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 Word Index included with this Min-U-Script® STUART Y. SILVERSTEIN v PENGUIN PUTMAN, INC. July 17,2007 Page 1 Page 3 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] Page 2 Page 4 [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 TRIAL Min-U-Script® (1) Page 1 - Page 4 " STUART Y. SILVERSTEIN v July 17,2007 PENGUIN PUTMAN, INC. Page 5 Page 7 [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. Page 6 Page 8 [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.