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CPY Document In The Matter Of: STUART Y SILVERSTEIN v. PENGUINPUTMAN, INC. July 18, 2007 TRIAL SOUTHERNDISTRICTREPORTERS 500 PEARL STREET NEW YORK., NY 10007 212-805-0300 Original File 77I7SILF:ti.l, Pages 191-362 (172) Word Index included with this Min-U-Script® STUARTY. SILVERSTEIN v. PENGUIN PUTMAN, INC. July 18,2007 Page 191 Page 193 11} UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK [1) going to be based on what you have read, is that right? [2} ------------------------------x [2) MR. DANNAY: Correct. \, [3) STUART Y. SILVERSTEIN, [3) THE COURT: All right, fine. Go ahead. [4) Plaintiff, (4) MR. DANNAY: 1just need to explain what it is 1 am [5} getting to. [5} v. 01 Civ. 309 [6} THE COURT: Fine. [6} PENGUIN PUTMAN, INC., [7) Q. In the conclusion the court said, "We hold that [7) Defendant. (8) Silverstein's rights are limited to his selection of ----------------~~------------x [B) [9} categorization ofsome works as poems that were written by [9) July 18, 2007 [10) Mrs. Parker." And I am focusing on the "some works," and in 9:30 a.m. [10) [11) your testimony yesterday, as I understood it, you appeared to Before: [12) be claiming protectable creativity for a certain number but, as [ll} HON. JOHN F. KEENAN [13} 1understood it, not all the poems individually in Not Much [12} District Judge [14} Fun. And that's what I want to go over here, someofthe [13) APPEARANCES [IS} numbers. (14) [16) Now, initially Not Much Fun collects, am I correct, NEAL GERBER & EI~NBERG LLP [15) Attorneys for Plaintiff (17) 121 - contains, rather, 121 previously uncollected poems and BY: MARK A. RABINOWITZ [18} [16) CHRISTOPHER D. MICKUS versus, putting aside Day Dreams for the moment. Isthat [17} COWAN LIEBOWITZ & LATMAN PC [19l correct? Attorneys for Defendant [lB} BY, RICHARD DANNAY [20) A. Yes. THOMAS KJELLBERG [19} [21) Q. Thank you. And as I understood your testimony -- and this [22) is a question -- you claimed some protectable creativity in the [20} [21} [23). inclusion ofthe 19 free verses which include the 18 hate [22} (23) (24) verses and the item called Oh, Look etc., the modernist verse, [24) (25) (25) is that right? )---------~--------------~----+----'------------~--,--------------- Page 192 Page 194 [1) (Trial resumed; jury present) [1) A. Not quite. I claimed that those were instances of (2) THE COURT-:' Good morning, ever·ybody _ Thank you. for [2) subjective selection. [3) getting here so promptly. It's a terrible day out, and traffic [3) Q. OK. And you claimed the same as to four works that were [4J and everything is delayed, so thank. you very much. (4) found, you might say, in larger works, the two that you titled [5) All right. Mr. Silverstein, come on up. (5) After Dawn and Crisscross, that is the two verses in book (6) And you may continue cross-examination, sir. [6) reviews, correct? [7) MR. DANNAY: Than~ you, your Honor. [7) A. Those were instances ofsubjective selection. [B) THE COURT: All right. [8J Q. And that's your claim. Andthe two leiters Dorothy Parker [9) STUART Y. SILVERSTEIN, resumed. [9) to Ogden Nash that was in the advertisement, aild Dorothy Parker [lq) CROSS EXAMINATION (ContinueQ) [10) to Robert Benchly,the letter and verse, is it the same claim? (11) BY MR.DANNAY: [11) A. Instances ofsubjective selection, yes. (12) Q- Good morning, Mr. 5i1verstein. I have s'orne questions' to [12) Q. Beg your pardon? (13) ask you obviously ,on cross-examanation, bU~ I do want to just [13)· A. Instances ofsubjective selection. 114f read --"it's not a question to you -- ~rom the conclus~on of [14) Q. Subjectiveselection, OK. [15) the Sec'and Circuit opinion, because it re'lates to what I :want [15) Do you claim any protectable creativity underyour [16) to ask you at the outset here. And under this section in the 116) . selection copyright claim for the Inclusion -- and let me go [17) opinion that says-~ [f7) through them from your table ofcontents from your book in Not (lB) HR. RABINOWITZ: Objection, your Honot-. If this isn't (18) Much Fun which is Exhibit A and B ofours and 2 and 3 ofyours. (19) . part of a question, I object to him"'making argurne"nt as pa'rt of [19) Is that correct? Just so you can fmd it. Not. Much FUn. [20) cross-examination. [20) A. 1 claim a copyright inthe compilation itself as a wh6le. (21) MR. DANNAY: It's not an argument. [21) Q. I understand. But d~ you claim anyprotectab](: creativity [n} MR~ RABINOWITZ: You ~on·t make statements to -­ [22) in the Bridge Fiend, which is the first poem listed in Not Much [23) THE COURT: It might be helpful if you·1et me rule. ·[23) Fun? [24) If it's pr~efatory to a question, r-l'm going ,to permit him to do [24] MR. RABINOWITZ: Objection. Vague. [25) it, and then he puts the question. I take it the questi-on is [25) THE COURT: Objection overruled.· TRIAL Min-U-Script® (1) Page 191 - Page 194 STUART Y. SILVERSTEIN v. July 18,2007 PENGUIN PUTMAN, INC. Page 195 Page 197 (I) A. The claim is for a compilation copyright for the [lJ Q. I'm just trying to understand your claim from your (2) compilation in toto. 12J testimony yesterday. I am asking you whether you are also 13) Q. OK. But my question' is do you claim any rights in the 13) claiming that some protectable right in having excluded from 14 ) Bridge Fiend individually? 14 ) your compilation ofNot Much Fun the standardized song sheet. [5) A. Bridge Fiend is only alleged as an instance ofsubjective 15) I won't quarrel with you for the moment whetherthat consists 16) selection that was part ofthe composition ofthe compilation. [6) ofone item or six items. I know that Calhoun classified it as [7) I'm not claiming any individual right in Bridge Fiend. 17J one and you classified it as six. IB) Q. OK. Do you claim any individual right inAny Porch? IB) A. We are alleging that the selection ofsome item or the (9) A, The same answer would go for any individual item. [9) refusal or the nonselection ofsome item is in itself 110) Q. Any individual item iuNot Much Fun? [10J subjective, and by not selecting an item which I could have [llJ A. I'm saying that the claim isfor a subjective selective Ill) selected is in itselfsubjective. 112) compilation. We alleged certain specific items as instances of [12) Q. And,therefore, you are claiming some right in the [13) subjective selection. We're not claiming any individual rights [13) subjectivity you claim in having excluded the item? [14) in those items. [14J A. No, I'm claiming that that is an example ofselection. [15) Q. OK. Do you claim any, to use your phrase, subjective [15J Q. It's an example ofselection. (16J selection rights in the Bridge Fiend? I will go back to that. 116) A. Yes, subjective selection. 117) A. We are saying that ev~ one ofthe selections I made was [17) Q. And are you claiming protection for that selection, ifyou 11BJ subjective. [lB) will, by excluding the song sheet? 119) Q. OK. Now, that's what I want to focus on. You are saying (19) A.. I am saying that that is another example that displays the [20) it was subjective to include the Bridge Fiend? [20) subjectivity ofmy selection, because selection requires both [21J A. Yes. [21) selection and nonselection. [22) Q. You are saying it w~s subjective to include Any Porch? 122) Q. And in the nonselection area, the exclusion of the (23) A. Yes. 123) standardized song sheet, that would fall in the nonexclusion? [24) Q. You are saying.it was subjective to include The Gun Men and [24) A. That would indicate the fact that I did not select it and I [25J The Debutante? [25) did so subjectively: . Page 196 Page 19t· 11 ) A. Yes. [1) Q. Are you saying for Playing It Safe? [2J Q. To save time in reading all ofthem, all "12 1 ofthe [2) A. Yes. 13) previously uncollected poems you say you included on the basis [3) Q. Are you saying the same for HiggledIy Piggledy? (4 ) ofsubjective selection; is that your claim? 14J A. Yes. [5) A. I am saying that in each individual instance I made a IS} Q~ Are you saying the same for the three attribution items, [6J subjective selection whether to select or not to select.that 16J From the Ladies, Upon Your.Honor, and Elinor Glyn? [i) item. 17J A. I am saying for each ofthose three items I could as easily (B) Q. And do you think that each selection that you made reflects IBJ have selected them as not, and it was a subjective decision [9) creativity that you are ciaimirigprotection for in this court? 19J because there were no objective criteria upon which to base my [10) A; I'm saying that each oneofthem-is subjective. [10J subjective selection. There was no documentary evidence that [11) Ck'My question wasllfeyou c1aiiningthat your subjective [llJ was conclusive either way; and all the documentary evidence for [12J selection, asyoupllfit,entitles youtoaClaim ofcreativity [12) at least one ofthem was that she had written it, that being [13J in support ofyour copyright claim? . [13J From the Ladies. [14J A. I am saying that the claim that we are making is for a ll4i Q. Now turtling to figures in American Folklore, you testified [15) selective and subjective compilation.
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