1 84E3WAR1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 WARNER BROS. ENTERTAINMENT, 3 INC. and J.K. ROWLING, 4 4 Plaintiffs, 5 5 v. 07 CV 9667 (RPP) 6 6 RDR BOOKS, 7 7 Defendant. 8 8 ------------------------------x 9 New York, N.Y. 9 April 14, 2008 10 9:30 a.m. 10 11 Before: 11 12 HON. ROBERT P. PATTERSON, JR., 12 13 District Judge 13 14 APPEARANCES 14 15 O'MELVENY & MYERS 15 Attorneys for Plaintiffs 16 BY: DALE M. CENDALI 16 DANIEL N. SHALLMAN 17 CLAUDIA E. RAY 18 LAW OFFICE OF DAVID S. HAMMER 18 Attorney for Defendant 19 BY: DAVID S. HAMMER 19 -and- 20 STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 20 BY: ANTHONY T. FALZONE 21 JULIE A. AHRENS 21 -and- 22 CREATIVE INDUSTRY LAW GROUP 22 BY: LIZBETH HASSE 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 84E3WAR1 1 (In open court) 2 THE DEPUTY CLERK: Warner Bros. Entertainment and J.K. 3 Rowling v. RDR Books. Is the plaintiff ready? 4 MS. CENDALI: Yes, your Honor. 5 THE COURT: Good morning, Ms. Cendali. 6 MS. CENDALI: Thank you, your Honor. 7 THE DEPUTY CLERK: Defendant ready? 8 MR. HAMMER: We are, your Honor. 9 THE COURT: Good morning, Mr. Hammer. I've been 10 served several letters over the weekend, and including an 11 amended complaint, which the Court was expecting and I think 12 the defense was expecting in view of Friday's conference. A 13 second amended complaint. 14 Then also, on Friday, there was a letter motion 15 brought with respect to the plaintiff's witness Mr. Harris, 16 expert witness Mr. Harris. His testimony. And I'm going to 17 allow that testimony. The cases which the plaintiff cites have 18 to do really with raising a new issue at the last moment. And 19 this issue has been raised by plaintiff earlier by its expert 20 Technovation, and so I'm going to allow it for whatever it is 21 worth. Having said that, I think I've ruled on any outstanding 22 applications so let's -- 23 MR. HAMMER: May I just make one point. Over the 24 weekend I realized that out of my own dumbness I omitted a page 25 from the Power Point of our expert Janet Sorensen. It was a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 84E3WAR1 1 single page, it was a blow-up of the single entry of the 2 Lexicon. I sent it to plaintiffs. 3 MS. CENDALI: We have no objection, your Honor. Over 4 the weekend both parties have been working hard to exchange 5 demonstratives and the like. 6 THE COURT: Thank you very much. Then let's hear, you 7 want to make opening remarks? 8 MS. CENDALI: Yes, your Honor. Shall I introduce 9 counsel at the table, your Honor? 10 THE COURT: Surely. 11 MS. CENDALI: I'm Dale Cendali of O'Melveny & Myers, 12 and with me -- and I'm counsel for Warner Bros. and 13 Ms. Rowling. With me at counsel table is my client, J.K. 14 Rowling, as well as my colleague from O'Melveny & Myers, Dan 15 Shallman, and Claudia Ray. Also here on behalf of Warner Bros. 16 is Jeremy Williams and Mr. Jim Hoy, who is our technical aid. 17 THE COURT: Welcome. 18 MR. HAMMER: May I introduce our team, your Honor. 19 This is Mr. Anthony Falzone from Stanford University. Next to 20 him is Ms. Lizabeth Hasse, who has been counsel to RDR Books. 21 That is Julie Ahrens from Stanford. At the end, the man 22 without whom none of us would be here, Roger Rappaport of RDR 23 Books. 24 MS. CENDALI: Other than suggesting that the person 25 without whom none of us would be here is Ms. Rowling. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 84E3WAR1 1 MR. HAMMER: He's sufficient in his own, though. 2 MS. CENDALI: Shall I proceed, your Honor? 3 THE COURT: Yes. 4 MS. CENDALI: Good morning. May it please the Court, 5 I am privileged here to be here today representing Warner Bros. 6 and J.K. Rowling. 7 This is a case about the massive wholesale copying, 8 willful copying, beyond anything that could possibly be excused 9 by the fair use doctrine, of the life work of the history 10 making author J.K. Rowling, the creator of the Harry Potter 11 series. 12 The evidence will show that the copying of 13 Ms. Rowling's work in the Lexicon manuscript at issue here was 14 both systemic and complete. Duplicating her poems, abridging 15 her plots, and copying and paraphrasing her words. Words that 16 you will hear Ms. Rowling herself explain she slaved over to 17 craft the best way possible as only a fine writer can, now 18 appear in a book under the name of someone else. And, to add 19 injury to insult, you will hear that defendant's plan was to 20 covertly rush to market with the Lexicon in order to scoop 21 Ms. Rowling's own long announced plans to publish a 22 comprehensive encyclopedia of her work and to donate all the 23 proceeds from that book to charity. 24 RDR eagerly sought the first to market advantage 25 touting its book as the definitive Harry Potter encyclopedia. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 84E3WAR1 Opening - Ms. Cendali 1 Which it is not. 2 While you will no doubt hear defendant's attempt to 3 characterize the Lexicon as a research guide, merely slapping 4 on a self-serving label, the evidence will show, does not make 5 it so. And you will hear both Ms. Rowling and Professor Jeri 6 Johnson of Oxford University explain. Rather, the evidence 7 will show, unlike the many books about Harry Potter on the 8 market, including other A-to-Z guides, the Lexicon both takes 9 too much and does too little. 10 You will hear that the Lexicon takes much more of Ms. 11 Rowling's fictional facts and copyrighted expression that is 12 necessary to comment on and discuss the Harry Potter books, and 13 you will hear the Lexicon provides virtually no analysis or 14 commentary, as much as RDR strains to inflate the import of 15 sporadic qualitatively meaningless phrases. 16 Simply put, the evidence will show that in keeping 17 with the long settled law of this circuit, it is copyright 18 infringement that cannot be excused by the fair use doctrine 19 and should be enjoined. 20 But to better understand the issues here, your Honor, 21 it is important, we suggest, to understand the facts. And the 22 facts here should start with the Harry Potter books at issue. 23 Now, while it might be interesting to think of it that way, the 24 Harry Potter books did not just magically appear. Rather, they 25 were the product of the hard work and time and the true SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 84E3WAR1 Opening - Ms. Cendali 1 creative genius of Ms. Rowling. 2 The evidence will show that Ms. Rowling spent 17 years 3 of her life working on the series, overcoming tremendous 4 hardship before achieving her well-deserved success. 5 Ms. Rowling carefully crafted each line of the books, and 6 created a whole new universe of people, places and things that 7 never before existed, but now seem so real. 8 We have on the screen -- I'm sorry not everyone in the 9 courtroom can see it -- just some of the images from the U.S. 10 editions of her works. 11 In fact, as you will hear, a major part of the appeal 12 of the series lies in this meticulous fascinating fictional 13 world Ms. Rowling created. Lord Voldemort, Dumbledore, 14 Hogwarts, Bertie Botts' ever flavor beans, Quidditch. These 15 fictional facts and characters go to the heart of Ms. Rowling's 16 award winning work, and are a major factor in their appeal. 17 But Ms. Rowling did not just stop there. In addition 18 to the seven Harry Potter novels, she also wrote two companion 19 books, Quidditch Through The Ages and Fantastic Beasts and 20 Where To Find Them. She has donated all the proceeds of these 21 books, over $30 million to date and counting, to charity. 22 The evidence will show that these books, like 23 Ms. Rowling's famous wizard cards that are given out with 24 electronic arts games, among other things, further highlight 25 the entertainment value of Ms. Rowling's fictional facts, as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 84E3WAR1 Opening - Ms. Cendali 1 the books and cards have no plot. There is no story. Harry is 2 not fighting Voldemort in these books. Their appeal is just in 3 enjoying the clever nominative genius, the clever things and 4 names Ms. Rowling creates. 5 You will also hear that as a further reflection of the 6 importance of these fictional facts to the Harry Potter books, 7 Ms. Rowling has repeatedly announced as far back as 1998 that 8 she intended to write a definitive encyclopedia of the people, 9 places and things in her books, and to, once again, donate all 10 proceeds to charity. 11 The evidence will show that Steven Vander Ark, the 12 ostensible author of the Lexicon manuscript and the owner of 13 the Harry Potter Lexicon fan site, was well aware of 14 Ms. Rowling's plans, and that he repeatedly recognized that it 15 would be infringing for anyone else to publish a Harry Potter 16 encyclopedia. 17 Just two years before this case was filed, Mr. Vander 18 Ark was approached by two fans asking, as the e-mail on the 19 screen indicates, whether they could publish or it might be 20 possible to publish the Lexicon Web site in book form. And 21 Mr. Vander Ark said "as editor of the Lexicon, I get mail every 22 so often from fans asking me to publish the Lexicon in book 23 form so I've dealt with this question before. Basically, it is 24 illegal to sell a book like that. Jo has reserved all 25 publishing rights to her intellectual property. Which means SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 84E3WAR1 Opening - Ms. Cendali 1 she is the only one who may publish any book that is a guide or 2 encyclopedia to her world. And since we're fans and supporters 3 of Jo, we wouldn't do anything that would violate her rights, 4 even if we could get away with it." 5 Again, just one year before contracting with RDR 6 Mr. Vander Ark wrote to the one of the editors at Scholastic, 7 Ms. Rowling's U.S. publisher, "P.S., it might interest you to 8 know that George Beahm" another author of the companion book, 9 "commented that he had originally intended to write an 10 encyclopedia of Harry Potter, which Jo has specifically 11 reserved for herself, I understand, but seeing the Lexicon Web 12 site convinced him not to bother. I want you to know that one 13 of the express purposes of the Lexicon is to dissuade people 14 from that sort of thing. So I was particularly happy to hear 15 him say that." 16 Now, all of this changed though, your Honor, in the 17 summer of 2007. Last year. Let's look at the calendar for 18 July to see what I mean. July 21 was a red letter day in the 19 world of Harry Potter. Because on that date, the long 20 anticipated release of Harry Potter and The Deathly Hallows 21 came out. There was tremendous excitement in the air to find 22 out who would live and who would die. Meanwhile, Mr. Vander 23 Ark found himself unemployed and looking for a chance to move 24 to London. He contacted Emma Schlessinger at the Christopher 25 Little Agency, Ms. Rowling's literally agent, and asked if he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 84E3WAR1 Opening - Ms. Cendali 1 could be an editor on Ms. Rowling's upcoming encyclopedia 2 project. Ms. Schlessinger responded on July 10 that it was a 3 particularly busy time in light of the upcoming release of the 4 book and declined Mr. Vander Ark's request to work on 5 Ms. Rowling's encyclopedia and she didn't want to collaborator. 6 RDR then enters the picture. Mr. Rappaport, the 7 principal of RDR, sees an article in the newspaper about 8 Mr. Vander Ark's Web site. And that article was published on 9 July 23. Significantly, on July 26, Ms. Rowling again goes on 10 national television and once again tells the world that she 11 intends to do her own encyclopedia which she sees as a gift in 12 a sense to her fans. Shortly thereafter, on August 6, RDR 13 first contacts Mr. Vander Ark about a book deal. 14 Now, even before the meeting with Mr. Vander Ark, RDR 15 had already contacted the UK publisher, Methuen, about 16 publishing the Lexicon. And later it even sought an advance 17 from Methuen so it could rush to publication. An August 13, 18 RDR and Mr. Vander Ark meet, and work began immediately on the 19 Lexicon manuscript. RDR and Vander Ark sign a contract on 20 August 23, and then rush to complete the manuscript by 21 September 15, in order to get the book out on the stores 22 sitting next to the Harry Potter books by November. 23 You will see evidence that the contract between RDR 24 and Mr. Vander Ark is telling. The evidence will show that RDR 25 and Mr. Vander Ark were well aware the book would infringe SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 84E3WAR1 Opening - Ms. Cendali 1 Ms. Rowling's rights, as is shown by the indemnity provision of 2 the contract itself. The evidence will show that the standard 3 practice in publishing agreements is for the author to 4 indemnify the publisher if the book infringed copyright. 5 If you look on the screen, you'll see Exhibit 14-J, 6 the indemnity provision in question which initially tracks the 7 normal procedure. The author Vander Ark hereby indemnifies the 8 publisher against all actions arising out of any claim that the 9 work constitutes an infringement of copyright. But, then it 10 goes on to say "except that the publisher indemnifies the 11 author for any claims of copyright infringement by J.K. Rowling 12 or any of her licensees or assignees such as Warner Bros." 13 Now, despite being in frequent touch with 14 Ms. Rowling's representatives, Mr. Vander Ark never mentions to 15 Ms. Rowling anything about his plans to suddenly publish the 16 Lexicon in book. 17 Turning to September, Neil Blair, Ms. Rowling's London 18 lawyer at the Christopher Little agency, happens to see an ad 19 touting the availability of foreign publishing rights to the 20 Lexicon, and he e-mails Mr. Vander Ark and says what's going 21 on, what's the plan here. 22 Then September and October proceed on two tracks. On 23 the first track is the series of e-mails and letters from 24 plaintiffs to Mr. Rappaport asking RDR to confirm the nature of 25 the proposed book, and to provide a copy of the manuscript and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 84E3WAR1 Opening - Ms. Cendali 1 to hold off publication until things could be discussed. The 2 evidence will show that at least five times plaintiffs wrote, 3 e-mailed or called RDR. 4 But as you will hear, in response, plaintiffs were met 5 with RDR's stalling tactics. A series of letters saying that 6 it was looking into the allegations, that it needed time to 7 respond, and that a family tragedy prevented a quicker 8 response. 9 Meanwhile, however, what was really happening, was 10 that on October 11, RDR found time to write a letter to Warner 11 Bros. accusing it of infringing Mr. Vander Ark's copyright in a 12 Harry Potter timeline Warner Bros. included in the Harry Potter 13 movie DVD. Again, starting the tune of Mr. Vander Ark 14 beginning to think that he had some form of proprietary right 15 in the world that Ms. Rowling created. 16 But the evidence will show that this was just the tip 17 of the iceberg. On track two, unbeknownst to plaintiffs while 18 they were sitting, waiting, wondering what was going on, the 19 evidence will show RDR was secretly doing everything it could 20 to sell the Lexicon as fast as possible all over the world and 21 to rush it to market to beat Ms. Rowling to the punch, and 22 before Ms. Rowling's lawyers could try to stop it. 23 In promoting the book, RDR touted it as the first 24 comprehensive Harry Potter encyclopedia. In an e-mail dated 25 September 6, one of the potential foreign publishers for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 84E3WAR1 Opening - Ms. Cendali 1 Mr. Rappaport himself, he writes "Although this is an 2 unofficial book, it is without a doubt the definitive book on 3 the series, and will come out way ahead of any possible 4 competitors." Way ahead of Ms. Rowling. 5 In an effort, moreover, to keep the nature of the book 6 a secret from plaintiffs, the evidence will also show that RDR 7 intentionally did not offer the book to any publisher anywhere 8 in the world that was also publishing the Harry Potter novels 9 that might look at the manuscript and say, wait a minute, this 10 takes too much, what are you guys doing. That same e-mail from 11 Mr. Rappaport goes on to say "we do not want to sell this to 12 any of the publishers currently publishing the Potter books." 13 Your Honor, they knew what they were doing. 14 Finally, and in the nick of time, after giving RDR one 15 last chance to provide them with a copy of the manuscript to 16 see if it might be possible to reach some sort of amicable 17 resolution, which was utterly rebuffed, plaintiffs had no 18 choice but to file this lawsuit on October 31. The fact it was 19 Halloween, your Honor, was just a coincidence. In order to 20 protect the rights to Harry Potter, rights that Ms. Rowling 21 worked so hard to obtain. 22 Thanks to this Court's expedited discovery order, 23 plaintiffs finally got to see the Lexicon manuscript that RDR 24 had refused to provide, and as you will hear, it confirmed 25 Ms. Rowling's worst suspicions about the misappropriation of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 84E3WAR1 Opening - Ms. Cendali 1 her work. 2 Now, in terms of copyright infringement, there is no 3 dispute that plaintiffs own valid copyrights. Nor should there 4 be any issue as to copying. Mr. Vander Ark admits he used 5 Ms. Rowling's preexisting works to write the Lexicon. He sat 6 there and he took notes. She said a word and he would write 7 down what it said. The evidence will show that the copying was 8 wholesale and pervasive and took multiple forms that bear, your 9 Honor, not just on infringement but also on fair use in 10 considering the totality of the taking, the substantiality of 11 the taking. 12 In terms of these forms of copying, some of the 13 copying was of entire songs or poems that Ms. Rowling wrote. 14 Such as the Hogwarts school song. Some of the copying was 15 taking of evocative beautiful phrases crafted by Ms. Rowling 16 reproduced in the Lexicon without even the courtesy of a 17 quotation mark. And a good example of this is the entry of the 18 Lexicon for Madam Marchbanks that repeated Ms. Rowling's 19 memorable phrase describing this character saying that Madam 20 Marchbanks' face was so lined it looked as though it had been 21 draped in cobwebs. 22 The Lexicon entry: Madam Marchbanks, her face so 23 lined, it appeared draped in cobwebs. 24 Even in this courtroom, the beauty of that phrase, the 25 evidence will show, is apparent. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 84E3WAR1 Opening - Ms. Cendali 1 Another form of the copying restates Ms. Rowling's 2 fictional facts. For example, the entry for the annual broom 3 race of Sweden just restates without any analysis whatsoever 4 the entertaining facts that Ms. Rowling made up about a pretend 5 annual broom race of Sweden that she discussed in her Quidditch 6 Through The Ages. You can take judicial notice that there is 7 not actually, as far as I know at least, a broom race in Sweden 8 of magical wizards, at least not in this dimension. 9 The final example of the systemic nature of copying is 10 the copying of Ms. Rowling's plots in numerous longer Lexicon 11 entries, entries that retell the stories of the major 12 characters. Plot summaries that -- the Harry Potter entry, for 13 example, is 10 pages long, and as you will hear from 14 Ms. Johnson of Oxford, it simply abridges the entire story of 15 Harry Potter without adding any analysis. 16 Mr. Hoy, can you just scroll through the 10 pages of 17 that particular plot entry, please. 18 Faced with this wholesale copying, RDR seeks to avoid 19 infringement by claiming fair use. But the evidence will show, 20 your Honor, that RDR's use was neither fair nor useful. You 21 will hear evidence showing that RDR cannot meet its burden of 22 establishing any of the fair use factors as RDR has taken too 23 much, and done too little. The evidence will show that the 24 nature of the copyrighted work factor favors plaintiffs, as 25 there can be no doubt that Ms. Rowling's award winning SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 84E3WAR1 Opening - Ms. Cendali 1 wonderful books are creative, expressive works, at the core of 2 what copyright law is intended to protect. 3 The evidence will also show that the amount and 4 substantiality of the portion used factor also favors 5 plaintiffs. As you will hear Ms. Rowling and Ms. Johnson 6 discuss, the Lexicon takes too much, it restates and abridges 7 Ms. Rowling's entire universe. As the very first page of the 8 Lexicon manuscript states, all the information in the Harry 9 Potter Lexicon comes from J.K. Rowling, either in the novels, 10 the school books -- those are the companion guides I 11 mentioned -- from her interviews or from material which she 12 developed or wrote herself. 13 As you will hear Mr. Vander Ark admit, the Lexicon is 14 comprised only of what he terms canon. And canon is defined as 15 coming from my client, J.K. Rowling. 16 You will also hear that RDR made a conscious decision 17 in producing the Lexicon to have it only deal with 18 Ms. Rowling's fictional universe, and not any real world facts. 19 As an e-mail from Richard Harris, a former lawyer and an editor 20 at RDR Books wrote to Mr. Vander Ark copying Roger Rappaport in 21 August of last year. "Hi Steve, my preference would be to keep 22 this book focused on the fictional world and leave the real 23 world details of J.K. Rowling's life, as well as anything else 24 that's outside the parameters of the story itself, for another 25 project." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 84E3WAR1 Opening - Ms. Cendali 1 The evidence will show that RDR has taken far more 2 than is necessary to do a Lexicon or guidebook to the Harry 3 Potter books. As is shown by the existence of other 4 alphabetical guides to the Harry Potter universe that engage in 5 far less copying and have far more analysis of their own in 6 order to make their points. I think we have a slide of some of 7 those. 8 As you will hear Ms. Rowling and Ms. Johnson discuss, 9 rather than just use a word or two or a short phrase in the 10 Harry Potter books as a jumping off point for its own analysis, 11 instead RDR copies the entire set of fictitious facts, all the 12 plots of the Harry Potter universe, and thereby usurps for 13 itself a big part of the entertainment value of Ms. Rowling's 14 books. 15 For example, the evidence will show that there are 274 16 entries in the Lexicon pulled from Ms. Rowling's 64-page 17 Quidditch Through The Ages book. I'm holding it up, your 18 Honor. It is not a very big book and they have 274 entries 19 about it alone. Similarly, in her 63-page book, Fantastic 20 Beasts and Where To Find Them, there are 222 Lexicon entries 21 pulled from this book. 22 As you will hear Ms. Rowling discuss, there is no 23 reason to buy these books if you have the Lexicon. The same is 24 true with regard to not needing to buy or read her wizard cards 25 that talk about various wizards through history she created, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 84E3WAR1 Opening - Ms. Cendali 1 because all of their content is duplicated in the Lexicon. 2 In tacit recognition that it had a problem, just three 3 weeks before trial, you will hear that Mr. Vander Ark revised 4 the Lexicon entries for the Fantastic Beasts book to take away 5 some of the verbatim copying, but the overall number of entries 6 and the reproduction of her fictional facts remains the same. 7 Now, the evidence will also show that the purpose and 8 character of the use factor similarly favor plaintiffs in terms 9 of the commercial aspect of this factor, the evidence will be 10 undisputed that Lexicon is intending for sale at $24.95 in the 11 children's section of bookstores to be put on shelves right 12 next to Ms. Rowling's books. 13 You will hear Ms. Johnson and Ms. Rowling describe how 14 the Lexicon adds nothing new or original to our understanding 15 of Harry Potter. But it merely rearranges her work in 16 unoriginal, alphabetical order. You will hear Ms. Rowling 17 discuss the numerous, missed opportunities to do even the most 18 basic analysis that kids all over America are probably doing in 19 their high school classes. And as you will hear Professor 20 Johnson explain, how the Lexicon is drawn almost entirely from 21 Ms. Rowling's works. You will hear her explain that the scant 22 new material that the Lexicon offers is insignificant in 23 quantity and quality, and consists largely of facetious asides, 24 statements of the obvious, and sporadic frequently wrong 25 etymologies. In other words, the Lexicon does too little. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 84E3WAR1 Opening - Ms. Cendali 1 While RDR labels the book as a research guide, the 2 evidence will show that this was merely a calculated 3 self-serving label designed to bolster its case. As one of 4 RDR's own internal e-mails shows, again, in an e-mail from 5 Richard Harris, former lawyer editor at RDR to Steven Vander 6 Ark copying Roger Rappaport. Excuse me. To Roger Rappaport 7 dated September 30, after there were a number of cease and 8 desist letters. It's: Hi Roger, here is a rewritten 9 disclaimer. I've tried to take out some stuff. Just because 10 you said it is a critical reference book or covered by the fair 11 use doctrine, doesn't mean it is. 12 That's what this case is about, your Honor. You can 13 label something a reference guide, but it doesn't mean that it 14 actually is one. As you will see, the lack of original 15 material in the Lexicon is also evidenced when the Lexicon is 16 compared to other alphabetical guides to the Harry Potter 17 series. But these books, unlike the Lexicon, take less, and do 18 more. 19 I think an example of the evidence is if we look at 20 the moke entry from Ms. Rowling's -- for the moke entry from 21 the Lexicon, all you'll see there in the Lexicon is a one line 22 entry that says moke. A small magical lizard that can shrink 23 at will. FB. Fantastic Beasts and Where To Find Them. That's 24 all it provides. Well, if you contrast that to Exhibit 74, the 25 Fact Fiction and Folklore in Harry Potter's World book, that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 84E3WAR1 Opening - Ms. Cendali 1 entry will say moke. A Lizard that can shrink at will. But 2 then it will go on to provide useful information. A professor 3 at the University of Illinois explaining to people what a moke 4 is. The Lexicon does not engage in that activity other than on 5 extremely rare occasions. 6 Now, RDR at times seems to contend that it can satisfy 7 the purpose and character of the use factor by somehow 8 qualifying as useful. But it is not clear what RDR sees as the 9 purpose of the Lexicon other than, we'll show, to make money. 10 If it is supposed to be a work of criticism or analysis, the 11 evidence will show that it takes too much of Ms. Rowling's work 12 for that purpose, and adds no -- or virtually no -- analysis. 13 Now, if it is supposed to be some sort of an index to 14 her work, it also takes too much. As if you are going to do an 15 index to the Harry Potter works, you don't need to take so much 16 of Ms. Rowling's prose for that purpose. Not only that, as an 17 index, it also does too little again, because as you will hear 18 from Ms. Rowling and Ms. Johnson, the citations in the Lexicon 19 are not like you would have in an index. They don't purport to 20 list all the times a character appears, the first time a 21 character appears, it is just some generics and general chapter 22 references and that's that. So as you will see, the Lexicon is 23 neither useful nor fair. 24 Now, turning to the effect on the market factor of the 25 fair use analysis, the evidence will once again show that this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 84E3WAR1 Opening - Ms. Cendali 1 factor favors plaintiffs. Now, here, just like copying took 2 many forms, your Honor, here the market harm also takes several 3 forms. The first type of market harm at issue here is the harm 4 to sales of Ms. Rowling's own planned encyclopedia. You will 5 hear, your Honor, that RDR plans to have its book sit on a 6 shelf right next to Ms. Rowling's books in direct competition. 7 Second, you will hear that RDR and Mr. Vander Ark contemplated 8 that the Lexicon would be a best seller. There is even a 9 provision in the contract providing additional money for 10 Mr. Vander Ark should that happen. 11 You will see evidence that they worked very hard to 12 tout the fact that Mr. Vander Ark had become a professional 13 Harry Potter fan, and that they were using his celebrity to try 14 to make sales of the book. You will hear that other Harry 15 Potter companion books, such as the Mugglenet book, what would 16 happen in Harry Potter book seven, became major bestsellers 17 earning over $2 million in over 330,000 copies of sales. And 18 you will see that Mr. Rappaport saw an advantage in being the 19 first to market, and sought that advantage for his company. 20 Now, the second type of harm that you will hear about, 21 your Honor, is the harm to the market from Ms. Rowling's 22 companion books, the Quidditch Book and Fantastic Beast, as 23 well as the market for the wizard cards that I mentioned 24 earlier. Because as you will hear the evidence of taking from 25 these books is so complete as to eliminate the need to purchase SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 84E3WAR1 Opening - Ms. Cendali 1 those products. And thereby eliminate the money that would go 2 to charities for people buying the Quidditch and Fantastic 3 Beasts book. 4 The third type of harm is the harm to the Harry Potter 5 books themselves. Because of the extensive plot summaries 6 presented without any spoiler warnings. These can provide a 7 convenient or all too convenient substitute for a person, 8 perhaps a child, who may have thought, you know, I haven't 9 quite finished those big, long, thick books, maybe I can just 10 read the spoiler summary and find out did Harry ever defeat 11 that Golden Wart guy after all. 12 Ms. Rowling's concern here is not about incremental 13 sales on the Harry Potter books. This is not a case about 14 money. But, one of the wonderful things, as you will hear her 15 say, that satisfies her as someone who had been trained as a 16 teacher, is that the Harry Potter books have encouraged 17 reading. And providing that kind of detailed plot summaries, 18 taking her entire narration, you will hear, undercuts that. 19 The fourth type of market harm is harm to plaintiff's 20 overall licensing programs. Programs that they worked very 21 hard, as you saw in some of the declarations submitted to the 22 Court, to ensure the high quality of the Harry Potter products 23 and to make sure that Harry Potter lives forever. 24 And you will hear, your Honor, that the Lexicon is not 25 a quality book. You will hear from Ms. Rowling and Ms. Johnson SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 84E3WAR1 Opening - Ms. Cendali 1 that it does not reflect well on the Harry Potter series, and 2 it undermines and tarnishes it. For it to be touted as the 3 definitive Harry Potter encyclopedia is an injustice to 4 Ms. Rowling's work. 5 Now, RDR's primary response to plaintiff's evidence of 6 multiple market harms is to argue that well, Ms. Rowling is so 7 popular, people will buy anything she buys. Doesn't she have 8 enough money anyway? 9 But, the evidence will show that while Ms. Rowling is 10 undeniably and deservedly popular, the market for companion 11 books is not the same as the market for her Harry Potter 12 novels. While her Harry Potter novels have sold fabulously, 13 her existing canon books, though they've done well, have not 14 done as well as the novels. People will not just buy anything 15 that has her name on it. Moreover, there is the basic 16 difference, as you will hear Ms. Murphy from Scholastic, the 17 senior marketing person there, testify, that there is a basic 18 difference between the hard core Harry Potter fan who, if they 19 had the money, would buy everything they could, and the more 20 casual fan, the grandparent who might want to buy a gift for 21 their grandchild, who may not say, well, I already bought one 22 Lexicon, one guide to Harry Potter, do I really need to buy 23 another. And who may not be quite sure about the difference 24 between the two or the quality of same. 25 Now, in assessing fair use, your Honor, bad faith is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 84E3WAR1 Opening - Ms. Cendali 1 also an equitable consideration that, as you know, this Court 2 may take into account. And here, the evidence will show that 3 RDR's bad faith cuts against a finding of fair use. The 4 evidence cited previously regarding RDR's clandestine stalling 5 tactics shows that this consideration too favors plaintiffs. 6 Now, just as RDR cannot meet its burden of 7 establishing fair use, the evidence will show it cannot meet 8 its burden of establishing its other affirmative defenses of 9 copyright misuse, and unclean hands. RDR, in terms of 10 copyright misuse, essentially suggests that plaintiffs, 11 Ms. Rowling, is not entitled to protect her copyright to the 12 Harry Potter series because she has somehow gone beyond her 13 copyright rights to restrain trade, to quash speech, to prevent 14 people from talking about Harry Potter. 15 But the evidence will show that plaintiffs merely 16 engaged in the normal policing of their copyrights, relying on 17 directly applicable leading cases of this circuit. You will 18 see that RDR cannot show any objectively baseless conduct as 19 would be required to avoid the Noerr-Pennington doctrine. 20 In any case, your Honor, the proof is in the pudding. 21 Far from being overly restricted, the evidence will show 22 plaintiffs have given wide latitude to all sorts of activities 23 about Harry Potter. There is fan fiction, there is fan art, 24 there is Harry Potter wizard rock bands. There is a virtually 25 unfettered Internet that has become a giant Harry Potter book SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 84E3WAR1 Opening - Ms. Cendali 1 club. All this activity goes on and is not just tolerated, it 2 is encouraged. Warner Bros. even provides kits for fans to be 3 able to use images on their Web sites. 4 You will also see that there are numerous companion 5 books that have been published about Harry Potter on topics, as 6 the slides show, ranging from Harry Potter and religion, Harry 7 Potter and literature, kids and Harry Potter, science and 8 psychology in Harry Potter, what we can learn about Harry 9 Potter and parodies of Harry Potter. 10 The evidence will show, as indicated earlier, that 11 there are also other guidebooks to the Harry Potter series. 12 That these guidebooks, unlike the Lexicon here, take much less 13 and do much more. Approximately 100 books have been printed in 14 the United States alone about the Harry Potter series. 15 Your Honor, the evidence will show that if plaintiffs 16 did intend to limit First Amendment expression with regard to 17 Harry Potter, that they haven't done a very good job of it. 18 There is even less evidence, your Honor, to support 19 RDR's unclean hands defense. RDR to this date has not even 20 articulated the nature of this defense. But the evidence will 21 show that it's hard to imagine a less likely candidate to be 22 accused of having unclean hands than J.K. Rowling. Remembering 23 her past, Ms. Rowling has repeatedly used her Harry Potter 24 copyrights to benefit those in need. Time and time again, she 25 has given of herself, despite the needs of her young family, to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 84E3WAR1 Opening - Ms. Cendali 1 all sorts of fan activity, of helping sick children, etc. The 2 idea that she would be accused without any evidence whatsoever 3 of unclean hands, the inclusion of this defense, your Honor, 4 the evidence shows, just highlights RDR's desperation. 5 Now, in addition to presenting evidence as to 6 liability, we will also present evidence that a permanent 7 injunction should issue. In terms of irreparable injury, as 8 you already heard me discuss in terms of the market harm, fair 9 use factor, that market harm is unquantifiable in nature and in 10 and of itself constitutes irreparable injury of the sort that 11 requires injunctive relief. 12 But, the irreparable injury in this case, your Honor, 13 is far greater than that. The evidence will show, as you will 14 hear from Ms. Rowling herself, goes to the heart of what 15 copyright law is intended to protect. You will hear 16 Ms. Rowling sit there on the stand and explain how publication 17 of the Lexicon hurts her as a writer. How it undermines and 18 disincentives and even jeopardizes her desire to write her own 19 encyclopedia and to write more about Harry Potter from the 20 betrayal that she feels that she's facing today. And you will 21 hear her talk in human terms about how the Lexicon has already 22 delayed and interfered with her work, which is why she flew 23 here from Scotland, despite your Honor's point that you would 24 just take her declarations, instead to hear her testimony. You 25 will also hear Ms. Rowling explain her concern as part of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 84E3WAR1 Opening - Ms. Cendali 1 irreparable injury factor about how publication of the Lexicon 2 would exploit her fans and destroy the previous wide latitude 3 plaintiffs have given fan sites. 4 Now, by contrast, in terms of the balance of the 5 hardships, your Honor was presented with many long briefs and a 6 declaration with regard to the preliminary injunction briefing, 7 and RDR has yet to identify anywhere any harm it would suffer 8 from an injunction being issued, other than not being able to 9 make money off an infringing book. 10 Now, in terms of the public interest factor in 11 assessing injunctive relief, there is no doubt that RDR's 12 eminent and learned counsel will try to portray decision 13 enjoining the book as the death knell to companion guides or 14 reference books. But that, your Honor, is an argument we 15 suggest that is best made when someone has not actually read 16 the Lexicon, to see that it is not the reference book presented 17 it to be. The evidence will show that this is shown by 18 comparison of the Lexicon to the very lexicons and other 19 historical books and guides of other work that RDR's own expert 20 Janet Sorensen has pointed to as saying that it's great to have 21 books like the Lexicon, but it does a disservice to those 22 books, books that take far less and books that do much more, in 23 truly analyzing how did Shakespeare come up with his plots. 24 What did Pynchon mean by this term, where did he come up with 25 this. What could be the meaning of this phrase. Those books SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 84E3WAR1 Opening - Ms. Cendali 1 do more, and it is a disservice to equate the Lexicon to those 2 true works of scholarship. 3 Contrary to RDR's assertion, the evidence will show 4 that public policy here favors plaintiffs. An injunction would 5 favor public policy as it would help confirm that authors can 6 protect the works they struggled to create as is contemplated 7 by the United States Constitution. 8 Now, this will help and benefit, your Honor, the 9 evidence will show, not just Ms. Rowling, but all authors who 10 care about the integrity of their work. Authors who may not 11 have the resources or the passion to be able to go to trial to 12 fight for their rights. You will hear Ms. Rowling is not here 13 because of any monetary reason. She is here because she's 14 concerned about her fundamental rights as an author. 15 And the evidence will also show in terms of public 16 policy, that an injunction here would incentivize prospective 17 authors of derivative books to do what the law requires. To do 18 what the fair use doctrine requires, and add something new. 19 And not just repackage in alphabetical order the work somebody 20 else worked to create. 21 While these policy issues are interesting, and no 22 doubt contribute to the packed courtroom today, although there 23 may be one or two other reasons for that, the issue that is 24 really before the Court is evidence concerning this one 25 particular book. Not all Lexicons, not all research guides, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 84E3WAR1 Opening - Ms. Cendali 1 this one particular book. Is it fair use, it is copyright 2 infringement or not. The evidence will show that as much as 3 RDR tries to make a silk's purse out of a sow's ear, the 4 Lexicon is still a sow's ear. It takes too much, and it does 5 too little. 6 In closing, it seems right to go back to Ms. Rowling's 7 words. At the end of Harry Potter and The Goblet of Fire, 8 Professor Dumbledore, headmaster of Hogwarts, cautions the 9 students that there may come a time when they must choose 10 between what is right and what is easy. 11 We submit, your Honor, that by taking too much and 12 doing too little, RDR chose to do what was easy. But the 13 evidence and controlling law of this circuit show that it was 14 not right. At the end of the evidence in this case, plaintiffs 15 Warner Bros. Entertainment and Joanne Rowling will respectfully 16 ask this Court to issue a permanent injunction enjoining the 17 Lexicon from publication. 18 Thank you, your Honor. 19 THE COURT: Thank you. Mr. Hammer. 20 MR. HAMMER: Mr. Falzone will do the opening, your 21 Honor. 22 THE COURT: Mr. Falzone. 23 MR. FALZONE: Thank you, your Honor. May it please 24 the Court, my name is Anthony Falzone. I represent RDR Books 25 along with my co-counsel here. As Mr. Hammer mentioned, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 84E3WAR1 Opening - Mr. Falzone 1 principal of RDR Books, Mr. Roger Rappaport is here. 2 Ms. Rowling has indeed created one of the most 3 enchanting and profitable worlds known to the history of 4 literature. The story of how she did it is both remarkable and 5 inspiring. 6 As the creator of the world of Harry Potter, she is 7 used to exercising full power and complete control over what 8 happens in that world. But the power she asserts here today, 9 your Honor, is very different. The question here today before 10 your Honor is whether Ms. Rowling has the power to make the 11 Lexicon disappear from our world, never to be seen in libraries 12 or bookstores across the country. 13 So let's start with the Lexicon because this case 14 really is about one book. The Lexicon. We will show your 15 Honor that the Lexicon is nothing like what plaintiffs have 16 described here this morning. The snippets and outtakes that 17 were shown to your Honor simply do not capture the true nature 18 of the Lexicon. 19 It is, above all else, a reference guide. And if that 20 term is a label, it is not a self-serving label. It is an 21 accurate label. We'll show your Honor the Lexicon was created 22 by Steve Vander Ark with help from many other contributors. 23 Mr. Vander Ark is a librarian by training. He's trained to 24 organize information and help people find it. And that, your 25 Honor, is one thing the Lexicon does. It helps organize and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 84E3WAR1 Opening - Mr. Falzone 1 discuss what was described to your Honor accurately here as the 2 complicated and elaborate world of Harry Potter. 3 And in that respect, your Honor, it is very much like 4 an encyclopedia. But in addition it provides citations, 5 thousands of citations to the specific places in the voluminous 6 Harry Potter novels and other sources where specific 7 information about specific things and specific characters can 8 be found. In that respect, your Honor, it is a research tool. 9 On top of that, the fact is the Lexicon does provide 10 lots and lots of additional insight into the Harry Potter 11 world. It provides insight into geography, etymology, 12 mythology and more. And it also provides some original 13 thoughts and suggestions about what makes the key characters in 14 the Harry Potter world tick. 15 While it is certainly true, your Honor, that the 16 Lexicon draws a significant amount of information from the 17 Harry Potter books, the question here is whether the Lexicon 18 makes fair use of that material. 19 Above all, your Honor, fair use protects works with 20 the transformative purpose. That is works that are meant not 21 to substitute for the original copyrighted works, but to add 22 something to the world that wasn't there before. Something 23 different, something with a valuable purpose. That 24 transformative function, your Honor, can take many forms. It 25 is true that transformative purpose can be found in works that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 84E3WAR1 Opening - Mr. Falzone 1 offer criticism, analysis, or commentary of copyrighted works, 2 but it goes way beyond that. A work does not have to be a 3 scholarly work, fit to be published in an academic journal to 4 qualify as transformative. In fact, that transformative 5 function that is so critical to fair use could be found in a 6 work that simply organizes a lot of information that would 7 otherwise be difficult to find or keep track of. Like an index 8 does or an Internet search engine does. 9 While transformation is the heart and soul of fair 10 use, plaintiffs have very little to say about it. Instead they 11 try to focus your Honor's attention on extraneous issues like 12 the supposed admission by Steve Vander Ark that the Lexicon 13 would be infringement. 14 Steve Vander Ark is a lay person, your Honor. He has 15 no legal training. He did not offer that opinion on a legal 16 conclusion after any inquiry whatsoever. It was an 17 off-the-cuff mark he made, completely uninformed, about a legal 18 issue. It is completely besides the point, and his 19 misunderstanding about that legal issue has since been 20 corrected. 21 You heard them speak about the indemnity provision in 22 the publishing contract. It was put in there because upon 23 looking into the issue, Mr. Rappaport felt this was fair use, 24 and on that assurance, promised to indemnify Mr. Vander Ark if 25 any liability arose out of this. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 84E3WAR1 Opening - Mr. Falzone 1 The story about supposed bad faith, your Honor, is 2 likewise simply beside the point and shows no bad faith. The 3 fact of the matter is there simply is no obligation for an 4 author or publisher to submit a prepublication of a manuscript 5 to somebody who wants to review and censor it. The law makes 6 very clear that fair use protection applies whether you ask 7 permission or not. 8 Insofar as the plaintiff does discuss transformation, 9 they suggest at times, your Honor, that the Lexicon is nothing 10 but a summary or a regurgitation of the Harry Potter story. 11 They suggest, for instance, as one witness does, that it simply 12 rearranges the furniture. We will show your Honor that it is 13 simply not so. 14 You will hear from Professor Janet Sorensen. She will 15 testify about the very important role lexicons in general have 16 played in the history of literature for hundreds of years. 17 They have helped readers better understand and enjoy literary 18 works. They have done so unconstrained by copyright law. 19 Professor Sorensen will explain this particular Lexicon as 20 specific and very significant value. 21 First and foremost, the organizational value is 22 paramount. The Harry Potter novels are spread across seven 23 books, hundreds of chapters, thousands of pages, somewhere 24 around a million words. Characters appear and disappear 25 literally and figuratively only to show up several books later. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 84E3WAR1 Opening - Mr. Falzone 1 Other characters appear consistently throughout the story. But 2 so much happens to them, your Honor, it is hard to keep track. 3 In fact, Professor Sorensen will tell you when she was 4 reading the first Harry Potter novel, she came across toward 5 the end of it the characters Filch and Peeves. She remembered 6 she had come across them before, but she couldn't remember how 7 or where. As she was reading the first Harry Potter novel, she 8 referred to the Lexicon to help her remember. 9 And that's the point here, your Honor. If a student 10 or scholar or just a casual reader wants to remember or connect 11 details about the Harry Potter stories, the Lexicon is the 12 place to go. But you won't simply have to take Professor 13 Sorensen's world on this organizational value. We'll show you 14 that plaintiffs themselves confirm the value of the Lexicon. 15 The printed Lexicon at issue here, your Honor, is, as you know, 16 drawn from the Lexicon Web site which has been available online 17 without objection for many years. We will show you, your 18 Honor, that Ms. Rowling has admitted to using the Lexicon Web 19 site herself to check facts, no less. 20 You will hear from Steve Vander Ark, Warner Bros. flew 21 him to the set of the fifth Harry Potter movie where he spoke 22 to producer David Heymen. Mr. Heymen told Mr. Vander Ark that 23 he and his production team used the Lexicon Web site almost 24 everyday in the production of that film. 25 You'll hear Mr. Vander Ark tell you he also visited SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 84E3WAR1 Opening - Mr. Falzone 1 the Electronic Arts studios in Guilford, England. That's the 2 company that make the Harry Potter video games. Mr. Vander Ark 3 will tell you that when he visited Electronic Arts, he saw page 4 upon page of printout from the Lexicon Web site hanging in the 5 studio where they were making the Harry Potter games. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 84E7WAR2 Opening - Mr. Falzone 1 MR. FALZONE: Why would these folks use The Lexicon 2 alongside the Harry Potter books to do their work? It's 3 precisely because, your Honor, The Lexicon -- whether in 4 website form or book form -- is a valuable and useful tool to 5 find and remember details from this elaborate world that 6 Ms. Rowling has created, and it confirms The Lexicon's value as 7 a reference guide. 8 Professor Sorensen will also tell you that the 9 organizational value is not the only thing that makes The 10 Lexicon helpful, useful and transformative. She will tell you 11 The Lexicon offers plenty of additional insight, and there is 12 no need to strain to inflate it. The fact is it's in The 13 Lexicon for everybody to see, and she will tell your Honor 14 about the etymology The Lexicon discusses, Latin derivations, 15 other derivations from other languages. She will tell you 16 about the discussions The Lexicon has concerning geography. 17 She will tell you about the mythological references it 18 illuminates. She will tell you about the literary references 19 it notes. She will tell you that other entries combine several 20 of the above, so when you get to the entry for avada kedavra, 21 the killing curse, The Lexicon talks extensively about the 22 possible derivations from the Aramaic language, Judaic 23 mythology and the Phoenician alphabet. 24 She will tell you that on top of that The Lecon offers 25 occasional insights about key characters in the Harry Potter SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 84E7WAR2 Opening - Mr. Falzone 1 books. For instance, it discusses the nature of Neville 2 Longbottom's bravery. It talks about Luna Lovegood's changing 3 relationship with Harry Potter, and that there is more to Draco 4 Malfoy than simply being Harry Potter's nemesis. 5 Now, I don't suggest to your Honor that this is the 6 primary purpose of The Lexicon. I don't think that matters. 7 The point is, your Honor, that these are useful observations 8 that curious readers young and old should have the benefit of, 9 and it complements the organizational value of The Lexicon as a 10 helpful research and reference guide. It helps readers better 11 understand and access the many layers of the Harry Potter 12 books. 13 You have heard plaintiff suggest that The Lexicon is 14 something like a cheap attempt to make a quick buck off the 15 backs of the Harry Potter novels. We will show, your Honor, 16 that couldn't be further from the truth. 17 The Lexicon began with the personal notes that Steve 18 Vander Ark took as he read the first two Harry Potter novels. 19 As he developed those notes, and they become more and more 20 elaborate, he turned them into a website. It became his hobby 21 and to some extent his passion and labor of love, and it 22 attracted other contributors. All of them worked for years in 23 their spare time on a completely voluntary basis to put 24 together The Lexicon website. It wasn't easy. It was far from 25 easy. It was time consuming. But profit was never the point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 84E7WAR2 Opening - Mr. Falzone 1 They did it because they loved these books, and they felt like 2 they had something to say about them. In fact, Mr. Vander Ark 3 will tell you that he has read the Harry Potter novels nearly 4 50 times. 5 Plaintiffs try to emphasize how much The Lexicon 6 borrows from the Harry Potter novels and other books, but the 7 question of transformation, your Honor, centers not on what The 8 Lexicon uses; it centers on how it's used, to what end and to 9 what purpose. We will show your Honor that The Lexicon uses 10 this material for a good and valuable purpose. It uses it to 11 organize the information and help readers understand the Harry 12 Potter books better. 13 Reference guide research tool, these are not labels, 14 they are not self-serving labels. They do in fact describe 15 accurately what The Lexicon is, and we intend to show you that, 16 your Honor. 17 The amount of material that The Lexicon uses is 18 reasonable in light of those specific purposes, because, your 19 Honor, reference guides need to be comprehensive by their 20 nature. 21 Let me speak briefly to the fourth factor, the market 22 effect. That centers on the effect of The Lexicon on the value 23 of the copyrighted works. You heard plaintiffs suggest, your 24 Honor, that The Lexicon could reduce sales of the Harry Potter 25 novels. We will show you that that simply is not so, is not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 84E7WAR2 Opening - Mr. Falzone 1 plausible. The Lexicon is not a plausible substitute for any 2 of the Harry Potter novels. The fact is if you haven't read 3 any of the Harry Potter novels, The Lexicon is pretty much 4 useless; and, if anything, you would expect The Lexicon to 5 generate more interest in the Harry Potter world, and drive 6 sales of still more books. 7 So, what is the specific harm plaintiffs talk about? 8 Well, at the end of the day it centers on the fact that Ms. 9 Rowling apparently wants to write her own companion guide, and, 10 as you heard, she has intended to do so since at least 1998, 11 and she says that The Lexicon might reduce sales of the 12 companion guide she may one day write and may one day publish. 13 We will present to your Honor the testimony of Bruce 14 Harris. He is a publishing executive with more than 40 years' 15 experience. Among other things he was the president of sales 16 and marketing at Random House. He will talk to you about the 17 specific nature of the wholesale and retail purchasing 18 decisions in the publishing industry. Based on that, and Ms. 19 Rowling's phenomenal success and popularity as an author, he 20 will explain why there is no plausible basis to think The 21 Lexicon will have any effect on the sales of any companion 22 guide Ms. Rowling one day wrote. 23 This is an author who is one of the most popular 24 authors to ever live. She sells books by the millions upon 25 millions. Fans throw parties when her books come out, and they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 84E7WAR2 Opening - Mr. Falzone 1 devour them with a voratious appetite unrivaled in publishing. 2 It's simply not plausible to believe that Ms. Rowling's sales 3 are going to be hurt in any meaningful way, and we will show 4 your Honor that. But if this book is suppressed, the public 5 will lose out on a valuable and useful reference guide. 6 That brings me to my final point, your Honor. You 7 heard plaintiff speak about the heart of copyright law, so I 8 want to hit on that point specifically, your Honor. 9 The purpose of copyright law is to encourage the 10 production of new works. The reason the fair use doctrine 11 exists is to balance the need on one hand, to protect 12 copyrighted works, yet at the same time protect the right to 13 build on them. The question here, your Honor, which turns on 14 fair use is whether The Lexicon is the sort of thing that 15 copyright law ought to encourage rather than suppress. 16 We intend to show your Honor The Lexicon is not a book 17 that should be suppressed. It's valuable, it's important, it's 18 transformative. It will have no more than a trivial effect, if 19 any, on the sales of Ms. Rowling book. There is simply no good 20 reason, your Honor, to make The Lexicon disappear. Thank you. 21 THE COURT: Let's take the morning break and come back 22 to hear the first witness. 23 (Recess) 24 MR. SHALLMAN: It looks like we might have a movement 25 before we call our first witness. Before we do, based on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 84E7WAR2 Opening - Mr. Falzone 1 court's ruling from Friday and the parties' stipulation, 2 plaintiffs would like to move into evidence the following 3 exhibits: Plaintiff's Exhibit 1 through 32, 43 through 48, 50 4 through 53, 73 through 75, 69 -- we will provide this list to 5 your courtroom deputy as well -- 86 through 99, 101 through 6 105, 108 through 123, 141, 143 and 192. 7 THE COURT: Just slow down a second. 8 MR. SHALLMAN: In addition, we will be moving in 9 defendant exhibits. 10 THE COURT: Let them move in theirs. 11 MR. HAMMER: Thank you, your Honor. Glad to have 12 something to do. It was my understanding that our stipulation 13 was that in fact all double starred exhibits would simply be 14 moved in and would not be subject to being moving by a witness. 15 THE COURT: Well, I don't know which number. I 16 suggested you had to cut down a number of exhibits on Friday 17 because we wouldn't be through this case for weeks otherwise. 18 MR. HAMMER: Well, counsel has very nicely given me a 19 list of what I want to move in, and I expect they will continue 20 to provide this service throughout the rest of the trial. 21 So, 501 to 507 -- I'm counting on his honesty and 22 integrity, which I think is fair -- 521, 523, 525, 526, 527, 23 559, 574, 576 to 577, 579 to 584, 587 to 596, 598. We have 24 already discovered one thing that was left off, no doubt 25 inadvertent. 520 we want to add. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 84E7WAR2 Opening - Mr. Falzone 1 THE COURT: Is that all right? 2 MR. SHALLMAN: So stipulated, your Honor. 3 THE COURT: All right, fine. 4 MR. HAMMER: I'm sorry. Forgive me 598, 599 and 600 5 as well. 6 THE COURT: All right. Thank you. 7 (Plaintiffs' Exhibits 1 through 32 received in 8 evidence) 9 (Plaintiffs' Exhibits 43 through 48 received in 10 evidence)? 11 (Plaintiffs' Exhibits 50, 51, 52, 53, 69 73, 74 and 75 12 received in evidence) 13 (Plaintiffs' Exhibits 86 through 99 received in 14 evidence) 15 (Plaintiffs' Exhibits 101 through 105 received in 16 evidence) 17 (Plaintiffs' Exhibits 108 through 123 received in 18 evidence) 19 (Plaintiffs' Exhibits 141, 143 and 192 received in 20 evidence) 21 (Defendant's Exhibits 502 through 507 received in 22 evidence) 23 (Defendant's Exhibits 520, 521, 523, 525, 526, 527 24 received in evidence) 25 (Defendant's Exhibits 559, 574, 576, 577 received in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 84E7WAR2 Opening - Mr. Falzone 1 evidence) 2 (Defendant's Exhibits 579 through 584 received in 3 evidence) 4 (Defendant's Exhibits 587 through 596 received in 5 evidence) 6 (Defendant's Exhibits 598 through 600 received in 7 evidence) 8 THE COURT: All right. First witness. 9 MS. CENDALI: Thank you, your Honor. 10 MS. CENDALI: Plaintiffs call Joanne Rowling. 11 JOANNE ROWLING, 12 called as a witness by the plaintiff, 13 having been duly sworn, testified as follows: 14 DEPUTY COURT CLERK: Please state your name and spell 15 your last name slowly for the record, please. 16 THE WITNESS: Roanne Rowling, R-O-W-L-I-N-G. 17 MS. CENDALI: May I proceed, your Honor? 18 THE COURT: Yes, you may. 19 DIRECT EXAMINATION 20 BY MS. CENDALI: 21 Q. Good morning, Ms. Rowling. 22 A. Good morning. 23 Q. Do you also have a pen name? 24 A. I do. 25 Q. What is it? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 84E7WAR2 Rowling - direct 1 A. J.K. Rowling. 2 Q. Have you ever testified in any court proceeding? 3 A. No. 4 Q. Are you nervous? 5 A. I am. 6 Q. Are you the creator of the Harry Potter series? 7 A. Yes, I am. 8 Q. Do you own the copyrights to the seven Harry Potter books? 9 A. Yes, I do. 10 MS. CENDALI: Your Honor, may I approach and hand the 11 witness an exhibit? 12 THE COURT: Surely. 13 MS. CENDALI: I would like to hand the witness what 14 has been previously marked as Plaintiff's Exhibit 1, The 15 Lexicon manuscript. 16 Q. Have you seen that manuscript before, Plaintiff's Exhibit 17 1? 18 A. Yes, I have. 19 Q. Is that the manuscript that's the subject of this lawsuit? 20 A. Yes, it is. 21 Q. Did you license any of your copyrights to RDR for use in 22 connection that book? 23 A. No, I did not. 24 Q. Do you have a view as to whether that book should be 25 published? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 84E7WAR2 Rowling - direct 1 A. Yes, I have a very strong view. 2 Q. Could you please briefly tell the court what your view is? 3 A. I believe that this book constitutes wholesale theft of 17 4 years of my hard work. I believe that it adds little if 5 anything in the way of commentary, that the quality of that 6 commentary is derisory, and that it debases what I worked so 7 hard to create. 8 Q. Now, Ms. Rowling, I'd like to talk to you a little bit 9 about your background and how you came to create the world of 10 Harry Potter. Let's start in the beginning. Where were you 11 born? 12 A. I was born in Yate, in England. 13 Q. Did you go to university in England? 14 A. I did, yes. 15 Q. Where do you live now? 16 A. I live in Scotland, in Edinburgh. 17 Q. Are you married? 18 A. Yes. 19 Q. To who? 20 A. To Dr. Neil Murray. 21 Q. Does he work as a doctor? 22 A. He does, yes. 23 Q. Do you have children? 24 A. We have three. 25 Q. What are their names and ages? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 84E7WAR2 Rowling - direct 1 A. Jessica, 14; David, 5; and Kenzie, 3. 2 Q. Now, let's talk about how you came to write the Harry 3 Potter books. When did you start writing the first Harry 4 Potter book? 5 A. I started writing the first book in 1990. 6 Q. So that would have been 18 years ago? 7 A. Yes. 8 Q. How old were you at the time? 9 A. 25. 10 Q. How long did it take you to finish writing that first book? 11 A. It took -- between having the idea for the book and the 12 book being published was seven years, but that sounds as though 13 I'm a very slow worker, but I was holding down a day job for 14 most of that time, and I was also planning what subsequently 15 became a seven book series. 16 Q. How were you supporting yourself while you were writing the 17 Harry Potter first book? 18 A. I worked for a time for Amnesty International. Then I was 19 working as a teacher, but in the later stages of writing the 20 book I was on what you call in America welfare. 21 Q. Why was that necessary? 22 A. My first marriage had broken down, and I was a full-time 23 caretaker for my eldest daughter, who was a very small baby at 24 the time. 25 Q. Was this a difficult period in your life? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 84E7WAR2 Rowling - direct 1 A. It was an extremely difficult period, yes. 2 Q. At some point did you ever get a grant to help you support 3 your writing? 4 A. Yes, I did. After the first book had been accepted for 5 publication, the Scottish Arts Counsel made me a grant to 6 enable me to provide child care for my daughter so that I could 7 write a second book. 8 Q. Do you remember what that grant was more? 9 A. The monetary value? 10 Q. Yes. I believe it was for $8,000 pounds, which for me at 11 the time was an absolute fortune. 12 Q. Now, was it an easy process to find an agent and publisher 13 for the Harry Potter books? 14 A. I would say that it wasn't although I did manage to get an 15 agent on my second attempt, but then he had some difficulty in 16 finding a publisher. 17 Q. Is the Christopher Little agency your literary agency? 18 A. Yes. 19 Q. Did they immediately accept your manuscript? 20 A. No. I had submitted the first three chapters, so they 21 asked could they see the balance of the book, so I then had to 22 type it up, which was 95,000 words. I submitted that to them, 23 and they said they liked it but they needed it double spaced, 24 so I had to type it yet again. 25 Q. Did you type the manuscript yourself? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 84E7WAR2 Rowling - direct 1 A. I did. I'm a very fast typist. 2 Q. And why didn't you get somebody to do it for you? 3 A. Because I literally did not -- well, there were weeks when 4 the food ran out, you know, so to pay someone hundreds of 5 pounds to type a manuscript, there was simply no money for 6 that. 7 Q. Ms. Rowling, Harry Potter was eventually accepted by 8 publishers, correct? 9 A. Yes, it was. 10 Q. Who is your publisher in the United Kingdom? 11 A. Bloomsbury. 12 Q. Who is your publisher in the United States? 13 A. Scholastic. 14 Q. Ms. Rowling, have you been surprised by the success of the 15 Harry Potter books? 16 A. There isn't a word big enough. Flabbergasted, astonished. 17 Q. Have the books won any awards? 18 A. Yes, they have. 19 Q. What types of awards have they won? 20 A. The British Book Award, many children's literary awards. 21 Q. Now, Ms. Rowling, when was the last of the seven Harry 22 Potter books published? 23 A. July 2007. 24 Q. What was its title? 25 A. Harry Potter and the Deathly Hallows. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 84E7WAR2 Rowling - direct 1 Q. Overall, how long did it take you to write the Harry Potter 2 series? 3 A. 17 years. 4 Q. And how much time did that take? 5 A. It was my life. Apart from my children, it was my life. 6 Q. Ms. Rowling, what does Harry Potter mean to you? 7 A. I really don't want to cry because I'm British, you know. 8 It means setting aside my children, everything. 9 Q. Ms. Rowling, I noticed this morning you were wearing a 10 bracelet. Can you tell the court about that bracelet? 11 A. It's a bracelet my UK publisher gave to me on publication 12 of the seventh book. 13 Q. Is there anything unusual about it? 14 A. It's a charm bracelet representing things that I invented 15 in Harry Potter books. 16 Q. Do you care, Ms. Rowling, about how your Harry Potter 17 characters are presented? 18 A. Very, very deeply, yes. 19 Q. Does that affect any decision you make about licensing 20 Harry Potter? 21 A. It's my prime concern, if not my only concern. 22 Q. Could you explain what you mean? 23 A. I mean that these characters meant so much to me, and 24 continue to mean so much to me over such a long period of time. 25 It's very difficult in fact for someone who is not a writer to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 84E7WAR2 Rowling - direct 1 understand what it means to the creator. I think the very 2 closest you could come is to say to someone how do you feel 3 about your child. You know, these books, they saved me not 4 just in the very obvious material sense, although they did do 5 that, they provided security for my daughter that I never 6 thought I would be able to provide her, but I would have to say 7 that there was a time when they saved my sanity. It was a 8 place into which I liked to vanish, and it was a discipline 9 that was very important in keeping me sane. 10 Q. And, Ms. Rowling, other than the seven Harry Potter novels, 11 have you written any other books about Harry Potter? 12 A. Yes, I've wrote two companion books which were books within 13 the novels, Fantastic Beasts and Where to Find Them and 14 Quidditch Through the Ages. 15 Q. Do you own the copyright to those books? 16 A. Yes, I do. 17 Q. Why did you publish those books? 18 A. I was approached by Richard Curtis who is the screen writer 19 and director, and who is the head of Comic Relief, which is a 20 very big charity in the UK, and he asked me would I consider 21 writing a Harry Potter short story for the charity. And I said 22 to him, well, what I thought would be good and would raise more 23 money would be to write these two short books. I thought that 24 children particularly would find them entertaining. 25 Q. Have you been able to give any money to charity as a result SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 50 84E7WAR2 Rowling - direct 1 of those books? 2 A. I think the last figure I heard for Fantastic Beasts and 3 Quidditch Through the Ages was 18 million pounds had gone to 4 charity. 5 Q. So with this current exchange rate would be over $30 6 million? 7 A. Yes, I think so. 8 Q. Now, to be clear, were you donating just a portion of the 9 proceeds or were you donating all your proceeds? 10 A. All the royalties went to the charity. 11 Q. Have you ever written a Harry Potter-related story for 12 auction? 13 A. Yes. Last year I hand wrote seven copies of the Tales of 14 Beedle the Bard, which is another book within the Harry Potter 15 novels. 16 Q. And why did you do that? 17 A. Six of the copies were to give to people who had been key 18 in the Harry Potter series, people who had worked with me for 19 ten years. And the seventh book I decided to auction, and the 20 proceeds went to a charity I cofounded. 21 Q. Tell us about that charity. 22 A. It's a charity called the children's voice, and it 23 campaigns for children's health and human rights, mostly in 24 Eastern Europe. 25 Q. Ms. Rowling, have you ever licensed anyone to publish an A SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 84E7WAR2 Rowling - direct 1 to Z encyclopedia of your work? 2 A. No. 3 Q. Why not? 4 A. Because it's been my long-stated intention that I wanted to 5 do that myself. 6 Q. When did you first announce that you wanted to write your 7 own encyclopedia? 8 A. It's very hard to be accurate about a date, but I know I've 9 been saying it in interviews and in conversations with fans 10 since I believe about '98. I know that I was being asked 11 questions about further books after the series as early as 12 that. 13 Q. How often have you repeated to the press your interest in 14 writing a Harry Potter encyclopedia? 15 A. Many, many times. 16 Q. Were you on a book tour in relation to the release of Harry 17 Potter book seven this summer and fall? 18 A. Yes, I was, yes. 19 Q. And in connection with the release of Deathly Hallows, the 20 last -- the seventh, I hope not the last -- Harry Potter book, 21 did you again tell the press in July 2000 that you intended to 22 write a Harry Potter encyclopedia? 23 A. Yes, I did. 24 Q. Have you begun working on that encyclopedia? 25 A. Yes, I have. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 84E7WAR2 Rowling - direct 1 Q. What stage are you at? 2 A. An early stage, but I'm assembling all my materials. I'm 3 fleshing out the plan, and I have requested certain materials 4 from my publishers that I hope to use to complete the book, so 5 I'm hoping to move forward with that. 6 Q. I would like to put up the screen the first page of 7 Plaintiff's Exhibit 23A. Do you recognize that document, Ms. 8 Rowling? 9 A. Yes, I do. 10 Q. What is it? 11 A. It's what is called, without any intent at blaphesmy, it's 12 what is known as the bible at my UK publisher. 13 Q. And how is it organized? 14 A. Largely A to Zed, I dare say. A to Z, story. 15 Q. Let's turn to the page of the Beasts and Beings section of 16 Exhibit 23A. Can you tell us about that page? 17 A. This is simply an alphabetical list of animals that appear 18 in the Harry Potter books. 19 Q. Did you ask Bloomsbury to provide you with a copy of this 20 material? 21 A. Yes, I have. 22 Q. And do you intend to use it in working on your 23 encyclopedia? 24 A. Yes, I do. 25 Q. You mentioned your publisher Scholastic as well. Let's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 84E7WAR2 Rowling - direct 1 look at Exhibit 18A, the first page of that. Do you recognize 2 that document? 3 A. Yes, I do. 4 Q. What is it? 5 A. Scholastic also called that the bible. It's their bible, 6 and that's also a list of major -- well, all characters, I 7 believe, in the Harry Potter books. 8 Q. And are you planning to use the Scholastic material to help 9 you write your encyclopedia? 10 A. Yes, I am. 11 Q. Are you planning on using an A to Z format for your 12 encyclopedia? 13 A. Yes, I am. 14 Q. When do you expect to complete your encyclopedia, Ms. 15 Rowling? 16 A. Well, until quite recently I would have said two to three 17 years would be a reasonable estimate. I want to do it 18 properly. I don't want to rush it. 19 Q. What happened recently? 20 A. I would say that about four weeks ago maybe the demands of 21 this court case have been such that it's caused me to halt work 22 on the novel I am writing. It's really decimated my creative 23 work over the last month. Again, it's very hard to describe to 24 someone who isn't engaged in creative writing, but you lose the 25 threads, you worry if you will be able to pick them up again in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 54 84E7WAR2 Rowling - direct 1 exactly the same way. It's certainly caused harm to my writing 2 process currently. And I must admit that at that time I began 3 to contemplate the possibility of The Lexicon being published, 4 and should it be published I firmly believe that carte blanche 5 will be given to anyone who wants to make a quick bit of money, 6 to divert some Harry Potter profits into their own pockets. 7 They can do it very easily; they can simply lift my words 8 verbatim wholesale, put it into an alphabetical rearrangement 9 and call it a guide. And should that happen, should my fans be 10 glutted with a surfeit of substandard so-called lexicons and 11 guides, I'm not at all convinced that I would have the will or 12 the heart to continue with my encyclopedia. 13 I already have enormous negative connotations. Every 14 time I think of my encyclopedia, all I think of frankly is The 15 Lexicon, and RDR, and Mr. Vander Ark, and all the stress and 16 heartache that has gone along with wanting to take a stand on 17 this book. And I think it's important to explain that writing 18 a novel is a labor of love, it's an exciting project for me, 19 but an encyclopedia is very different, it's not something that 20 I approach with passion. The encyclopedia I always saw as a 21 kind of give-back to fans who had been amazing and loyal to me 22 over ten years waiting for these books to come out, and I also 23 saw it as another very magnificent opportunity to make money 24 for charity, but I never approached it with the same lightness 25 of heart that you would approach a novel. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 55 84E7WAR2 Rowling - direct 1 Q. Ms. Rowling, if you do publish your encyclopedia, do you 2 intend to make money from it? 3 A. It was always my intention, as I've been saying for years, 4 that any royalties I made would be given probably to my 5 charitable trust. 6 Q. Now, let's talk more about The Lexicon that's at issue in 7 this case. When did you learn that defendant was planning on 8 publishing this book? 9 A. October last year. 10 Q. And was this during your book tour for the Deathly Hallows? 11 A. It was, I was here in the States, yes. 12 Q. What was your reaction upon hearing the news? 13 A. I was extremely shocked. I had assumed all along that 14 Mr. Vander Ark was operating in good faith. Indeed, I believed 15 his pronouncements that this was something that he did as a 16 hobby. There had never been any intimation to me that he 17 intended to publish The Lexicon. And I did feel a degree of 18 betrayal. 19 Q. Ms. Rowling, that big binder that I gave you, Exhibit 1, 20 have you read it? 21 A. Yes, I have read it. 22 Q. Have you read every word? 23 A. I believe I have. 24 Q. Based upon your review of The Lexicon, what's your overall 25 impression of the book? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 56 84E7WAR2 Rowling - direct 1 A. I believe that it is sloppy, lazy, and that it takes my 2 work wholesale verbatim. There is an absolutely minimal amount 3 of paraphrasing. It abridges my plots. And what does it add? 4 What benefit does the reader have? 5 There are facetious asides, comments occasionally 6 tacked on to the end of entries. There is a tiny amount of 7 etymologies, always of the easiest kind. A child with a pocket 8 Latin dictionary could decipher what Mr. Vander Ark has 9 deciphered, and worringly, given that the excuse apparently for 10 this massive wholesale copying is that this is some kind of 11 reference book. 12 There are incorrect translations, there are incorrect 13 etymologies, and there are places where Mr. Vander Ark quite 14 literally has not understood the books. 15 So, even if the loosest, most popular sense, I do not 16 consider this a worthwhile guide. And to me the idea of my 17 readership parting with their or their parents' hard earned 18 cash for this, I think it's a travesty. 19 Q. You have heard the opening statement of RDR's counsel 20 talking about how the book lexicon was useful in some way. As 21 the author of the Harry Potter books, do you think it's useful? 22 A. No, I absolutely see no use for it. I don't see what the 23 use is. 24 Q. Now, let's put on the screen Exhibit 501A, the proposed 25 cover for The Lexicon. Do you see there is a monitor right SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 57 84E7WAR2 Rowling - direct 1 there, Ms. Rowling? 2 A. Yes, I do. 3 Q. You can see his Honor has one at the bench as well. On the 4 cover it says The Lexicon, an Unauthorized Guide to Harry 5 Potter Fiction and Related Materials, by Steve Vander Ark. 6 Having read the manuscript, does The Lexicon appear to 7 you to contain Mr. Vander Ark's creative work? 8 A. In my view from what I've read, absolutely not. 9 Q. Whose creative work do you believe is in The Lexicon? 10 A. It is mine. 11 Q. And why do you say that? 12 A. Because every entry you will see my plots, my words often 13 verbatim, rarely with quotation marks around them. As I say, 14 what Mr. Vander Ark has added is not only of little use, it 15 sometimes actually would mislead. 16 MS. CENDALI: May I approach, your Honor, to hand the 17 witness an exhibit? 18 THE COURT: Yes, you may. 19 Q. I'd like to hand you Plaintiff's Exhibit 47. 20 A. Thank you very much. 21 Q. Ms. Rowling, I will put the first page of Exhibit 47 on the 22 screen. Could you please tell the court what that document is. 23 A. Yes, it's a chart I made to show what I felt was the 24 constant pilfering of my work. 25 MS. CENDALI: Mr. Hoy, would you please scroll down SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 58 84E7WAR2 Rowling - direct 1 that chart, Exhibit 47, to publish it to the court. 2 Q. Ms. Rowling, did anyone assist you in drafting that 3 document? 4 A. My 14-year-old daughter. She sat alongside the table, and 5 I told her where to look for the parts I recognized from The 6 Lexicon, and she would look them up and read them out to me, 7 and I would type out what I had written, and next to it I would 8 type out almost the identical passage that came from The 9 Lexicon. 10 Q. So you typed this yourself? 11 A. I did, yes. 12 Q. Did anyone ask to you draft this document? 13 A. No. 14 Q. Why did you do it? 15 A. Because I feel extremely strongly about this case, and I 16 wanted to show -- I felt the need to show what my problem with 17 the book is in this very graphic form. 18 Q. Well, let's put up on the screen one of the entries from 19 your chart which is Exhibit 47, which is in demonstrative form 20 with regard to the brain room. Now, the brain room is 21 something you created in the Harry Potter universe, is that 22 right? 23 A. Yes. 24 Q. And what about this comparison interests or concerns you? 25 A. Well, to me at least, if to someone to no one else, but to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 59 84E7WAR2 Rowling - direct 1 me it's a memorable image. I worked hard to find a way of 2 expressing this fact that this disembodied brain was leaking 3 memories and thoughts as it flew through the air, and I decided 4 that the image I wanted to use was that of strips of film 5 untangling and unraveling behind it as it came. 6 So, to find this precise image, one word changed, with 7 no quotation marks around it, in Mr. Vander Ark's so-called 8 book, I mean it's an assertion that he wrote this. There are 9 no quotation marks around it. I feel if he put quotation marks 10 around everything he has lifted from my book, there would 11 pretty much be quotation marks around the whole substance of 12 the book, with a few little sides omitted. 13 Q. Well, let's take a look at another example, to The Lexicon 14 entry for "armor, goblin-made". And on the left is your 15 writing from Deathly Hallows, is that correct? 16 A. Yes. 17 Q. And on the right is The Lexicon entry, correct? 18 A. Yes, that's right. 19 Q. Again, can you explain again what if anything concerns you 20 about that entry in The Lexicon? 21 A. Well, again there is a very recognizable phrase of mine at 22 the end of this passage, "imbibing only that which strengthens 23 it ..." This was a key plot point about the goblin silver. 24 And, again, The Lexicon, without quotation marks, has lifted 25 "imbibing only that which strengthens it." So, Mr. Vander Ark SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 60 84E7WAR2 Rowling - direct 1 without using quotation marks are claiming these words are his 2 own invention. 3 Q. Did you struggle to coin that phrase? 4 A. I would say that one came quite easily. I can't pretend I 5 bled over that one, but this happens in virtually every entry. 6 Even my list is not exhaustive. 7 Q. Let's look at another entry, the one for clankers. Again 8 on the left, is that text from Deathly Hallows, your novel? 9 A. Right. 10 Q. And on the right is The Lexicon entry? 11 A. Yes. 12 Q. And could you explain to the court your view about that 13 example. 14 A. Well, again, this is just evidence, in my view, of the 15 utter laziness of Mr. Vander Ark. He simply copies. He says 16 that the dragon has apparently been taught to fear hot swords 17 whenever it hears the clankers. Well, that is exactly what I 18 wrote. These things have no existence except in my words, so 19 he is taking my creation. 20 Q. Now, Ms. Rowling, to what extent do you think The Lexicon 21 abridges your work? 22 A. At every possible opportunity. 23 Q. Well, can you give us some examples? 24 A. The approach of The Lexicon, I believe, is wherever it 25 lists a character, Mr. Vander Ark generally gives the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 61 84E7WAR2 Rowling - direct 1 character's appearance verbatim in my words without quotation 2 marks and then he abridges the plots of any book in which that 3 character appears. 4 MS. CENDALI: Can you put up on the screen from 5 Exhibit 1, The Lexicon, the first page of the entry for 6 Voldemort. Forgive me for speaking the name. 7 Mr. Hoy, could you please scroll down so that the 8 entire entry can be published to the court. 9 THE COURT: Sorry. What page are you on? 10 MS. CENDALI: Forgive me. It's the Voldemort entry 11 from The Lexicon which is page 139 of at least the printout I'm 12 looking at. 13 DEPUTY COURT CLERK: That's from Exhibit 1? 14 MS. CENDALI: Exhibit 1. 15 MR. HAMMER: We're not following along with the same 16 text. I don't suppose you have an extra copy of that page. 17 Our text is numbered differently than yours. 18 MS. CENDALI: Maybe just a printout. 19 THE COURT: I can't find the page either on my copy. 20 MS. CENDALI: It's alphabetical. It's V for 21 Voldemort. 22 MR. HAMMER: We have it. 23 MS. CENDALI: You have the page number, Mr. Hammer, in 24 your version? 25 THE COURT: The numbers of the pages of the exhibits SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 62 84E7WAR2 Rowling - direct 1 do not run consecutively. 2 MS. CENDALI: It's Exhibit 1 in the exhibit binder. 3 THE COURT: The pages run according to the subject 4 matter. All right. 5 BY MS. CENDALI: 6 Q. OK. Ms. Rowling, is the entry for the Voldemort character 7 a lengthy one? 8 A. Very lengthy, yes, several pages. 9 Q. And again, Ms. Rowling, could you scroll down to publish 10 that entry to the court. 11 Ms. Rowling, what's your view of that entry? 12 A. I think it represents both wholesale lifting again of my 13 plots -- that's plots 1 to 7 -- of books 1 to 7 -- and it also 14 represents the most enormous missed opportunity. Other critics 15 in genuine guides to Harry Potter that are already published 16 have found a lot to say about Voldemort, about what he 17 represents, his psychology, the archetype of a villian, of this 18 particular kind of super natural villian. And we have none of 19 that here at all, nothing. I think it's lazy, just very, very 20 lazy. 21 Q. Now, so far we've mainly discussed your Harry Potter books 22 themselves. Let's turn to your book Quidditch Through the 23 Ages. Do you have a view of whether The Lexicon copies that 24 book? 25 A. I would say Quidditch Through the Ages has been plundered SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 63 84E7WAR2 Rowling - direct 1 by Mr. Vander Ark. There is absolutely no reason if this 2 lexicon is published why anyone would want to buy that book 3 that I created for charity. 4 Q. Well, let's put on the screen what has been marked as 5 Exhibit 43A. Do you recognize that document? 6 A. Yes, I do. 7 Q. What is it? 8 A. That's a chart showing the copying from Quidditch through 9 the ages by The Lexicon. 10 Q. And have you studied that chart? 11 A. I have. I have looked right through it, yes. 12 Q. Have you compared it to your work in The Lexicon? 13 A. Yes, I have. 14 Q. And could you please explain the chart to the court. 15 A. On the left-hand side you see examples of what I wrote 16 within Quidditch Through the Ages. On the right-hand side we 17 have The Lexicon's marginal paraphrasing of what I wrote. 18 Mr. Vander Ark has gutted that book. That book -- there is 19 nothing interpretive there, there is no commentary. He has 20 simply copied it. He has just taken it and copied it. 21 MS. CENDALI: Mr. Hoy, would you please scroll down 22 that exhibit to publish it to the court. 23 Q. Approximately how many pages is the exhibit, Ms. Rowling? 24 A. My goodness, is it 32 pages? That's very shocking. 25 MR. HAMMER: Sorry. I didn't hear the question and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 64 84E7WAR2 Rowling - direct 1 answer. 2 MS. CENDALI: I said approximately how many pages is 3 the chart, Exhibit 43A. 4 Q. Now, let's take a look at one of the comparisons in the 5 chart, the Lexicon entry for Chudley Cannons. Now, am I 6 correct that on this what's been marked for identification as 7 Plaintiff's Exhibit 168, on the left is what you wrote in 8 Quidditch Through the Ages and on the right is what is in The 9 Lexicon? 10 A. That's correct, yes. 11 Q. Could you explain your views about this lexicon entry to 12 the court. 13 A. I mean again these fictional facts -- which evidently they 14 have intrinsic entertainment value to anyone who likes Harry 15 Potter and wants to read this book -- have simply been taken. 16 There is nothing there that I haven't written. There is a tiny 17 paraphrase. 18 I think what particularly galls is the lack of 19 quotation marks. As I say, if Mr. Vander Ark had put quotation 20 marks around everything he has lifted, most of The Lexicon 21 would be in quotation marks. 22 Q. Ms. Rowling, does The Lexicon add any commentary or 23 analysis to your Quidditch Through the Ages book? 24 A. I don't believe it does. 25 Q. Now, let's talk about your book Fantastic Beasts and Where SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 65 84E7WAR2 Rowling - direct 1 to Find Them. Do you have a view as to whether The Lexicon 2 copies that work? 3 A. Again, a very strong view. I feel that as with Quidditch 4 Through the Ages, Fantastic Beasts has been simply taken and 5 taken wholesale. Again, I see no incentive whatsoever for 6 anyone to give their money to Comic Relief if they had bought a 7 copy of The Lexicon, because the whole book is repeated 8 virtually word for word in The Lexicon. 9 Q. Let's look at Exhibit 44, the Fantastic Beast comparison 10 chart. Have you studied that chart? 11 A. Yes, I have. 12 MS. CENDALI: Mr. Hoy, again could you scroll down so 13 that that entire exhibit in its length can be presented to the 14 court. 15 Q. Ms. Rowling, could you explain briefly that comparison 16 chart to the court. 17 A. Once again on left-hand side you have what I wrote in 18 Fantastic Beasts and Where to Find Them, and on the right-hand 19 side you have The Lexicon's entries, which as you can see are 20 virtually identical in all respects to my precise wording. 21 Q. Let's look at an example from Exhibit 44. Let's put up on 22 the screen what's been marked for identification as Exhibit 169 23 which shows an entry from Exhibit 444 comparing The Lexicon 24 entry for Chinese Fireball with the text from Fantastic Beasts. 25 Again, could you explain to the court your view about this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 66 84E7WAR2 Rowling - direct 1 example. 2 A. I think this is far from exceptional. This is very typical 3 of the kind of entries that concern me so much. But once again 4 there is a dragon type or species that I have invented, and 5 Mr. Vander Ark has simply copied my words. And in doing that, 6 he has effectively taken -- he's taken my creation because, 7 after all, it has no existence outside my words. He is simply 8 taking what I recreated. 9 If we were both describing a giraffe, then inevitably 10 certain words would occur in both descriptions, but it's not as 11 though we're both describing a creature that actually exists. 12 The Chinese Fireball has no existence outside the words and 13 phrases I have used to describe it, which he has taken. 14 Q. Does The Lexicon add any of its own commentary to the 15 Chinese Fireball entry? 16 A. Nothing at all. 17 Q. Does it add any commentary at all in your reviewing The 18 Lexicon to the Fantastic Beast entries? 19 A. I don't believe it does. 20 Q. Now, you touched on this a little bit earlier. I believe 21 you talked about -- you mentioned analysis and commentary, but 22 I want to be clear. As the author of the Harry Potter books, 23 did you see any analysis or commentary of your books in The 24 Lexicon? 25 A. There is a tiny amount of what purports to be commentary, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 67 84E7WAR2 Rowling - direct 1 but I think for those who haven't read The Lexicon it must be 2 understood that what Mr. Vander Ark puts -- his so-called 3 commentary is in italics at the bottom of an entry. 4 Occasionally it's a facetious remark. Occasionally it's an 5 etymology. The number of invented words and terms, names in my 6 books, given the number of those things, he has done a tiny, 7 tiny, tiny fraction of them has he attempted to give some kind 8 of etymology for. And many of those are erroneous; he has 9 mistranslated. 10 As it is my belief, as I say, that most of the 11 etymologies are cases where I give a spell that's recognizebly 12 from the Latin, and in that case he will simply translate the 13 Latin word. Any seven-year-old with a pocket Latin dictionary 14 could do that. And he doesn't even do that exhaustively, so 15 it's not as though everything that came from the Latin is 16 translated. I think it's a tiny and derisory quality of 17 commentary. 18 Q. Now, earlier I believe you said something about missed 19 opportunities. Are there examples of The Lexicon of missed 20 opportunities that you believe highlight the lack of analysis 21 in The Lexicon? 22 A. Where to begin? Where to begin? I mean the letter -- oh, 23 where to begin? The letter A, if we literally go through the 24 book alphabetically there are -- abraxan -- we just saw the 25 word abraxan on the screen from Fantastic Beasts -- there is no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 68 84E7WAR2 Rowling - direct 1 attempt at an etymology. 2 MR. HAMMER: I'm sorry. I object. What the book does 3 not contain really is not at issue in the case; it's what it 4 does contain. 5 THE COURT: Objection overruled. I'm going to take 6 the testimony. 7 Q. Ms. Rowling, let's put on the screen the ogre entry in The 8 Lexicon. Could you read that to the court. 9 A. Ogre. Ron and Hermione think they see an Ogre at Three 10 Broomsticks. 11 THE COURT: Sorry. What is this from? 12 MS. CENDALI: This is all from Exhibit 1, your Honor, 13 from The Lexicon, and that's the entire entry. 14 Q. What is your view of this entry, Ms. Rowling? 15 A. I think this goes to the heart of one of my largest 16 objections about The Lexicon. If the child spread the word 17 Ogre -- particularly a child, because I'm thinking largely for 18 the value of companion books to younger readers who might not 19 have the broad cultural understanding or the understanding of 20 literature that an adult may -- if the child wondered what is 21 an ogre, then what is the lexicon telling them? It's telling 22 them Ron and Hermione thought they saw an ogre. There is no 23 explanation of what an ogre is. I mention ogres once in the 24 whole seven book series, and I mention them when Ron and 25 Hermione go into village Hogsmeade, to the Three Broomsticks SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 69 84E7WAR2 Rowling - direct 1 Pub, and Hermione comes back and says to Harry Ron and I 2 thought we saw an ogre in the Three Broomsticks. So, that's 3 what The Lexicon gives the reader on ogre. 4 And an ogre in folklore, European folklore, was a 5 flesh-eating giant, which I think is of some interest if you 6 have an interest in ogres. It would be interesting to know 7 that, not to be told what you have already read in the Harry 8 Potter book. 9 MS. CENDALI: Let's put on the screen the entry for 10 death from The Lexicon, Plaintiff's Exhibit 1. What is your 11 view of that entry, Ms. Rowling? 12 A. Well, here again I think it's truly laughable that even 13 in -- as I say, even in the loosest, most popular sense, even 14 if no one is asserting that this is a scholarly work -- many of 15 the books that have been published on Harry Potter books, 16 they're light hearted, they are not purporting to be works of 17 deep scholarship, but they give the reader something. Any 18 guide to the Harry Potter books should have a lengthy entry on 19 death. It is probably the major theme of the whole seven book 20 series, and it appears in so many different ways. 21 You can discuss the attitude of the leading characters 22 to death, which is enormously revealing about their psychology. 23 You can talk about the fantastic objects that I created that 24 either attempt to overcome death or are dangerous and may cause 25 fatalities. And yet The Lexicon -- presumably because saying SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 70 84E7WAR2 Rowling - direct 1 of that would involve some independent work and research -- 2 simply says that death appears in a children's story within my 3 novel. That's the entrance on death. 4 MS. CENDALI: Let's put on the screen the entry for 5 occamy. Am I pronouncing that correctly 6 A. Yes. You can pronounce it any way you like; it's not a 7 real thing, you know. 8 Q. Again from Exhibit 1, The Lexicon. Which of your works did 9 you write about occamy? 10 A. This is from Fantastic Beasts and Where to Find Them. 11 Q. And again do you have a view of this entry in The Lexicon? 12 A. Well, this one I found. When I read The Lexicon and I saw 13 this one, this one made me smile to myself, because this should 14 have been a sitting duck for Mr. Vander Ark. 15 Q. What do you mean? 16 A. I mean I read that he claims that one of the works he used 17 to help him add value, as it were, to my work, one of his 18 research tools was the Dictionary of Phrase and Fable. Now, I 19 was pretty sure that he should have been able to work out my 20 little joke if he had looked in the Dictionary of Phrase and 21 Fable, and so I went and looked it up, and I was correct. 22 Ockham was a philosopher, an English philosopher, most famous 23 for what is known as Ockham's Razor, which is the statement 24 nothing should be presumed to exist which is not absolutely 25 necessary.