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Penguin Prevails in Plagiarism Suit Brought by Author

Earlier this year, the copyright/plagiarism suit brought by Stuart Silverstein went to trial. Yesterday, the trial judge found in favor of Penguin (pdf link to ruling) and against the author holding that there simply wasn’t any creativity in the work that Silverstein compiled since ALL of the uncollected poems were included in his work, rather than some selection.

The same judge had originally found in favor of Silverstein in 2003 but when ordered by the reviewing court (the 2nd Circuit Court of Appeals) to determine “whether Silverstein is entitled to any protection for his selection of uncollected poems, or whether he in fact simply published as many as he could find”, the trial court reversed his earlier finding.

I can’t help but wonder if this same opinion can be used as a shield against J.K. Rowling’s suit against the publishers of the impending book from the Harry Potter Lexicon website.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She self publishes NA and contemporaries (and publishes with Berkley and Montlake) and spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com


  1. Kat
    Nov 10, 2007 @ 08:06:35

    But are the two cases comparable? Isn’t JRK the owner of Harry Potter and the characters therein? Whereas Silverstein doesn’t really own any of the poems. Or am I missing something?

  2. Julie Leto
    Nov 10, 2007 @ 14:58:39

    Kat, I’m with you. The only way this is at all comparable is if Dorothy Parker sued Penguin.

  3. Jane
    Nov 10, 2007 @ 15:11:11

    I’m thinking about the creativity issue since that’s obviously what the case turned on. I haven’t read the 2nd Circuit case nor the trial court’s ruling, but indexes and companion guides have been written on other works before (they may have been challenged, but I am not aware of those challenges not having read them).

    Even if the cases are factually dissimiliar, sometimes the rule of law stemming from the decision can be used in subsequent suits.

  4. Robin
    Nov 10, 2007 @ 16:33:56

    From the ruling:

    Silverstein included in Not Much Fun every work that he decided was 1) a poem or verse 2) authored by Parker 3) that had not been previously published within a collection. The primary question presented is whether these decisions entailed any creativity at all and, if so, whether the amount of creativity suffices for copyright protection to attach. . . .

    The Court finds that Silverstein simply selected for inclusion in Not Much Fun all of the uncollected Parker poems that he could find and that this selection process involved no creativity.

    And an interesting article from the Parker Society that discusses the crux of the case as it was tried.

  5. Jane
    Nov 10, 2007 @ 21:23:11

    It’s probably a reach to say that this Penguin suit may impact the Rowling one, but I think the Rowling case will turn on the issue of whether the derivative work is creative enough to surpass a copyright challenge.

    I was thinking about that the other day when I was reading the NYT review of Rhett Butler’s People. This was the “authorized” sequel but there was another not authorized one. I assume that Mitchell’s book is still under copyright protection and thus the unauthorized sequel must have overcome a copyright challenge.

  6. Julie Leto
    Nov 11, 2007 @ 20:37:19

    I believe the unauthorized GWTW book was “The Wind Done Gone” and if I remember correctly, it held up because it was a satire, which is protected or, at least, an acceptable form of copyright infringement, if there is such a thing. I do remember a trial, but I can’t remember the outcome. I’m pretty sure the Margaret Mitchell estate lost, but I could be wrong.

    In the case against Penguin, the “author” didn’t write anything…he just copied poems from one source to another. In the HP case, the so-called author is creating new words, though his information is, of course, gleened entirely from the Harry Potter books or from interviews and such that JK Rowling has given or notes she’s posted on her website.

    The biggest difference is that JK Rowling has said she intends to write her own encyclopedia and that the proceeds will go to charity. This book by Lexicon will compete with hers…and it could potentially hurt her sales since the Lexicon book will come out first. JK Rowling admired the Lexicon website, but it’s one thing to have a website that compile information and is available to her fans for free than to take that information and put it in book form and sell it for a profit that does not benefit the creator of the work–that is, JK Rowling herself.

  7. Jane
    Nov 11, 2007 @ 21:58:58

    Yes, I recall the Mitchell estate lost too but I can’t recall the grounds. I don’t know why it would matter that Rowling intends to write her own derivative work in balancing whether a copyright infringement exists.

    I think the question comes down to whether the Lexicon’s work is considered “fair use” in balance with Rowlings right to derivative works.

    I haven’t done any research or thought about this a great deal but it is quite interesting to me. There the case of Perfect 10, Inc. v., Inc. in which the copyright holders sued Amazon and Google for the indexing of its images. The court held in favor of Google and Amazon, finding that the index of the images was fair use (it ruled in favor of the search engine on other grounds, but on the issue of fair use it found that Google’s use of the images was highly transformative:

    “Google uses Perfect 10’s images in a new context to serve a different purpose.” and that the transformative nature served a public purpose.

    I think the question is whether the Lexicon’s index would put the Harry Potter works “in a different context” so that there is “new expression, meaning, or message.” Which is why I wondered whether this case and its ruling on the idea of “creative expression” would have any meaning for the Rowling/Lexicon suit.

    Just off the top of my head, I think that JK Rowling’s encyclopedia would trump, for lack of a better term, the Lexicon’s work if it was published first but her mere intention to write one doesn’t seem like it would have an impact.

  8. Julie Leto
    Nov 11, 2007 @ 22:33:17

    No, I don’t think the fact that she intends to write one has any legal bearing–but I think it explains why she’s pursuing the case…beyond the fact that she pursues anything that might infringe…and I totally get that. If she doesn’t, she could be really screwed in the future. In other words, she has really strong motivation.

  9. Jane
    Nov 11, 2007 @ 22:38:05

    Oh, I understand why she is doing this, but copyright protections don’t expire from lack of enforcement like a trademark. I don’t know whether an alleged infringer can argue that the failure to enforce a past infringement means a waiver of all future infringement.

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