37: I0;45: I3; 152:21;182:2 journalist 26: I I,II 127:5;132:20;136:16,17; 44: I8,20;55:3,1 0,1 6,22,23; 87:18;94:2,4;99:6; I06:5; looking 23:21 ;28:1 8;30:3; journalistic 27:3 137:6,7;143:8;163:6,7 56:4,5,8,13;57:14;58:5,6; 108:23;127:12;128:13,14, 35:16;36: I3;38:2;68:7; judge 122:10 Lanham 10:7 73: I9;80:5,7;82:20,24; 15;131:1 1;136:7;137:19, 88: 18;91:14;94:3;102:3; Judge 20:25;25:25;158:9 larger 46:12;48:21 ;49:14; 84:5;105: 12,1 5;1 06:2,4,12, 20,21,25;138:1,4,19,21 ; 152:20;165:6 judged 43:24 98:23;120:6;123: 19;124:12 13,18; I07:5,13;109: 1,4,12, 139:6,8,24;140:8,9,24; looks 42:22;43:4;97:20 judgment 10:4;15:24; largest 12: 18 16,21,23,25;110:10; 143:6,20;165:9;172:22,24; Loon 41:9 41:24;42:2 lariat92:21 112:23,24;115:10,10,17, 173:6,7 Lore 71:3,12;73:23 judgments 15:15;42:12, Lasky79:18 19;120:14,17;121 :3,6,7,8, List 138:25 Los 22:10,19;34:20,24; 16 Lasky's 82:2 11,21,23;122:1,10,24; listed 88: 16;97:25;98:1; 118:21;147:23 Julie 77:21 last 26:2,15;28:6;29:23; 123:5,7;124:4,7,10; 125:15; 134:2;147:2;175:2 lost 12:17;75:17;104:9,10; July 91 :3,9;164: 1;187:4 43:20,21;60:21,22,22,23; 130:20;132: 14;136: 13; listened 141 :23 119:11;125:5;161:6 jump 104:16 61:1,1 ;63:14;65:3;93:24; 139:16,18,25;161 :21; listing 58:2;88:19; 150: 1 Lost 34:2;117:25;118:12; juncture 65:20 99:1 ;100:1,4,4,6;117:5; 162:1,2;163:25;176: 14,23; lists 13:20;33:3;88:20; 140:5 June 26:24;63:13,20; 120:18;123:22;124:21 ; 177:5,12,19,25;178:8; 96:13,15;127:25 lot 35:25;38:11 ;39:20; 64:9;71:24;73:21;115:19; 133:2;145:20;146:2;149: 1; 179:13,18,22;180:1,3,4,7, literally 85:25 42:23;43:3,9;48:22;55:10; 120:13 162:3,14,16 8,8,11,18;183:13; 184:4,1 0, literary 25: 10;26:24;27:3, 90:20,20;139:6;182:23; Juris 22:14 Last 160:23 11;185:7,15 II ;33:22;50:18,20;169:5 184:6 jury45:23;46:5 late 32:8,10,12;33:15; letterhead 56:9;177:22; literature 55:12;64:11 loud 25:1,2 justice 10:14 78:8;132:21 178:2 Literature 57: I0;87: 18, louder 29: 18 Justin 62:17,19 later 14:10;26:13,14,18; letters 16:23;45:3; I03: 16; 22;145:7;184:25 Louder 83:23;115:7 27:16,24;31 :24;34:6;36:21; 104:6,7,13;105:8;110:21, litigation 14:3,5,22; love 28:25;55:15;103:21 K 37:5;45:7;87:23;119:2; 22;181 :2 17:14;18:16 Loyola 22:14,15 127:24;132:22;133:19,23; liability 164:6 little 15:24;22:22;24:19; luck 45:17

TRIAL Min-U-Script® (9) items - luck STUARTY. SILVERSTEIN v July 17,2007 PENGUIN PUTMAN, INC. lunch 27:5;1 10:12 146:4;155:23;172:24; Midway 41:5 Most 103:2;133:18,22; Lunch 111:14 180:22 might 16:20;27:23;35:2,6; 145:8 N lyrics 90:22 May 50:7;99:8; 110: 18; 44: 15;45:18;50:12;58: 1; mostly 66:5 139:18;161 :21;173: 12 79: 19;83:21;107:6; 124: 15; move 49:22;52:3,24;54:3; NAACP 12:7;13:12,15,16, M maybe 28:21 ;38:20;40:4, 128:21;141:23;147:11; 56: 16;58:25;59:22;61:6; 19,22,24;14: I7;18:1,6,12, 4;63:18;71 :17;119:2; 154: 18;155:16;164:22; 62:5;66:12,24;72:3;73:5; 21 ;19: 14,16,19;80:5;1 03:3, mad 25:1 134:19 179:24 81: 17;83:5;88:2;91: 18; 25;107:12,15,22 Madonna 79:6 Maybe 46:25;68:14; mike 29:18 97:9;103:15;108:2;110:2; NAACP's 18: I0;80:4; magazine 28:20;35:17, 104:21 ;172:22 Millay 26:7 150:14;158:1 ;167:8;183:6 108:14 18;37:5;63:20;67:9;72: I8; mayhem 58:24 Milne 59:7,9;98-:25 Move 22:22;65:9;74:21; name 14:2;16:4;54:23; 35:23;87:6,16 McCall's 145:5;159:17 mind 31:15;41:13,15,16; 82:15;97:1;101 :24; 106:22; 117: 19;118:13;143:1; Magazine 22:21 ;63:13 Meade 56:3 63:21;71:25;74:19 107:7;108:17;109:7; 161 :20;173:6,7;174:18; magazines 15:20;16:2; Meade's 31:6;44:21 minimum 14:20 110:15;113:7;118:15; 175:1 28: 17;30:4,12;35:9,14,16, mean 11 :3;32:1 ,2,3;47:8; minute 47:24;60:4;158:5 122:3;136:8;138:8;141 :4; Name 118:14 16,19,21;116:12;127:24; 51 :22;70:12;76:11 ;90:4,23; minutes 53:7;63:17; 168:6;175:21 ;176:17; named 33:17;152:17 133:18;144:24;146:18; 97:21;122: 14; 129:4;143: I, 139:1 1,22;142:1 ;155:20; 177:1,8,15;178:4,11; namely 17:15 160:2;175:18 9;145:20;146:2,8;164:5,11 182:23 183:25;184:19;185:11,21 names 41:10;154:1 main 35:21 meaning 137:21,21 miscellaneous 93:20,25 moved 158:1 Nash 45:2,3,4;57:14;58:6, V1aine 44:20 meaningful 15:12 misconduct 10:5 moves 23:23;24:10;163:3 7;115:11 mainly 128:10;185:10 meanings 143:22 misheard 134: I9 movie 55:13,15 Nation 159:17 najor 25: 10;30:7;31 :7; meant 138:23 misleading 137:11 moving 54:14;56:22 National 22:19,20 34:16;76:6;77:3,4;150:7 measured 44:1 misquoted 47:6 Mrs 12:14;55:13;78:13,18, nature 39:9;44:8;64:4 nakes 15:20 media 27:8;107:6;108:12 misread 134:4 21;79: 10,12,13;81:1 near 27:1;34:20;163:1 nake-up 148:15 meet 27:4;71 :20;100:1 8 missed 12:12;37:5,6,9; much 10:19;27:10;29:16; nearly 144:18 naking 18:24;29:9;69:22; meeting 120:24 56:22;70:3 32:4;34:10;35:3,6,1 3; necessarily 39:5;44:15; \5:9;123:1 Meetings 84:1;90:10 missing 37:10 37:24;40:3;42:2,2;43:5; 146:16 nan 41:9,9 Mehren 73:20; I 15: 16,18; misstates 86: 18 45:17;50:16;70:17;85:1 I; necessary 60:20;144:20 nanner78:1 118:20;119:16;121:1,7; mistake 134:24 90:24;137:11;149:18; Ned 80:4 nanuscript 71 :3,18,23, 122:22,25;123: 13; 124:5; misunderstood 65:11 170:23;186:24 need 24:25;26:3;86:21; ~4;73:20;74:15;1 13:14,17; 125:9 mockery 19:22 Much 11:25;12:17;13:6, 172:4;183:7 115: 16;116:3,7;117:20 Mehren's 122:18 Modern 68:2 23;14:5,8,13,18;15: 19,22; needed 138:2;144:4 nany 16: 18;29: 11 ;33:5; Melnechuk 66:8 modernist 76:10,12,17, 16:1,8,11,14,19;17:1,4; needn't 25:22 \8:8,12;45: 11;55:8;75: 1,8, members 27:5 20,24;96:25;97:4 21 :4,13;22:20;23:1 ,16; needs 89:7 ~3; 114:2,25;138:4;148: 18; memoir 79: 18 modifications 160:11 24:7;25:3;28: 14;30:2,25; negotiated 103:6;108: 10 49:7;166:13;168:14,16, Memorial 118:22 modifies 137:20 32:13,15,18;34:1,2,4,14; negotiating 37:17 !2,24 men 46:25;47: I0, I2;48: 1 modify 137:20;138:23 42:4,7;43:12,15;49:16,18; neither 14: 11 ;42: I;70:25 v'larc 26:10 Men 99:15 moldering 36: 12 50:9;52:14,20;53:3,1 9; nest 146:20 v'larch 130:23;132:13,21; mention 112:10,13,20 moment 40:14;52:4; 54: 1;55:5;56:6;57:12;59:4, new 31:4;93:5;133:9 35:1 mentioned 26:23;35: 16; 80:25;173:8,19;180:21 ; 16,17;60:12;63:22;70:2,25; New 10:8;27:2,23;28:3,4, iIIarion 31:6;44:21 ;56:3; 53:7;74:8,13;75:21 ;82:21; 182:4;186:10 74: 18;75: 1,16,24;76:2,5,6; 4,4;35:24;36:4;40:11,18; /9:9 99:20;113:23;174:17 moments 80:22;160:6 77:2,4,5,15;79:2;82: 11; 43:7;59: I5;60:2,4,5,6,8; narked 114:20;154:24; mentions 74:1,1;82:25 Mona 68:5;69:8;73:8 85:21 ;86:7,15;87:8,12; 88: I9;96: I6;145:2,3,4,9; 75:7 mere 13:14;162:9 money 109: I9 90:12,16;91 :6;101: 19; 159: I7,1 7,18,18;165:14,14 narket 162:24 mere,ly 19:21;105:1; Monsey 33:1 102:2;112:10,14;113:1 I; newspaper27:24;36:5, narks 12:9 138:22;139:5;143:5,7; month 132:22 117:18,25;118:11,19; 12,13,24 Jlarried 99: 15 150:20;151 :4;158:17; months 91:12;128:10 128:14,15;129:9;130:25; newspapers 15:20;16:3; Jlarymount 22: 15 163:10 more 17:23;26:25;28:2, 131 :2,15;132:1 ;133:1 0,21; 35: 10,19;36:7;127:24; naSse 103:24 merit 43:1 12;29:4;33:20,22;38:16; 140:2,4,11,24;141:13,15; 133:19;144:24;146:17; ilaster 90:9 message 13:5 40:5;50:17;61 :18,20;64:4; 143:7;147:7,15,22;148:13, 175:17 lIaster 22: 13 met 118:20 75:24;89:1 ;90:21,25; 15;149: 13,21; 150:2,3; next 29:25;37:25;38:5; natch 155:4 meter 39:6;40:4;48:17; 103:15;114:6,17;116:12; 152:15,25;153:17;154:2; 50:5;60:24,24;65:24;74:2; natched 60:22 61 :5;65:8;90:21 ;93:14 119:7,14;130:6;135:17,18; 155:2,11,12;156:8;160:8; 92:9,18;95:18;99:4;1 00:6; naterial 20:23;58:9; metered 59:5,19,19;60:14 138:4,21 ;144:13,17,19; 161 :3,4,13;162:9,1 0,23; 105:17;111:15;113:12; 24: 18;148:12;150:10 meters 60: 16 145:16;148:25;184:9,16 168:11;169:1,10,23; 119:1,18;121:6;123:13; nath 174:2 MICKUS 158:4 Morely 46:9;98:25 173:20,21 ;175:9,16,18; 128:25;129:2;132:17; nathematics 173:10 microfilm 35:13,13; Moreover 11:25;15:14 176:1,5;181 :11,18;183:23; 136:18,19;137:18;144:16; natter 45:24;163:1; 36: 12,13;37:8;67:9;175: 14 Morley 46: 18;49:20;52:5 186:20,21 145:23;162:16;171:4; 73:10 microfilms 28:17;175:15 morning 10:17;22:7,8; Mugar 55:1;109:12; 174:21 natters 15:15;80:5 microphone 22:23; 105:6;112:7; 158:8;183:3 112:24 Next 30:14;51 :23;52:2; ~augham 92:13,18;93:8 25: I9;26:21 most 13: 1;26:25;35:23; multiple 21 :21 64:15;70:23;1 17: 12;133:5; .J nay 22:4;79:15,15; mid 78:8 36:19;46:23;53:13;65:5; must 10:20;41:7,10; 159:2;164: 19;167:3 04:22;105:5;111 :6;139:6, mid-80s 31:9 91: 13;127:23;135:1 I; 171 :22; 172:9 nice 34:1 1 ;140:20;142:1 ;143:4; middle 40:22;54:23;69:20 145: I5; I53:23;I65:5 nicer 50:24

linch - nicer (10) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v "PENGUIN PUTMAN, INC. July 17,2007

Nobody25:1 73:11,12;74:23;81:21; Offer 122:1 ;180:16 102:13;104:3;111 :10; 143:13;]47:20;] 53:] 0; nodded 164:] 8 82: 16;83:7;86:22;87: I; offered 63:7;64:4;157:16, ]27:7;134:] 1;135:10; 165:20;]66:24;] 67:] 5 nominal 18:5 89:17;91 :20;94: 14;95:19; 18;168:] 1,19;173: I;182: 16 139:23;140: I0,24;144: I; Overruled ]40:]9;143:3; none 78: 13,] 8;] 50:2 97:7,] 1;101:7;103:19; offering 89: I0;1 04:24; 147:14;152:]4;159:22 145:22;146:4,12;160:19 None 11:1 106:8,24;107:8;] 08:3,] 8; 105:1;111:11;121:25; open 10:16;13] :]9 overwhelming 14:23 Nonetheless 79:25; 109:8;110:3,13;113:8; 158: 19;] 74:5; 180:4 opening 10:24;18:24; owes 17:12 80: 16;90:21 1]4:5,8,12,14,15,17,18; Offering 123:9 19:2,4 own 11:2];15:10;16:1,25; nonexclusive 13:14; 118:16;121 :25;122:2; offers 64:23,23;124:23 operative ]02:10 18:7,13;20: I0;37: 18;42:24; 18:4; 103:4,8 123:]0;] 24:25; 125: 14; offhand 35: II ;77: 18;87:9 opinion 28:9;39: I;40:7; 102:20 non-exclusive 106:20; ]28:2];]29:22,24;136:9; Office 1t8:9,9;127:1 54:20;62:2;66:8;67: 12; owned 103:3;107:22 ]07:20,24;] 08:]5;109:1]; 138:9;]40:12,14;141:10, offline 63:12 70:25;75:11;83:10,17; owner ]2:8;13:]2,13; 113:5 22;147:20;150: 16;153: I0; often 66:6; 170: 13 93: I0;98:3; 150:22;151: 15, ]8:1,21 noninfringing 20:3,7,8 157:1,21;] 58:2] ,22,24; Often 51:21 17 ownership 20: 16 nonpoetic 96:8 163:9,23;166:24;167:9,14; Ogden 45:2,3,4;57:14; opportunities 107:6 owns 19:16 nonsense 19:22 168:7,8;17]:9;172:5,6,11; 58:7;115:10 opportunity]22:6 Oxford 22:21 ;39:22;68:2 nor ]4:11 ]73:4,5;174:9,10,] 1,13; OK 21 :20;31 :19;63:5;67:4, opposing 65:7 normal 14:14;60:19 175:22;176:18;] 77:2,9,16; ] ],18;68:13;73: 15,22;75:3; oral 21:1 P Northridge 34:21 178:5,12;180:6,] 7,18; 76:5,]5;80:24;81 :23;85:7; oranges 34:]3 Northwestern 34:] 6 182:13,17;184:],20; 87:25;90:3;92:3;93:3;96: I; order 102:7,9,10,11; page 21 :10,10,1] ;23:21; notables 28:3 - 185:12,22;186:5,6,7 98: 13;99:16; I00:5,12,20; 159:23;163:13;164:20,22; 30:] 3, 13;37:7,25;40:22; notations ]55:2,6 Objection 49:22;51: 15; 101 :4;] 03:8;1 05:13; 151:1; ]72:20;175:] 41 :3,3;43:] 6,20;45:9; note 65:] ];89:25;156:12, 97:2;102:5;114:4;] ]6:15, 155: 18;] 61 :25; 163:22; ordered 148:24 49:] 8;50:23;52:] 5;53:9,1 0, 20,23; 159:2,9,12 18;121 :20;123:22;125:]2; ]64:18;170:22;172:15 ordinary 43:2;181 :]4 ]2;57:10,11 ;60:8;6] :17,20; Note 157:7,11,]2;160:23 128:17,18;]29:15;137:] 6; old 28:19;57:21;163:]2 organizes 33:4 62: 13, 16,] 9;63: ]4;65:24; noted 36:2;160: 19 ]40:18;]4]:18;]43:2,] ], older 67: 17,19;69:4 original 10:13;]6:2; 66:4,5,17;67:14,16;68: I0, notes 68:23 ]3;144:5,6;145:2] ;146:3, omitted 14:13;153:5 28: 17;30:4,16;36:13;49: I], 11,13,20,22,25;69:14,]4, notice 45:7;126:8,10,17; 11;147:]8;150:11,2]; once 41 :10;47: 19;96:15; ]3,14;50:14;52: 12;59:14; 15,16;71:] 7,22;72:18; 127:4 151 :6,1 ],]2;]52:23; 184:14 78:14;92:14;96:23;129:5; 73:24;74:5,6,6,7;76:7,8,9, noticed 45:8;150:8 160:19;163:5;164:4; Once 83:16;89:25;110:24 130:1 ;13] :6,18,20;]45:] 6; 13,]4;77:7,14;80:24;8]:]], notified 164:11,12 165:17,20;179:2 one 11:4;12:14,]4;]4:3; 150:7;15] :9;]52:3,17; 12;85:23,25;87:6,22;88:}5, November 67: I0 objections 15]:14; ]6:5,12,24;20:4;27:20; 153:7,8,17;155:10;159: 13, ] 8;90:1 ;91 :8,25;92:3,7,9; number 35:14;75:24; 160:] 8 28:6,20,21,22;29:5,6;30:9; 24;160:] 2,21 ;175:14,15; 93: 19;94:3,5;97:24;98: 12, 93:23,25;94: I;I04: 12; objectively 15:21;16:3; 3] :4;33: 16;36:7;37:4,9; 176:2 14;99: I,4,6,6; I05: 17; 110:]9;1 ]5:1;127:2;138:]; 44:16;152:]0 39:6,7;40: I0;42: 16;45:5, originally 15: 19;23:7; 11] :15;112:15;115:17,20; ]4]:2;147:3;155:3,17; objects 64:24 10;46:24;48: II ;49:4,5; 71 :14,16;74:16;127:24; 116:6,8;1 ]7:21,24;126:12, 158:6;16] :23;165:9,18; obligated 13: 16 50: 16;52:4;58:23;59: I0; 133:18;144:23;166:5; 14,15;127:2,9;]29:] 8; 172:]4;173:6,7;175:8; obligation 13: 18 60:24;72:21 ;75:5,6;76:24; ]75:19 131 :3,15,21 ;132:2,17; ]8]:17;]82:2,9 observation 86:23; 77:3,13,13,25;79: II,23; Originally 26: 18;132:7 133:2,5,6,7,8,8,10;134:2] ; Number 152:13;174:5 15] :20 80:6;81: I0, I0;82:5;83:2; others ]6:25;91:12 135:3;144:9;145:23; numbered 94:] ;156: 18 observe 168:] 1,19 84:2;91 :11 ;96:15;97:3,4; other's 27:8 148: II ;149:12,17;]56:15, numbers 73:25;104:2,23; observer 162: 12 98: 15;99:25; I00:6; I01 :17; otherwise 14:22;16:20 15,] 8; 162:3,16;166:3,6,20; 110:21;] 15:11;]47:1,2; obstructionist 171:8 102:7;103:18,18;104:20, ought 11:2;50:24;64:25 167:4,21 ;174:2];] 81 :12,25 ]52:16,] 8;165:6,10 obtain 103:4 20;105:11,] 1;110:]8; out 11:9,24;]4:5,]5;15:13; Page 43:6;48:9;53:18; numeral 69:14;148:1 ]; obtained]5: 16; 156: I] 112:7,12;127:25;130:6,14, 2] :9;29:9;32:6;41 :],15; 65:3;76: 15;77:6;87:]5; ]57:2 obvi9uS 162:]2 22;132:11 ;133:19,25; 44:19;45:2,7,10,10,12; 92:] 5;98:] 3;188:2 obviotJsJy83:16;137:23, 134:1 ;139:25;143:12; 55:13,] 8;58:9;69:] 9,20,2] ; pages 20:] 8,2] ,23;21 :4,4, 0 24;]77:22 ]44:3,19;]48:] ,16;]49:]]; 72:2;87:] 4;90:2;98:] 6; 5,5,13;40:19;48:8,9;68:]8, occasionally]82:2 ]52:13;153:5,5,7,18,] 9,20; 102:13,]5;105:8;110:7; 19;74:5,12,]4;87:22;96:]2, oath 1]2:4 occasions ]68:14,22 ]54:4,17,] 8,]9;158:14; 1]4:7,9,]9;] ]9:]7;132:9, 16;117:6;136:23;]46:23; object 45:20;50: I;65:] I; occupation 22: 16 ]59:20,22;165:7,] 0; 20,21;136:] 8;139: II; 148:] 8;]49:7,15;] 82:1,23 88:24;94:1];] 0] :5;102:1; occur 28:];143:8;151:3 ]70:22,22,24,24;] 72:8; 147: I;]53:1 ],]4,18,20; paid 108:23;145:]2,]4; ] 14:15,18;]27:]5;137:10, occurred 87:]6;]42:]5 173:]2;18] :2;] 83:16 159:7;]69:8;]7] :19 169:17,]8;171 :]5,2]; 10;142:1 ];]56:22;166:11; odd 36:7 One 47:24;77:12,]9; over 43:2;48:9;68:2]; 182:]5 180:],2,2 Odgen 58:6 94:13;10]: 10;] 82:4;]86:]0 105:] 0;] 36:] 6; 139:24; paper 21 :]2;35:9,]2; objected 159:6 off 27:] ;]55:21 ;165:10; ones 35:5,23;45:]4; ]40:23;]44:15;158:24; 69:21;142:13,]9 objecting 51: 18,18,19; ]76:4;] 83:6; 187: 1 99:25;] 19:18;145:] 8; 168:8;17] :3;186:19 paperback 23:6,8,] 7; ]53:9;157:10,1 ],19;168:9; Off ]55:20;186:25 182:11 Over 38:6 24:7;126:7;]27:2 ]72:] 6;] 79:3,] I offense 10:20 one-time 13:14 overall 83:25 paperbacks]26:3 objection 23:25;24:12; offensive 10:20 ongoing 24:17;1 ]4:12 overcome 14:25 papers 54:]4;65:19;172:9 50:4;52:7,25;53:];54:4; offer 63:16;71 :4;86:24; only 10:],23;1 ]:4,13; overly 39:3 paragraph 4] :4,5,5; 56:18,19;57:1,2;59:1,23; 89:12;] 05:9;106:7;]21 :23; ]4:15;18:4;20:1,9,10;21:1 ; overrule] 14:8 43:21 ;44:2,8;61 :17,20,2]; 61 :8;62:6,20,21 ;64:24; 123:1,4;124:2;172:14; 29: I0;42: 16;56:2;59: 17; overruled 50:4;] 01 :7; 62:] 6;63:] 5;65:4;69:2]; 65:22;66:] 3;67:1;72:5; ]76:9 63:6;64:3;73: I;78:25; ] 16:18;128:18,20;141 :22; 74:1,2;]] 7:5, 12;124:2];

TRIAL Min-U-Script® (11) Nobody - paragraph STUART Y. SILVERSTEIN v July 17,2007 PENGUIN PUTMAN, INC.

125:4;127:12;128:3;130:9; Pasadena 62: 15 permitted 19:2 PLAINTIFF 188:6;189: I; 75:11,13,14,17,21,21;76:8, 131 :4,7,9,16,17,17;132:7, passage 67: 18,21 ,22,22 permitting 65: 15 190:1 10,12,24;77:12,13,14; 13,16,20,23;133:3,9,13,15; passed 165:15 person 56:2;60: 19; 172:23 plaintiffs 173: I 83:15,18,18;90:19;96:3; /~~~, 136:5,13,19;137:17;138:6, passes 46:25;47:10,12; personal 39: I;41 :8; plaintiffs 16:1 98:4,10;99:22,23;102:21; -JI 13,20;139:3,13;140: 17; 48:1 43:24;62: 13; 128:7 Plaintiffs 24:1,3,14; 103:9; I06:21; I07:20; J 141 :25;142:25;144: I,14, past 79:12 perspective 43:3 66: 15;67:3;74:25;81 :23,25; 112:12;116:4,12,14,19; 16,16;148:21 ;162:3,14,16; pasting 19:25;20:1,5 perspectives 43:4 82: 18;83:9;87:3;89:21; 117:2,4,12;119:1O;125:5,6~ 183:22 Pater 67:15;68:6,22;73:6 persuade 92:21 95:21 ;97:6,8,12;101 :8; 10;127:13;128:25;133:17, ;>aragraphs 144:10; Pause 122:8,11; 175:5; Peter 122:21;123:15; 150: 18;159: 1; 167: 16; 23;137:20;139: I;140:6; 146:9 180:23;182:5;186: II 169:15;174:19,20;181 :3 168:10 141:1 ,3;143:9,21 ,22; :>arameters 125:19 pay 107:2;108:21;109:5; Pettinga 105:15; I08: 12; Plaintiffs' 72:12;73:14; 144:13,17,21,23;145:17; :>aramour 79:9 162:21 178:9 91 :22;97:14;174:14 146:5;148:17,24;149:10, :>aren 131 :20,20 payment 13:14;18:5; Pettinga's 106: 18 play 27:22;28:21 ;29:7,8; 11,20;152: 16;159: 12,24; :>arent 169:20 169:23;170:8 phase 15:16 78:17 160:5,20,24,24;161: 12; :>arentheses 129:3 payments 171:17 Phebus 147:13;169:21; Play 87:16;88:20 162:5,10,11 i>ark 35: I PD 121:19;122:14,14,15 170:14 played 14:10 Poems 13:25;16:12; i>arker 10:12;11 :19,21; PDF 67:8 philosopher 66:9 Playing 83:24;85:17,18; 17:11,24;18:2;19:21;34:2; 12:3,8,18,19;13:1,3,13; pending 179:8 philosophical 50:20 86: 14;87:4;88:16 54: I,2;56:7;76:7;117:25; 14:4,12,16;15:5,8,23,25; Penguin 10:4;13:25; phone 37:20;106:13; plays 27: 17;28:22 118:12;140:5;147:17,23, 16:4,9,11,13,13;17:9;18:1 ; 17:18,22;18:20;19:16,21 ; 121:6 playwright 25: 13;26: I0, 25; 148:5,14,18,23;149:7, W:2;21 :2;25:4,7,8,9,I0; 20:5:1 1,13,17,19,24;21:1, photocopied 54: 1;56:6 12,13 10,11,23,25; 150:3;151 :2,3, 17:12;30:5,10,15,24;31:1, 14;56:6;71 :4,4,24;73:20; photocopies 153:17; please 23:13;43:16; 8,25;152:9,10;153:20,25; 18;33:4,13,15;34:3,6,9; 74:17;79:11;116:2;118:25; 175:14,17;176:2,4 54:22;58:21 ;66: 17;72:14, 154: I0,10; 155:13;156:7, 36:20;38: 18;40:7,21 ,24,25; 119:1,4;121 :17;122:25; photocopy 23: 16;55: I,2; 16;83:23;84:4;85:15; 10;158:14;159:15,22; 12: 1,9,13;44: 18;45:3,4,5, 123:23;124:1 ,14;125:20, 59: 15;60:2;67:8,8;73:19; 87:20; I04: 18; 120: 18; 160:9,25;161 :12,13,16; 13;46:24;53:14;55:3,12,14, 23;129:23;144:4;147:17, 88: 13;93:6;96:23; I09:24; 127:6;128:25;132:23; 162:6,7,8,19,22;164:25; 15;56:23;57:14;58:6,11; 21;148:22;150:9,19; 151 :4; 148:5;167:4,21 159:9;161 :8,25;162:4; 167:5,21;168:19;169:6 >2:22;63:2,22;70: 12;75:4, 154:21 ;156:1 0;161 :21; photostat 24:6,9 175:11 Poemsn 162:6 17;77:8,16,19;78:2,4,5,6, 162:5,12,18,21;164:24; physical 20:17,17;21 :11; Please 24:4;133: 16; poet 66:9;69:13 13,18,21,24;79:1,10,12,13; 170:21 ;179:25;186:3 109:16 140:5,9;143: 16;163: 1; poetic 10: 14 lO:4,8,12,19;81:1,5,16; Penguin's 10:13,22; pick 23:10;93:17 167:7 poetry 12:15,19;13:2; !2:2,1 0,14;84:9;86:15; 11: 12;17:11,24,25;54:14; picked 79:20;87: 18 pleasure 29:8;182:21 16:20;26:6;30:16;41 :4,6, }2:14,l7;93:7;106:20; 65: 12;123: 16;124: 10; piece 29:2;43:5;69:20; plenty 114:22 12;43:1;61 :24;62:2;65:14; 116: 11;117:25;118: 12; 160:3;166: 13; 172:25 70: 17;80:25;82:25;83:11; plus 75:6 66:6,11,19,22,23;69:5,6; 119:11;127:13;134:1; pensees 66:7 86:5,10;92:15;99:5,6,7; pm 112:1 88:20,21 ;92:8;96:17,19; 140:5;143: 10;147: 12,25; people 26:7;27:2;33:22; 100:4,16;101:14 poem 14:4,12;16:4,10; 97:4;98: 1;145: 17; 169:3,4 148: 14,22;149: I0,12; 39: 11,13;43:9;46:24;51 :21; pieces 27:15;81:1 I; 17: 16;38:20;39: I,13,13,16, Poetry 41 :8,11;63:12 150:4;154:11;159:16,20, 77:24 95:24; I00:4; I03:5; 120: 1; 18,19,24;40:1,2,8;41:11, poetry' 65:7,8 !3;160:1,12,25;161: 13; people's 43:3 145:4,8,9,15;147:3 11,20,23,25;42:8,12,20,24; poets 60: 18;65:5;70:18 162:6,8,10;175:19 per 38:8,9;120:17;170:2 Piggledy 52:6;92:15,20; 44:5,7,14,21 ,24;45:6,8,18~ point 30:11;32:13;48:21; i>arker's 10:10;12:14,24; Per 139:22 93:20;94:10;95:16;112:8, 46:17,21 ;47:1 ,13,21 ,25; 52: 16;64:25;65:5,12;69: I0; 13:17,20;18:22;20:10;21 :7; perceived 138:6 16 48:2,2,3,4,10,12,15,18,19; 89:13;102:3,15;119:19; 102:21;103:1;133:17; percent 134:23;149:22 pitch ]]5:23,25;]]6:1 49:3,6;50: I0,12, 18,25,25; 120:3,3;173:24;181 :23 140:10;143:20;149:15; percentage 170: I place 21:22;64:13;132:18, 51 :2,3,4,9,12;52:16;53:25; pointed II :24;159:7 151 :9;152:3;153:7;159:13; percentages 170:I 19;152:14 54:8,20;55:19,21 ,22;56:1, pointing 102:13 16Q:?1;lq2·:5 perfect 21:12 places 36:19;55:8;9 5,23;57:15,16,17,17,19,25; points 25:23; 175:9 )arodies.QO:22·. perfectly 148:20;177:24 plagiarism 36:8 58:3,17,20;67:11;77:12; policy 166:14 )art 15:5;21 :5;46:12; performed 151:4 plain 125:10 86:2;88:22;92:19;93:11,12, politely46:20 ~8:ll;49:14;53:22;92:8; performing 27:3;38:1 plaintiff 21: 18;22:2; 15,15,16;96:5;99:13,18; political 62:14 14:18;117:23;123:18; perhaps 27: 19;48:22; 23:23;164:12;172:21; 100:18,25;101 :1,16;117:2; Pollyanna 100: 16 28:9;144:7;157:14 125:6;173:15;174:2 186:23 134:5,7,8;140:10;144:19; pop 168:4 )artial 104:3 period 38:6;45:9;87:8; Plaintiff 24: 10;52:9,18; 153:11 ;159:20,22 popular 29:2; 116: 12 )articipate 178: 16; 119:20;176:2 53:2;54:6;56:19,20;57:4; Poem 19:15 Popular 87:18,21;184:25 79:24 periodic 169:11;170:10; 59:3,25;61: I0;63:9;65:22, poems 10:10;11:19;12:2, Porch 129:2 )articipation 179:7 181:8 23;106:10;107:1,10;108:5, 17,24;13:1,2,9,18,20;14:8, portable 53:6,14;159:23 )articular 36:15;45:18; periodical 87:7 20;109:10;110:5,17;111:2; 16; 15:8,19,21,22,25;16:2, Portable 30:9,24;92:14; 17:5;62:18;65:6;70:16; periodicals 175:17 113:10;]]8:18;122:5; 8,9,24,25;17:3,9,16,19,20; 133:25;134:1 ,9;159:16 13:6;96:14;105:12;136: 16; permission 106:20; 123:12;124:23;125:2; 18:7,7,13,22;19:16;20:3,5; portion 40:20;50:12; 65:5;182:]] 107:19,24;109:25;110: 10; 136: 11; 138: 11; 141:]]; 25:7,14;31 :18;33:6;34:6,8; 57:11;69:3,8;72:17;142:1; )arties 15:16 112:23;113:2;147:16 163:3;175:24;176:20; 38:14;39:4,12;44:13,16,17; 148:11 )artner 182:8 permissions 37:17; 177:4,11,18;178:7,14; 45: 15;46:12,15,15;47:19; portions 144:10 )arts 92:20 103:8,25;125:6 179:14;180: I0,20;182: 18; 49:23;59:5;61 :12;63:4; portrayed 131: 12 )arty 92:24 permit 94: 15 184:3,22;185:14,24;186:9 64:2;70:25;71:14;74:3; position 65:10,12,17,18;

)aragraphs - position (12) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v PENGUIN PUTMAN, INC. July 17,2007

103:22,23;123:16; 124: I0, printed 119:17;142:10,11, pseudonymous 78:9 puts 96:17 race 155:25;156:2 15;125:22;164:15 12;148:24 pseudonyms 16:5;27:18 putting 62:22;76:20;91: I Radio 33: 14 positions 103:24 printing 165:5,9,10; public 34:25,25;35:1,1; raise 22:23 positively 86: 1 166:3,8,25;167:2,22,22 103:2,10;122:15 Q ran 29:4,4;45:2,3 possession 18: I0 printings 165:16,16,18; Public 122: 17 Randall 15:3;31: I0; possibility 12: 12 166:13 publication 32:17;33:5; qualification 12:23 32:24,25;37:3 possible 14:7;16:12; prior 130:25;131:1 ;149:15 36: I5;52: 12;59: 15;87:4; qualify 75: 19 Randolph 79:8 165:4 prisms 43:25 96:23;130:25;131:1,21; quality 25:15;70:8,10; random 74:2;1 17:6 possibly 35:6;46:20; probably 25:11 ;26:6; 140:9;147:2,3;153:17; 97:22 range 182:9 166:12 27:22;28:2;34: 15;35:18; 162:19 - questionably 16:13 ranging 33:19 Post 27:21 ;28:5,7;37: 11, 63: 18;78:3;80:6;93:16; publications 28: 1;33:6, questionnaire 185:10 rat 35: I3 17,21,23;43:7;78: 15;91 :14; 122:7;145:10,12,14;155:16 8;140:1;152:17;155:11; quickly 103:16 rate 90:22 103:3;105: 16;106:6; Probably 46:23 160:12 Quinn 62:17,19;179:25 rates 169:24;170:3; 108:13;145: 1,10;159: 18; problem 36:17;104:5; publicity 138:14 quip 54:8 171:25 178:9 139:23;163:13;171 :7,8,13; publish 17: 16; 18:2;19: 16, quips 27:6,8 rather 39:22;40:6;84:20; post-date 64:17 179:13 21 ;20:6,11 ;30: 15;1 07:19, quite 51 :16;55: 17;127:15; 86:5;96:4;121 :12;148:25; potentially 139:25 proceed 22:4;162:25 20,21,25;11 0: I0; 120:1; 132: I2;146:25;149: 17; 183:18 practical 45:24 proceedings 114:16 126:3 156:24;177:21 rats 146:20 practices 10:8 process 36:6;41 :22;42:3; published 13:25;15:20; quotation 12:9;66:4 re 139:24 practicing 62: 15 _ 128:9 16:2,18,24;18:6;19:15; quotations 25:12 reaction 150:5 precarious 43:23 produced 154:20 22: 18;23:1,3,6,7,8,19;24:8; quote 12: 11 ;41 :6;43:23; read 26:2;29:23,24;30:25; preceded 17:3;120:22 product 137:3 35:25;36:9;38:22;45:1; 46:23;116: 11,11;149: 1 31 :2,2,6,6,8,1 0,16,17;32:3, precedes 126:12 production 28:22;184:5, 53:3,6,19;56:5,9;77:9;78:5, quotes 76:20 6,17;4 1:3;43:21 ;46: 18; I----='-.:::...::..c=-=-=-...:...:..:=----'------I precise 37:14;39:3;87:10; 14;185:7,18 7,14;79: 1,3,24;81 :3; 49:2;55:25;57:24;61 :11,14, 115:1;118:24) 19:6;169:25 professor 15:3;32:25; 118:19;134:14;135:22; R 17;62:12;65:3;66:4,17; precisely 35:5;132: 10; 36:25 139: 12,1 2;142:4; 144:18, 70:5;84:6;98:8;116:17; 148:14 Professor 14:11;15:3,7, 23;145:4;147:15,21; Rabinowitz 21 :17; 122:6;125:3;133:3,15; predecessor 183: 19 11,14,23;16:7;17:2;18:17; 148:22;162:5;164:24; 114:24;129: 19;130:4; 134:12;135:4,9;140: 13; prefatory 58:9 31 :12,13,22;58: 11,17; 166:4,5;175:19 141 :8;155:24;173:15;188:4 141 :24;142: I;143: 17; prefer 64:20;84:7;170:23 82: 13;83:14, 17;88:13,17; publisher 12:7,10,13; RABINOWITZ 10:3; 144:10,11,15;149:1;159:9, preliminary 42: 11,16 92:6;93:18,19;94:6;96:11, 14:17;17:15,18,18,19; 21 :18,21 ;22:6;23:23;24:1 0; 10;161 :8,11 ;162:3;175:1 preparation 183:22 13;97:23;98:4 18:15;23:3;147:9,13; 26:20;39:15;46:3;50:2; Read 63:14;1 16:6,16; prepare 34:14;102:11; project 124:16;183:20 178:15 51:24;52:1,3,10,19,24; 121 :21 ;132:23;139:21; 113:12,14,17;154:14 projects 24: 15 publishers 20:20;169:19; 53:11;54:3;56:16,22;57:5; 140:3;143:15;159:11 prepared 74:16;123:3; proletariat 92:22 171 :11,18;172:2 58:25;59:22;61:6;62:5,10, reader 80: 16 155:6;167:19 prolific 144:20 publishing 17:21 ;27:9; 16,24;63:3,6,23,25;64: 10, Reader 40: 11 ,24;41 :2; preparing 77:15 prologue 73:19,24,25; 91: 13; 146: 15 16,20;65:2,9;66:2,12,24; 46: 13;50:7;53:6,8;99:3,11; prepublication 128: 11 115:23,25;116: 1,4,8,22; pull 125:5 68:12,20;69:25;72:3,9; 144:22 present 17:13;35:10 117:5 pulp 21:11 73:5,10;74:21;81:17,20; readers 12:6,20;14:17; presentation 33:13 Prologue 115:20 pun 49:21 82:15;83:5;85:13,17;86:25; 61:23,24 presenters 33:17 proof 78:4 punctuation 20: 13;21 :8, 88:2,5;89:3,11, I6,18,23, Reader's 45:7,9,21 ;58:2 presenting 165:11 proper 16:9 8;113:23;114:6,22;154:15; 25;91:18;94:15;95:5,15; reading 122:10;125:10; pretext 55:18 proposal 123:17;124:11 160:7 97:1,9;100:10;101:10,24; 132:25;134:13;143:6 pretriaI102:6,9,10,11; propose 144:14 punctuations 152:5 102:6,13;103:14;104:5,12, reads 50:23;67:19; 163:13;164:20,22;172:20; proposed 102:6,9; purchased 148:7;167:5 16,20;105:1,13;106:1,7,22; 134:15;135:9;157:7 175:1 136:13;172:20 purported 173:19 . - 107:7;108:2,9,17;109:7; ready 182:25 pretty 27: 10;29:1;32:4; prose 27:15;33:6;39:8; purpose 19:4;20:4;63:6; 110:2,15,25;112:3;113:7; realize 153:2 33: 19;34:10;35:3,6,12; 42:23;43:2,5;62: 1,3;67: 13, 76:23;115:22;116:20; 118:15;121 :24;122:3; really 25: 16;29: 1;44:23; 37:24;40:3;42:2,2;43:5; 13,13;68:1 ;69:5,11 ,19,20, 131 :21;138:5;139:2,8; 123:9;124:23;127:16,19; 45:19;48:24;51 :3;55:22; 45:17;70:17;149:18 23;86:5,6;96:10;97:20 140:22,22 129:20;130:5,19;132:4; 56: 10;57: 16;58:3;61 :4; previous 27:7;46:11; prosody 66:6 purposes 14:22;32:20; 133:2,5;135: 11;136:8; 70:13;78:21;104:6;121 :3, 51 :14;92:9;95:7,10;99:14; protect 117: 17 52:17;110:25;114:7;138:16 138:8;141:4,9;146:1; 22;171:9,12,16 118:12;128:15 protectable 11:7;15:1; pursuing 125:18 150:14,24;151:1,19,23; rearrange 20:5 previously 25:8;38: 13, 17:5;65:13 put 12:9;20:2,19,20;28:12; 155:25;156:6;157:4,6,9,22, rearrangement 148:16 14,15,25;42:10;45:15; protection 158:17 34:11,12,13,22;41:1 ;43:4, 25;158:9,12,15,20;159:4; reason 17:8;75:15;85:1; 46:16;49:5;75:4;114:2; prove 15:2;19:6,11 7;44:23;48:21,22,23,25; 163:3,10;164:20;165:23, 94:14;111:1 ;134:19; 148:2;154:2;159:22 proven 163:23 49: 17;50:17,19;51 :3,5; 25;166:19;168:6;170:18; 140:21,22;151 :14 price 175:9 provenance 150:9 55:18,21,24;56:6,7;57:18, 171 :6;173:2,10,22;174:6,8; reasons 81 :6;152:11 primary 89:19;144:21 provided 15:14;174:1; 23;69:21 ;75:15;81 :19; 175:6,21 ;176:7,17;177:1 ,8, recall 33:25;35:5;37:14; principal 13:13 186:2 97:4; 103:24; 114:4;123:2; 15; 178:4,11;179:9,15; 54: 14,16;58:2,14;59:8; principle 11:19,23;12:8; provides 140:9 152:7;159:7;170: 19; 180:5,16,21,24;182:4,6,19, 79: 18;80:13;83:20,21 ,24; 13:7;17:8,11 pseudonym 27:20,21,24; 173:11 ;176:3 24;183:11,25;184:19; 86:12,12;90:17,18;98:9; principles 17: 13 78:16,16 Put 50:5 185:3,11,21,25;186:10,12 106:12;112:8;115:1,3;

TRIAL Min-U-Script® (13) positions - recall STUART Y. SILVERSTEIN v July 17,2007 PENGUIN PUTMAN, INC.

119:6,17;121 :2,6;153:5,15; reconcile 173:25 relied 13:24;181 :25 respective 169: 19 116:24;118:3;120:16; 154: 1,18;155: 17;168:3; record 32:20;41: 14,14; relief 11 :9;162: 14 respond 122: 18 121 :22;122:23;124:5; 169:25;170:5 46: 18;52: 17;78:5;86:19,23, rely 1&1:20 responds 122:22 126:3;127:3,10,21 ;12&:1; receive 103:&;106:11; 23;93:4;104:1;114:5,14; remainder 75: 11; 181 :23 response 34:22;95: 11; 129:21;130:4,7;133:9, I0; 107:11;108:6;112:25; 135:4; 141 :24; 146:25; remaining 13:2;49:23 106:11,16;108:6;112:25; 134:6,18,23;135:14,14,14, 121 :8;124:7;163:24;169:9, 148:20;155:9,20,21 ; remanded 15:5 119:13;121:1,5;123:20,23, 16;137: 15;149:16;152: 1,7; 15;170:8;176:14;177:5; 159: 10,11 ;160:17;182:23; remarks 10:24 23; 125: 15; 143:23;163:2, 155:23;157:3;158:10,14, 178:24;179:18;180:11 ; 186:25;187: 1 remedy 10:23;162:14 24;164:1,3;173:17;178:24; 24; 159:5;160:9;164:8; 181:8 Record 29:24;70:5;98:8; remember 35: 11 ;70:20; 179:1,6,9,11,14 167: 17; 174:7;179:4,23,24; ~eceive 97: 13 116:17;143:17;161:11 106:14,15;111:6;7;154: 19; responses 103:17 181:15,18;184:5 "eceived 24:3,14;52:8,9; recorded 154:14 173:16,18 responsibility 29:6 Right 82:6;162:17 53:1,2;54:6;55:1;56: 19,20; records 29:3;37:19; remembered 30:20 responsible 164: 14 right-hand 41 :3 57:4;59:3,25;61: 10;62:21; 141 :5;170:8;171 :22,23; Remes 179:20;180:14 responsive 143:14 rights 10:9; 11: 18;18:4; >3:9;64:25;65:22,23;66: 15; 173:3 reminds 182:8 rest 103:3;119:12;143:25 20:22;105:2;106:6,20; >7:3;72:6,11,12;73:14; redress 10: 12 renamed 159:21 result 17:23;18:8 107:21 ;117:17;162:23; 74:24,25;81 :25;82:18,24; refer 42: 17;46:8;94:18; renditions 135:18 results 17:20 164: 13; 178:23 l3:9;84:21 ;87:2,3;89:20, 96: 12;121 :19;125:8;129:4; repeat 19:9;24:23;61:19; resume 56:15;111:13; rippers 80: 10 ~1 ;91 :22;95:19,21 ;97:6,8, 159:5;185:9 65:19;100:2 155:19 Robert 26:9,12;28:19; 14; I06: 10;107: 1,10,21; reference 76:22;88:25; repeated 19:7;70:4;98:6 resumed 112:2; 156:4 44: 18;55:3,11,16;56:13; j 08:5,20; 109: 10;110:5,17; 174:16 repeatedly 75:22; 165: 13 retained 159:24 109:12;115:10 .13:10;118:18;121 :10; referred 53:17;54:13; rephrase 58:1;106:13 retitled 136:25 Robin 49:21 22:4,5;123:12;125: 1,2; 79:9;80:21 ;&2:2; 128: 16; replaced 183:18 retract 142:22 rocks 67:19;69:4 28:11;136:10,11;138:10, 141 :2; 160: 14; 162:2 replicated 148:12 retrospect 93:15 role 124:15,17 1;140:2,4;141 :10,11; referring 50:22;52:17; re-plus 25:4 return 124:19 Roman 69:14;148:11; 50: 17,18;158:24;159:1; 68:10;76:25;117:9,10,15; report 16: 15 review 38: 12;40:9;48:8; 156: 15,16;157:2 64: 1;167:15,16;168:8,1 0; 126:21,25;129:16,17; reporter 56:14;127:7 49:9,11,13,14,15,19;50:7, Rope 30:17;75:6;129:7,8; 69:11,11 ;170:4,1 0; 131 :5,23,25;147:2;158:5, represent 149:11 8,10,13,14,23;51 :14;52:12, 133:20,20; 159: 14,20 72:17;174:13,14;175:2,7, 12;161:5 representation 139:4 22,23;53:4,5,17,17,22; Rose 28:23 ~4;176:20;177:4,11 ,18; refers 52:21;69:15,15; represented 14: 19; 54: 11 ;70:24;80:15;83: 13; rotten 86:6 78:7,14;179:9;180:8,10, 76:13,19;77:7;129:5,11; 172:2;181:10,12 85:4;94:6;98:23;99:5,8; roundtable 24: I&;26:8, :0;181 :3,13;182:6,17,18; 142:4 reprint 21 :7;166:7 103:20;138:16 23;36:22 84:3,22; 185: 14,24;186:6, reflect 108: 14;146:25 reprinted 15:19,22;16:8; Review 22:19,20;57:10; royalties 169:17,18,23; :,9 reflected 109:1;114:11; 74:14;133:25 67: 10; 145:5,7;159: 19,19 170:9,13;171: 15,23,24; ~eceived 24:1,13;54:5; 170:3 reprinting 165:4 reviewer 25: 13 172:7;173:9,21 ;175:3; 7:3;59:2,24;61 :9;62:7; reformatted 62:4;69: 12; reproduced 84:20; reviewers 128: 10;130: 17; 181:11 ,3:8;66: 14;67:2;73:13; 96:10;97:21 153:25;159: 13;160:21; 138:15,18 royalty 13:15;169:12,24; 2:17;83:8;91 :21;1 06:9,25; Reformers 101: 14 177:22;178:3 reviewing 41 :18;50:11 170:3,10,12,14,18;171 :10, 07:9; 108:4,19; I09:9; refused 79:25 reproduction 162:9 reviews 16:23;27:14; 17,25;172:3;173:25;175:7; 10:4,16;113:9;118:17; refutes 16: 16 Republic 145:4;159: 17 28: 18;38:15;40:1 0,1 0; 181 :2,5,17,21 ,24;182:7; 23:11 ;175:23;176:19; regale 27:7 republish 106:20 46: 13,14;50: 15;51 :14;53:8; 186:2 77:3,10,17;178:6,13; regard 34:8;36:9;46:17 request 107:19,19,24; 98:10,11 rule 156:25;172: 18 80:6,19;184:2,21;185:13, regarded 12:2; 14:4;46: 15 109:11;110: 18;122:9,18; Reviews 99:3,11 Rule 64:25 3;188:7;189:2;190:2 regarding 33:13;58:9; 162:15;178:21;179:6;182:8 rhyme 39:7;40:3;44:22; ruled 102:16;163:8 eceiving 181 :20 80:16;108:12;123:17; requested 113:2 45:5;50: 19;55:8,9, I0,22; Rules 65:1 ecent 53: 13; 170:6 124:10;139:23;140:8 requesting 10: II 57:21 ;58:14,22,24;59:19; rulings 20:24;166:22 ecently 99:25 registered 117: 18; Requesting 109:25 60: 17,19,21 ;61 :2,5,5,5; run 29:4;166:21 ecess 95:8,II;HI:14; 118:11 ;126:22;127:1 requests 105:2;107:1 I; 65:7;80:10;90:20;145:6 running 117:22 55:18;186:24 registration 118:2,8; 178:19 rhymed 93:13 Russo 27:20 ~ecess 56:21;155:22 126:21 require 61:2 rhymes 44:22,23;57:20 Ryan 25:24;29:17 ~cognizable 15:21;16:3, regret 10:18 required 107:2;108:21; rhyming 58:20 4;44:7 regroup 180:21 109:16 ridiculous 65:6 S ~cognize 23:15;24:5; reiterate 124:12 requirements 71 :21 right 11:10,13;13:21; 4: 14;46:10;53:12,13; reiterated 123: 18;125:16, requiring 66:22 14: 18; 17: 16; 18:5;19:18; Safe 83:24;85:17,18; 4:25;55:1 ;57:7;59:13; 18 requisite 74:12 20:6,11 ;21:7,12;22:4; 86: 14;87:5,16;88:] 6,21 3: 10;67:7;85:4,14,19; relate 64:5 research 28:16,17;39:20; 23:20;38:2;40: 18,21 ;43: 19; sale 168:]],19 8: 12;90:6;92:12,16;95:24; related 36:23;156:23 40:2;83:13 48:8,13;62: 18;63:2;69:14, sales 169:9,23;173:20; 5:22;106:2;107:4,13; relates 144:1 researcher 14:14 20,24;71 :15;72:10,22,23; 175:9;181 :11,17;186:2 10:6;115:15;118:7;148:4; relating 114:6;170:8 reselect 48:14 73:4,8,9;74:24;81:12,22; same 12:20;13:15;20:19; 55:1 ;162:1 ;166:2;167:] 8; relationship 55: 11 reservation 182: 14 82:11 ;83:20;85:17;86:24; 36:24;37:12,21 ;61: 15;67:5; 75:11 ;176:12,21;181: I relatively 55: 17 reserving 174:12 87:2,17;90:5;91 :4,9;92:11; 68:6,24;72: 14,18,24;76:25; ~cognized 16:25;17:2 released 31:5;165:10 reside 22:9 93:20;94:4;95:6,23;96:21 ; 87:21 ;90: I;91 :7;92:8;99:4; ~co"ection 112:22; relevance 165: 17 resolution 163:1 97:3;98:22;101 :3;109: 15; 127:2;134: 10; 135:8;148:8; 12:20 relevant 102:2,4,16,18 resort 44:20;56: I0 112:17;114:21,21 ;115:18; 150:19;151 :4,5;153:20;

~ceive - same (14) Min-U-Script® TRIAL STUARTY. SILVERSTEIN v , PENGUIN PUTMAN, INC. July 17,2007

168:25;169:8;182:10,14 160:25;161 :13;1 62:8; serving 163:7 24;97:3,16;98:3;101 :12; somebody 48:1 8,1 8; Same 71:7;168:7 169: 1,3,4,5,6;1 84:8 set 21:22;175:14;182:6 102:20;103:17;118:1,14; 64:25;137:23;171 :18 sample 119:3;120:5 Section 10:7 seven 14:2,5;63:18,19; 125:4,5;126:20,24;127:21; somehow 171:19 San 79:8 sections 76:7;77:3; 75:22;77: 18;83:20,21,24 128:24;136:2;142:6;149:7; someone 44:16;79:8 Sanctum 85:16 116:24;117: 1,3; 150:7; seventh 167:22 156:7;158:16;160:6; Someone 132:11 Saturday 27:21 ;28:5,7; 169:8 several 27:21,23;30:5; 162: 11,21 ,24;166: 12; Somerset 92:13,18 37:11,17,21,23;57:10; seeing 119:7;165:15; 34: 18,24;35:19;37:10;38:9, 171: 14,21;172:21;180:25; sometimes 38:20 78: I 5;91 :13;1 03:3;105: 15; 170:5 22;42: I 1,18;44:15;58:22; 184:23;186:19 somewhat 50:21;179:23 106:5;108:13;145:1 ,7,1 0; seeking 10:9,12,14 61: I 4;78:7,15;79:20;81:I I; SILVERSTEIN 22:1; Somewhat 58:9 159:18,19;178:9 seem 54: I 6;65: 15;85:2; 84:13;89:12,25;91: I I; I 12:2;I 56:4;188:3 somewhere 12: I 3 save 27:6;104:22;122:7 94:25;98:9; 172:6 99: I 9; 103:20; 122:7;I 28:9; Silverstein's 11 :5; I 2: I; song 90:22 saved 164:23 seemed 25:17;57:19; 130:8;146:18;152:1 I; 13:10;15:9;16:17,22;17:8, Song 83:25;91:16 saw 20: 18;32:6;37:3; 106:12;125:20 153:3;173:18 25;18:9;19: I 9;148:24,25; Song' 159:23 50: 16;83:16;88: I;142: I 2; seems 142:3,6 Several 22:19;38:13; 162:7,13,23 songs 77:9 147:23,24;148:6;149:23, segregate 75:20;76:5 79:17 Simeon 79:8 Song-sheet 90: I 0;92:7 25;150:2; 151 :3;152:10,1 0, segregated 77: 11 ;96:2 shaking 127:7 similar63: 10 Song-sheets 99:21 II seldom 47:10,12;48:1 Shall 132:5 Simon 23:4;45:1;126:2; soon 27:9;138:14 saying 19:10;21:3;32:9; select 42:4,7;44:12,12; sharply 40:5 145:6;147:6;169:20,22; sore 47:5 44:4;50:24;51: 1;60:8;63:4; 59:4;79:2;80: I,19;87:7; sheet 69:21;1 19:2;176:3 173:3;I 78: I 5; I 79:6, I 0,24; Sore 59:9,14 66:10;76:23;86:12;106:19; _ 91 :6;93:1 5;98:3;1 25:6,8,1 0 Sheet 84:1 181 :4,14;1 82:1,7;1 86: I sorry 23: 1I ;25:I 6;26:22; II 1:10 selected 10:1;14:8;44:6; Sheik 87:19,22 simplest 104:21 6I:19;70:9;71 :8;73:3; scathing 85:4 48: 14;53:18;57:1 3;78:23; Sherwood 26:12 simply 37:14;58:2;66:7; 75:25;91 :9;125:17;129:25; scene 27:1 I 99: 13,18,20;113:1 I ,21; shock 162:7 85:1;115:3;121 :2,13; 134:23;137:21 ;158:9; scholar 15:5 121 :12 shoe-horn 90:23 155:17;169:25 165:21;167:1 3;179:21 scholarly 15:2,12;16:17; selecting 90:15 shoe-horned 57:16; simultaneously32:5; Sorry 25:2I ;26: I 5;29:20; 31:1 ;33:1 2;61 :12;62:24; selection I 1:7, I 0, 13,18, 70:16 37:24 32: 11 ;58: 16;70:3;76: I 4; 64:2 19,20,23;12:3,4;13:7,10, shoe-homing 55:17; sin 84:6 85: I 2;87:21 ;98:21;100:2,9; Scholarly 31:3 11;15:1;17:5,8,11,13,25; 75:14 single 17: I 7;20:25;23:21; 129:24;150:24;157:5; School 22:15 18: 13,14,20;25:6;48:22; short 25:13;27:14,15; 85:23;86: 10; 129:7;I 45:4 165:22 Schuster 23:4;45: I; 124: I 3;1 50:19;1 51 :4; 28:20;30:23;33:7;38: 14; Sir/madam 140:4 sort 28:15;121 :5;173:17 126:2;145:6;I 47:6;I 69:20, 162:9;175:25 80: 10;105:5;122:15 sit 171:4 soul 116:11 22;173:3; 178: 16;1 79:6,1 0; self 76: I 2; 163:6 shorter 50: I 6 sits 67:19 sound 60:21,22,22,23; 181 :4,14;182:1 ,7;1 86:1 self-selecting 27: I show 14:1;15:11;16:19; sitting 92: 18 61: 1,1 Schuster's 179:24 send 107:15;120:6,7,9; 19:3,5,8,I 0, I 2, 18,20;20:2, situation 10:23 sounded 48:24 scientist 66:9 122:9;139:18,25;176:23; 10,20;33:15,16,18,24; six 63:18,18,19,19;75:22; sounds 134:18 Scottish 67:9 177:12,19,25;178:8; 5I:I 5;56:23;62:22,24;92:6; 83:25;84: 19 source 12: 13;20:21; screenplays 27: 16;33:7 183:12;184:11;185:4,16 94:15;103:12;104:7;105:2; Six 99:1 139:24;140:8;144:21 ; screenwriter 26:13 sending 120:22 131:13;171 :13;1 75:8;1 81:7 sixth 166:3,8;167:1 156:10 Scribner 23:4,20;24:8; sends 170: 16 showed 181:17 sketched 14:24 sources 38:22;77:16; II7:1 7; II 8:2;126:22; senior I 18:25 showing 14:25;96:25; skin 84:6 79: I 7;80: 13; I 36:23 128:6; 132: II;137:24; sense 48:25;141 :17 154:24 skipping 144:14 Southern 34:19 138: 14; 147:6;1 69:1 9; sent 71 :3,24;73:20;80:3; Showing 76:17 slight 11:11,15;148:16 spacing 74:8 170:11;178:15;183:16 103:17;109:21,23;115:16; shown 94:18;123:7;172:8 slightly 47:10 speak 11 :3;25: I ;29: I 4, scrupulously 79: 14 120:25;121 :13;1 23:5,5; shows 16:3;64:10;93:19; slogans 19:25 19;5 1:20;87:20;125:13 search'38:1,6;122:23 130:10,12;21 ;138:15; 158:18 , slow 29:13;104:18;155:20 speaking 25:2 searching 10: 11 161 :20 shut 123:2 slower 29: 15 speaks 51:20,21;89:5; secohd14:25;61:17,17, sentence 12:22;42:24; side 66:3,5;72:22,22; slowly 29: 19;132:6 140:18;157:20;180: 1,9 20,21 ;63:14;67:18;68:22; 43:7;61 :18,23;63: 14;65:3; 81:12;87:11;171:4 small 46:14 specific 70:14;76:22; 72:25;74:2,5;81 :24;90:21; 66: 18;67:16;69:22;74:2,3: sides 21:7;164:15 smaller 170: I 106:23;114:17;122:20; 124:21;144:14;182:6 116:6;125:3;128:8;131:3; signed 16:4;40: I0,23,23; smallest 165:8 130:16 Second 11 :18,24;12:4; 135:12;136:3;137:8,22; 77:22,25;78:9;81 :15;103:7; snap 41:24 specifically69:12;83:20, 13:4;15:4,24;16:21 ;17:9, 139:21 ;143: 19;145:20; 109:18 snippet 28:21 ;29:7 22;170:5 12;20:7;14,24;38:20;79:5; 146:2;160:23 significance 67:21;92:16 snippets 29:9;30:3; speculate 37:6;169:1 2 114:20;115:20;163:8 SEP 103:25 significantly 15:8 46:14;54:18 speculates 45:21 secondary 171:23 separate 15: 17;43:8; Silverstein 10:6,9,10,12, so-called 77:20;78:9; speculation 85:9 secondhand 138: 17 49:17,18;52:15,15;69:21, 14; I 2:2,6;13: 13,16,18; 79:6;134:13 spell 78:10 seconds 186:15 22;71:11;117:3;120:2,2 14:2,9,14,24;15:2,7,15; soft 24:6 spend 38:1 section 12:21;76:8,9,19; separated 90:1 17: I0,12; 18:4,15,19;19: 17; softcover 139: 12;169:25; spent 38:8;39:20;105:6 23;77: 1,4,12,13;88:18,20; September 72: 18 20: I 2;2 I:I 9;22:7;24:4,15; 170:2 spine 41 :17 89: 19;92:8;96:3;97:5; sequence 37:15 25:3;28:9;30:1;41: 19; sold 116:12;182:3 spoke 118:25;119:4 127:9; I 29: 14; I 30:6; series 28: I 8;77:24;90:9; 52: I I;57:6;63:4;66: I ,3; sole 76:23;78:4;81 :3; spot 47:6 136:22,25;147:24;148:14; 103:16;185:1 67:4;70:1;73: I 6;80:20; 109:15;116:20;124:17; spring 38:7,7 149:10,12;150:3;154:9; serious 139:25 85: 14;88:6,1 2;89:9;95:3, 138:5;139:2;140:22 Squidge 27:24;77:25;

TRIAL Min-U-Script® (15) Same - Squidge STUART Y. SILVERSTEIN v July 17, 2007 PENGUIN PUTMAN, INC.

78:9,20;81:15 strange 18:8 79:22;87: 10; 107:22; terribly 41 :8;163:6 titles 35:21 ;77:9;114:2, S-Q-U-I-D-G-E 78: 11 Street 27:5 118:24; 121:3;122:20; testified 15:23;16:10; 25;115:4,5,5,7,8,11,12,12; St 26:6 stricken 51 :22; 150: 13; 132:9,11;147:12;170:13; 22:3;63:25;152:1 ;158:16; 118:12;133:22;152:7,19; stage 172: 10,13 152:24;180:8 176:3;177:23;179:4 160:6;166:19 154:15;160:7 stamped 155:4 strict 128:22 Sure 40: 15;94:18;98:7; testify 179: 12 titling 49:22;114:6 stance 50:20 stricter 48:23 110:24 testimony 16: 16, 18; Toadstool 98:25 stand 21: 19;42:19;45:22; strident 19:24 surprised 150:6 94:14;114:5;156:23; today 99:12 168:4;184:24 strike 98:2;150: 12; 151 :2; sustain 150:23;163:9 157:20;179:13;180:2; today's 43:7 standalone 124: 13 169:17 sustained 11 :6; 19: 13; 181 :23;186:20 together 16: 18;20: 19,20; standard 96:9; I08: 10; Strike 144:7 94: 14; 102:5; 125: 14; 144:6; Thanks 90:4 125:5;171:19 117:22;166:14;170:2 strongest 174:2 150:25;151: 12;163:23; theft 10:13 told 12:6,7,7,13,20;13:12, Standardized 83:25; strongly 16: 14 180:7 theme 55:14 15;14:16,17,17;39:11 ,11; 90:9;92:6;99:21 struck 48: 16 Sustained 94:12;151:7 Theodore 50:20,23;54:8 41 :24;119:10;120:7;124:1; standards 40:6 struggled 116: 10 sustaining 151:14 theory 19: 19 125:24;134:24;135:4; stanzas 42:25;43:8;59:6, struggling 138:3 sweat 10:11 thereafter 132:17;138:14 138:17;155:19;166: 16 20;60:15,16 Stuart 21:19;118:14; sworn 22:2 therefore 49:25;125:14 tomorrow 183:2 start 10: 18;30:11;132: 16; 126:20,24;142:6 SY 118:1 Therefore 134:1 took 29:8;32:6;58:9; 133: 13,14;186:23 STUART 22: 1;112:2; symbolic 27: 10 Thesaurus 79:21 69: 19;72:2;74:20;128:9 started 30: 12;31: 17; 156:4;188:3 thinking 90:15;172:24 top 67:18 36:22;63:17,19;64:7;105:6 studies 82: 13 T third 21:10;61:18,23; total 38:10;101:11; starting 41:5;104:11; stuff35:25,25;70:14; 71: 18;74:1,6;117:5;125:3; 148:18;149:7;169:13; 105:14;132:18,19;159:5 85:24;91: 13;183:6,8 table 92:17;1 16:21; 131:3 173:9;174:12;175:3 Starting 144: 13 stunt 45:2 126:13;148:9,12;152:20; Third 61 :23;80:3 towards 65:5 starts 82:5;149: 17 style 65:6 183:6 though 10:20;12:12;34:9; Tower 78:8;145:1,9,15 state 63:21;86:18;154:23; subject 55: 12; 139: 10; tables 183:7 48:4,24;50: 18;64:3;80:17; trail 25:17;158:8 156:10;170:6;171:18 174:2 tag 40:23 112:11 trailed 26:25 State 33:1;34:21 subjective 39:9;44:4,10; take-off 59:7 thought 34:11;35:6; transmission 82:23 stated 81:6 84:16;148:25 talk 44:1 1;114:22 36: 19;38:21 ;39:24;42:12, tremendous 141 :24 statement 18:24;19:2,5; submit 17:14;110:8; Talk 85:16 13,14;48:16,20;72:8;78:6; trial 10:23;11:16 t7: 12;86:22;11 0:20; 170:6; 136:17 talked 61:11 ;108:12; 93:13;100:9;104:9;106:5; Trial 187:4 181 :5 submitted 137:6 112:7 134:7,20;135:4;137:24; Tribune 28:3,5;35:24; statements 19:8;169: 12, subpoenaed 172:25 talking 64:7;68: 15,25; 172:22;173: 19 36:4;145:2;159:18 15;170:3,10,14,17,19; subscriber 57:21 93:1;105:7;108:25;129:24; thoughts 66:7 tried 36:1 ;42:20;90:23; 171: 10;172:3,6;173:25; subsequent 60:23; 130:1;144:3,12;157: 1; three 13:1;21:5;27:19; 173:24 175:7;181 :3,17,20,21,24; 108:22;114: 16;145: 17 165:4 28:21;77:19;78:14;119:2; trier 151 :18 182:7;186:2 subsequently 23:8; talks 117:6;127:23 133:23;145:16;166:17 tries 58:23 ;tates 121:11;122:24; 29:10;71 :25;164:24 tape 15:13 Three 21:4 triggered 128:10 126:24 Subsequently72: I target-rich 35:23 three-year 45:9 trivial 15: 14;48: 17 ;tating 79:25 substance 136: 15;164:3 taste 43:25 thrown 21:9 trouble 24: 19;29:12; .tationery 56:9 subtitle 58:5;76:17,21 taxes 171 :22 thrust 28:15 51:18;76:14 .tatus 102:25;121: 16,17, subtracting 30:19 Taxes 30: 18; 129:8,9; thus 16:6 troubled 10:21;171 :21 19;122:14,14,15,19 successively 165: 16 133:20,20;159: 15,15,21, Thus 13:8 truth 48:13;79:15;104:25 .taying 56: 10 suggest 26:20;43:2; 21;160:15 tiger 84:6 try 29:21 ;34:7;64: 18,22; .tep 187:2 103: 15; 139:23 technically 34:9;39:6; times 42:18;75:23,23; 132:19;138:20;139:5; .teps 34:14;118:19 si;Jggested 120:6;132:12; 48:18;50:18;156:18 79: 12;84:13;89:12;166:17; 143:5;151 :25;183:10 Itereotypical29:I 133:13 Ted 66:8 168:15 Try 24:21 ItillI9:1;24:17;57:6; suggesting 132:23 telephone 120: 18,21 ,23; Times 60:5 trying 26:22;27:2;39:17; )2: 10;1 04:22;112:4; 164:9; sum 18:5 139:22 timing 37:13 44:11;51:2,4;60:25;61:3; ;65:9;183:9 summary 173:20 telling 18:21;19:11,14; tinged 69:4 69:11 ;91 :2;130:16;136:6; .tipulate 104:2;163:19; summer 55:4 172:16 title 32:2;34:1,2;49: 18; 137:23;146: 13,13,14,21 64:5;171 :20;186:3 Sunset 30:17;129:8; template 51 :2 52:20;56:11 ;59:8;75:17; turgent67:13 .tipulated 170:20;182:9 133:20;159:14;160:15 ten 136:23;165:7 76:7,9,16,18,19,25;77:7; turn 19:24;24:16;25:19; )tock 33:17 superiors 132:]2;138:20 Ten 182:22 79: 19,22;83:25;90:9;98:24; 43:16;57:6 .tone 40:5 supplemental 173:17 tend 50:19;65:5,6 118:11,24;131:18,19; Turn 109:3 .top 46:20,20 supplier 25:12 tends 42:23;49:20 149:25;150:7;152:13; turned 15:13;21:11 .topped 176:11 supply 171:14 ten-minute 155: 18 173:16,18 twelve 144:24 .tore 169:8 support 11 :11 ;15:1 tenor49:19 titled 30:8;49:8;52:12,21; twenties 144:19 .tores 168: 16,18; 169:4 supported 15:9 term 18:11;25:4;42:18; 53: 19;56:8,12,13;58:4,5; twice 81:23;170:1 I itories 27: 15;30:23;33:7; suppose 183:1 69:6,17 75:7;76: 10;80:24;88: 18; two 15:12;16:23,23,23; ;8:14 Suppose 174:4 terminology 116: 13 98:14,15;99:8;100:16; 27: 19;28:21 ;29:6;34:23; itories 160:3 supposedly 57:20;92:23 terms 16:25;26:7;48:2]; ] ]4:3;] 15:20;136:23; 38:2,4;45:3;46: 13;48:8,9; itory25:13 sure 18: 12;30:6;31 :24; 54:8,9;75: 19;90:24;119: 15; 147:24;150:3,7;158: 14 50: 16;52:11;53:4,18;65:6; ,traight 31 :15 37:12,21 ;47: 1;48:13;75:23; 124:14,15 Titled 117:2 68: 18,19;76:6;77:3;82:13;

i-Q-U-I-D-G-E - two (16) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v PENGUIN PUTMAN, INC. July 17, 2007

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1]6:5,12,]4,20;117:4,12; Wait 60:4;72:25;158:5 Without 23:21 ;82:22 unable 171:23,24 139:23;144:3;165:1 I]27:13;133:] 8; 140:6,] 0; waive 172:] 1;174:1]; witness 2]:17;42: I9; unacceptable 17:23;18:8 update 173:19 143:21 ;144:14,17,21,23; 178:23 46:6;62:] 1,22;94:] 3; unanswerable 17:14 updated 31 :4 ]45: 18;]46:6;147:13; waives 179:23,23 141 :25;143:15;]47:]; unclear 27:25;]28:12; upon 28: I5;67:24;71 :4; 152:] 9 waiving 65:17 172:22,24;173: 1;175:2 171:17 163:8;172:18 versification 66:22 walk 170:22,23 Witness]87:3 uncollected 11: 19,22; use 21:12,14;36:25;41 :7; version 53:5;74: 18; Wallace 62:14 WITNESS 26:]6,18,22; 12:2,15;14:4,12;16:10; 48:25;] 03:5; 109:25; 126: 13;131:] 0; 136: 19; Walter 67: 15;68:6,22 28:7;29:20;31: 17,20;32:4, 17:8,20;18:7,13;20:2; 110:23;111:1,4;112:24; 137:1 ;141 :12,13,15;142:8; wants 89:6;103:24;123:3 10, I2,22;39: 17;42: II,22; 159:22 113:2 151:25;155:11 war 36:3 46:22;47:3,5,9,14,16,18; Uncollected 147:11,25; used 20:25;27:4;42:18; versions 35:9 War 159:23 48:3,6;51 :1,7,13;60:6,9; 148:14;149:10,12;150:3; 54:17;79:11;103: I0; versus 148: 17 wars 36:3 62:12,18;64:13;68:10,13, 154:10;160:25;161 :12; 140:21;152:19 via 123:]4 waste I 11 :I2 16;69:10;70:21 ;72:7,20,24; 162:8 using 20:21;44:9;1 I1:3; Viacom 23:5 watch 11:2 73:3;78:11;81:12,15;82:7; under 10:8;16:5;19:19; ] 16:13 Vicious 55:14 watches 155:19 84: I0,13,22,25;85:8;86:20; 27: 18,19,20,21 ,24;72: I7; usually 54: I7;60:24; video 15:10;51:15,17,20, water 24:25,25 89:5;92:25;93:4;95:6,18; 74:14;75: 19;77:9;78:16; 165:7 20,2],25,25 way 20:19;25:18;36:1 1; 98:21;]00:7,12,14; 101 :2; 83:25;88: 19;90:9;96:15,17, videos 14: 10 42:23;48:23;50:14;59:12; 119:25;122:15;124:1; 18;98:1 ;99:8,1 1;107:22; V view 11:12;17:21;18:9,21; 64:21 ;66: I0;67: I5;76:23; 129:5;130:12;131 :25; 110:22;112:4;128:8;143:1; 46:21;69:7 79:23;84:17;139:23;143:18 132:5;133:6,8,1I;134:7,17, 144:2;149:10 vague 39:7 vigorously 162:25 WB 68:2,4 22;135: I,5,17,23,25; Under 88:20;98:24 vainglorious 139:4 Viking 118:25;119:1,4 wear47:11,13;48:1 139:14;142: 12,15,17,20, underlined 114:20 valid 18:20 Vincent 26:7 web 62:14 23;143:23,25;145: 13; underlines 69: I0 validity 11:5 Vinci 68:23 week 14:10;29:6,7,10; 147:4;153:15,22;154:4,6,8, underlying 64:5; I25:21 value 162:24 violated 164:13 38:8,9 12;166:1,14; 167:1;174: 19; underneath 132:9 Van41:9 violation 10:6 weekend 118:22 184:25 underscored 55:11; Vanity 28:3;36:1 ,9;96: 18; virtually 17:2;32:]5 weeks 38:10,1 ];87:11; witnesses 166:22 ]40:]5 144:24;145:10;159:19 visited 34:15,19,21,24; 136: 18; 144:20 witness's 21:23;94:13 underscoring 140: 13 various 25: I5;27:5;33:6; 35:3,6;168:17 weird 57:22;60: 18 woman 33:17;130:3 understood 10:22;13:4 35: 14;36:20;39:21 ;77:24; visits 34:23 Wells 27:22;78:17,23 women 46:25 undertiikings 43:23 103:17;171:10;175:9,15; visual 151:19 weren't 78:22;128:21 women's 47:2 undertone 39:8 184:4 vivid 15:14 what's 62:8;1 14:19,19 wonder 25: 17 undertook 15:2 Various 27:5 Vogue 28:4;36:1 ;144:25; What's 92: 16 Woollcott 26:14,16 undoubtedly 45: 15 vary 171:25 159:19 whatsoever 12:23 word 10:10;20:10,25; unfair 10:7,8 vast 14:7 voice 24:21,23,25;25:23; wheels 27:22;78: 17 43:21 ;44:10, 10;54:23; unintentionally 147:1 veer 65:5 121 :4;127:6,8;128:24 whenever 170: 15 90:25;125:8;127:17; unit ]73:20 vein 63:10 voila 69:23 Whenever 46:19;47:6 128:25;129:2,3,7,10; universally40:25 verbatim 20: 1,1 0;21 :1; volume 12:18;13:3;17:17, whim 34: 11 ;50:2 I 135:10,11;136:2;137:8,10, universe 14:7;101:11; 148:15;158:18 ]7,19,24;19:15;23:10,11; white 92:20 12,] 3,]4;]38:23,24; 102:8 verbiage 135:7 25:24;43:11,14;45: I0;46:2, Whitman 183:13,15,16, 139:13;146:23 university 34:]6 verified 182:]) 5,6,6;53:9;54:22;57:6; 21 words 20:9,10,14;21 :6,6, University 22:] 5;33: I; vers 57:21 59: I3;61 :]5;67:5;71 :7; whole 12:16;29:1;43:3; 7;25: 17;41 :7;44:3;84:18;

TRIAL Min-U-Script® (17) two-part - words STUART Y. SILVERSTEIN v July 17,2007 PENGUIN PUTMAN, INC.

~6:13;87:22;117:9;119:6; 123:4;125:11,13;127:19 y Nords 53:15,15,15;99:9, ./~ . 1 ~,9 Yale 145:5;159:19 .. / Nork 10:14;13:7;14:3; year 22: II ;23: I;29:4,4; 16:20;24: 17;29:2;30:23; 31: 19;166:4,6;170:11 32:21 ;33:2,19;62: I;93:20, years 10:22;14:2,5;29:5; 25;118:11 ;123: I;160:3; 35:5;36:21 ;37: 14;38:2,4,9; 162:13,24 63:18;69:12;78: 15;85:22; Norked 176:4 116:10,10;144:18;168:17; Norking 24:15,16;133:14 172:2 Norks 11:21;12:1;14:15; Yeats 68:3,4;69:13 15:25;16: 18,22;17:3;22:18; yesterday 10: 19 27:12;28: I,2,13;31:1 ;33:9; yet-undefined 69:6 103:1;116:3;121:13;151:9; York 10:8;27:3,23;28:3,4, 152:3;153:7;160:12;175:15 4;35:24;36:4;43:7;59:15; Norld 14:20;17:21;36:3 60:2,4,5,6,8;88: 19;96: 16; Norld 27:23;28:4;59:15; 145:2;159:1 8,18;165:14,14 50:2,5,6,8;145:2;159: 18 Yorker 28:4;40: II ,18; Norlds 27:3 145].,9;159:17 North 107:23 young 27:2;28:24,25;59:8 Nrite 27: 12, 18;28:20; Young 59:8 ~9:6;47:8;50:24;76: 17; youth 27:11 79:25;84:24;92:18;96:25; 109:1 ;132:13;160:1 Nriter 22:17;25:13,13; W:9 Nriters 61:25;67:23 Nriting 16:14;44:3;54:18; 56:23;105:7;115:22;137:4 Nritten 25:7;27:23;28:18; \0:5;31 :7;33:21 ;34:6,9; \8: 18,21 ,23;40:20;42: I,8, 13;44:22;55:3,16;58: I0; 57:15;69:13;77:17,21 ;78:2, \,6,22,23;79:7,13;80:8,12, 14,15;81 :2,9;82:1 0;83:3, II;84:8,15,19;85:2,3,4; l6:15;92:13;119:21 ;128:4; 130:3;131 :4;134:14;135:6, 7;142:2;143:10 Nritten 77: 18 Nrong 75:5;127:16; 172:22;177:21 NrpllgdoiIl9164:15 IIIrC?ng~headed61 :25 IIIrote 21 :2;25:14,14,14; ~7: 13,13,14,14,14,15,15, .6,16;16,19,19,20;33:5; \7: 19;44:18;47:9,1 0;62:9; i3:2;79:1;80:2,9,17;82:13; :5:3,24;92:19;105:15; 12:20;113:13;128:3,8; 30: 13;132:16;134:20,25; 35:4,15;141 :15;144:13, 6,17;145:6;146:23;149:5; 55:6 'lfylie 26:6 x

~eroxing 72:21,22;90:2 (1148:11

Nords - youth (18) Min-U-Script® TRIAL