Dorothy Parker was the author of numerous poems, verses, dramatic reviews, short stories, plays and screenplays. Although Parker’s works were published in several books, many of her poems remained uncollected. In 1994, Stuart Silverstein collected and arranged all of Parker’s previously uncollected poetry and titled the work Not Much Fun: The Lost Poetry of Dorothy Parker (“Not Much Fun”). Silverstein first submitted the book to Penguin Putnam, Inc. for publishing consideration. When Penguin apprised Silverstein that it would prefer to publish the poems as part of a larger collection, Silverstein submitted the manuscript to another publishing house, who published Not Much Fun and registered a compilation copyright for the work with the Copyright Office in Silverstein’s name. Penguin then decided to publish a complete anthology of Parker’s poems, which included a section called “Poems Uncollected by Parker” and included 121 of the 122 poems contained in Not Much Fun, without Silverstein’s permission or any attribution to Silverstein.
Initially the District Court for the Southern District of New York entered summary judgment in favor of Silverstein and enjoined Penguin from selling or further distributing the anthology. On remand, the U.S. Court of Appeals for the Second Circuit asked the Southern District to specifically examine the issue of whether Silverstein exercised any creativity at all in his selection process or if he merely included as many of Parker’s uncollected poems as he could find.
After a trial to the bench, the Southern District determined that Not Much Fun was only copyrightable as a compilation if Silverstein exercised some creativity in his selection of works for the book. The court found that Silverstein included in Not Much Fun every work that he decided was (1) a poem or verse, (2) authored by Parker and (3) that had not been previously published within a collection.
In examining the three selection criteria used by Silverstein, the court first held that it could not discern any creative principle that guided Silverstein’s decisions that a work was a poem because his decisions that certain works were poems were based objectively on whether the work contained the conventional structural features of a poem. The court also held that there was no creativity by Silverstein in determining which works were written by Parker. The court found that Silverstein based these decisions merely on historical facts and evidence.
Finally, the court held that to be afforded copyright protection, “a compilation must be governed by principles of selection other than all inclusiveness.” The court found that the only selection criteria used by Silverstein was any uncollected Dorothy Parker poems in existence. Silverstein himself represented that Not Much Fun was a compilation of all of Parker’s uncollected poems. Therefore, the Southern District concluded that the all-inclusive compilation of previously uncollected poems of Dorothy Parker was not creative and therefore not copyrightable so defendant Penguin could not be liable to Silverstein for copyright infringement. The court also found that Penguin was not liable for reverse passing off under the Lanham Act and unfair and immoral trade practices and unfair competition under New York state law.