them, with a Q-and-A that asks why they decided to
become lawyers. There are all these stock answers:
“I want to advocate for those less fortunate”; “I
thought it best fit my skills.” I’ve never seen anyone
say, “I went to law school because I couldn’t think of
anything else to do.” But it’s gotta be true for a large
number of people. How many people in their early
20s really have a clue what they want to do?
Q: Do you remember your first big case?
A: In 1988 I had just become a partner at a firm that
doesn’t exist anymore. It was called Gordon Altman.
It merged into DLA Piper probably 10, 15 years ago.
I came in as a partner and one of my new
partners had a very close relationship with
Icahn. Two days earlier, Icahn had acquired 13
percent of the stock of Texaco, which had just
gone into bankruptcy; and on my first day on
the job this guy says to me, “Want to meet Carl
Icahn, maybe represent him in this Texaco case?”
Sure. So I go sit down with Icahn. We hit it off, I
like him, he’s a very, very smart guy. So basically
I’m representing the largest shareholder in the
largest bankruptcy in history; I’m going to court
on this every few days; I’m getting front-page
coverage in the Journal and New York Times’
business section; I did a thing with Lou Dobbs on
Moneyline; and I’m 29 years old.
PAUL CONTINUED FROM PAGE 24
Paul for 26 years, and was mentored by Paul at Kay Collyer & Boose in the
late ’80s. While Hallie calls Paul “a hard-nosed, brilliant litigator in the
courtroom—one of the best I’ve ever seen,” she’s quick to add, “There is a
warmth and humanity and generosity of her time, particularly with younger
people she mentors and works with. She doesn’t often talk about this because
it’s so naturally a part of her DNA that she probably doesn’t recognize it as a
strength in herself. She just doesn’t bring attention to herself like that.”
The same can’t be said for most of her clients. Consider Mel Brooks, whom
Paul represented in the late 1970s in a case that involved royalty accountings
for his movie The Twelve Chairs.
“You could have sold tickets to that deposition,” recalls Paul with a broad
smile. “It was hilarious. You just couldn’t get [Brooks] to answer a question
straight. Mel Brooks is Mel Brooks, whether on screen or in a deposition.”
Paul’s clients have included some other big names—Franklin Delano
Roosevelt Jr., Ms. magazine, the estate of J.R.R. Tolkien, BBC Worldwide,
Simon & Schuster, Miramax, and NBC, just to name a few—but she doesn’t
talk easily about them. But with them? Another story.
“Marcia’s got a vast amount of experience representing high-profile
businesses and clients,” says Hallie. “So she’s able to get through the B.S.
and be able to talk honestly with her clients about their litigation without
being in awe of who she’s talking to. I think that’s why so many of these
clients rely on her so heavily. They already have enough people to kiss their
asses. They don’t need their lawyers to do it, too.”
THEN THERE IS PERHAPS PAUL’S MOST NOTABLE CLIENT: J.D. SALINGER.
Twice she represented the famous and reclusive author, who died in January
2010, and on both occasions it was not in her typical role as a defendant’s
lawyer but as a plaintiff’s lawyer.
The first case, Salinger v. Random House, came about in 1986 after
British author and poet Ian Hamilton wrote a biography of Salinger, J.D.
Salinger: A Writing Life, that contained several lengthy quotations from
letters Salinger had written during World War II. Paul argued on Salinger’s
behalf that the letters, which Hamilton read at various university libraries
during the course of his research, were unpublished, and therefore
Hamilton’s use of them infringed Salinger’s copyright.
“Letters count as unpublished works, and there is a key distinction
between owning the physical copy of a letter and owning the contents of the
letter itself,” says Paul, who relishes the nuances of this sort of case. “Just
because you wrote down your innermost thoughts and sent them to me does
not count as publication. I may own the physical piece of paper, but I can’t
reproduce it, display it or distribute it.”
When Hamilton’s book was finally published in 1988, it was retitled In Search
of J.D. Salinger and described the experience of trying to write the original book.
Twenty-one years later, in 2009, Salinger came to Paul again. This time a
Swedish joke-book writer, Fredrik Colting, had written a so-called sequel to
Salinger’s most famous work, The Catcher in the Rye, called 60 Years Later:
Coming Through the Rye, which featured what Paul calls “fake Salingerese”
along with many of the primary characters from Salinger’s original novel,
including a protagonist named “Mr. C.” Salinger sued.
Again Paul found herself in intellectually rich territory, and the questions
swirling around the suit were as fascinating as they were challenging.
What constitutes fair use? What is the difference between parody and
infringement? And how does a court determine whether a work is
transformative rather than infringing?
“It was very interesting stuff,” says Paul, who first represented Salinger
because one of her partners, Andy Boose, was counsel for Salinger’s
longtime literary agency, Harold Ober Associates.
Regarding why she took the cases, Paul says, “In both cases—having
read both books—it was absolutely clear to me that they were not fair
uses under our copyright law for very different reasons, but clearly not
fair uses nonetheless. In other words, it was fact specific—the facts clearly
supported the claims, in my view, and didn’t risk creating bad law.”
In the end, Judge Deborah Batts ruled, in a preliminary injunction on July
1, 2009, that Salinger was likely to succeed in proving that Coming Through
the Rye did not constitute fair use, and that the novel “contains no reasonably
discernable rejoinder or specific criticism of any character or theme of Catcher.”
She also ruled that the book couldn’t be published in the United States.
TODAY’S MEDIA LANDSCAPE IS, OF COURSE, DIFFERENT FROM THE
one Paul first encountered in the early ’70s. Content is developed, sold and
distributed in previously unimaginable ways, and the Internet has thrown
copyright and intellectual property law into evolutionary hyperdrive.
“The law doesn’t change as fast as the technology, so you are constantly
trying to work the law in a way to adapt it to changing technologies,” says Paul.
“It’s a challenge, but it’s an intellectual challenge. An interesting challenge.”
This, says longtime friend and colleague Hallie, all comes back to Paul’s
inherent hunger for litigation.
“She loves being a litigator,” says Hallie. “Not only is she never bored
of it, but she lives and breathes it, and I think that’s because she’s always
interested in learning. Everything.”
