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A federal appeals court has vacated an injunction that took a compilation of Dorothy Parker poems off the shelves for alleged copyright violations, ruling that the judge who barred sales of the book had abused his discretion. A unanimous panel of the 2nd U.S. Circuit Court of Appeals said a preliminary injunction against a creative work is an “extraordinary remedy.” “In the copyright realm, it has been said that an injunction should be granted if denial would amount to a forced license to use the creative work of another,” Judge Dennis Jacobs wrote in Silverstein v. Penguin Putnam Inc., 03-7363. Jacobs said that although the plaintiff, who published a previous collection of Parker’s poems, might have a protectable interest in a similar volume of her works, it was “so slight” that it could not result in an injunction against Penguin’s book, “Dorothy Parker: Complete Poems.” Stuart Y. Silverstein sued Penguin after it published “Complete Poems” in 1999. Silverstein had compiled a similar book, “Not Much Fun: The Lost Poems of Dorothy Parker,” for Simon & Schuster in 1996. He originally tried to sell his book to Penguin but rejected its offer. Silverstein sued when the subsequent book was released, alleging that Penguin had copied his work and engaged in unfair trade practices. Penguin’s book contained a section of “uncollected” poems that included 121 of the 122 poems published in Silverstein’s book. Penguin admitted that the editor who prepared “Complete Poems” simply photocopied Silverstein’s book, cut the poems with scissors, rearranged them in chronological order and placed them in Penguin’s book. In April 2003, Southern District Judge John F. Keenan granted Silverstein summary judgment. He found that Silverstein’s arrangement of the poems, along with his introduction, reflected a sufficient amount of creativity and judgment to meet “the minimum requirement for originality.” Keenan enjoined Penguin from selling its book and said the publisher had willfully failed to credit Silverstein’s work. Reversing that ruling, the 2nd Circuit questioned the amount of creativity, if any, Silverstein displayed in compiling the unpublished poems and said he did not deserve the extreme remedy of a preliminary injunction. Since “Complete Poems” does not copy the arrangement of the poems, the court said, Silverstein could only argue infringement as to the selection. “As to that,” Jacobs wrote, “the chief principle of selection is that the poems collected by Silverstein were not collected by Mrs. Parker in her lifetime. The selection was thus made by Mrs. Parker, and it remained for Silverstein only to gather up the poems she selected for exclusion.” Jacobs noted that this type of “gathering” is a kind of work that copyright law does not protect. “Even if Silverstein’s creative contribution to the selection of Mrs. Parker’s previously uncollected poems is non-trivial, and even if Penguin’s appropriation of it was deliberate, enforcement of his rights by a preliminary or permanent injunction that stops publication of ['Complete Poems'] is an abuse of discretion,” the judge concluded. Richard Dannay of Cowan, Liebowitz & Latman represented Penguin. Mark A. Rabinowitz of Neal, Gerber & Eisenberg in Chicago represented Silverstein.

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