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May 12, 2004
Common Sense on Compilation Copyright- The Dorothy Parker Case
The Second Circuit this week issued a very interesting decision reversing a district court's summary judgment and injunction enforcing a copyright on a compilation of poems. In 1996, Stuart Silverstein published a book of Dorothy Parker's previously uncollected poems, claiming copyright in his compilation. In 1999, Penguin Putnam Inc. published Dorothy Parker: Complete Poems, which includes 3 previously published collections of Mrs. Parker's poems plus a section of all but one of the poems in Silverstein's compilation, in chronological order rather than in the order in which Silverstein had arranged them in his book. The lower court granted summary judgment for Silverstein and enjoined sales of Penguin's book. The Second Circuit reversed, holding that Silverstein's copyright in the mere selection of the poems in his compilation was too narrow to support an injunction against publication of the Penguin book.
The appellate Court began by observing that compilations may be copyrightable but that a compilation must possess some minimal degree of creativity to warrant copyright protection. It then noted that Parker herself created the class of "previously uncollected" poems found in Silverstein's compilation by choosing to exclude these from the three collections of poems she published during her lifetime, so the "principle of selection" owes nothing to Silverstein. The Court then considered various arguments of plaintiffs as to why the compilation possessed sufficient creativity but expressed skepticism for all of them, concluding that there are triable issues of fact as to whether the compilation (not including the exact order of the poems) merits copyright protection. An interesting point: in rejecting the idea that copyedits plaintiff claimed to have made to Parker's poems were "creative" elements of the compilation, the Court found that by presenting the poems as written by Parker, without pointing out any copyediting contribution, plaintiff presented the compilation as factual (these are all the uncollected poems) and therefore was estopped from arguing that the same compilation was creative. This estoppel argument could be made in other cases challenging the copyrightability of compilations. (wink wink).
The Court then held that even if Silverstein's creative contribution to the selection of Parker's previously uncollected poems is non-trival, an injunction barring Penguin from publishing its book, a complete collection of Parker's work, was an abuse of discretion. "An injunction should not be employed to bar Penguin from doing what any other publisher assembling a complete works could do."
The Court doesn't say this in so many words, but it implies that Penguin had permission from the owner of Parker's copyright, and that it would be a bizarre result if the owner of copyright in one compilation of copyrighted works could prevent another publication of those works, approved by the copyright holder(s) for the individual works. Nifty little case
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