481 84G5WAR1 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 16, 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 17 MARVIN PUTNAM 18 18 LAW OFFICE OF DAVID S. HAMMER 19 Attorney for Defendant 19 BY: DAVID S. HAMMER 20 -and- 20 STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 21 BY: ANTHONY T. FALZONE 21 JULIE A. AHRENS 22 -and- 22 CREATIVE INDUSTRY LAW GROUP 23 BY: LIZBETH HASSE 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 482 84G5WAR1 1 (Trial resumed) 2 THE COURT: I wanted to talk to counsel. 3 MS. AHRENS: Your Honor, I believe he is here. He is 4 coming into the courtroom now. 5 THE COURT: The courtroom deputy will get him. There 6 he is. 7 MS. HASSE: Your Honor, I'm sorry to interrupt, but 8 there are computers and phones being allowed through and so it 9 made for a very long line. 10 THE COURT: I'm sorry? I didn't hear what you had to 11 say. 12 MS. HASSE: I just said that there was a group with 13 computers and phones being allowed through and it made for an 14 excessively long line downstairs. 15 THE COURT: What do you want me to do? 16 MS. CENDALI: Shall we proceed, your Honor? 17 THE COURT: No. I wanted to say just a few words to 18 follow up on my rather brief remarks last night. 19 There is a time element here that people want to take 20 into account. This case isn't going to go away at the end of 21 this trial. There is an appellate process. The most recent 22 opinion I just got an affirmance, I think it was last week, 23 didn't involve trial record. It took almost two years to get 24 to the Court of Appeals. Then what do you do after that? 25 This is the kind of case that may well be on the path SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 483 84G5WAR1 1 for certiorari to the Supreme Court because people want to make 2 a point. Now, that's a long time. I was brought up, my father 3 used to read to us the Dickens novels and Shakespeare 4 tragedies, not comedies -- and Sherlock Holmes -- but the 5 longer I have been on the court the more I am reminded about 6 Bleak House, not necessarily this case Bleak House because it 7 is a little different, but in Bleak House I think the delay in 8 the courts was something that was extremely important involving 9 people. 10 I'm a trial judge so I'm somewhat concerned. I regard 11 both sides as my clients and I'm concerned about them. And I 12 have people come before me who are very much like the people in 13 Bleak House and cases have to be resolved. 14 As you will recall in Bleak House not only did 15 Mr. Jarndyce destroy his personal life in litigation, but there 16 was a woman who I found much more appealing than Mr. Jarndyce, 17 I think her name was Ms. Flite, F-L-I-T-E, I think, and 18 Ms. Flite thought she had a claim in Chancery Court connected 19 with the Jarndyce litigation. I can't remember how it was 20 connected although I have read the book several times. But, 21 she would attend every session and the case would drag on and 22 finally she dies in her little attic where she kept her 23 sparrows. It is really a very sad story because of the delay 24 in the courts. 25 Well, that's been brought home to me during the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 484 84G5WAR1 1 time -- the last 20 years, particularly. Litigation isn't 2 always the best way to solve things. I mean, lawyers like it. 3 They get all caught up in the ideas of litigation and facts and 4 things they think are to their benefit. But, the point is the 5 parties, how do the parties fare? Is it really worth it? 6 Can't it be resolved in another way? 7 Too often I feel -- and I'm not pointing fingers at 8 anyone here -- just that the lawyers get caught up in the case 9 and the clients are just part of the baggage. And I just feel 10 that this case could be settled and should be settled. It 11 takes a little imagination on the part of the lawyers and the 12 client and I just wanted you to seriously think about it 13 because I see cases where litigation hasn't proved to be the 14 best answer regardless of who won. 15 MS. CENDALI: Your Honor? I'm sure I speak -- 16 THE COURT: I don't want any comments on it because I 17 don't want to get into any settlement negotiations and I don't 18 want to be influenced in any way by either party's attitude 19 toward settlement or not. That isn't my function. I want to 20 be free from all -- I will hear it is the other side's fault or 21 something like that and I don't want to be influenced by 22 anything in any way like that. 23 So, I just point it out as something the parties ought 24 to think about -- or someone in the parties ought to think 25 about and really devote their time towards because I think that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 485 84G5WAR1 1 this case, with imagination, could be settled, and that it 2 would be -- the time interval would be, while this thing goes 3 on and on and on it would be eliminated and the result would 4 be, I think, that the parties would be happier. 5 So, that's -- for what it is worth it is probably not 6 worth a great deal. However, that's my overall thought. 7 Now, let's proceed with the case. 8 MS. CENDALI: Thank you, your Honor. Among your 9 comments yesterday was that you indicated that you wanted the 10 trial to proceed with alacrity. 11 THE COURT: Well, I think the parties have tried to 12 take that to heart. 13 MS. CENDALI: So, what we are doing is we are finished 14 with our questioning of Mr. Harris which is the expert that was 15 on the stand. 16 In addition -- 17 THE COURT: Don't put anything out because of my 18 desires to go ahead. I don't want you to cut anything out 19 because I believe in trials and quick trials, partly because I 20 was brought up on Bleak House. 21 MS. CENDALI: Well, hopefully we have a ways to go 22 before we get to Bleak House, your Honor. 23 THE COURT: Well, you have quite a ways to go before 24 you get to that. 25 MS. CENDALI: In any case, though, we believe, we have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 486 84G5WAR1 1 already presented our affirmative case, approved our 2 affirmative case as to copyright infringement and so, 3 consequently, we are resting our case with regard to our 4 affirmative case of copyright infringement. We don't intend to 5 call another witness. We assume that we are going to have 6 Dr. Sorensen called by the other side and we will anticipate 7 putting on our expert, Professor Johnson, and Ms. Rowling in 8 rebuttal on the rebuttal case. 9 THE COURT: Well, let me understand something because 10 you have other claims and I noticed in your pretrial order that 11 you didn't say that you were not going to proceed on those 12 claims, you said they're not to be tried. Now, this is the 13 trial of all those claims so I would think that you will have 14 waived those other claims if you do not proceed on them. 15 MS. CENDALI: You mean the claims that we are settling 16 with regard to the -- 17 THE COURT: Well, I don't know if you have settled 18 anything. Look. There are claims for unfair competition, I 19 believe, and things like that that are in the complaint and 20 this is the trial. If you don't proceed on those claims I 21 would think you would have waived them. I have no authority 22 for saying that but it just occurs to me that you probably 23 would have waived them. 24 MS. CENDALI: I believe, and as I'm sure Mr. Hammer 25 will correct me, we have reached an agreement in principal on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 487 84G5WAR1 1 the settlement of the use of Ms. Rowling's quote with regard to 2 the book and we just have to finish papering it. And so, what 3 I suggest to do, in order for judicial economy is that we rest 4 on our copyright infringement case and we see if we could 5 finish perhaps, at one of the breaks, the papering the 6 settlement on the unfair competition trademark claim so we know 7 we don't have to go --- 8 THE COURT: You are referring to the quote on the 9 cover? 10 MS. CENDALI: Yes, the false -- 11 THE COURT: Because, as I understood it, they agreed 12 not to use it. 13 MS. CENDALI: That's right. They agreed not to use it 14 any longer. And we just need to get the final papers written 15 to confirm that they're not going to imply in advertising that 16 Ms. Rowling endorses the book in any way. So, I think once 17 that's done we should be able to proceed with, deal with that 18 claim and move on. 19 So, I believe that that just has an issue, the 20 copyright claim -- 21 THE COURT: Well, there is a right of privacy, there 22 is false advertising. 23 MS. CENDALI: The right of privacy claim also deals 24 with the use of -- 25 THE COURT: Federal trademark infringement claim. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 488 84G5WAR1 1 MS. CENDALI: All those claims deal with the use of 2 Ms. Rowling's quote on the cover of the book as a false 3 endorsement of the book which I think should be pretty clear 4 she doesn't endorse. But, since they've now said that they're 5 not going to do it any longer and since this isn't about money, 6 we are waiving any prior claims for damages and we will just, 7 on that claim, and we will move forward. 8 So, I believe it is just our affirmative copyright 9 case with the idea then that we believe we have established our 10 case of copyright infringement. They have obviously the burden 11 of establishing fair use so that what we assume, the way it 12 would work out is that we would put on our rebuttal case which, 13 most likely, would be Professor Johnson and Ms. Rowling after 14 Professor Sorensen's likely testimony this morning. 15 THE COURT: I see. 16 MS. CENDALI: And then we will hopefully be done. 17 And, we are also assuming, your Honor -- 18 THE COURT: So, you won't put on Professor Johnson as 19 part of your direct case? 20 MS. CENDALI: Right. I think we have already 21 established copyright infringement through Ms. Rowling and the 22 other declarations and witnesses that we have put in but 23 Ms. Johnson -- we are also trying to avoid having to call her 24 two times because, most likely, if we were to put Professor 25 Johnson on now, then Professor Sorensen will be talking about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 489 84G5WAR1 1 Professor Johnson, then we have to put Professor Johnson on in 2 rebuttal and it seems that we might be able to short circuit it 3 and get out of here sooner than in Dickens. 4 THE COURT: All right. Then defense case, I guess, is 5 that right? 6 MR. HAMMER: We actually have an application, your 7 Honor. 8 MR. FALZONE: Your Honor, we would like to move for 9 judgment as a matter of law strictly on the claims for 10 infringement of the copyrights and the video games in which the 11 wizard cards are contained, and that's based on plaintiff's 12 failure to show ownership of those copyrights. They allege in 13 their second amended complaint that those copyrights are 14 registered to another company, Electronic Arts, that's not a 15 party here. 16 The Copyright Act requires them to show either legal 17 or beneficial ownership of those copyrights. They haven't done 18 that, your Honor. 19 MS. CENDALI: Your Honor, Ms. Rowling testified that 20 those copyrights are co-owned by Warner Brothers. That's been 21 unrebutted. That's the truth. We have also advised them in 22 letters over the weekend that the registrations with the 23 copyright office are being corrected to reflect that truth but 24 the issue is the reality -- 25 THE COURT: Being corrected? I don't quite follow SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 490 84G5WAR1 1 you. If they're being corrected why is correction necessary? 2 MS. CENDALI: Only because they were originally in the 3 name of Electronic Arts and that was wrong. They were co-owned 4 by Warner Brothers and Electronic Arts. And Ms. Rowling so 5 testified. 6 THE COURT: Well, how can she testify to something 7 that hasn't occurred yet? 8 MS. CENDALI: It has already occurred that Warner 9 Brothers owns the copyrights -- co-owns the copyrights. 10 THE COURT: Well, go ahead. I see Mr. -- I see Mr. -- 11 I'm sorry. I have forgotten your name. 12 MR. FALZONE: Mr. Falzone. Thank you, your Honor. 13 Your Honor, we would ask the Court to take judicial 14 notice of the actual copyright registrations. We have printout 15 from the copyright office website and, your Honor, if the 16 concept of legal or beneficial ownership is going to have any 17 teeth or meaning, I think that if someone asserts copyrights 18 that are registered to somebody else it is fair to say they 19 have not established ownership. 20 Now, we wrote to plaintiff's counsel over the weekend 21 and asked for any documents that established either actual or 22 beneficial ownership -- we were not provided with any, the 23 Court was not provided with any. And plaintiffs have no 24 standing to assert copyrights that are registered to somebody 25 else. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 491 84G5WAR1 1 MS. CENDALI: We have an assignment of interest. We 2 have testified that we own the copyrights. We do own the 3 copyrights. 4 THE COURT: Ms. Rowling is not Warner. 5 MS. CENDALI: Yes, but she knows who owns those 6 copyrights. 7 THE COURT: Isn't that hearsay then? 8 MS. CENDALI: No, because these are -- it was a -- we 9 could put her on the stand and she can further clarify it if 10 need be in rebuttal to whatever evidence they put on that we 11 don't own the copyrights. 12 We can put Mr. Williams on the stand in rebuttal to 13 their argument that we don't own the copyrights and he can 14 present the assignment agreement that shows that Warner 15 Brothers does own the copyright. 16 MR. FALZONE: Your Honor, first of all, I think first 17 and foremost it is the registrations that matter. The fact is 18 they're registered to Electronic Arts and nobody else. As for 19 any other documentary proof about the ownership issue, it was 20 not on the Exhibit list, it was not provided to us despite the 21 fact that we specifically asked for it. 22 If your Honor would like us to provide registration 23 information from the copyright office we will be happy to do 24 that and I think that would eliminate any question about who 25 has been shown, by evidence, to be the owner of these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 492 84G5WAR1 1 copyrights. 2 MS. CENDALI: Well, your Honor, if they want to 3 present evidence in opposition to our case of copyright 4 infringement, they're allowed to present that evidence. If 5 they want to add to their list these copyright registrations, 6 they're allowed to do that and then we're allowed to rebut it. 7 And, if so, we will call Mr. Williams and we will present 8 evidence of the copyright assignment that shows that Warner 9 Brothers owns those cards. 10 THE COURT: This is a motion at the end of plaintiff's 11 case. 12 MS. CENDALI: That's right. 13 We presented unrebutted evidence that we own the -- 14 Warner Brothers owns the copyright to the cards. They have not 15 presented any evidence -- they have not presented the copyright 16 registrations they're mentioning. Mr. Falzone is testifying as 17 to what these registrations allegedly say. He hasn't 18 cross-examined Ms. Rowling on them. He could have 19 cross-examined her and said, oh, look. These registrations 20 don't list Warner Brothers. What does that mean? He hasn't 21 done that. These registrations are not an issue in the case 22 from an evidentiary point of view. 23 So, you can't make a motion on evidence when they 24 haven't rebutted it. And the registrations are not before. 25 The time to have done it should have been in cross-examining SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 493 84G5WAR1 1 Ms. Rowling and they didn't do that. 2 MR. FALZONE: Very briefly, your Honor. 3 It is an element of plaintiff's case to show 4 ownership. The fact that a witness who is not alleged to own 5 any of the copyrights on any basis simply says that some other 6 party has some sort of interest -- undocumented, unproved -- 7 simply does not satisfy that burden. 8 I have the registration information here. I would ask 9 your Honor to take judicial notice of it. I think it qualifies 10 for judicial notice and I think on that basis there is a 11 failure of proof on a necessary element of plaintiff's 12 infringement claim in these video games. 13 MS. CENDALI: If defendant is putting in new evidence, 14 they're asking you to take judicial notice of evidence of these 15 copyright registrations, that's new evidence. We're entitled 16 to rebut that evidence which we will do in our rebuttal case. 17 Ms. Rowling could testify, had they asked her, that 18 she -- the process by which, how she created the cards which 19 she did say and how Warner Brothers, by virtue of its ownership 20 of merchandising rights related to Harry Potter, owns a joint 21 interest with Electronic Arts and those cards. She could have 22 testified to that but they didn't rebut her on it, nor did they 23 present these documents when they could have. They're now 24 trying to add documents in an oral motion which is not proper. 25 And if they do add evidence, we should be allowed to rebut that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 494 84G5WAR1 1 evidence. 2 THE COURT: I'm not sure that I have to take judicial 3 notice. That's my problem. I'm not sure that the evidence 4 proffered is appropriate evidence of copyright ownership by 5 third-party. 6 I will reserve decision. 7 MR. FALZONE: Thank you, your Honor. 8 MR. HAMMER: Your Honor, we call Janet Sorensen. 9 JANET SORENSEN, 10 called as a witness by the Defendant, 11 having been duly sworn, testified as follows: 12 THE COURT: Would you give your name to the court 13 reporter and spell your last name? 14 THE WITNESS: Janet Sorensen. S-O-R-E-N-S-E-N. 15 THE COURT: Please proceed. 16 DIRECT EXAMINATION 17 BY MR. HAMMER: 18 Q. Dr. Sorensen, why don't you give us your full name. 19 A. Janet Linda Sorensen. 20 Q. What do you do? 21 A. I'm a professor of literature. 22 Q. Where do you teach? 23 A. At University of California at Berkeley. 24 Q. What is your specialization? 25 A. My specialization has been Eighteenth Century and early SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 495 84G5WAR1 Sorensen - direct 1 Nineteenth Century British literature and language. 2 Q. Do you have a research specialization? 3 A. Primarily Eighteenth Century literature representations of 4 language and texts like dictionaries and glossaries and novels 5 and poems. 6 Q. I would like to clarify certain points right at the 7 beginning. What is a Lexicon? 8 A. A Lexicon is an alphabetically ordered list of terms drawn 9 either from a particular language, sometimes a particular text, 10 a particular field of specialization with definitions of those 11 alphabetically listed terms. 12 Q. How does it differ from an encyclopedia? 13 A. These are, in some way, semantic questions. Encyclopedias 14 tend to be more comprehensive. You might have pages of entries 15 for -- I mean many pages for a single entry, sometimes 16 illustrations. 17 Q. Is it fair to say that there is a continuum from, say, a 18 simple index of words to a more inclusive listing, a glossary, 19 dictionary, a lexicon, an encyclopedia? 20 A. Right. That's part of why I say it is a semantic 21 distinction, because there is a really wide range of works that 22 function as reference guides, if you will, from a very basic 23 index with simply terms listed alphabetically with page numbers 24 through glossaries, through dictionaries with maybe slightly 25 more elaborate definitions, into encyclopedias. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 496 84G5WAR1 Sorensen - direct 1 Q. And these are all A to Z listings of various inclusiveness? 2 A. Historically many of them have been. Not always. 3 Q. Let's deal with your education. Where did you go to 4 college? 5 A. Northwestern University. 6 Q. When did you graduate? 7 A. In 1948. 8 Q. Did you go on for a Ph.D? 9 A. I did. I went to the State University of New York at 10 Buffalo. 11 Q. When did you receive your Ph.D? 12 A. In 1994. 13 Q. Have you taught literature since then? 14 A. I have been teaching literature since 1988. I have taught 15 at the faculty level since 1994. 16 Q. Where did you first teach? 17 A. At Indiana University for 13 years. 18 Q. I'm sorry. I didn't hear what you said. 19 A. I taught at Indiana University for 13 years. 20 Q. What did you teach at Indiana? 21 A. I taught a range of courses from Seventeenth through 22 Twentieth Century British and American literature at 23 undergraduate and graduate levels. 24 Q. Were you tenured? 25 A. Yes, I was. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 497 84G5WAR1 Sorensen - direct 1 Q. When did you come to Berkeley? 2 A. Last fall -- of 2007. 3 Q. Are you tenured at Berkeley? 4 A. Yes, I am. 5 Q. Have you published any books? 6 A. I published a book entitled The Grammar of Empire and 7 Eighteenth Century British Literature in 2000 with Cambridge 8 University Press. That came out in paper in 2005. 9 Q. What was the subject of your book? 10 A. That book was looking at the relationship between England 11 and Scotland in the Eighteenth Century after the active union 12 in 1707. It was looking at literature and how, especially 13 language, uses of language helped to culturally incorporate 14 these two entities. 15 Q. How the standard position of language led to a political 16 unification of these two countries? 17 A. Right. How standard English arises in that period as well 18 as representations of Scot dialects in various capacities. 19 Q. Are you working on another book now? 20 A. Yes, I am. 21 Q. What is the subject of that book? 22 A. In this book I'm looking at a variety of non-standard 23 languages as they were represented in Eighteenth and Nineteenth 24 Century literature from provincial languages to the mariner's 25 argot to slang, gypsy languages; how these were represented in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 498 84G5WAR1 Sorensen - direct 1 poems, novels, glossaries, dictionaries during the period. 2 Q. Now, in addition to your book and your teaching, do you 3 publish essays? 4 A. Yes, I do. 5 Q. About how many essays did you publish? 6 A. I think it is around 15. 7 Q. Where have these been published? 8 A. Oh, it is a wide range of peer-reviewed journals. In 9 Twentieth Century Film Studies to Eighteenth Century Studies 10 and University Press collections of essays. 11 Q. What is a peer-reviewed journal? 12 A. A peer-reviewed journal is a journal that has an editorial 13 board of experts in a particular field that review the works 14 submitted to see if it is original and significant. 15 Q. What have you written on in these 15 essays? 16 A. Oh, everything from the films of Sergei Eisenstein media 17 theory in the late Twentieth Century to my most recent essay is 18 on teaching Sir Walter Scott's languages in the classroom. 19 Q. When you say his languages, can you explain what you mean? 20 A. Well, one of the appeals of Sir Walter Scott's novels was 21 that they represent not only a standard English but a variety 22 of Scott's dialects, Scott's Gaelic and that is sort of an 23 enormously useful way into text. 24 It is an exciting way for students to engage that 25 language and I like to think about how I can use that to teach SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 499 84G5WAR1 Sorensen - direct 1 the novels of Sir Walter Scott. 2 Q. Okay. So in addition to the teaching and the book that you 3 wrote and the essays, is there any other professional work you 4 perform? 5 A. I frequently review manuscripts for publication at 6 university presses from Cambridge University, Edinburgh 7 University, University of Chicago, University of Pennsylvania. 8 MR. HAMMER: Your Honor, the parties have agreed that 9 Dr. Sorensen is an expert in the field of English history -- 10 I'm sorry -- in the history of English literature. 11 Q. Are you familiar with a category of book that we call 12 reference guides to imaginative literature? 13 A. Yes, I am. 14 Q. Just what would you -- how would you define a reference 15 guide to literature? 16 A. Reference guide to that literature would be something that 17 would help readers understand, access, in some cases illuminate 18 layers of meaning in a particular text. 19 Q. Can you give us some examples of reference guides? 20 A. Sure. Some of the earliest ones I've seen are for Milton's 21 Paradise Lost and these range from very simple indexes 22 published separately from the text alphabetically organized 23 with line numbers from the poems where you might be able to 24 find those particular items to, again in the case of Paradise 25 Lost, 400 or 500 page volumes that catalog the angels and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 500 84G5WAR1 Sorensen - direct 1 various characters in references in Paradise Lost, provide 2 etymological information. 3 Q. What do we mean by etymological information? 4 A. Etymological information considers the roots of a 5 particular word, it often breaks the word into syllables and 6 tries to track its earlier meanings historically where 7 particular -- what languages -- what particular languages are a 8 part of a history of a particular word. 9 Q. Now, you suggested that reference guides started around the 10 time of Milton in the Seventeenth Century, is that correct? 11 A. I see a big expansion of them in the late Seventeenth, 12 early Eighteenth Century. 13 Q. In your judgment, is there a reason for the emergence of 14 reference guides at that time? 15 A. Well, I do know that there was a vast expansion in the 16 amount of published, printed material available and that there 17 were rising literacy rates and so there was a much wider 18 readership for printed texts. And part of what is going on, I 19 think, is that these lesser educated readers are looking for 20 ways into texts that are being published. 21 Q. In your judgment, do these reference guides from the 22 Seventeenth Century on have any influence on the course of 23 English literature? 24 A. Well, I -- as I've thought about the Eighteenth Century and 25 taught it, it certainly suggests that they have been a part of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 501 84G5WAR1 Sorensen - direct 1 how readers have experienced literature historically. 2 One text I teach in particular is Pamela, which is 3 often known as the first novel in English, although that is 4 disputed; but this is a text that came out in 1740, was a 5 massive best seller of enormous proportions. People would buy 6 Pamela fans and there were all sorts of Pamela statues going up 7 and Pamela portraits. But, many critics were dismissive of 8 this work because it was a novel and that was a semi-scandalous 9 and illicit form of writing at that point in time. 10 And Pamela, part of the media excitement about Pamela 11 is that it generated a wide range of guides to it, criticisms 12 of it, and Pamela now is taught as sort of English canon. It 13 is a novel that most English majors have to know before they 14 finish their degree. 15 And, as I teach it and as I think about that novel, I 16 think about the ways in which this sort of media frenzy and 17 publishing frenzy that took place in relationship to Pamela 18 helped to establish it as something that people needed to take 19 seriously. 20 Q. Let's turn to Mr. Vander Ark's Lexicon. First of all, 21 would you describe that as a lexicon, an encyclopedia? How 22 would you classify it in terms of that continuum that you 23 mentioned? 24 A. I suppose I put it somewhere in between. It is certainly 25 comprehensive. Its entries tend to be a little -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 502 84G5WAR1 Sorensen - direct 1 THE COURT: In between what? I'm sorry. 2 A. In between a lexicon and encyclopedia. Its entries are a 3 little bit shorter than a standard encyclopedia entry with some 4 exceptions. 5 THE COURT: I'm sorry to interrupt. 6 MR. HAMMER: No. No. Fine, your Honor. 7 Q. In preparation for your testimony today, what materials 8 have you reviewed? 9 A. Well, I have read the Harry Potter novels. I read the 10 Lexicon. I went and looked at some of the more recent 11 companion guides, reference guides to the works of J.R.R. 12 Tolkien and C.S. Lewis. Then I did a little bit of the 13 research into Nineteenth Century from Charles Dickens to Thomas 14 Hardy and looked at the kinds that came out in relationship to 15 these. I looked at some of the declarations that have been 16 submitted to the Court for this case. 17 Q. For all that work how much are you being paid? 18 A. $10,000. 19 Q. Now, Ms. Rowling has stated that she wants to publish a 20 companion guide of her own. Have you encountered any examples 21 of other authors who have written their own reference or 22 companion guide? 23 A. Sure. Richardson wrote his own largely in response to the 24 others that were coming out. Tolkien co-authored one of the 25 many guides that is available on his works. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 503 84G5WAR1 Sorensen - direct 1 Q. Have you noticed any differences between guides that an 2 author writes about his or her own work and guides that are 3 written by third-parties? 4 A. Well, since there is such a wide range of guides, you know, 5 there is always going to be distinctions from one to another. 6 I can say that in the case of Sir Walter Scott, which is 7 probably the one I know the best since I have done the most 8 research on him, that he was somebody deeply invested in 9 heavily annotating and commenting on and providing guidance for 10 his texts. And those often accompany the text when they're 11 published still today but I frequently need third-party 12 guidance -- certainly my students do -- to work their way 13 through Sir Walter Scott despite his guidance. There are 14 certain things he assumes readers will know, like a Jacobite, 15 that my undergraduates don't know they need a guide to explain 16 that. That is something he assumes everyone knows about. That 17 is not something everybody will know. 18 Q. Is it fair to say, in your judgment, that an author is not 19 the best judge about what it is about his or her own work that 20 requires explanation? 21 A. Well, it was certainly true for Sir Walter Scott. For 22 instance, as a Scot speaker there were plenty of terms that he 23 took for granted that a reader would know as Scott's terms that 24 not a London-based reader would know. And I'm of the 25 persuasion that an author isn't always the final word on what a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 504 84G5WAR1 Sorensen - direct 1 printed text that he produced might mean. 2 Q. Now, have there been reference guides in connection with 3 fantasy literature? 4 A. Fantasy literature seems to generate an abundant number of 5 guides. It is especially given to producing these sorts of 6 works. 7 Q. What do you mean by fantasy literature? 8 A. Fantasy literature is literature that invents very 9 elaborate universes, creates places, imaginary beings, 10 imaginary flora and fauna, often of a sort of layered and 11 extensive variety. 12 Q. In your judgment, do the Potter novels fall within the 13 genre of fantasy literature? 14 A. They certainly create a very rich universe of invented 15 beings, places, things. 16 Q. What is it about the Potter novels that might lead a reader 17 to want to use a reference guide? 18 A. Well, they're thousands of pages long. There are all sorts 19 of characters, creatures, spells that will appear one place in 20 a book and then maybe several hundred pages later. It is the 21 kind of elaborate world for which some kind of assistance, 22 particularly just in terms of memory refreshers, is really 23 helpful. 24 Q. Can you given us an example through your own reading? 25 A. Well, I hadn't read the Potter novels before. I spent my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 505 84G5WAR1 Sorensen - direct 1 Christmas holiday do doing that. And I remember reading the 2 first novel and coming across toward the end -- maybe the fifth 3 book -- of characters of Filch and Peeves and thinking, oh, I 4 remember that these are characters I should know because the 5 names are familiar but I don't remember who or what they are. 6 And so, I had the Lexicon with me at that time and was really 7 relieved to be able to quickly refresh my memory so that I 8 didn't have to scan back over a couple of hundred pages to find 9 that reference again. 10 Q. Now there are seven Potter novels? 11 A. Correct. 12 Q. Does every character in these novels appear in every single 13 one of the novels? 14 A. No. 15 Q. So, if you are reading in the fifth novel of a character to 16 find out where he had previously appeared, what would you have 17 to do? 18 A. Well, you would have to go and thumb back through the pages 19 of the book which is something I generally enjoy doing after 20 I've finished my first read. 21 Q. Books themselves don't have an index of characters? 22 A. They don't. 23 So, to give another example, I was reading the sixth 24 book and came across Amelia Bones and I thought, is this a new 25 person? I just don't remember. And I wanted to know if that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 506 84G5WAR1 Sorensen - direct 1 character had been there in another place. And so, I again 2 looked at the Lexicon. It had been in the fifth book, I could 3 go on. It didn't provide -- I didn't need a sort of character 4 sketch, I just was curious, Has this person appeared before? 5 Has this character appeared before? 6 So, my curiosity was satisfied. 7 Q. And, did the Lexicon provide the information you sought? 8 A. Yeah. 9 Q. Now, can you give us examples of other fantasy literature 10 that has spawned reference guides? 11 A. Well, as I was trying to think about what kind of 12 literature would likely do this I thought of C.S. Lewis and 13 J.R.R. Tolkien and, indeed, they have spawned quite a bit of 14 reference material guides in relationship to them. 15 Q. And for those of us who have limited capacities for 16 fantasy, who is Tolkien? 17 A. I think it is Tolkien but I could be wrong. 18 Q. What did he write? 19 A. He wrote The Lord of the Rings. He wrote a series of books 20 in the Twentieth Century that have been very popular. 21 Q. And what did C.S. Lewis write? 22 A. The Chronicles of Narnia. 23 Q. Did you find a lot of reference guides for these two 24 authors' works? 25 A. Quite a few. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 507 84G5WAR1 Sorensen - direct 1 Q. Can you give us an idea of how many? 2 A. In the case of Tolkien I found I think 19 or 20. I think 3 in the case of Lewis around 15. And these were very wide 4 ranging in their approaches but there was a high number of 5 guides. 6 Q. Are the Tolkien and Lewis novels multi-volume novels? 7 A. Yes, they are. 8 Q. Is there something about multi-volume fantasy novels that 9 lend themselves to reference guides? 10 A. Well, I think both in the capacity that we are dealing with 11 fantasy literature where we have created, invented characters, 12 beings, places that inhabit these works and in the fact that 13 they're going over several volumes, a reader might put a volume 14 down and pick up the next one a while later. I think in both 15 of those ways it is helpful, it is useful to have something to 16 remind readers of who these characters are, what their 17 relationship might be, what the significance of a particular 18 power or creature might be. 19 Q. I think you said that in the case of Tolkien there were 20 20 companion guides you found. By the way, I'm using companion 21 guides, you are referring to reference guides. Is there a 22 distinction between these two? 23 A. Again, I see them functioning on a spectrum. I imagine 24 reference guides to be more organized for a reader to get quick 25 access to work as opposed to companion guides which frequently SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 508 84G5WAR1 Sorensen - direct 1 feature essays, critical commentary. But these are, in some 2 ways, fine distinctions. As I see it there is a kind of 3 spectrum from one to the other. 4 Q. All right. You say there are about 20 guides of whatever 5 kind for Tolkien and perhaps 15 for Lewis; is that correct? 6 A. Yes. 7 Q. By the way, where did you do your research on that? 8 A. I went to the University of California at Berkeley's 9 library. 10 Q. So that was simply in the Berkeley collection? 11 A. Correct. 12 Q. Does that large number of books for each of these authors 13 suggest something to you? 14 A. Well, it suggests something that I think I already knew, 15 which is that great works of literature or works that have 16 captivated readers can sustain multiple approaches and, in some 17 cases, demands multiple texts; that there usually isn't one 18 single authoritative way into a book and that multiple 19 reference guides, companion guides are helpful to readers -- 20 they must be, in order for there to be so many of them. 21 Q. Professor Sorensen, based upon your review of English 22 literature since the Seventeenth Century, have you encountered 23 any other author other than Ms. Rowling who has ever tried to 24 suppress a reference guide to her novels? 25 A. I haven't encountered that in my research. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 509 84G5WAR1 Sorensen - direct 1 Q. All right. I would like to turn to Mr. Vander Ark's 2 Lexicon. How would you describe the value of Mr. Vander Ark's 3 Lexicon? By the way, would you like a copy of it up there? Do 4 you have it with you? 5 A. A copy of that would be helpful. And if I could get some 6 water, that would be really great. 7 MR. HAMMER: Your Honor, I will be water boy and give 8 her the Lexicon. 9 Q. All right, Dr. Sorensen, describe for us what, in your 10 judgment, is the value of Mr. Vander Ark's Lexicon? 11 THE COURT: Well, what have you put in front of the 12 witness? 13 MR. HAMMER: I'm sorry. Which number is that? 14 MS. CENDALI: Plaintiff's 1 at least is a copy of the 15 Lexicon. 16 THE COURT: The Lexicon. 17 MS. CENDALI: Yes, your Honor. 18 MR. HAMMER: As always, I rely on Ms. Cendali's help. 19 MS. CENDALI: May we have that in writing, your Honor? 20 MR. HAMMER: Why? Nothing else in your case on your 21 side has been in writing. 22 Q. How would you describe the value of that Lexicon? 23 A. The key value of the Lexicon, as I see it, is its 24 restructuring of material so that readers have ready access to 25 this very rich and dense and complicated universe when they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 510 84G5WAR1 Sorensen - direct 1 need to remind themselves of something when they need -- when 2 they're curious about a relationship of a character where they 3 might have appeared. 4 I have also, as somebody interested in language, found 5 the etymological information really interesting and helpful. 6 MR. HAMMER: Your Honor, we have prepared a power 7 point which is -- 8 THE COURT: Let me ask the witness something. 9 MR. HAMMER: 557. 10 THE COURT: I would like to ask the witness something. 11 Do lexicons quote or paraphrase the copyrighted work 12 of the authors? 13 THE WITNESS: In my experience -- 14 THE COURT: The ones that you are talking about or do 15 they -- 16 THE WITNESS: I have seen ones, the ones that I know 17 say -- there is, in the Eighteenth Century, when works are 18 under copyright, books that come out that alphabetically 19 catalog, say Moral Sentiments. And so, they'll be in 20 alphabetical listing of avarice, appreciation, down to virtue, 21 and they're simply lifted quotations from the volumes and 22 nothing more than that. 23 THE COURT: So they're actually word-for-word 24 quotation? 25 THE WITNESS: Word-for-word quotations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 511 84G5WAR1 Sorensen - direct 1 Beauties of Henry Fielding, Beauties of Lawrence 2 Sterne, Moral Instructions of John Bunyan; these are lifting. 3 There is nothing else added. 4 THE COURT: What about paraphrases? 5 THE WITNESS: Sure. There is plenty of paraphrasing, 6 yes. 7 THE COURT: And are these in any particular works that 8 you are talking about? 9 THE WITNESS: Shakespeare Illustrated has, starts with 10 summaries of Shakespeare's plots, paraphrasing of what 11 characters said to each other. 12 THE COURT: But are they copyrighted? 13 THE WITNESS: I don't know. 14 THE COURT: Common law copyright, I suppose, but. 15 THE WITNESS: I'm sorry, I don't know that. I don't 16 know the answer to that. 17 THE COURT: You don't. 18 THE WITNESS: I can say that more recent works like 19 the J.R.R. Tolkien guides will paraphrase and sometimes, I 20 think, quote when they're explaining beings, imaginary beings 21 from the Tolkien novels; yes. 22 MR. HAMMER: Your Honor, may I just ask that 23 enthusiastic members of the audience be asked to keep their 24 voices down during the testimony? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 512 84G5WAR1 Sorensen - direct 1 MR. HAMMER: Thank you, sir. 2 Q. All right. I would like to turn to our PowerPoint. 3 MS. CENDALI: Can we have the exhibit number, 4 Mr. Hammer? 5 MR. HAMMER: I believe we e-mailed the page we added. 6 I will give it to you again. 7 MS. CENDALI: That's fine. 8 MS. AHRENS: 587. 9 MR. HAMMER: Your Honor, I don't know if this has been 10 placed in the Court's copy. This is an extra page. 11 BY MR. HAMMER: 12 Q. All right, Doctor. On the page right after this we have 13 listed what you believe the attributes of the Lexicon are. So, 14 the first one is Etymology and, once again, just briefly tell 15 us why etymology is a useful thing to have in this lexicon. 16 A. It is especially useful for this lexicon because many of 17 the terms have been created by the author but they're drawn 18 from a very rich terrain of multiple languages, and so the 19 etymologies will clue readers into that in a way that doesn't 20 happen in the novels themselves. 21 Q. You now have Mythical References. What did you mean by 22 that? 23 A. At points the Lexicon will describe myths from various 24 cultures that are drawn on in the texts and so this just points 25 some of those moments out for readers. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 513 84G5WAR1 Sorensen - direct 1 Q. Geography - Both Real and Fictional. What examples of real 2 geography does the Lexicon mention? 3 A. Oh, um -- 4 Q. Let me withdraw it. Why is it useful to have references to 5 have references to geography, both real and fictional? 6 A. These are interesting novels in that they are both set in 7 the real world that we all know, our own geographical space, 8 and there are also invented spaces. And so, the Lexicon will 9 tell readers both where a sort of small town in Ireland, you 10 know there is an entry for Bandon which is the small town in 11 Ireland. If I am remembering right it is a coastal town. 12 So, it will provide that kind of information or 13 topographical information about the invented spaces of the 14 novels. 15 Q. Let's combine the next two. Vernacular and Slang and 16 Cultural References. What do you mean by that? Why is it a 17 virtue? 18 A. This I found in light of a Sir Walter Scott's work because 19 there are all sorts of vernacular terms from British English, 20 which I think are part of the charm for American or U.S.-based 21 readers but often unfamiliar. And so, these are places where 22 readers that might not know a vernacular or slang term from the 23 language as it is spoken in Britain find out what those terms 24 mean. 25 Q. Then, finally, we say that the Lexicon is educational for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 514 84G5WAR1 Sorensen - direct 1 young readers. In a general sense, what did you mean by that? 2 A. Simply that in bringing this additional reference material 3 maybe basic things for us, like Brazil is the largest country 4 in South America, would be helpful for somebody who is younger 5 that might not know that. It is certainly helpful in terms of 6 exposing them to mythologies that this book is drawn from, the 7 sort of richness of language. 8 So, in some ways we can go back to what is going on 9 earlier in the bullet points to talk about, in some ways, why 10 this is helpful for younger readers. 11 Q. Let's turn to the next page or move to the next page. 12 We have an example of etymologies of the name of Albus 13 Dumbledore. Who is Albus Dumbledore in the Harry Potter 14 novels? 15 A. He is the master of Hogwarts in Harry's time there and for 16 decades before that. He's one of the main characters. He's 17 sort of very wise, almost a kind of father figure to Harry. He 18 is the leader of the sort of good force in the novel. 19 Q. He has five names: Albus, Percival, Brian, Wulfric, 20 Dumbledore. What are we told about Albus? 21 A. Here we are told that it is from Latin; white, especially 22 the flat white of stones or clothing, and that it was an 23 ancient poetical name for Britain. 24 This was really interesting for me to think about in 25 terms of the character because he is on the side of good and he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 515 84G5WAR1 Sorensen - direct 1 is associated with whiteness here and there is this connection 2 to ancient Britain. That's part of the sort of ongoing motif 3 of the novels. 4 Q. The next name that is identified and given derivation for 5 is Percival. What are we told about Percival? 6 A. This is a particular Knight of King Arthur's round table 7 and who was granted a glimpse of the Holy Grail. 8 Again, I think there are all sorts of ways to think 9 about the significance of that term in relationship to this 10 character who is also somebody who has, you know, we sense 11 throughout the novels, glimpsed into certain kinds of wisdom, 12 certain kinds of information that are key to, you know, 13 thinking about his character. 14 Q. The third name is Dumbledore. And what are we told about 15 the world Dumbledore? 16 A. That this is an Eighteenth Century English term for the 17 word bumblebee. It is actually a term I have come across in my 18 own research when I have been looking at dictionaries of 19 English dialect in the Eighteenth Century. So, I was really 20 impressed and pleased to see that connection made there. 21 I just want to add, too, that as we go through these 22 we have started with Latin, we have moved into King Arthur and 23 ancient Britain and here we are moving into sort of early 24 modern vernacular. And so, this is really giving me a sense of 25 the depth of the novels of this character, the sort of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 516 84G5WAR1 Sorensen - direct 1 thoughtfulness of the naming, the sort of interpretations one 2 might take away from this name. 3 Q. Let's go on to the next name, Wulfric. We have just gone 4 through Latin derivations, where does Wulfric come from? 5 A. This is an Anglo-Saxon term apparently for wolf power or 6 wolf ruler. Also a Twelfth Century British hermit saint known 7 for his miracles and prophecies. 8 So, we have now another layer of linguistic 9 information, another layer of historical information, another 10 layer in terms of this character who, while he is on the side 11 of good is also, as we see in the novels, capable of fierce 12 warfare, what he needs to be, and at times a hermit, somebody 13 that excludes himself, at least from Harry, in ways that are 14 mysterious for him. 15 Q. What might it mean that a character is named after both 16 bumblebees and wolves? 17 A. One of the running motifs of the book are the relationship 18 between humans and animal worlds. There are characters who can 19 transform into animals. There are, I think it is called a 20 Patronus, a sort of guardian that often takes the form or can 21 take the form of an animal. 22 So another way of thinking about the information we 23 are being given here is the way it is playing on some of those 24 particular motifs. 25 Q. The last name is Brian. What are we told about Brian? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 517 84G5WAR1 Sorensen - direct 1 A. That this might be a reference to Monty Python's The Life 2 of Brian poking fun at the pretentiousness of the other names. 3 Here we get an entirely pop cultural reference. I'm, 4 in talking to British friends, am told that Brian has a lot 5 more -- The Life of Brian as a film is a pop cultural reference 6 that is ready access, people know it and it is a sort of 7 frequently, you know, used term. People have an understanding 8 of that film, that it is very important to the sort of British 9 pop culture. 10 And so, here is sort of another layer that, in some 11 ways, adds a kind of humor. 12 Q. Let's go on to the next example. The next example is the 13 derivation of the name of a character named Fenrir Greyback, 14 who is Fenrir Greyback in the novels? 15 A. He is a werewolf. He is a friend of the relatively evil 16 Malfoy family. A low-level death eater. 17 Q. When are you told about the derivation about the name 18 Fenrir? 19 A. That it comes from Fenriswolf, Fenrisulv, Fenrisulf, the 20 gigantic wolf of the God Loki in Scandinavian mythology. 21 So here is another whole cultural repository that the 22 novels are drawn from that I didn't realize as I was looking my 23 way through the text. 24 Q. Let's go on to the next. The next entry is for a spell 25 named Colloportus. Are there a lot of spells in the Potter SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 518 84G5WAR1 Sorensen - direct 1 novels? 2 A. There are quite a few, yes. 3 (Continued on next page) 4 5 6 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 519 84GVWAR2 Sorensen - direct 1 Q. Okay. And they often have invented names? 2 A. They always have invented names. Most are Latin, I think 3 there are a few Greek. 4 Q. Do the Potter novels themselves give an English equivalent 5 to these names? 6 A. No, they tell you what the spell can do, but they do not 7 provide this kind of etymological information. 8 Q. So in the books what does the Colloportus spell do? 9 A. It seals doors so a character can cast a spell on a door 10 and it will be sealed shut; it won't be able to open. 11 Q. And what does the Lexicon tell us about the derivation or 12 the etymology of the name Colloportus? 13 A. That it comes from colligo, to bind together, and portus, 14 Latin for door. 15 Q. Now, Dr. Johnson, the plaintiffs' expert, has submitted a 16 declaration, the second -- submitted two, and in the second 17 declaration, paragraph 11, she states, The Latin etymologies 18 show no real linguistic understanding. And as an example, she 19 says the entry for Colloportus, that is the example we are 20 referring to, describes the word as having been derived from 21 the Latin colligo, to bind together, and portus, door. 22 However, the term portus normally is translated as 23 harbor, rarely is entrance. Porta, now that might well give 24 you door. So I guess she's saying that that spell should be 25 translated as seal the harbor. Do you have a comment about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 520 84GVWAR2 Sorensen - direct 1 that? 2 A. She might also be saying that the author has not chosen the 3 correct entry for her invented word, which I like the sort of 4 playfulness with the Latin of the book. I like that this is 5 not an academic book, it's not -- neither the novels nor the 6 Lexicon are setting themselves up as academic texts. 7 My sense of why this etymology looks the way it does 8 is that it's being true to the text and it's explaining to 9 somebody that does not know Latin that the rough origins of 10 portus, as the word appears in the novels, is door. This is 11 not an especially troubling moment for me etymologically. I 12 don't think that somebody is going to walk away from this 13 etymology while leaving us informed about the origins of this 14 particular word based on the fact that it's the masculine "u-s" 15 and not the feminine "a" ending of the term. 16 Q. By the way, in the Potter novels, are there a lot of 17 harbors that are suddenly sealed by spells? 18 A. None that I can remember. 19 Q. Okay. But there is a door that is sealed by a spell? 20 A. Many. 21 Q. Let's go on to the next example. And my Latin is 22 nonexistent, so if I mispronounce this, be indulgent. No, 23 there is another example that we added, Animagi. I think, 24 here. 25 THE COURT: Skipping around in your -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 521 84GVWAR2 Sorensen - direct 1 MR. HAMMER: No, Judge. What happened was when I sent 2 this out originally, for some reason this example was not 3 included. I sent copies to the plaintiff, who graciously 4 agreed they would not object to the inclusion, and it actually 5 should be a original response, and I believe I've handed this 6 up to the Court. 7 THE COURT: Yes, you did. 8 BY MR. HAMMER: 9 Q. Okay. Now, the next entry, is it pronounced Animagi or 10 Animagi? Well, whatever. The next entry is Animagi/Animagus. 11 Who are the Animagi in the novels? 12 A. These are witches or wizards that can transform themselves 13 into animals and retain human consciousness. There aren't many 14 of them. They need to be registered. 15 Q. Okay. And what are we told about the derivation of these 16 words? 17 A. That it's a composite word of Latin for "animal" and 18 Persian for "magic user." 19 Q. "Animal" is put twice there; I assume that's because animal 20 in Latin is equivalent to the English word animal? 21 A. I would assume that, as well. 22 Q. Now, Dr. Johnson also quarrels with this derivation. And 23 she says in paragraph 12 of the same declaration, Errors 24 proliferate throughout the remainder of these entries. And as 25 an example, she says, Under Animagi we find animal, Latin for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 522 84GVWAR2 Sorensen - direct 1 animal, English, plus magus, Persian for magic user. But the 2 word "magus" in Persian meant a wise man, not a magician. It's 3 the Romans who took up the word and applied it to a magician. 4 So evidently she believes that that should be animal 5 plus wise man, not animal plus magic user. You have a response 6 to that? 7 A. To be honest, that's kind of -- it's the kind of 8 hair-splitting that I think gives us academics a really bad 9 name. 10 The first thing I want to say about this etymology and 11 about all etymology is that it's often subject to debate; 12 that's one of the reasons I'm drawn to it professionally is 13 because it's a really rich and interesting terrain that is 14 often fought over. And so in this case, in order to establish 15 that this is Persian for "wise man" and not "magic user," one 16 would have to know enough about ancient Persian culture to know 17 whether those two things were understood as distinct entities. 18 In many ancient and older cultures, Scotland, up until 19 the 16th century included, a person that was wise and educated 20 was also understood as having magical powers of a sort. I 21 don't know if Persia and ancient Persia maintain this 22 distinction, I'd be surprised, but I'm not a scholar in ancient 23 Persian, and I would want a scholar in ancient Persian cultures 24 up here to tell me that's a fixed distinction. I would be 25 surprised if it were. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 523 84GVWAR2 Sorensen - direct 1 To give this the status of one of the sort of errors 2 that are proliferating troubles me, because I find that we are 3 getting some really useful and helpful information in this 4 etymology, and I don't find it -- as a professor of English, I 5 don't find it especially troubling. I don't look at that and 6 hear that information and say, Oh, my goodness, a terrible 7 mistake has been made. 8 Q. Let's go to the next example, please. Okay. We are now 9 out of the realm of etymology, into the realm of reference. 10 And the first example is Weird Sisters. Who are the Weird 11 Sisters in the Potter novels? 12 A. The Weird Sisters are a rock band. They play at a 13 Christmas party at Hogwarts one year. 14 Q. And what are we told about the name Weird Sisters by the 15 Lexicon? 16 A. That one of the allusions being made is to Shakespeare's 17 Macbeth, Macbeth to the three witches that accost Macbeth and 18 foretell his future. Again, that there is another allusion 19 being made to foretelling the future. 20 In Norse mythology there are three sister goddesses of 21 faith, the norms who are also referred to as the Weird Sisters. 22 And then we get a third piece of information here, the 23 archaic term "wyrd" means fate or destiny. 24 This is an entry that gives me a sense of how complex 25 and how much thought went into this particular naming of a rock SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 524 84GVWAR2 Sorensen - direct 1 band, which I hadn't thought all that much about. And when I 2 got this information, it allowed me to sort of rethink the 3 scene where they play and to think about what happens on that 4 Christmas Eve and to think about the ways in which there are 5 certain destinies foretold there, affections between characters 6 arise there, genealogies of certain characters come out. 7 And so there is a way in which that is a sort of fatal 8 scene, as it were. And then I hadn't thought about that till I 9 sort of looked at this entry and thought about these various 10 allusions that are being made to fate from a variety of 11 cultures. 12 Q. Let me just ask you globally, looking at it as a whole, 13 does the Lexicon enhance or demean the reader's sense of the 14 achievement of Ms. Rowling? 15 A. Well, I certainly walked away from the information I was 16 getting from the Lexicon with a sort of deeper knowledge and 17 appreciation of what's going on in the novels themselves. 18 I would imagine for most people, seeing that a term 19 that they might not have thought very much about has a variety 20 of meanings that are drawn from a variety of literary 21 linguistic and cultural sources, I don't think there's a way to 22 walk away from that information without a deeper appreciation 23 of the text. I can't imagine it. 24 THE COURT: The full text of the entry for Weird 25 Sisters is not limited to that definition. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 525 84GVWAR2 Sorensen - direct 1 MR. HAMMER: No, sir. But what we are trying to show 2 now is what's been added to the text; how certain parts of the 3 text enhances a reader's understanding of Potter novels. 4 THE COURT: So when I look up there at the board, I 5 don't have the words from the Lexicon other than the words that 6 are -- 7 MR. HAMMER: That's correct. If you would prefer that 8 we show the whole Lexicon entry -- 9 THE COURT: It's just in listening to the testimony, 10 that one cannot consider the -- how the Weird Sisters are 11 described in the Lexicon and whether or not their description 12 relates in some way to the definition that she used in the 13 Lexicon for Weird Sisters. 14 MR. HAMMER: Would the Court like us to put the entire 15 entry on the board? 16 THE COURT: All right. I can follow it. But just 17 point out to the listener of the testimony, it's a little hard 18 to, unless you have a Lexicon in front of you, to see 19 whether -- the purpose of the definition in relationship to the 20 description of who the Weird Sisters are and what role they 21 played in the novels. 22 MR. HAMMER: Let me address that question. 23 BY MR. HAMMER: 24 Q. Dr. Sorensen, you've made some connections in 25 interpretations about the role of the Weird Sisters based upon SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 526 84GVWAR2 Sorensen - direct 1 the information in this entry. Does the Lexicon always make 2 these explicit connections that you're making from the stand? 3 A. Rarely. 4 Q. Okay. So then what is the value -- so you are making 5 critical interpretations based upon information that the 6 Lexicon gives you, correct? 7 A. I am doing that. And when I teach, at least at the 8 university level, I want my students to have this kind of 9 information without that commentary. I want them to have this 10 sort of etymological information so they can speculate and 11 interpret and do that kind of work. 12 I rarely send my undergraduates out to read somebody 13 else's commentary on what they think a text means; but I will 14 send them to dictionaries and reference guides, that they get a 15 deeper sense of how they might start thinking about a work. 16 Q. So in these examples we've been going over, you're saying 17 the Lexicon enables commentary, not that the Lexicon in these 18 examples provides the commentary? 19 A. Yes, I am saying that. 20 Q. Let's turn to the next example. Weird Sisters suddenly 21 popped weirdly on the screen. Okay. That was interesting. 22 Can we have the Avada Kedavra. 23 The Avada Kedavra is described as the killing curse. 24 What exactly is the role Avada Kedavra plays in the Potter 25 novels? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 527 84GVWAR2 Sorensen - direct 1 A. Well, this is a curse somebody can -- a spell or, I guess, 2 a curse that somebody can use to kill another character. 3 Q. And what are we told about the derivation of Avada Kedavra? 4 A. That it might be from adhadda kedhabhra, which is Aramaic 5 for "let the thing be destroyed." 6 And then we get this note about alternative 7 etymologies for this word. It might be from abracadabra, a 8 cabbalistic charm in Judaic mythology that is supposed to bring 9 healing powers, which is not an association I had initially 10 brought to this. I was surprised by that. 11 One of its sources is believed to be from the Aramaic 12 avada kedavra; another is the Phoenician alphabet 13 abra-ca-dabra. So this is another instance where we are 14 getting material that's not in the books about layers of 15 possible meaning, and information, etymological information, 16 about what's going on in this curse name that I found really 17 fascinating and surprising, both in terms of the bringing 18 together Judaic-Phoenician-Aramaic possibilities to that word 19 and that sort of very rich and complex history. 20 Q. Does it trouble you that the Lexicon suggests that the 21 killing curse may have derived from a Hebrew healing charm? 22 A. No, my understanding is the healing charm is about letting 23 the disease be destroyed, let the thing that's making you sick 24 be destroyed. That's my understanding of it. 25 Q. Let's turn to the next set of references. Okay. You SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 528 84GVWAR2 Sorensen - direct 1 mentioned earlier that the Lexicon has entries for real-world 2 geographic places that appear in the Potter novels. We have 3 three on the board now: Surrey, Burkina Faso and Albania. And 4 why is it useful for the reader to have entries on these three 5 places? 6 A. I would assume most U.S. readers would not know where 7 Surrey is. They would probably know it's in England based on 8 the text of the novel, but it's helpful to know that where 9 Harry grows up is southwest of London. I think that's a useful 10 piece of information. 11 Burkina Faso I would imagine is a term, a place, where 12 many adult readers might not know where it's located; it's in 13 western Africa. We're not getting a huge amount of 14 geographical information, but I think it's helpful in the 15 context of the novels to know that Albania, where a murder 16 takes place, some key plot information takes place, is a small 17 European country along the Adriatic Sea. 18 Q. By the way, this was a little bit out of order, but there 19 were some Latin derivations earlier that we went over. I don't 20 know if you heard Ms. Rowling on the stand said these were all 21 trivial; that a seven-year-old with his pocket Latin dictionary 22 could do the same. Do many seven-years-olds, in your 23 experience, in America have pocket Latin dictionaries? 24 MS. CENDALI: Objection, your Honor. Argumentative. 25 THE COURT: I don't know that she's taught SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 529 84GVWAR2 Sorensen - direct 1 seven-year-olds. 2 Q. How about 20-year-olds? 3 A. No. 4 Q. All right. Assyria. Okay. So what is the reference in 5 the Potter novels to Assyria? 6 A. One of the characters has an uncle who gets him -- I think 7 this is a plant from Assyria. And the reference material here 8 is that Assyria is an ancient name for an empire which no 9 longer exists. 10 Q. So does this set up some sort of problem, logical problem? 11 A. Well, the reader might initially think has he 12 time-traveled. You know, if they know enough about Assyria to 13 know that it's an ancient empire that doesn't exist, they might 14 get the mistaken notion that there's time traveling go on here. 15 Then it goes on to explain that this is modern-day Iraq, Syria 16 and Lebanon, but it's possible that wizarding governments 17 recognize different borders and country names from their Muggle 18 counterparts. 19 So we are getting information about this ancient 20 kingdom; we are getting distinctions between ancient and 21 contemporary geography; and we are getting some plot 22 information about the difference between wizard geographical 23 borders and Muggle or, you know, regular people's geographical 24 borders. 25 Q. This also poses a playful hypothesis to resolve what seems SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 530 84GVWAR2 Sorensen - direct 1 to be a logical inconsistency in the text, right? 2 MS. CENDALI: Objection. 3 THE COURT: Objection sustained to the form of the 4 question. 5 MR. HAMMER: I withdraw the question. 6 Q. Let's go on to the next -- the next entry is for Harfang 7 Longbottom. Who is Harfang Longbottom in the Potter novels? 8 A. He's a relative of both Neville Longbottom and of the 9 character Sirius Black. There are a number of characters who 10 are in the Black family, and so he is one of those characters. 11 And we get the information that this is possibly taken from the 12 Chronicle of Narnia, the House of Harfang was the large castle 13 of a clan of Northern Giants. 14 Q. Chronicles of Narnia is written by whom? 15 A. That's the C. S. Lewis books that I referred to. 16 Q. Why might it be useful for a reader to know that there is a 17 reference here to another set of novels? 18 A. Right. This is just another place where you get 19 information that's not given in the novels about the sort of 20 allusions, the references to other texts. I would hope that a 21 young reader that's turned on by reading the Harry Potter 22 novels will see Chronicles of Narnia and maybe think about 23 turning to those, as well. 24 Q. Okay. This raises another question. In your judgment, 25 does Ms. Rowling herself borrow from other novelists? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 531 84GVWAR2 Sorensen - direct 1 A. There is a lot of -- there are a lot of allusions 2 references to other novels, other languages. Yes, there is 3 borrowing taking place. 4 Q. And in your judgment is there anything improper about that? 5 A. No. It's part of the allure of the books for me. 6 Q. Okay. Let's go on to the next category, Cross-Cultural 7 Translation. And, once again, what are the cultures that are 8 being connected by the Lexicon? 9 A. Can you repeat the question please? 10 Q. Yeah. When we say cross-cultural, what are the cultures 11 that are being crossed? Which are the two cultures that are 12 being crossed? 13 A. The main ones that happen in the Lexicon are translating 14 British references for a U.S. audience or at least a nonBritish 15 English-speaking audience. 16 Q. Okay. The first entry is for Barnabas the Barmy. Who is 17 Barnabas the Barmy? 18 A. He is a wizard who tries to teach trolls ballet and he 19 appears on a tapestry in the Hogwarts school. 20 Q. Okay. And what are we told about his name? 21 A. That "Barmy" is British slang for "crazy;" again, not 22 something most U.S. readers would know. That term "Barmy" I 23 don't think would have a lot of meaning for them. 24 Q. And does that have some reference back to the character who 25 tries to teach a troll ballet? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 532 84GVWAR2 Sorensen - direct 1 A. I think we're supposed to make an assumption about the 2 folly of that enterprise, but the name "Barmy," also meaning 3 crazy. 4 Q. Okay. The next entry is for fairy lights. What does the 5 Lexicon tell us about fairy lights? 6 A. That these are Christmas light strings; and that this is a 7 play on words. So in the novels they are literally fairies 8 that are used as decorations at Christmas. 9 And then here we get this British vernacular reference 10 to the fact that that's also a name for Christmas tree lights; 11 that's not something that would be familiar to a U.S. reader. 12 Q. Let's go on to the next one. Okay. The next set of 13 examples are for entries on Eton and Bath. Why are these 14 entries useful for an example of cross-cultural translation? 15 A. Again, I'm going to assume that they would be familiar to 16 most British readers, I don't know for sure. But I know for 17 certain that they are not terms that are familiar to a U.S. 18 reader; they will not know what an Eton is when they come 19 across it in the novel. And this explains that it's a private 20 boarding -- a famous and private boys' boarding school; gives 21 us a little bit of information about this character that Harry 22 encounters early on. 23 And Bath, I know from teaching Jane Austin, is not a 24 term or place that U.S. readers are familiar with; they don't 25 know that it's a place named for elaborate Roman public baths. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 533 84GVWAR2 Sorensen - direct 1 It enhances the quality of reading for readers to know this 2 kind of information. 3 Q. Okay. Let's go to the next category which we have 4 described in a somewhat vague and slightly grandiose phrase, 5 Mapping the Wider Universe. What is it that we mean by Mapping 6 the Wider Universe? Who's universe? 7 A. This is the universe created in the Harry Potter novels. I 8 think what we have in mind here is both the kind of structuring 9 and ordering of that universe as it takes place in the Lexicon, 10 and the ways in which fans in particular are so devoted to the 11 relationships of this invented universe, that they want to know 12 places where there are inconsistencies. I think in my 13 experience that's particularly of interest to fans. 14 Q. Okay. The example is a flint. What is a flint? 15 A. A flint is a moment of an inconsistency in the text. One 16 thing is said one place, and then contradicted in another 17 place. 18 Q. And where are we told that that term comes from? 19 A. It comes from a character named Marcus Flint, who appears 20 in his third year; initially, I think, in the first book, and 21 then appears as if he were in his eighth year. So he ends up 22 being at Hogwarts, according to the books, for another five 23 years. So instead of the normal seven years, he's there for an 24 eighth year. 25 Q. So spending eight years at a seven-year school is supposed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 534 84GVWAR2 Sorensen - direct 1 to be a logical inconsistency? 2 A. Correct. 3 Q. Of course if this were written about New York schools, it 4 might not be an impossibility, right? 5 A. Probably not. 6 Q. Okay. 7 THE COURT: Not in the present administration. 8 MR. HAMMER: Not in my own life history, Judge. 9 Q. Why is it useful to point out inconsistencies in the text? 10 A. My sense is that this is really something fans get very 11 excited about. 12 Q. So it enhances pleasure of reading? 13 A. Yes, for very devoted fans, they sort of crave these 14 moments for some reason. 15 Q. Does the Lexicon point out a lot of flints? 16 A. No, very few. 17 Q. An indication that Ms. Rowling's work is pretty consistent 18 logically? 19 A. I would say so. 20 Q. Okay. Let's go on to the next examples. The next examples 21 are for Azkaban Fortress and King's Cross Station. 22 Let's take the first one, Azkaban Fortress. What is 23 the function of that entry in mapping the Potter universe? 24 A. Well, this is a prison that criminal wizards, witches, go 25 to. And when one of the characters breaks out of it, Ron is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 535 84GVWAR2 Sorensen - direct 1 really excited and says, Nobody's ever done that before -- no 2 one's ever done that before. And the Lexicon simply reminds 3 readers that that's not true; that this had happened before in 4 the case of Barty Crouch Jr. 5 Q. And what about King's Cross Station is addressed by the 6 Lexicon entry? 7 A. This is a very endearing entry. It tells us that the 8 author's parents met at King's Cross; and that she had the 9 layout of Euston Station in her head while she was writing it. 10 Q. Okay. Let's go on to the next set. Okay. We have a new 11 category of Critical Interpretation. Is there a lot of 12 critical interpretation in the Lexicon? 13 A. There is not. 14 Q. And when it appears, in what form does it usually appear? 15 A. It tends to be around the characters. 16 Q. Let's take -- 17 A. Not always, but usually. 18 Q. Let's take this example. This is an entry about Neville 19 Longbottom. Who is Neville Longbottom in the Potter novels? 20 A. He is one of the central characters. He's a friend of 21 Harry's. He's not in his inner circle; he's often this kind of 22 pathetic character. He tries really hard; he doesn't always 23 succeed. And this entry gives us information about the kind of 24 complexity that's actually involved in this character. 25 On the surface he's not immediately recognizable as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 536 84GVWAR2 Sorensen - direct 1 brave or heroic, but it sort of talks about the ways in which 2 he is. And then it goes on to identify key points in the 3 novels where we see him transforming into a more recognizably 4 heroic figure. 5 Q. Why is that useful? 6 A. Well, it lends a depth to the understanding of the 7 character. It gives a little bit of interpretation of how one 8 might see this character based on compiling information about 9 him from the books. 10 Q. The next entry is for Draco Malfoy. Who is Draco Malfoy? 11 A. He is Harry Potter's key nemesis, sort of arch nemesis at 12 Hogwarts School. He's forever taunting Harry; he's a very 13 mean-spirited kid, as we get the sense in the novels. 14 Q. Okay. What are we told about Draco Malfoy -- let me 15 withdraw that. 16 Do the entry about Draco Malfoy slightly modify the 17 initial impression on reading about him in the novels? 18 A. Yeah, I think they do, because they remind us or sort of 19 alert us to certain aspects of this character that might 20 complicate this very black-and-white scenario. 21 He's an arch nemesis; he's a very easy character to 22 hate. And here we get some information that might revise our 23 understanding of him, so that gives a sense that he's really 24 frustrated by always being in the shadows of Harry's limelight. 25 We get this information about his relationship to his very evil SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 537 84GVWAR2 Sorensen - direct 1 parents; we get the sense that by the end of the novels, even 2 though he's been the sort of, in some ways, powerful enemy of 3 Harry's, that his day is over. And then we get information 4 about the ways in which they come to have a kind of respect for 5 each other. 6 So I think a first initial reading, especially by a 7 young reader would say, Oh, that Draco Malfoy, pure evil; I 8 don't have to think about that. And these are just places 9 that, I think, ask people, a reader, to think a little bit more 10 about what's going on with that character. 11 Q. Let us go on to the last entry. This is paragraph 19 of -- 12 we call her Dean Johnson, I think she prefers to be called Dr. 13 Johnson, Dr. Johnson's declaration. 14 Nothing that Defendant has -- I'm reading now from the 15 declaration. I'm being stared at. Did I make a mistake? No? 16 Nothing that Defendant has presented in its papers 17 changes the fact that the Lexicon merely rearranges 18 Ms. Rowling's intellectual furniture. 19 And then it goes on at the end to, All the Lexicon 20 does do is contort Ms. Rowling's magical world and arrange it 21 into an alphabetical list. This does not make the Lexicon 22 original, nor does it make it a work of scholarship. 23 Do you have any response to that? 24 A. I guess my first response is that this metaphor of 25 rearranging furniture isn't accurate. It's not the one I would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 538 84GVWAR2 Sorensen - direct 1 use. When I think of rearranging furniture, I think of a room 2 and a few items that I'm going to sort of shift into a 3 different place, end of story. 4 These are novels that are -- you know, they're 5 thousands of pages long, there are hundreds of major and minor 6 characters, there are all sorts of invented creatures and plant 7 life and medicines and spells. And so this is this sort of 8 city or multiple cities of sort of created beings. 9 And so if you take that very complicated universe and 10 you put it into a form that can remind a reader of who a 11 character is really quickly, maybe give a little insight into 12 the language that's being used, I would see that as something 13 of a different order, a kind of synthesizing or distillation of 14 a very lengthy sort of text, a very complicated universe. It's 15 not a work of scholarship. I would not claim that this is 16 something that needs to be evaluated by those standards. It 17 doesn't make those claims itself. 18 But I do see it providing, as I've tried to establish, 19 some interesting information that can really enhance a reader's 20 experiences as they make their way through the novels a first 21 time, a second time, multiple times. 22 Q. So is it fair to say that you find the Lexicon to be a 23 useful tool for readers of the Potter novels? 24 A. Yes, I found it useful. I would imagine in this 25 restructuring that's taking place, that's giving me a reference SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 539 84GVWAR2 Sorensen - direct 1 and giving me additional information not found in the novels, 2 yes, I think it's a useful text. 3 Q. Do you think it should be suppressed? 4 A. No, I don't. 5 MR. HAMMER: One second, your Honor. I have no 6 further questions of Dr. Sorensen. 7 THE COURT: Do you want a break? 8 MR. HAMMER: May we have a break, Judge? 9 MS. CENDALI: That would be great, your Honor. Thank 10 you. 11 THE COURT: All right. Then you are not going through 12 the other exhibits in the folder you handed to me? 13 MR. HAMMER: My goodness, I'm sorry -- 14 THE COURT: Exhibit 586 through 600. 15 MR. HAMMER: They are not for Dr. Sorensen, no, Judge. 16 THE COURT: Hold on. 17 (Recess) 18 MR. FALZONE: Your Honor, if I may. Can we have just 19 a moment? I think Mr. Hammer is in the rest room. 20 MS. CENDALI: I won't start without him, your Honor. 21 Shall I proceed? 22 THE COURT: Sure. 23 CROSS-EXAMINATION 24 BY MS. CENDALI: 25 Q. Good morning, Dr. Sorensen. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 540 84GVWAR2 Sorensen - cross 1 A. Good morning. 2 Q. I'm Dale Cendali from O'Melveny & Myers, counsel for Warner 3 Brothers and Ms. Rowling. Have you been present for the entire 4 trial so far? 5 A. Yes. 6 Q. Let's talk about the declaration you submitted in this 7 action. 8 MS. CENDALI: Your Honor, I'd like to approach and 9 hand the witness her declaration, Exhibit 503. 10 THE COURT: Yes, you may. Do we have an exhibit 11 number? 12 THE DEPUTY CLERK: 503. 13 Q. Now, you signed that under oath, right? 14 A. I did. 15 Q. And you did your best to make it as accurate as possible, 16 right? 17 A. Yes, I did. 18 Q. Now, I believe that you said earlier this morning that you 19 thought that the Lexicon could be useful as a reminder to 20 somebody who one of Ms. Rowling's characters was, is that 21 right? 22 A. That's right. 23 Q. Okay. And let's look at paragraph 32 of your declaration, 24 which is on page 17 of it. Right after you say, These 25 interpretive moves are occasional, and that's a reference to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 541 84GVWAR2 Sorensen - cross 1 what you were talking about above in your declaration, right? 2 You say, They are finally not the chief point of the Lexicon. 3 You write, Its main aim is to provide an accessible guide for a 4 wide range of users and, in fact, its entries in general tend 5 to be concise and pithy, using only enough material from the 6 texts to provide a thumbnail sketch of a term and relevant 7 etymological and referential material not available from the 8 texts themselves. You wrote that, right? 9 A. I did write that. 10 Q. And you believe it to be true? 11 A. I do believe it to be true. 12 Q. Okay. So it's your testimony that the entries in the 13 Lexicon only take enough of Ms. Rowling's work to provide a 14 thumbnail sketch, is that right? 15 A. In general. 16 Q. Okay. Well, let's take a look at the entry from the 17 Lexicon, Plaintiffs' Exhibit 1, for Bertie Bott's Every Flavor 18 Bean. And you know that there's no such thing as Bertie Bott's 19 Every Flavor Bean in real life, right? 20 A. Unless someone is marketing it. 21 Q. That's right. Now, this entry -- and on the screen could 22 you just initially, Mr. Hoy, scroll down so we can publish the 23 length of the entry. 24 Okay. Now, the entry, going back then to the 25 beginning of the entry, it starts off by saying that these are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 542 84GVWAR2 Sorensen - cross 1 famous sweets in the wizarding world, right? That's how the 2 entry starts, One of the most famous sweets in the wizarding 3 world is Bertie Bott's Every Flavor Beans, right? 4 A. That's how it starts. 5 Q. Then it goes on for a long paragraph telling about how 6 Bertie Bott invented them, the various flavors the various 7 characters had experienced and where the Hogwarts students had 8 bought them, right? 9 (Pause) 10 A. So I just refreshed my memory on the entry. Can you 11 restate your question for me? 12 Q. Sure. What I'm saying is that the entry goes on to provide 13 a lot of details about the Bertie Bott's Every Flavor Beans, 14 correct? 15 A. It provides more information about them. 16 Q. And that information is all Ms. Rowling's creative 17 fictional facts, right? 18 A. Yes. 19 Q. There's no analysis of what Bertie Bott's Every Flavor 20 Beans, you know, could have been inspired by or what the 21 etymology is for them or anything like that, right? 22 A. I don't think the etymological information would be all 23 that enlightening, but I could be wrong. I think the 24 etymological information often appears with words that have a 25 layered meaning, and so it doesn't surprise me there is no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 543 84GVWAR2 Sorensen - cross 1 etymological information here. 2 Q. Well, Dr. Sorensen -- 3 A. If I can continue. There's also -- there isn't much 4 analysis here, but as I've been saying in my declaration and 5 this morning, I don't see it as doing that kind of work 6 usually. It's not primarily an analytical tool. 7 Q. As you said, the Lexicon doesn't provide much analysis, 8 right? 9 A. No. 10 Q. The Lexicon does not provide much analysis, correct? 11 THE COURT: Of what? 12 Q. Of Ms. Rowling's work, correct? 13 A. I guess it depends on how you define "analysis." As I 14 understand you using the term right now, "analysis" means 15 critical commentary, interpretive information or interpretive 16 commentary. It does not provide that, most of the entries 17 don't. 18 Q. Okay. So but I'm talking about something a little 19 different right now. I'm talking about in paragraph 32 of your 20 declaration you say that the entries tend to be concise and 21 pithy, using only enough material from the texts to provide a 22 thumbnail sketch of a term. 23 And I'm asking you, Dr. Sorensen, isn't it true that 24 it would be possible to write a much shorter description for 25 Bertie Bott's Every Flavor Beans? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 544 84GVWAR2 Sorensen - cross 1 THE COURT: You're not reading from her paragraph. 2 Her paragraph goes on and says, A thumbnail sketch of a term 3 and relevant etymological and referential material not 4 available from the texts themselves. 5 Q. Is there any material in the Bertie Bott's entry that is 6 not available from Ms. Rowling's text itself? 7 A. I think the case in the entire Lexicon is one in which most 8 of the material has been drawn from the -- I wouldn't dispute 9 that in this entry or most of it. 10 Q. So you don't see anything in the Bertie Bott's entry that 11 didn't come from Ms. Rowling, is that correct? 12 A. That is correct. 13 Q. And turning just to your point about the thumbnail. I 14 realize you have other points in your sentence, as his Honor 15 pointed out, but just turning to the point about the idea of 16 the Lexicon being some sort of an aid to memory. Isn't it true 17 that this entry provides more detailed information about Bertie 18 Bott's Every Flavor Beans than would be necessary to just 19 remind a reader what they were? 20 A. Yes, that is often the case in these. When I say 21 "thumbnail sketch," maybe I should be more clear. I don't mean 22 one word or a sentence; I mean information cold and compiled 23 synthesized and distilled from the texts that reminds a reader 24 of what these are, what role they played, who's been related to 25 them. That's what I had in mind when I talk about a thumbnail SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 545 84GVWAR2 Sorensen - cross 1 sketch. It provides -- distills information. 2 Q. And that information is usually from Ms. Rowling, isn't 3 that right? 4 MR. HAMMER: Asked and answered. 5 THE COURT: But that's not a proper objection 6 theoretically, Mr. Hammer. Let's try not to be repetitive, if 7 we can. 8 Q. Let's look at the entry for Buckbeak. Who is Buckbeak in 9 the Harry Potter novels? 10 A. He is an invented creature that Hagrid brings to the school 11 for part of his instruction in creatures. 12 Q. And isn't it true that the Lexicon entry for Buckbeak goes 13 on a lot longer than you just did to describe a lot of plot 14 details with regard to Buckbeak? 15 A. Can you let me refresh my memory? I'm sorry, I don't have 16 these entries right at the top of my memory, and so I need to 17 remind myself of what the entry states. So I'm going to take a 18 moment and read the entry. 19 Q. Certainly. 20 (Pause) 21 A. Okay. So I have reread the entry. Can you ask me the 22 question again? I'm sorry. 23 Q. Can I have it read back please? 24 THE COURT: Yes, can you read it back. 25 (Record read) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 546 84GVWAR2 Sorensen - cross 1 A. That is true. If you asked me to compile an entry for a 2 Lexicon on Buckbeak, I would expand beyond the couple of words 3 I gave you. 4 Buckbeak is kind of an interesting character because 5 he's something that Sirius Black inherits -- sorry, that Harry 6 Potter inherits after Sirius Black, his only living relative as 7 he knows at that point, has died. And so I remember reading 8 that section when he inherited Buckbeak, and I remembered that 9 he had been this creature. It would actually enhance my 10 reading to go back and remind myself of what all was entailed 11 in that particular creature. 12 I actually think in a strange way that creature has 13 this kind of emotional poignancy, and so I don't see anything 14 here that I think is inappropriate to the entry. I don't think 15 it's overly long, given that this particular creature has this 16 emotional weight to it in the novel. 17 Q. Would you say this is a thumbnail sketch that would help 18 remind a reader who Buckbeak was? 19 A. Yes, I would. 20 Q. Doesn't it go beyond -- the first sentence simply says, 21 Buckbeak is a gray hippogriff, which was one of the group of 22 creatures Hagrid brought to his First Care of Magical Creatures 23 lesson with the third-year students in the fall of 1993. Do 24 you see that? 25 A. Yeah. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 547 84GVWAR2 Sorensen - cross 1 Q. Wouldn't that remind the reader who Buckbeak was? 2 A. It would. The additional material also reminds me of why I 3 cared about that character when I came across the name in the 4 novel. 5 Q. And that goes beyond a short pithy thumbnail sketch, 6 correct? 7 A. Not for me. But when I say "thumbnail sketch," I defined 8 how I understand it; it might be different from how you 9 understand it. 10 Q. And isn't it true that there's no outside referential 11 material or etymologies in that paragraph? 12 A. There is not etymological or referential material here. 13 Q. Okay. Let's look at the Lexicon entry for the Harry Potter 14 character, which I believe is, since it was provided 15 separately, is Exhibit 11-A, your Honor. 16 THE COURT: 11-A. 17 BY MS. CENDALI: 18 Q. That's on the screen, Dr. Sorensen. And the entry for the 19 Harry Potter character is about ten pages long, isn't that 20 true, Dr. Sorensen? 21 A. I'm going to have to take your word for it, because I'm not 22 finding it in this particular Lexicon. 23 Q. Let me give you a hard copy that was provided afterwards. 24 And that entry for Harry Potter goes on for ten pages, isn't 25 that true? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 548 84GVWAR2 Sorensen - cross 1 A. Yes. 2 Q. And isn't it true that it tells the plot of the Harry 3 Potter character through the seven Harry Potter novels? 4 A. No, it does not. 5 Q. You don't see a lot of Ms. Rowling's plot in that entry, 6 Dr. Sorensen? 7 A. A plot is a sequence of events that takes place in a novel 8 in the order in which they take place in the narrative. This 9 is not a plot or a plot summary. 10 Q. So you wouldn't describe this as a plot summary? 11 A. I would not. 12 Q. And you don't describe it as something that tells what 13 happens to Harry Potter at the end of Book 7? 14 A. It might do that; that doesn't make it a plot summary. A 15 plot summary would look something like, Harry Potter lives in 16 this house. And then he finds out this information about 17 himself. And then he goes to the Hogwarts School. And then 18 this happened, and then that happened. That's a plot summary. 19 This isn't a plot summary. 20 Q. Okay. This isn't a plot summary. Can you show us where 21 there's any etymological or outside reference material in this 22 entry? 23 A. This isn't the kind of invented term that I would expect 24 there to be etymological information. I can't show you that 25 here because it's not provided here. It doesn't surprise me SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 549 84GVWAR2 Sorensen - cross 1 that it's not provided here. 2 Q. In teaching students, have any students written papers for 3 you on the role of the hero in literature? 4 A. No. 5 Q. There's no literary analysis of the Harry Potter character 6 in this entry, is there? 7 A. I would be happy to sit here and read it for the next 20 8 minutes. I wouldn't be surprised if there weren't character 9 analysis in this; but if you genuinely want me to read it, I 10 will do that. I read slowly and carefully, so it will take a 11 while. But the point of the book, as I understand it, is not 12 about analysis. 13 Q. Isn't it true, Dr. Sorensen, that this entry goes far 14 beyond a thumbnail that would be necessary to remind the reader 15 who Harry Potter was? 16 A. If you read my sentence, it says in general this is one of 17 the places where that is not the case, and it doesn't surprise 18 me. He is the lead character of a seven-volume, 19 several-thousand-page text. I would be surprised if this entry 20 were shorter. 21 Q. Have you ever known any of your students to try to get out 22 of reading a long book? 23 A. I don't know of that. I assume it happens, but I have 24 never had concrete evidence; but sure, I'm sure it happens. 25 Q. And as a teacher, do you recognize that giving long SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 550 84GVWAR2 Sorensen - cross 1 detailed plot summaries of what happens in the Harry Potter 2 novels might discourage somebody from reading the novels 3 themselves? 4 A. This is not a plot summary. 5 (Continued on next page) 6 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 551 84G5WAR3 Sorensen - cross 1 BY MS. CENDALI: 2 Q. Now, Dr. Sorensen, would it be possible to do a Harry 3 Potter guidebook that uses less of Ms. Rowling's fictional 4 facts and more reference material? 5 A. I think there are some of them out there. 6 Q. And, do any come to mind at the moment? 7 A. I -- having seen the testimony I have seen other kinds of 8 books that people -- like the George Beahm book. As a literary 9 historian I know that when works come out, when critical works 10 come out, when referential guides come out they are of a vast 11 spectrum and this is somewhere on a spectrum and those are 12 somewhere else. 13 Q. And the George Beahm book, Facts, Fiction and Folklore, I 14 believe that's Exhibit 74, this book has more -- has less of 15 Ms. Rowling's prose in it and provides more analysis, isn't 16 that true? 17 A. Based on the way I have heard it described that's true. 18 Q. Okay. Now, when you read the Lexicon manuscript you didn't 19 see very many quotation marks for Ms. Rowling's words, right? 20 A. That's correct. 21 Q. And, would you agree with me that it would be possible to 22 do a Harry Potter guidebook that used quotation marks? 23 A. I guess it depends on how you define guidebook. Certainly 24 if it were a guidebook that were providing essays and somebody 25 who was quoting material to make a point and was working in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 552 84G5WAR3 Sorensen - cross 1 scholarly manner then, yes, I would assume I would see 2 quotation marks. 3 Q. Well, you hadn't ever read the Harry Potter books until you 4 were asked to be an expert in this case, right? 5 A. That is correct. 6 Q. And, in fact, Twentieth Century literature is not your 7 speciality, right? 8 A. I have written and published on Twentieth Century 9 literature. It is not my -- at the moment my research is in 10 Eighteenth and Nineteenth Century materials but I have taught 11 it routinely. 12 Q. Isn't it true that when you read the Lexicon it was hard 13 for you to know which words came from Ms. Rowling and which 14 words came from Mr. Vander Ark? 15 A. I wasn't focusing on that so I can't say if it was hard for 16 me to tell. I wasn't trying to tell, to be honest. 17 Q. Well, going back to -- let's go back to the Bertie Bott's 18 Every Flavor Bean entry that you read before. Can you put that 19 on the screen? That's Lexicon Exhibit 1. 20 Can you tell in there what words were quoted from 21 Ms. Rowling? 22 A. Well, when I -- when I see, "According to Ron" or 23 "Dumbledore said," that suggests to me that those are in the 24 novels. 25 Q. But you are not sure? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 553 84G5WAR3 Sorensen - cross 1 A. No. 2 Q. Now, when you, Jane Austen is one of the people you write 3 about, right? 4 A. Yes, I write about her and teach her work. 5 Q. And, in fact, you talk about Jane Austen in your book, The 6 Grammar of Empire in Eighteenth Century British Writing; 7 correct? 8 A. Yes, that's my epilogue. That's the last chapter. 9 Q. And, your epilogue is about Jane Austen, correct? 10 A. Correct. 11 Q. And you admire her, correct? 12 A. I do. 13 Q. Isn't it true when you write about Jane Austen you use 1