245 84F5WAR1 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 15, 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 246 84F5WAR1 1 (Trial resumed) 2 MS. CENDALI: Shall we call our next witness, your 3 Honor? 4 THE COURT: Your next witness I guess, right? 5 MS. CENDALI: Yes, your Honor. 6 THE COURT: All right. 7 MS. CENDALI: Plaintiffs call Steven Vander Ark. 8 STEVEN JAN VANDER ARK, 9 called as a witness by the Plaintiff, 10 having been duly sworn, testified as follows: 11 THE DEPUTY CLERK: Please state your name, spell your 12 last name slowly for the record, please. 13 THE WITNESS: Steven Jan Vander Ark. That's 14 V-A-N-D-E-R A-R-K. J-A-N. 15 MS. CENDALI: Shall I proceed, your Honor? 16 THE COURT: Yes. Please do. 17 DIRECT EXAMINATION 18 BY MS. CENDALI: 19 Q. Good morning, Mr. Vander Ark. My name is Dale Cendali. 20 A. Hi. 21 Q. I represent Ms. Rowling and Warner Brothers Entertainment 22 here today. You and I have never met, have we? 23 A. No, we haven't. 24 Q. Now, Mr. Vander Ark, you understand that you were subject 25 to a witness exclusion order yesterday, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 247 84F5WAR1 Vander Ark - direct 1 A. I -- could you define that for me? 2 Q. Sure. You weren't permitted to watch Ms. Rowling's 3 testimony yesterday, correct? 4 A. That's correct. 5 Q. And you weren't able to watch Mr. Rapoport's testimony 6 either? 7 A. That is correct. 8 Q. Did anybody tell you what happened in court yesterday? 9 A. Just very generally. 10 Q. I believe you once said that you read every article or 11 interview that Ms. Rowling has ever given? 12 A. I think I have, yeah. 13 Q. Did you read any of the articles or interviews about 14 yesterday's day in court? 15 A. I saw a headline as I was coming here this morning. 16 Q. And you consider yourself someone who is a Harry Potter 17 expert, correct? 18 A. Well, I'm -- I don't know about that. I know a lot about 19 it. 20 Q. But you never met Ms. Rowling until today, isn't that 21 right? 22 A. No, I haven't. 23 Q. You have never been, as far as you know, in the same room 24 with Ms. Rowling until today; right? 25 A. Only Radio City Music Hall -- which is quite a large room. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 248 84F5WAR1 Vander Ark - direct 1 Q. Did you meet with any of RDR's attorneys last night? 2 A. Yes, we met. 3 Q. Let's go back to the summer 2007 and how you came to work 4 with RDR. You had been working as a library media specialist 5 at a middle school in Michigan, is that correct? 6 A. That is correct, yes. 7 Q. You don't have any advanced degrees of any sort, do you, 8 Mr. Vander Ark? 9 A. I have taken courses, graduate courses in library science 10 and literacy. 11 Q. But you don't have any advanced degrees beyond the BA, is 12 that correct? 13 A. That is correct. 14 Q. And the middle school you had worked for asked for your 15 resignation in 2007, is that true? 16 A. That is correct. 17 Q. And when was that? 18 A. I believe it was in October. 19 Q. Well, in the summer of 2007, were you in a position where 20 you needed some extra money? 21 A. I'm always in a position where I need extra money. 22 Q. And, isn't it true that at that point you were interested 23 in moving to London? 24 A. Yes, that's true. 25 Q. And, isn't it true that you had contacted Emma Schlesinger SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 249 84F5WAR1 Vander Ark - direct 1 at the Christopher Little Agency? 2 A. Yes, I did. Several times. 3 Q. And, let's look at Exhibit 12C, which would be on the 4 monitor right there next to you, Mr. Vander Ark. 5 A. Okay. 6 Q. And let's look, in particular, at the portion of the second 7 page of Exhibit 12C. There is a paragraph that starts: 8 THE COURT: You will have to bear with me because 9 these books are arranged, the books that I have been looking 10 at. 11 All right. 12 BY MS. CENDALI: 13 Q. So, Mr. Vander Ark, turning your attention again to the, 14 your July 9th e-mail to Ms. Schlesinger in Exhibit 12C, you 15 wrote: I have no idea what Rowling's plan is now that the 16 novels are finished, but if she is thinking of working on an 17 encyclopedia or other references to the series, I would be a 18 good candidate for work as an editor. 19 Do you see that? 20 A. Yes. 21 Q. And you went on to say in that e-mail: Please give me your 22 honest opinion on this. I am 49 years old and have proved 23 myself to be a lot more than just some teenaged fan with a 24 website. 25 Do you see that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 250 84F5WAR1 Vander Ark - direct 1 A. Yes, I do. 2 Q. So you were approaching Ms. Rowling's representative for a 3 job, correct? 4 A. Yes. 5 Q. And this was at a pretty busy time in the Harry Potter 6 world, wasn't it? 7 A. Yes. 8 Q. This was the -- during the same month that Deathly Hallows, 9 Ms. Rowling's seventh book, was coming out, right? 10 A. Yes. I had actually contacted them early in May as well so 11 this was a follow-up. 12 Q. And May was a pretty busy time too? 13 A. I'm sure it was. 14 Q. And you were turned down, weren't you, by Ms. Schlesinger? 15 A. Yes. She said that it wasn't -- they didn't need an 16 editor. 17 Q. And that Ms. Rowling didn't need a collaborator -- 18 A. That's correct. 19 Q. -- to write things? 20 A. Right. 21 Q. Okay. Now, you had, as was your custom, is it true that 22 you were reading and following pretty closely the statements 23 Ms. Rowling has given in connection with the release of Deathly 24 Hallows? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 251 84F5WAR1 Vander Ark - direct 1 Q. And so, you were aware of the various statements she made 2 on or about July 26th about her intention to do her own Harry 3 Potter encyclopedia? 4 A. Yes, I was aware of those. 5 Q. And you saw her Meredith Vieira interview on The Today Show 6 about it, right? 7 A. No, I actually didn't see that one. 8 Q. But you saw other things that she had said? 9 A. Yes. 10 Q. And, in fact, it is fair to say that you had read various 11 things she had said about wanting to do an encyclopedia over 12 about a 10-year period, right? 13 A. Yes. 14 Q. Now, in August of 2007 RDR -- Mr. Rapoport -- contacted you 15 about possibly doing a book, correct? 16 A. That is correct, yes. 17 Q. And when RDR contacted you, you discussed with RDR that 18 Ms. Rowling might be planning to do her own encyclopedia? 19 A. Yes, I did. 20 Q. And, isn't it true that you told RDR that you were 21 concerned the Lexicon might present copyright problems? 22 A. Yes, I did. 23 Q. And, isn't it true that in your contract with RDR you 24 specifically asked for an indemnity provision that would have 25 RDR indemnify you if Ms. Rowling ever filed lawsuit? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 252 84F5WAR1 Vander Ark - direct 1 A. Yes, I did. 2 Q. Now, I take it that you are the owner of the Harry Potter 3 Lexicon.com website, correct? 4 A. I am the owner of that website, yes. 5 Q. Is it fair to say that you are familiar with the people who 6 run a lot of the other big Harry Potter websites? 7 A. Some of them, yes. 8 Q. And, are you familiar with the site called Mugglenet.com? 9 A. Sure. 10 Q. Is that another Harry Potter fan site? 11 A. Yes. Uh-huh. 12 Q. Now, isn't it true that the Mugglenet.com team published a 13 book, What Would Happen in Harry Potter book 7? 14 A. Yes. 15 Q. Had you read that book? 16 A. No. 17 Q. You are aware that that book did very well, correct? 18 A. I heard that. Yeah. I really wasn't aware of it until 19 later, but yes. 20 Q. Isn't it true that you discussed the Mugglenet.com book and 21 its success with RDR? 22 A. I don't recall. It is possible. I don't recall that 23 conversation. 24 Q. Do you remember Mr. Rapoport telling you that -- that 25 Mugglenet.com's book had been published by Ulysses Press? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 253 84F5WAR1 Vander Ark - direct 1 A. Yes, he mentioned that. 2 Q. And, did Mr. Rapoport also tell you that he used to work at 3 Ulysses Press? 4 A. Yes, he did. 5 Q. And he told you he was pretty familiar with that, correct? 6 A. As I recall, yes. 7 Q. Isn't it true that the two of you discussed that, gee, 8 maybe a published version of the Lexicon might make a lot of 9 money, the same way the Mugglenet book did? 10 A. I don't remember a discussion like that. We didn't talk a 11 lot about the money aspect of it. 12 Q. Well, you knew from reports that the Mugglenet book had 13 sold over 330,000 copies? 14 A. I didn't know that at the time. The only thing that I knew 15 about it was that it had been on the New York Times Best-Seller 16 List but I didn't know the number of copies. 17 Q. When did you know the number of copies? 18 A. That was probably a couple of months ago. 19 Q. Did you discuss that with RDR? 20 A. I think I saw it in a news release. I don't think I heard 21 that from him. I may have, though. 22 Q. Okay. 23 Now, you have a provision in your contract with RDR 24 that you will get a bonus if the Lexicon book is ever on the 25 New York Times Best-Seller List? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 254 84F5WAR1 Vander Ark - direct 1 A. Right. 2 Q. So, is it fair to say that you and RDR were hoping great 3 things for this book? 4 THE COURT: Objection. Sustained to the form of the 5 question. 6 Q. Is it fair to say that you discussed, with RDR, the 7 possibility that the book would be on the New York Times 8 Best-Seller List? 9 A. Not at any length. I brought that up almost as a joke. 10 Q. Now, your contract with RDR didn't give you an advance on 11 royalties, is that correct? 12 A. That is correct. 13 Q. But you share -- if this lexicon book is published you 14 stand to make money, correct? 15 A. I would assume so. 16 Q. So, it's fair to say that you have an interest in RDR 17 winning this case, isn't that true? 18 A. Yeah, I think that's evident. 19 Q. Now, isn't it true that you and RDR discussed that the 20 Lexicon -- the Lexicon manuscript, in your view, would be the 21 first comprehensive Harry Potter encyclopedia? 22 A. Yes; because book 7 had just come out. 23 Q. And, did you discuss with RDR the idea that this might give 24 you a marketing advantage to be the first book out covering all 25 seven books? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 255 84F5WAR1 Vander Ark - direct 1 A. I think that -- I'm trying to remember the discussions that 2 we had. At the time we had discovered that Mugglenet was 3 planning an encyclopedia of their own and I think our 4 discussions really centered around that. 5 Q. You wanted to beat Mugglenet to the punch, right? 6 A. Right. 7 Q. Because you thought there was an advantage in being the 8 first one out, right? 9 A. Of the two books, both of them coming from websites, they 10 would be seen as more or less equal in a sense and so, yeah, in 11 that particular case it would be an advantage to be the first 12 of those two; uh-huh. 13 Q. So the answer to my question is yes? 14 A. Yes. 15 Q. So now, isn't it true that after you signed the contract 16 with RDR at the end of August you rushed to complete the 17 manuscript by September 15th? 18 A. Yes, we did. 19 Q. And that's because you were anxious to get the book in 20 stores as soon as possible, right? 21 A. Yes. For two reasons. 22 Q. Now, what are those two reasons? 23 A. First of all, because of the Mugglenet book, and also 24 because of the Christmas selling season which would obviously 25 be a time to want to get a book in the stores. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 256 84F5WAR1 Vander Ark - direct 1 Q. Was there a third reason? Were you also thinking that, 2 gee, given the -- all the interest in Harry Potter in the 3 newspapers in the summer of 2007 it might be good publicity -- 4 good for the book to come out at the time when there is big 5 interest in Harry Potter book 7? 6 A. I don't remember thinking that, no. That really wasn't a 7 concern. 8 Q. Now, isn't it true, Mr. Vander Ark, that you consider 9 yourself very knowledgeable about copyright issues? 10 A. I'm no expert, no. 11 Q. Well, isn't it true that as a media specialist, one of your 12 responsibilities is copyright? 13 A. Yes, that's correct. 14 Q. And, isn't it true that you read a ridiculously large 15 number of related books and articles, etc., and even go to the 16 occasional conference on copyright law? 17 MR. HAMMER: Object to the form of that question. 18 THE COURT: Objection sustained. 19 Q. Isn't it true that you read a lot of books about copyright 20 law? 21 A. I don't think I read a lot of books about copyright law, 22 no. 23 Q. Isn't it true that you have gone to conferences on 24 copyright law? 25 A. I have attended seminars on it, yes, as it relates to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 257 84F5WAR1 Vander Ark - direct 1 children using copyright for their writing. 2 THE COURT: For what? 3 THE WITNESS: As a teacher, the conferences I would go 4 to would have to do with how do you teach children -- as 5 they're writing reports and things like this -- what is allowed 6 and what isn't. 7 So, that's the kind of copyright things that I'm 8 knowledgeable about. 9 Q. Well, isn't it true that you also consider yourself 10 knowledgeable about copyright and the internet? 11 A. I'm really not sure how to answer that because I know some 12 things about it but I'm not sure how to define knowledgeable. 13 Q. Isn't it true that you posted on a -- are you familiar with 14 Newton's Talk? 15 A. Oh, having to do with the Newton computer? 16 Q. Yes. 17 A. Yes. Uh-huh. That was a long time ago. 18 Q. And, isn't it true that you posted on Newton's Talk? What 19 is -- Newton's Talk is a chat board, right? 20 A. Right. 21 Q. What is it about? 22 A. A Newton was a hand-held computer that we used 10 years ago 23 that Apple had. 24 Q. Isn't it true that you posted on Newton's Talk that you 25 felt that the web was full of copyright violations which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 258 84F5WAR1 Vander Ark - direct 1 doesn't make them any less illegal? 2 A. Yes. 3 Q. And, isn't it true that you posted on Newton's Talk that 4 you read ridiculously large numbers of related books, articles, 5 etc., and even go to the occasional conference on the subject 6 of copyright? 7 A. I don't recall writing that specifically but I'm sure I may 8 have; yeah. 9 Q. Well, I would be happy to refresh your recollection. 10 THE COURT: What year are we talking about? 11 MS. CENDALI: 2000, your Honor. 12 May I approach and refresh the witness' recollection? 13 THE COURT: All right. Just show it to Mr. Hammer. 14 MR. HAMMER: I have it, your Honor. That's all right. 15 MS. CENDALI: I did. 16 THE WITNESS: Thank you. 17 THE COURT: What have you got -- 18 MS. CENDALI: Marked for identification as Exhibit 19 193. 20 THE DEPUTY CLERK: 193. 21 MS. CENDALI: Would you like a copy, your Honor? 22 THE COURT: I think it is probably in the book. Thank 23 you. 24 BY MS. CENDALI: 25 Q. Does that refresh your recollection as to whether you made SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 259 84F5WAR1 Vander Ark - direct 1 those comments? 2 A. I don't doubt that I made the comments. I just don't 3 remember writing this particular post. 4 Q. Now you can put that aside, Mr. Vander Ark. 5 Now, Mr. Vander Ark, isn't it true that you use an 6 electronic copy or electronic -- excuse me. Isn't it true that 7 you used electronic copies of Ms. Rowling's books in order to 8 help write the Lexicon manuscript? 9 A. Yes, we did. 10 Q. I would like to put on the screen what's been marked as 11 Exhibit 101. 12 THE COURT: When we talk about the Lexicon are you 13 talking about the website? 14 MS. CENDALI: Pardon me, your Honor? This is the 15 Lexicon manuscript, your Honor. 16 Q. In other words, just to be clear, Mr. Vander Ark, you used 17 electronic copies of Ms. Rowling's books to help write the 18 Lexicon book, correct? 19 A. Yes. We scanned them in from our copies. We have multiple 20 copies of the books. 21 Q. Now you knew, though, that Ms. Rowling had never released 22 any electronic copies of the books? 23 A. That is correct. 24 Q. So the copies -- the electronic copies of her books that 25 you had were pirate copies, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 260 84F5WAR1 Vander Ark - direct 1 A. I'm not sure of the legal status of that. 2 MR. HAMMER: Objection. It calls for a legal 3 conclusion which he is not qualified to give. 4 THE COURT: He says he is not sure in any event, so go 5 ahead. 6 Q. How did you get those electronic copies of her books? 7 A. Scanned the books. 8 Q. And again, looking at Exhibit 101, it is an e-mail 9 exchange. Going to the first page of it first since we can 10 frame it as this was an e-mail exchange and the e-mail, the 11 second e-mail in the chain is from you on September 3rd, 2007 12 to John Kearns, Belinda Hobbs, L. Bunker. 13 Do you see that? 14 A. Yes. 15 Q. Who are those people? 16 A. Those are the other authors of the Lexicon book, my 17 editors. 18 Q. But they didn't get byline credit on the cover, did they? 19 A. I don't know the current version of the cover. One version 20 had all four names, I'm not sure of the current status, but 21 they certainly are included as authors. 22 Q. But on the version of the cover that was submitted to the 23 Court it is only you, isn't that true? 24 A. I don't know which version you have seen but I have seen 25 several. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 261 84F5WAR1 Vander Ark - direct 1 Q. But those are the people who were working with you on 2 editing the Lexicon book in issue in this case? 3 A. Those are the co-authors, yes. 4 Q. So, turning to the second page of the e-mail at the bottom 5 it says: If anyone has text files of QA and FB, those would be 6 immensely helpful. 7 What is QA and FB? 8 A. That's Quidditch Through the Ages and Fantastic Beast, the 9 two companion books. 10 Q. Why did you think that would be helpful? 11 A. Because it is a lot easier to search electronic copy than 12 to search paper copy, of which we have many. 13 Q. And it says John -- you wrote: John, your complete Word 14 file is a dream. Any way to have chapter numbers interspersed? 15 Do you see that? 16 A. Yes, I do. 17 Q. Isn't it true that it was easier to cut and paste from 18 Ms. Rowling's books when you had electronic copies of them? 19 A. I don't know, because I have never done that. 20 Q. So you did not, in preparing the manuscript for the 21 Lexicon, copy and paste anything from Ms. Rowling's works? 22 A. I don't recall doing that, no. 23 Q. Did you end up getting electronic files for Quidditch 24 Through the Ages and Fantastic Beasts? 25 A. Yes. We ended up scanning them. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 262 84F5WAR1 Vander Ark - direct 1 Q. So you made those copies yourself? 2 A. Right. 3 Q. And, did you think that what you were doing was violating 4 copyright law? 5 MR. HAMMER: Objection. No relevance to this case. 6 THE COURT: I will allow the answer. I am going to 7 allow it. 8 MR. HAMMER: There is no claim, your Honor, or any 9 complaint on that. 10 THE COURT: I'm sorry? 11 MR. HAMMER: There is no claim in any of the several 12 complaints for violation of the copyright through the 13 electronic scanning of the Quidditch book. 14 THE COURT: I will take that into consideration. 15 MS. CENDALI: Your Honor, I'm sorry. I couldn't hear 16 your ruling. I apologize. 17 THE COURT: I said I would allow the question and I 18 will take into consideration what Mr. Hammer just stated that 19 it is not in your complaint or the amended complaint, I gather 20 he sent -- or the second amended complaint. 21 MS. CENDALI: It goes to the process, your Honor. 22 THE COURT: I said I'm allowing the question, 23 Ms. Cendali. I said I'm allowing the question. 24 MS. CENDALI: I understand, your Honor. Excuse me. 25 Q. Mr. Vander Ark? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 263 84F5WAR1 Vander Ark - direct 1 A. Yes. 2 Q. Would you please answer my question? 3 A. Could you repeat the question? I'm sorry. 4 Q. Did you believe that making electronic copies of 5 Ms. Rowling's books to write the Lexicon manuscript was 6 illegal? 7 A. No, I did not. Because we did not distribute them, we just 8 made them from our own copies of the books. 9 Q. But you knew that Ms. Rowling had never released electronic 10 copies of her books, right? 11 A. No, she never has. 12 Q. In fact, you know that that's something that she's 13 concerned about, that electronic copies could proliferate all 14 over the internet, right? 15 A. I would have to make an assumption because I have never 16 heard anything about that, but. 17 Q. Now, you don't believe that you can make, legally make 18 copies of copyrighted books just because you have a paper 19 version, right? 20 A. Well, actually there are circumstances where that is 21 allowed, you are allowed to make copies of things if you own 22 the books for your own use. But, I'm not exactly sure how that 23 fits in this particular case so I better not speak to it. 24 Q. Well, isn't it true, Mr. Vander Ark, that on the Newton's 25 Talk forum in 2003 you wrote: You can't legally make copies of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 264 84F5WAR1 Vander Ark - direct 1 copyrighted books just because you have the paper version. 2 A. Did I -- does it say that in there? 3 Q. Do you remember saying that? 4 A. I don't remember saying that, but. 5 Q. Do you remember saying -- 6 MR. HAMMER: I'm sorry. Can you point out where that 7 statement that you just quoted comes in here? 8 MS. CENDALI: It is a different document, Mr. Hammer. 9 MR. HAMMER: Then why are you referring to this when 10 you are cross-examining him on that point? 11 MS. CENDALI: It is a different document, Mr. Hammer. 12 THE COURT: If you are using a different document you 13 should alert the Court because I was wondering why you were 14 referring to the year 2003 when previously you referred to the 15 year 2000, Ms. Cendali. 16 MS. CENDALI: Okay. I apologize, your Honor. I am 17 now -- I am trying to impeach him with a different document. 18 THE COURT: There is a foundation question you ask 19 before if you are trying to do that in establishing that you 20 are not referring to the year 2000 but are referring to 21 something you wrote later in 2003 for that publication. 22 BY MS. CENDALI: 23 Q. Isn't it true -- let me -- isn't it true, Mr. Vander Ark, 24 that on January 16th, 2003, you wrote on Newton's Talk that any 25 copies of Tolkien books or Harry Potter books in Newton book SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 265 84F5WAR1 Vander Ark - direct 1 electronic format are illegal? 2 A. That's referring to the fact that people would be sharing 3 those books online which of course would be illegal; sharing 4 them, putting them available for other users of that hand held 5 computer. 6 Q. Isn't it true that you wrote that, Mr. Vander Ark? 7 A. I don't have that document in front of me but I'm not 8 disputing it. 9 MS. CENDALI: May I approach, your Honor? 10 THE COURT: Yes, you may. 11 Q. I'm giving counsel Plaintiff's Exhibit 194 and giving the 12 Court a copy. 13 A. Thank you. 14 Q. Please take a look at Exhibit 194 and let's put it on the 15 screen, Mr. Hoy, please. And if you could highlight the 16 paragraph at the top? 17 Now, this is something that someone had raised, a 18 question; right? Books that are copyrighted, that if we have a 19 hard printed copy of our own, we are allowed to make copies of 20 our own personal use. 21 That was the issue that you were addressing, is that 22 correct? 23 A. I believe what I was addressing was whether you may put 24 that online but I don't remember that thread so I couldn't 25 comment on what was being discussed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 266 84F5WAR1 Vander Ark - direct 1 Q. But you remember saying that actually, no, you can't 2 legally make copies of completed books just because you have 3 the paper version. Right? 4 A. As I said -- 5 MR. HAMMER: Asked and answered, your Honor. 6 THE COURT: I will allow the question and answer. 7 A. Could you ask me the question again, please? 8 Q. Sure. This refreshes your recollection that you wrote: 9 You can't legally make copies of copyrighted books -- such as 10 Ms. Rowling's -- 11 A. Yes. 12 Q. -- harry Potter books? 13 A. Yes. 14 Q. And there is nothing in this post that you are reading that 15 qualifies that by saying anything with any of the other 16 qualifications you just mentioned? 17 A. There is nothing in this post to that effect, no. 18 THE COURT: Where is the question that precedes this? 19 MS. CENDALI: The question is -- 20 THE COURT: Isn't there a question? This is an answer 21 to a question. 22 Q. Could you explain, Mr. Vander Ark, what the italicized text 23 above is? 24 A. This is part of a longer series of discussions which were 25 happening online. I don't know if there is an actual question SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 267 84F5WAR1 Vander Ark - direct 1 but it is a discussion about whether a book would be legal to 2 do if you owned the copy; can you make a copy, for instance a 3 scanned copy of your own. That was the discussion that we were 4 having there and I was giving my opinion. 5 THE COURT: It had nothing to do with online? 6 THE WITNESS: Yes, this is an online discussion. 7 THE COURT: No, I mean online distribution. 8 THE WITNESS: I don't recall the entire discussion. 9 I'm sure that was what we were talking about because the whole 10 point of this discussion group was to discuss software for the 11 Newton. It was a computer which didn't have a huge following 12 and so there was a lot of people who owned these computers who 13 wanted to share what they did have. And so, we had discussed 14 before what was okay to share and what wasn't. 15 There was not a lot of commercially available 16 material. 17 BY MS. CENDALI: 18 Q. There is nothing in the text that says anything about being 19 limiting your statement? 20 A. In this one small entry in that long thread? No. 21 Q. Correct. And you can't sit here today and tell the Court 22 that there was anything like that in the rest of the thread? 23 A. All I can say is what sorts of things we talked about on 24 that list a number of years ago. 25 Q. So the answer to my question is no? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 268 84F5WAR1 Vander Ark - direct 1 A. I believe that -- 2 THE COURT: He has answered your question, 3 Ms. Cendali. Go ahead. 4 Q. Your Honor, I would like to approach and hand the witness a 5 copy of his declaration in this case, Exhibit 502. 6 Now, Mr. Vander Ark, you recognize Exhibit 502 as a 7 copy of the declaration you submitted in this case, right? 8 A. Yes. That is correct. 9 Q. And you signed it under penalty of perjury, correct? 10 A. Yes, I did. 11 Q. And you read it very carefully before you signed it, 12 correct? 13 A. Yes, I did. 14 Q. So everything in it is true? 15 A. Yes. I hope so. 16 Q. Let's look at some parts of Exhibit 502 and, in particular, 17 paragraph 36 of your declaration. Maybe we can put that on the 18 screen, Mr. Hoy. Paragraph 36. And if you can highlight for 19 me the beginning part of the first sentence in paragraph 36? 20 In paragraph 36 you wrote: My staff and I composed 21 the text of the Lexicon book. 22 Do you see that? 23 A. Yes, I do. 24 Q. Does that mean that you believe that you and your staff 25 wrote the book? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 269 84F5WAR1 Vander Ark - direct 1 A. Yes. 2 Q. So you don't believe Ms. Rowling wrote the book, right? 3 A. I'm sorry. Which book are you referring to? 4 Q. The Lexicon manuscript. 5 A. We wrote the Lexicon manuscript; that's correct. 6 Q. Do you think that the Lexicon manuscript copies 7 Ms. Rowling's work? 8 A. The Lexicon book is a reference book to a piece of 9 literature and so, naturally, it refers back to the source of 10 material. That's the kind of book it is. 11 Q. Do you believe that it copies Ms. Rowling's language? 12 MR. HAMMER: He can explain what in fact he does, your 13 Honor. The word "copying" is a large and ambiguous term. He 14 has given a precise explanation. 15 MS. CENDALI: Your Honor, I would appreciate it if 16 Mr. Hammer would not interrupt my cross-examination. 17 MR. HAMMER: I have an objection, your Honor, and I 18 hope I will have the right to interrupt cross-examination. 19 THE COURT: Let me hear the question back. 20 BY MS. CENDALI: 21 Q. Mr. Vander Ark -- 22 Can you read the question back? Is that possible? 23 (Record read) 24 THE WITNESS: There are places where we use phrases 25 that are identical or similar in the process of creating a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 270 84F5WAR1 Vander Ark - direct 1 reference work of this kind. That would be expected. 2 Q. How many places are there in the Lexicon manuscript that 3 copies Ms. Rowling's phrases? 4 THE COURT: Are you asking for a number? 5 Q. A percentage? 6 A. I really don't know the answer to that. The Lexicon book 7 is a reference guide to literature. It is a standard type of 8 reference guide. 9 Q. Mr. Vander Ark? 10 A. Yes. 11 Q. When Mr. Hammer asks you questions you are welcome to 12 expand on your theory of the case. If you could try to answer 13 my questions yes or no I would appreciate it. Okay? 14 A. I will. 15 Q. My question to you is whether, isn't it true that over 90 16 percent of the Lexicon manuscript quotes or paraphrases 17 Ms. Rowling's work? 18 MR. HAMMER: He's already said that he doesn't know. 19 She's testifying now in the form of this question. 20 THE COURT: Objection sustained. 21 Q. Isn't it possible, Mr. Vander Ark, that more than 90 22 percent of the Lexicon manuscript copies Ms. Rowling's work? 23 A. I don't think that that's true. No. 24 Q. But you are not sure? 25 A. I would say no. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 271 84F5WAR1 Vander Ark - direct 1 Q. Can you give me a percentage that makes you think it? 2 MR. HAMMER: He has already answered this and he said 3 he doesn't have a percentage, your Honor. 4 THE COURT: I'm going to allow the question. 5 A. I'm really not sure how to answer that question. I have 6 not analyzed the text in that way. It refers to the text. 7 MS. CENDALI: Your Honor, again I want to object to 8 Mr. Hammer's speaking objections. 9 THE COURT: He has a right to object, Ms. Cendali. 10 Q. Now, let's look at -- so looking at the next sentence in 11 your exhibit in paragraph 36 of your declaration where you 12 write: It is true that in a few places the book employs 13 phrases or sometimes whole sentences that are similar to 14 phrases or sentences in the Potter books. 15 Do you see that? 16 A. Yes. 17 Q. So you wrote: It is true that in a few places the book 18 employs phrases or sometimes whole sentences. 19 So, is it your view that the book, only in a few 20 places, employs phrases or sometimes whole sentences similar to 21 Ms. Rowling's work? 22 A. There are times when we used some of the same terminology, 23 that's true. 24 Q. But only in a few places. Is that your testimony? 25 A. That's what I wrote. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 272 84F5WAR1 Vander Ark - direct 1 Q. And is that what you believe? 2 A. That's what I believe. 3 Q. And now, is it also true that you don't believe that you 4 paraphrase Ms. Rowling's works in creating the encyclopedia? 5 A. I'm not sure how to answer the question with a yes or a no. 6 When you create a guide like this you are going to be 7 referring back to the text and that requires some paraphrasing. 8 Q. Well, let's look at your declaration on page 16 which is 9 paragraph 44(C)(1). 10 It is easier to find, your Honor, by the page number 11 which is page 16. 12 THE COURT: Thank you. 13 Q. If you can highlight, Mr. Hoy, the first part of that 14 through and continuing down to the next two lines. 15 You are writing that Ms. Birchall -- somebody who 16 submitted a declaration in this case -- that, for other 17 entries, the Lexicon makes extensive use of paraphrasing that 18 is alarmingly similar to the Harry Potter text, however few 19 citations are provided. And then you say: This is incorrect 20 for several reasons. 21 Right? 22 A. That's right. 23 Q. And you say: First, the entries in question are not 24 paraphrasings. In each case they were written by me and my 25 staff. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 273 84F5WAR1 Vander Ark - direct 1 A. Yes. 2 Q. Do you see that? 3 A. Uh-huh. 4 Q. Do you consider it your original work if you take one of 5 Ms. Rowling's sentences and change a word? 6 A. I would have to -- 7 THE COURT: I think in order to really -- I think the 8 following sentence is part of the same thought or 9 explanatory -- the same thought, Ms. Cendali. 10 MS. CENDALI: Okay. Well, maybe it would be easier 11 if -- 12 THE COURT: These two sentences. You are taking the 13 single sentence. The answer to your question seems to be 14 contained in more than one sentence. 15 Q. Well, let's go to the next sentence as his Honor suggests. 16 It is true that in some cases they contain words and 17 phrases that are similar to those in the Potter books but, as I 18 earlier explained, that is because the nature of what was being 19 described required that subject and description used similar 20 language. 21 Is that what you wrote? 22 A. Yes. Uh-huh. 23 Q. Now, what was being described were fictional things created 24 by Ms. Rowling, right? 25 A. That's correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 274 84F5WAR1 Vander Ark - direct 1 Q. And, would you agree that one of the big appeals of the 2 Harry Potter books is the universe of creative fictional things 3 and places that she created? 4 A. Oh, of course. 5 Q. And, in fact, isn't that one of the things that attracted 6 you to the Harry Potter books? 7 A. Yes. Very much. 8 Q. Isn't it true that before being a Harry Potter fan you had 9 been interested in Star Trek? 10 A. Yes. 11 Q. And Star Trek 2 has a whole universe of live long and 12 prosper and Vulcan and things like that that is appealing? 13 A. Yes. Uh-huh. 14 Q. Let's look at some of the entries in the Lexicon and I 15 would like to, for the sake of convenience, your Honor, what I 16 have done is I have stapled together and will give to, with the 17 Court's permission, your Honor, and opposing counsel, a set of 18 the same demonstratives I used with Ms. Rowling that were 19 marked for identification as Exhibits 165 through 171 just to 20 make it a little easier given the binders and the like. 21 May I approach and hand one to the witness and to the 22 Court? 23 THE COURT: Surely. 24 THE WITNESS: Ms. Cendali, are we done with this one? 25 MS. CENDALI: Yes. Well, you can put it aside for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 275 84F5WAR1 Vander Ark - direct 1 now. I may likely go back to it. 2 THE WITNESS: That's fine. 3 THE COURT: Go ahead. 4 MS. CENDALI: Thank you, your Honor. 5 Q. Now let's put on the screen the Lexicon entry comparison 6 for Brain Room marked for identification as 165. And on the 7 right side of that, that's the, a portion of the text from the 8 Lexicon, correct? 9 A. Yeah. Could we see the whole Lexicon entry, please? 10 Q. Well, right now I am pointing you to this phrase. 11 A. All right. Thank you. 12 Q. You are more than welcome to -- you see the ellipses? That 13 means that there is more than that but I am focusing on this 14 particular language. Okay? 15 A. That's fine. I understand. 16 Q. And it says: The brains fly out of the tank, unspooling 17 ribbons of thought like strips of film. 18 Do you see that? 19 A. Yes. 20 Q. And if you look to the left, Order of the Phoenix, that's 21 one of Ms. Rowling's books, right? 22 A. Yes. 23 Q. And in that book she wrote: What looked like ribbons of 24 moving images flew from it, unraveling like rolls of film. 25 A. That's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 276 84F5WAR1 Vander Ark - direct 1 Q. And would you agree with me, Mr. Vander Ark, that what you 2 wrote in the Lexicon copied Ms. Rowling's work? 3 A. No. I wouldn't call that copying. It is similar. 4 If you will allow me, in order to write something like 5 this when I am describing something which exists only in the 6 pages of a book it is not like I can go to the zoo and see a 7 creature and write about it. The only way I can write about 8 these things is from the source text so it is going to be 9 similar. 10 MS. CENDALI: Objection. Move to strike as 11 non-responsive. 12 MR. HAMMER: She is objecting to the testimony that 13 she elicited, your Honor. 14 THE COURT: Objection overruled. You are not going to 15 strike. 16 Q. Mr. Vander Ark, do you consider what you wrote in 165 to be 17 a paraphrase of Ms. Rowling's work? 18 A. I suppose you could use that term. I had never thought 19 about exactly how to describe it, but. 20 Q. Now, you didn't use any quotation mark, right? 21 A. In that part, no. I did cite it, however. 22 Q. You didn't put it in quotation marks. Isn't it true that 23 someone reading this would not know which words were yours and 24 those were of Ms. Rowling? 25 A. I believe it has a citation at the end saying where it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 277 84F5WAR1 Vander Ark - direct 1 comes from which would indicate that its source is the book. 2 Q. That the overall passage came from Ms. Rowling's book, 3 right? 4 A. That what is being described here has come from that 5 section of Order of the Phoenix, yes. 6 Q. But you don't make clear in the Lexicon, isn't it fair to 7 say, which words you and your staff wrote -- 8 Will you let me finish my question and then you can 9 answer? 10 A. Yes. I'm very sorry. 11 Q. Isn't it true that you rarely used quotation marks in the 12 Lexicon of Ms. Rowling's work? 13 A. We do use them in some places but we always cite where it 14 comes from or those, where that comes from in the books. 15 Q. And isn't it true you mingle words that you wrote with 16 words Ms. Rowling wrote, right? 17 A. We use similar descriptions to describe similar things, 18 yes. 19 THE COURT: When you say you cite, you just cite to 20 the chapter, is that right? 21 THE WITNESS: Right. That's correct. 22 THE COURT: You don't cite to the page? 23 THE WITNESS: We decided not to cite to the page 24 because there are so many different versions of the book that 25 the page number wouldn't be the same. But, the chapter numbers SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 278 84F5WAR1 Vander Ark - direct 1 always are. 2 THE COURT: I see. 3 BY MS. CENDALI: 4 Q. And, when you cite to chapters you don't purport to cite to 5 all the chapters that a creature or character is referenced in, 6 correct? 7 A. Not in the book version. We had to do a lot of editing of 8 some of those references and taking them out. 9 Q. So the answer is no, correct? 10 A. That's correct. 11 Q. And you don't even attempt to cite to the first time a 12 character or object appeared, correct? 13 A. The Lexicon book is not intended to be exhaustive, no. 14 Q. So the answer is no? 15 A. I believe so, yes. 16 Q. Let's look at another example that is marked as Plaintiff's 17 Exhibit 166, the Lexicon entry for Armor, goblin-made. On the 18 right there is the language: Goblin-made armor does not 19 require cleaning, because goblins' silver repels mundane dirt, 20 imbibing only that which strengthens it. 21 Do you see that? 22 A. Yes, I do. 23 Q. On the left is the Deathly Hallows quote and that's from 24 Ms. Rowling, right? 25 A. That is correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 279 84F5WAR1 Vander Ark - direct 1 Q. And it says: Goblin-made armour does not require cleaning, 2 simple girl. Goblins' silver repels mundane dirt, imbibing 3 only that which strengthens it. 4 Do you see that? 5 A. Yes, I do. 6 Q. Did you copy Ms. Rowling's words in writing that? 7 A. In the lexicon entry right before that it refers to the 8 fact that this is being said by a character so, yes, we had 9 exactly what that character said. 10 Q. And so, this is a quote of Ms. Rowling's work, is that 11 right? 12 A. Used and cited, yes. 13 Q. But there are no quotation marks? 14 A. No, because that's not the form of the sentence. But, it 15 is clear that that's what it is. 16 Q. And you think it would be clear to someone reading this, a 17 child reading this that this is words that Ms. Rowling wrote as 18 opposed to you wrote? 19 A. Well, it looks like it is what a character is saying but, 20 yes, I would say yes. 21 Q. Can you understand why Ms. Rowling might not be too happy 22 about having her words appear without quotation marks in a book 23 that you wrote? 24 MR. HAMMER: Objection, your Honor. 25 THE COURT: On what grounds? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 280 84F5WAR1 Vander Ark - direct 1 MR. HAMMER: Because it causes him to speculate to the 2 mental state of Ms. Rowling. Second of all, her unhappiness is 3 not really an issue in this case. 4 THE COURT: Objection sustained. 5 Q. Mr. Vander Ark, who wrote the words in the Deathly Hallows 6 book that the character said? 7 A. Ms. Rowling. 8 Q. Now, let's look at what's been marked as Exhibit 167, the 9 entry for Clankers, and on the right is the Lexicon entry, on 10 the left is the entry from Deathly Hallows, correct? 11 A. That's correct. 12 Q. And, isn't it true that you copied the lexicon Entry from 13 Ms. Rowling's descriptions? 14 A. It uses many of the same words, yes. I have never copied 15 it specifically or intentionally but it uses many of the same 16 words. 17 Again, we are describing an object which doesn't exist 18 in reality. In order to accurately describe that I'm going to 19 be using the same kind of words. 20 Q. So if I wanted to accurately describe all the Harry Potter 21 books could I just simply restate all of them using all of 22 Ms. Rowling's words and do you think that that would be okay? 23 MR. HAMMER: Objection. I don't understand the 24 question. 25 THE COURT: Objection sustained. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 281 84F5WAR1 Vander Ark - direct 1 Q. What are clankers, Mr. Vander Ark? 2 A. Do you want me to read from the description here? 3 Q. Well can you answer the question without reading from the 4 description? 5 A. They're metal objects which are used to frighten a dragon. 6 Q. So you are able to describe what a clanker was without 7 taking so much of Ms. Rowling's text, weren't you? 8 A. You asked me to describe it. You didn't ask me to say what 9 I would put in a reference work. There is a difference. 10 Q. Well, it is possible to put in a reference work a shorter 11 description of Ms. Rowling's people, places and things than you 12 put in the Lexicon, right? 13 A. Yes, it is possible to do a shorter version. 14 Q. And it is possible that those shorter versions would take 15 less of her prose in doing so, right? 16 A. Right. When you create a reference work you have to find a 17 balance between the two. 18 Q. And, isn't it true that the balance that you chose in the 19 Lexicon was to quote a lot of Ms. Rowling's prose? 20 A. A reference work of that kind has to have value based on 21 how much information it gives, and so it is difficult sometimes 22 to figure out the balance. And we tried to do the best we 23 could to find a balance between the two. 24 Q. Can you answer my question yes or no? 25 A. I don't know that that's a question that can be answered SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 282 84F5WAR1 Vander Ark - direct 1 yes or no. 2 Q. Well, isn't it true that the Lexicon takes much more of 3 Ms. Rowling's prose than other Harry Potter encyclopedias? 4 A. I guess I can't speak to that. Some of the other 5 encyclopedias that I have seen have done about the same thing 6 and others have had a different focus. 7 Q. Okay. Well, let's take a look at what's been marked as 8 Plaintiff's Exhibit 75, the Magical World of Harry Potter by 9 David Colbert. 10 May I approach, your Honor, and hand it to the 11 witness? 12 THE COURT: Yes, you may. 13 Q. You are familiar with that book, aren't you? 14 A. Yes, I am. 15 Q. It is fair to say that that book is another Harry Potter 16 encyclopedia, right? 17 A. Actually this book has a different focus. I wouldn't call 18 it an encyclopedia. 19 Q. You wouldn't. Okay. Well -- 20 A. There are some similarities to it but it is not intended to 21 be an exhaustive or a complete encyclopedia. It chooses 22 certain topics and discusses them. 23 Q. And in alphabetical order, correct? 24 A. Yes, apparently. 25 Q. And, isn't it true that Mr. Colbert uses much less of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 283 84F5WAR1 Vander Ark - direct 1 Ms. Rowling's prose in writing that book than you did? 2 A. Mr. Colbert's purpose in this book is to talk about other 3 things than Harry Potter books, so yes. 4 Q. And, your purpose was not to talk about anything in the 5 Lexicon, right? 6 A. I'm sorry? 7 Q. Excuse me. 8 Your purpose was -- Mr. Colbert, in the Magical World 9 of Harry Potter, added a lot of commentary or analysis to the 10 Harry Potter books, right? 11 A. That was the purpose of his book, yes. 12 Q. But that's not the purpose of the Lexicon, right? 13 A. No. The purpose of the Lexicon is to be a ready reference 14 to the literature itself. 15 Q. For what purpose? 16 MR. HAMMER: I'm sorry. I don't understand the 17 question. He has just described the purpose of the book. 18 MS. CENDALI: You just said it was to be -- 19 THE COURT: Objection overruled. I will allow it. 20 A. Would you like me to explain what I mean by that? 21 Q. Yes. You just said it was to be a ready -- 22 A. Ready reference, yes. 23 Q. -- reference to the book. What, in your mind, is the 24 purpose of the Lexicon? 25 A. Of a ready reference of that kind? I'm a librarian and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 284 84F5WAR1 Vander Ark - direct 1 some of the reference material that we have available is 2 referred to as ready reference, and that's things where you can 3 look up facts in a hurry. We have different kinds of reference 4 material. Some of it is designed to, for example, go into 5 deeper information, let's say, about the etymology of a word. 6 Other things like a standard dictionary would just give a quick 7 definition. 8 This book is, has a purpose of going into some of the 9 deeper details. 10 The Lexicon book has a purpose of being a ready 11 references a quick reference to fact. 12 Q. So, it is not intended to go into any of the deeper details 13 of the Harry Potter books, is that right? 14 A. We have some in there but, in our interest of length, we 15 couldn't put in nearly everything that we had. We had to make 16 a decision. 17 Q. So the lexicon doesn't spend much time trying to analyze 18 the Harry Potter books, right? 19 A. Not a lot, no. 20 Q. And turning to Exhibit 74, Fact, Fiction and Folklore in 21 Harry Potter's World. 22 May I approach, your Honor? 23 THE COURT: Yes. 24 THE WITNESS: Are we done with this one, Ms. Cendali? 25 MS. CENDALI: Yes. At least for the time being. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 285 84F5WAR1 Vander Ark - direct 1 Q. You are familiar with that book, correct? 2 A. Yes. Uh-huh. 3 Q. And isn't it true that that book is also a Harry Potter 4 encyclopedia? 5 A. Yes. 6 Q. And isn't it true that it also is in alphabetical order? 7 A. Yes. 8 Q. Isn't it true that that book takes much less of 9 Ms. Rowling's prose than your proposed Harry Potter Lexicon? 10 A. Mr. Beahm's purpose again is more similar to Mr. Colbert's 11 purpose in writing the purpose. 12 Q. So the answer to the question is yes? 13 A. Yes. 14 Q. Isn't it true that Mr. Beahm's book provides much more 15 commentary about the Harry Potter universe than the lexicon? 16 A. Yes, that is his purpose. 17 Q. Now, let's look at Exhibit 168, the Chudley Cannons entry 18 to the lexicon. Now what are the Chudley Cannons? 19 A. This is a Quidditch team. 20 Q. And, but you just don't describe the Chudley Cannons as a 21 Quidditch team in the lexicon, do you? 22 A. No. That's correct. 23 Q. You go on to say: The Cannons wear orange robes with a 24 speeding black cannon ball and a double letter C on them. The 25 Cannons have won the league 21 times but the last time was in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 286 84F5WAR1 Vander Ark - direct 1 1982 and I can go on. 2 That language was taken from Ms. Rowling's book 3 Quidditch Through the Ages, right? 4 A. Those facts are taken from there, yes. 5 Q. Those facts don't exist in the real world, right? 6 A. That's correct. 7 Q. So those are fictitious facts, correct? 8 A. Yes. 9 Q. Those facts comprise Ms. Rowling's creative output, 10 correct? 11 A. That is correct. 12 Q. You would call Ms. Rowling a genius, wouldn't you? 13 A. Yes, I would, actually. 14 Q. And, isn't it true that what you have done in the Lexicon 15 is restate the things that she made up? 16 A. I was creating a reference work and it is not much of a 17 reference work if you don't put the facts in there. 18 Q. And so you put all the facts you could in there about 19 the -- 20 A. Actually no. I'm sorry, I didn't mean to interrupt. No, 21 we didn't put all the facts we could. We intentionally left 22 some out especially for Quidditch Through the Ages and 23 Fantastic Beasts. Our intention was never to have the Lexicon 24 book be a replacement for those books. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 287 84FVWAR2 Vander Ark - direct 1 Q. But you knew that the Quidditch Through the Ages and the 2 Fantastic Beast books were books Ms. Rowling did for charity, 3 right? 4 A. Yes, ma'am. 5 Q. And you have acknowledged in the past, haven't you, that 6 there was the potential that the Lexicon could detract from 7 sales of Ms. Rowling's charitable books? 8 A. Of those two books, yes. 9 Q. And why is it that you thought that the Lexicon might 10 detract from sales of those books? 11 A. Those two are difficult. As librarians, if you put 12 something like this together, most of -- well, most of 13 Quidditch of the Ages, but also most of the books that she's 14 written are stories, they are narrative form. There's no way 15 that someone's going to take an encyclopedia of that and think 16 of it as a replacement. It just isn't logical. 17 You're not going to look at the Lexicon book and then 18 not have to read the novels. In fact, the Lexicon book would 19 be pretty much worthless without the novels. 20 On the other hand, Fantastic Beasts and Quidditch of 21 the Ages had sections of them which were essentially 22 encyclopedias already which presented quite a problem. We 23 wanted to be complete, but we certainly didn't want to replace 24 Ms. Rowling's encyclopedia content which presented us with 25 quite a challenge of how to do that, how to include SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 288 84FVWAR2 Vander Ark - direct 1 information, but not to include all of it. And that was what 2 we decided to do. We said we'll intentionally leave things out 3 and put a very clear note, Please go read her book, which is 4 what we did. 5 Q. Is there a note on the Lexicon entry for Chudley? How much 6 did you leave out about in the Chudley Cannons entry? 7 A. Can you show me the full Lexicon entry? 8 Q. Sure. Let's put it on the screen, from exhibit Plaintiffs' 9 Exhibit 1, can you put up the entire Chudley Cannons entry? 10 THE COURT: What exhibit? 11 MS. CENDALI: Exhibit 1. Chudley Cannons. 12 THE COURT: Is that the whole entry? 13 MS. CENDALI: Yes, that's the whole... 14 BY MS. CENDALI: 15 Q. Is there anything about what Ms. Rowling wrote in Quidditch 16 Through the Ages about Chudley Cannons that you did not put in 17 the Lexicon? 18 A. I don't know. I'd have to go through it step-by-step. It 19 doesn't look like it, no. 20 Q. So as far as you know, you took everything? 21 A. In that particular case, it looks like we pretty much 22 caught it all. 23 Q. And isn't it true that the Quidditch book is only 56 pages 24 long? 25 A. Well, you've got the copy there; but that's fine, sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 289 84FVWAR2 Vander Ark - direct 1 Q. Sounds right to you? 2 A. Yes, sounds about right. 3 Q. I'm referring to Plaintiffs' Exhibit 2, Quidditch Through 4 the Ages. And isn't it true that the Lexicon has more than 250 5 entries just from Ms. Rowling's Quidditch book? 6 A. I didn't add them up, so -- 7 Q. Okay. Does that sound right to you? 8 A. I have absolutely no idea. 9 Q. Isn't it true that your intent was to take all the facts in 10 the Quidditch book, which you believe everything she wrote in 11 her fictional world in the Quidditch book, and put it in the 12 Lexicon? 13 MR. HAMMER: Object to that as an incredibly complex 14 and confusing question. 15 THE COURT: Do you want to read the question back? 16 We'll have the question read back. 17 (Record read) 18 THE COURT: Objection sustained. Go ahead. 19 BY MS. CENDALI: 20 Q. Isn't it true that you intended to take all the creative 21 things Ms. Rowling wrote in the Quidditch book and put them in 22 the Lexicon? 23 A. No, that's not true. 24 Q. Sitting here today, can you tell me anything you left out 25 of the Quidditch book? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 290 84FVWAR2 Vander Ark - direct 1 A. Probably the first half is -- the first half of that book 2 is more of a narrative, and so there's a lot less of that 3 material. When it comes to descriptions of specific things, a 4 Quidditch file, for example, there's not a lot of information 5 there to condense, and so there would be more of that included 6 and referenced. 7 Q. Mr. Vander Ark, isn't it true in the Fantastic Beasts and 8 Where to Find Them book, Plaintiffs' Exhibit 3, that's 42 9 pages, isn't it true that once again the Lexicon took over 10 200 -- made over 200 entries based on Ms. Rowling's Fantastic 11 Beast book? 12 A. I didn't count them up, but since that is one of the 13 sections which is like an encyclopedia, we would have one entry 14 for each of the entries for that book. The point really is 15 that we didn't include all of that information from that entry 16 in our entry, and we referred the reader back to the original. 17 Q. And isn't it true that your Quidditch -- that your Lexicon 18 also uses material from Ms. Rowling's -- text Ms. Rowling wrote 19 for her Wizard Cards, right? 20 A. Yes. 21 Q. And isn't it true that, generally speaking, the Lexicon 22 used the entire text from Ms. Rowling's Wizard Cards? 23 A. I had permission to use that material. But in some cases 24 it's barely a sentence, and so in some cases we did put that 25 sentence in. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 291 84FVWAR2 Vander Ark - direct 1 Q. Isn't it true that usually the Wizard Cards have one 2 sentence or so, correct? 3 MR. HAMMER: He just testified to that. 4 A. Yes, that's true. 5 Q. And isn't it true that you copied that language in the -- 6 A. As I said, I had permission to use that material. 7 Q. Someone granted you permission? 8 A. Yes, ma'am. 9 Q. Just please let me finish, Mr. Vander Ark. 10 A. I'm sorry. 11 Q. It makes it much easier for the court reporter. 12 A. Yes. 13 Q. And certainly for me. 14 A. I'm very sorry. 15 Q. Okay. Isn't it true -- so is it your testimony that 16 someone granted you permission to use the text of Ms. Rowling's 17 Wizard Cards in a book version of the Lexicon? 18 A. They gave me permission to use the text from the cards on 19 the web site. When we created the book, we took the text from 20 the web site. I don't think until later when we thought about 21 it we weren't realizing that that was, in fact, transferring 22 from one form to another. 23 Q. So you never spoke to anyone about could you use that 24 material on a book that you were publishing for profit, right? 25 A. We spoke to someone and asked if we could use the material SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 292 84FVWAR2 Vander Ark - direct 1 on -- of those cards in the Lexicon. And that was in, I 2 believe, 2002. 3 Q. So just to be clear, in 2002, who was the someone you 4 asked? 5 A. I talked to people at both Electronic Arts and Wizards of 6 the Coast. 7 Q. Okay. And do you have names for those people? 8 A. I'm sorry, I don't. And I no longer have the emails 9 because of a computer crash. 10 Q. So you don't have the emails or the names of the people -- 11 A. No, the person -- sorry. 12 Q. Excuse me. So you don't have the emails of the names of 13 the people who gave you this permission, is that right? 14 A. I know that the person I talked to at Electronic Arts was 15 the person in charge of European marketing, but it was -- the 16 current person I think is Lisa Humphreys. And it was not 17 before her, but it was the gentleman before that person. 18 Q. And you don't remember that person's name? 19 A. I'm sorry, I don't. 20 Q. You don't have any emails confirming -- 21 A. I no longer do. 22 Q. Again, please let me ask the question. 23 MR. HAMMER: In fact, he did. And he waited and he 24 answered. 25 THE COURT: I think it's partly your fault, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 293 84FVWAR2 Vander Ark - direct 1 Ms. Cendali. 2 Q. Mr. Vander Ark, isn't it true that in 2002 the only thing, 3 if there were such a discussion, that would have been discussed 4 was the Lexicon web site? 5 A. Yes. 6 Q. Right? 7 A. That is true. 8 Q. And isn't it true that the Lexicon web site was and is a 9 free fan site, right? 10 A. Yes, that is correct. 11 Q. It doesn't charge fans any money to go to it, right? 12 A. No, it doesn't. 13 Q. And isn't it true that you never asked anyone permission to 14 use the EA cards in the Lexicon book, yes or no? 15 A. No, as I explained. 16 MS. CENDALI: Now, let's take a look -- sticking with 17 Exhibit 1, your Honor, the Lexicon manuscript. 18 Let's take a look at the first page of Exhibit 1 to 19 put on the screen, the Lexicon manuscript. And Mr. Hoy, could 20 you please highlight the first paragraph please? 21 Q. You write, All the information in the Harry Potter Lexicon 22 comes from J.K. Rowling, either in the novels, the school 23 books, or her interviews or from material which she developed 24 or wrote herself. Did you write that? 25 A. Yes, I did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 294 84FVWAR2 Vander Ark - direct 1 Q. And is that true? 2 A. That is true. 3 Q. And when you wrote "either in the novels," you mean the 4 seven Harry Potter novels, right? 5 A. That is correct. 6 Q. And when you wrote "in the school books," you mean the 7 Quidditch and Fantastic Beasts book? 8 A. Yes, ma'am. 9 Q. Okay. And do you use the term "cannon"? 10 A. Yes, ma'am. 11 Q. What is cannon? 12 A. Cannon is a term that's used in literature to refer to all 13 of the works by a particular author. 14 Q. And the Lexicon is based on the cannon of Ms. Rowling, 15 correct? 16 A. That's right. That's -- a reference book of that kind will 17 typically restrict itself to the cannon of an author, yes. 18 Q. I see. And that includes her famous Wizard Cards and her 19 Daily Prophet Newsletter? 20 A. Yes, ma'am. 21 Q. Now, let's go back to your declaration, Exhibit 502. And 22 let's look at page 17 from Exhibit 502, which is the 23 parenthetical around the letter 3 on page 17. 24 And, Mr. Hoy, could you please highlight, would you, 25 the first part of that, the top half, approximately, of that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 295 84FVWAR2 Vander Ark - direct 1 section of your declaration, page 17. 2 Now, again, this was part of the declaration that you 3 wrote, Mr. Vander Ark, correct? 4 A. Yes, ma'am. 5 Q. And it says, Ms. Birchall also states that no outside 6 sources were used in the writing of the Lexicon book. And you 7 wrote, This is incorrect. Many sources besides the Harry 8 Potter books were used. These include research tools such as 9 reference works for particular historical periods, and then you 10 listed various books and dictionaries such as Bullfinch's and 11 Field Guide and things like that, correct? 12 A. Yes, ma'am. 13 Q. Now, isn't it true, Mr. Vander Ark, that only -- the only 14 one of these alleged sources of the Lexicon that's actually 15 cited in the Lexicon manuscript is the New Shorter Oxford 16 English Dictionary? 17 A. That could be. 18 Q. So there are no citations in the Lexicon manuscript to 19 Brewer's Dictionary Phrase and Fable or Bullfinch's or The 20 Field Guide to the Little People, that's right? 21 A. That is correct. 22 Q. And isn't it true that the New Shorter Oxford English 23 Dictionary is only cited four times? 24 A. I haven't counted it up. I don't know. 25 Q. Does that sound right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 296 84FVWAR2 Vander Ark - direct 1 A. I have no idea. 2 Q. Now, isn't it true that other than the entries to the 3 Oxford English Dictionary, that there are no other citations 4 anywhere in the Lexicon to anything other than Ms. Rowling's 5 manuscripts, Ms. Rowling's work? 6 A. What we were creating was -- 7 Q. Can you answer it yes or no? 8 A. I'm sorry, could you ask me the question again? 9 Q. Certainly. Isn't it true that other than the four 10 citations to the Oxford English Dictionary, there are no 11 citations to any third-party work anywhere in the Lexicon 12 manuscript? 13 A. I think that that's correct. 14 Q. Now, I believe that you said in your declaration that the 15 Lexicon provides etymologies of certain words, isn't that true? 16 A. Yes, we do. 17 Q. And you don't purport to provide etymologies for all the 18 wonderful creative words -- 19 A. No. 20 Q. -- that Ms. Rowling has come up with, right? 21 A. No, we don't, not in the book. 22 Q. And isn't it, in fact, true that you only -- that the 23 etymologies comprise only about one percent of the entire 24 lexicon manuscript? 25 A. I don't know the math on it, but we use etymologies on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 297 84FVWAR2 Vander Ark - direct 1 words where we have -- the word seems particularly appropriate, 2 such as spell names and things like that. 3 Q. Does it sound about right though, it's probably only about 4 one percent of the Lexicon uses any etymologies? 5 A. Is there a way that you know that percentage? Because I 6 don't know it. And if you have counted them up, I'd be happy 7 to agree with you. I haven't counted, so I don't know. 8 Q. So you don't -- do you dispute the idea that -- 9 MR. HAMMER: Objection your, Honor. 10 THE COURT: Objection sustained. He doesn't know. 11 Q. Now, does the Lexicon manuscript have things in it, what 12 you refer to as flints? 13 THE COURT: I'm sorry, could you repeat the question? 14 MS. CENDALI: Sure. Let me rephrase. 15 Q. What's a flint, Mr. Vander Ark? 16 A. That's a fan term for continuity error in the books, of 17 which there are remarkably few. 18 Q. And because there are -- there are remarkably few because 19 Ms. Rowling is a very good writer and knows her work very well, 20 right? 21 A. That is absolutely true. 22 Q. And isn't it true that in light of the fact that there are 23 remarkably few flints in Ms. Rowling's books, there are 24 remarkably few flints reported in the Lexicon manuscript? 25 A. Again, I don't know the number, but there are very, very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 298 84FVWAR2 Vander Ark - direct 1 few in her books. She's very, very good at continuity. 2 Q. And there are very few times in the Lexicon manuscript 3 where you point out that Ms. Rowling made a mistake, right? 4 A. Very few. 5 Q. Now, isn't it true, Mr. Vander Ark, that you believe that 6 you, yourself only wrote about 60 percent of the Lexicon 7 manuscript? 8 A. Of the book? 9 Q. Yes. 10 A. That would be my guess, yes. 11 Q. And who wrote the other 40 percent? 12 A. That would be the other three authors. 13 Q. Do you consider Ms. Rowling as one of the people who wrote 14 any part of the Lexicon manuscript? 15 A. The Lexicon book is a reference book to an original source. 16 If I was writing a reference book to Shakespeare, I wouldn't 17 list Shakespeare as the author, even though I would obviously 18 quote from his works. So I'm not quite sure how to answer your 19 question accurately. 20 Q. So you don't consider Ms. Rowling as someone who is an 21 author of the Lexicon? 22 A. In that kind of a book you would not list that way, no. 23 Q. Okay. Now, let's look at paragraph 18 of your declaration, 24 Exhibit 502. 25 MS. CENDALI: And could we please, Mr. Hoy, put that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 299 84FVWAR2 Vander Ark - direct 1 up on the screen. 2 THE COURT: What page is that? 3 MS. CENDALI: That is page 5, your Honor. The bottom 4 of the page. 5 Q. Now, this entry of your declaration is in the beginning 6 part of your declaration as you're talking about how you came 7 to write a work on -- 8 A. Yes. 9 Q. -- the Lexicon web site, is that right? 10 A. That is correct. 11 Q. And you wrote in your declaration that -- you can highlight 12 the part that says -- it starts "fans" in the middle of the 13 paragraph. You wrote, Fans send us a steady stream of emails, 14 suggesting changes to existing entries, debating the 15 correctness of information presented on the Lexicon, offering 16 additional background information, and making other suggestions 17 and corrections, is that right? 18 A. That is correct, yes. 19 Q. So when you do -- so the fans contributed a lot to the 20 Lexicon web site, is that right? 21 A. They contribute suggestions and ideas; they don't write the 22 material, no. 23 Q. And isn't it true that the suggestions and ideas of fans to 24 the Lexicon web site are also in the Lexicon manuscript, the 25 manuscript? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 300 84FVWAR2 Vander Ark - direct 1 A. We update the web site all the time using input from fans 2 who get into discussions on things. But we write the material. 3 Q. Well, you write the material in part, as you wrote here, 4 based on what fans submit, right? 5 A. Certainly. 6 Q. And that those submissions appear, as well, in the Lexicon 7 manuscript, correct? 8 MR. HAMMER: I'm sorry, what does that mean, "those 9 submissions"? He stated that he writes -- 10 THE COURT: Objection sustained to the form of the 11 question. 12 Q. Isn't it true that the Lexicon manuscript contains the same 13 fan suggestions and emails and corrections and as would appear 14 in the web site version of the Lexicon? 15 A. Are you saying did they write the material that appears in 16 the book, is that what you're asking me? 17 Q. No, I'm asking you whether the emails, suggestion -- the 18 suggested changes to existing entries that fans submit to the 19 web site, that happens? 20 A. Yes, it does. 21 Q. And you change the web site because a fan says you should 22 make a change, okay? 23 A. There are times when we take fan suggestions into account, 24 yes. 25 Q. And when you do that, do you make that same change in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 301 84FVWAR2 Vander Ark - direct 1 Lexicon manuscript? 2 THE COURT: What is the change? There seems to be a 3 distinction between what the fan contributes by way of 4 suggested change and the language that is then inserted in the 5 web site, and then we have to go from the web site to the book. 6 Your question does not make it clear. You allied the two 7 concepts. 8 BY MS. CENDALI: 9 Q. Mr. Vander Ark, is it your testimony that the Lexicon -- 10 that the web site contains no material written by fans? 11 A. I don't believe that anything that's in the web site or the 12 book is written by those fans. It's usually written by the 13 editors of the web site. I would have to look through 800 14 pages to see if we've ever specifically cited an email, which 15 we may have done. We did not do that when we wrote the book, 16 no. 17 Q. If fans contribute -- 18 A. Ideas? 19 Q. Ideas and suggestions to the web site, do you -- and you 20 incorporate those suggestions in the web site, do you also 21 incorporate those same suggestions in the Lexicon manuscript? 22 A. The Lexicon manuscript is condensed from the material on 23 the web site, so it would be hard for me to say exactly what -- 24 through that whole process of editing, things come and go and 25 change so much, it would be very difficult for me to show SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 302 84FVWAR2 Vander Ark - direct 1 examples, but I'm sure it's possible that an idea which came up 2 in an email from a fan could end up in the entry. Fans are 3 very, very good at finding information and making suggestions. 4 Q. Well, did you ever advise the fans who were contributing to 5 the Lexicon web site that their work might be used by you in a 6 for-profit book published under your name? 7 MR. HAMMER: Objection. He's testified that their 8 work has not been used. 9 THE COURT: Objection sustained, I guess. Aren't we 10 getting off the point, Ms. Cendali? The question here, as I 11 understand it, is whether or not the book, proposed book, the 12 Lexicon, can be published as a matter of fair use, and that's 13 the issue, is whether it's a fair use of Ms. Rowling's novels, 14 for someone to publish this Lexicon. Whether or not the fans 15 contributed in part is a side issue. 16 MS. CENDALI: May I make one more -- 17 THE COURT: It seems to me. 18 MS. CENDALI: I'll move on. I'll move on. 19 BY MS. CENDALI: 20 Q. Mr. Vander Ark, you wrote -- let's look at paragraph 9 of 21 your declaration. 22 A. May I have some more water please? 23 Q. In paragraph 9 of your declaration, which is on page 3, you 24 wrote, Neither Ms. Rowling herself nor Warner Brothers has ever 25 complained about any of the material from the Lexicon web site SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 303 84FVWAR2 Vander Ark - direct 1 that now appears in the Lexicon book. Do you see that? 2 A. That's correct, yes. 3 Q. But you've never discussed with any of Ms. Rowling or 4 Warner Brothers' representatives about getting permission for 5 them to do a book version of the Lexicon web site, right? 6 A. No, I didn't think I needed to. 7 Q. Now, you say -- now, isn't it true, Mr. Vander Ark, that 8 Mr. Blair, Ms. Rowling's lawyer, Christopher Little Agency, 9 asked you not to post the Daily Prophet Newsletters that 10 Ms. Rowling wrote for fans? 11 A. He asked me not to publish them verbatim, and we didn't. 12 Q. He asked you not to post them on the web site, right? 13 A. He asked me not to publish them verbatim on the web site, 14 that is correct. 15 Q. And isn't it true that you had included the material from 16 the Daily Prophet Newsletters both on the web site and in the 17 Lexicon manuscript? 18 A. After Mr. Blair told me that, we put material on the web 19 site, that was in 2004, and there was no objection to that at 20 all. 21 Q. Isn't it true that the Lexicon manuscript contains material 22 from Ms. Rowling's Daily Prophet newsletters? 23 A. I'm sorry, I couldn't hear what you said. 24 Q. Sure. Isn't it true that the Lexicon manuscript contains 25 material from Ms. Rowling's Daily Prophet newsletters? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 304 84FVWAR2 Vander Ark - direct 1 A. It references that, like all the rest of it, yes. 2 Q. Did you ever tell Mr. Blair you were doing that? 3 A. That I was doing what, I'm sorry? 4 Q. That you were using Ms. Rowling's Daily Prophet material in 5 the Lexicon manuscript. 6 A. I never had a conversation with Mr. Blair about the Lexicon 7 manuscript. 8 Q. Let's look at Exhibit 76, an email chain between you and 9 Mr. Blair dated July 27, 2004. And if you look on the second 10 page -- 11 MR. HAMMER: I'm sorry. Just give us a second to come 12 up with this please. 13 THE COURT: Do you want to start on the third page? 14 MS. CENDALI: Third page, your Honor. Forgive me, one 15 second, your Honor. 16 THE COURT: I'm missing a page, I guess. It doesn't 17 seem to... 18 MR. HAMMER: Your Honor, may I? 19 THE COURT: Something is the matter with my exhibit. 20 MR. HAMMER: Might this be an opportunity for a 21 five-minute break, your Honor. 22 THE COURT: Yes, I think it's probably a good idea. 23 The exhibit has a problem, Ms. Cendali, if you were down here. 24 MS. CENDALI: Okay. We'll try to rectify that, your 25 Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 305 84FVWAR2 Vander Ark - direct 1 THE COURT: It doesn't follow; the text doesn't 2 follow. 3 (Recess) 4 MS. CENDALI: Your Honor, I'll proceed whenever you 5 wish. 6 THE COURT: I just have a problem with that exhibit. 7 MS. CENDALI: I understand, your Honor, and I've been 8 advised that somehow that exhibit apparently is not complete. 9 So what we will do is we will see if we could find the missing 10 page and either complete it or withdraw the exhibit. But in 11 light of that, I think I'll just move on. 12 THE COURT: All right. 13 BY MS. CENDALI: 14 Q. Now, Mr. Vander Ark, what's a spoiler alert? 15 A. Are you referring to like in a fan site or something like 16 that? A spoiler alert would be where you put something to warn 17 people that what you're going to be talking about gives away 18 important plot points, for example. Often used, for example, 19 shortly after a new book would come out and everyone hasn't 20 read it yet, and you want to warn them that you're going to be 21 talking about something from the new book. 22 Q. And why do you want to warn people about that? 23 A. In a situation, for example, that I was just talking about, 24 some people would not have had a chance to read the book yet, 25 and they would be wanting to avoid a discussion about something SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 306 84FVWAR2 Vander Ark - direct 1 they haven't read yet. 2 Q. And is part of the purpose of the spoiler alert to not 3 spoil the surprise for someone? 4 THE COURT: What's a spoiler alert? 5 THE WITNESS: It's something we would put on a web 6 site. 7 THE COURT: "We" being who? 8 THE WITNESS: People who run web sites. Because 9 especially, as I said, right after a new book would come out, 10 everybody doesn't read at the same speed; and therefore, people 11 might want to go online, but they don't want to have plot 12 points given away. So particularly right after a book comes 13 out we put a lot of those out on our web sites to kind of 14 guard -- help people not to get -- know the story until they've 15 had a chance to read it. 16 Q. And isn't it true that for some people, knowing the outcome 17 of the story would spoil it for them? 18 A. I think that's the purpose of the spoiler alert, yes. 19 Q. And isn't it true that the Lexicon manuscript has many long 20 detailed plot summaries from Ms. Rowling's novels? 21 A. Depending on the entries, there are plot points, yes. 22 Q. And isn't it true that someone reading those plot summaries 23 would find out, for example, who lived and who died at the end 24 of Book 5 -- Book 7? 25 A. Book 5, as well, actually. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 307 84FVWAR2 Vander Ark - direct 1 Q. You're right about that. 2 A. Yes, very unlikely that someone would pick up a reference 3 guide like that, if they hadn't already read the books, it 4 would be of very little value to them. 5 Q. So isn't it true that you're not limiting sales of the 6 Lexicon to people who read all seven Harry Potter books, right? 7 MR. HAMMER: Your Honor, that's a preposterous 8 question. 9 THE COURT: Objection sustained. 10 Q. Someone could have read just one or two of the Harry Potter 11 books and purchased a copy of the Lexicon, right? 12 THE COURT: Anything is possible. Let's move on. 13 That line of questioning seems to be not... 14 Q. Isn't it true, Mr. Vander Ark, that the Lexicon manuscripts 15 plot summaries could be used to deter people from reading 16 Ms. Rowling's novels? 17 A. I don't see that, no. 18 Q. Now, the Lexicon web site is different from the Lexicon 19 book, correct? 20 A. Yes, it is. 21 Q. Isn't it true that the Lexicon web site contains much more 22 features and information than the -- 23 A. Yes, it does. 24 Q. -- manuscript? There are essays on the Lexicon web site, 25 right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 308 84FVWAR2 Vander Ark - direct 1 A. Yes, there is. 2 Q. And there is artwork on the web site? 3 A. Yes. 4 Q. And what are some of the other things that are on the web 5 site that aren't on the -- in the manuscript of the book? 6 A. The Lexicon web site has sections, for example, which are 7 maps and charts of places in the books. It has essays, it has 8 an entire section which is sort of real-world information about 9 Ms. Rowling's life and the films and things like this. So 10 there are quite a few areas of the Lexicon web site which are 11 not included in the Lexicon book. 12 Q. And it's fair to say that there is much more commentary on 13 the Lexicon web site than there is in the Lexicon manuscript? 14 A. Yes, there is. 15 Q. Now, let's look at Exhibit 14-D. Put that up on the 16 screen, if possible. Let's go to, in particular, I believe 17 it's the second page of 14-D, and it's highlighted in yellow. 18 Can you tell me just in general first what Exhibit 14-D is? 19 A. I believe that's the FAQ page, one of the FAQ pages on the 20 Lexicon web site. 21 Q. And what's an FAQ page? 22 A. Frequently asked questions. 23 Q. And what's the purpose of an FAQ page? 24 A. To answer the questions that people otherwise would be 25 sending an email and asking. It just takes some of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 309 84FVWAR2 Vander Ark - direct 1 pressure off us as staff. 2 Q. So these are your standard answers to frequently asked 3 questions -- 4 A. That's correct. 5 Q. -- is that right? 6 Now, in highlighted it says, Your spell lists and 7 character biographies are incredible. I have a web site of my 8 own. May I copy your stuff and put it on my site. Do you see 9 that? 10 A. Yes. 11 Q. That was a question that was posed, is that right? 12 A. Yes, quite often. 13 Q. And then under it you wrote, Thanks for the compliment. I 14 compile and write this for my own enjoyment. And part of that 15 enjoyment is knowing that others find it interesting and 16 enjoyable, too. And then you go on to say, However, I don't 17 give permission for people to just copy my work for their own 18 use. Not only is that illegal, since everything in the Lexicon 19 is copyrighted, it's also just plain wrong. Hey, I did all the 20 work, I put in all the time, it's my skill and talent in this 21 area which allowed the Lexicon to come into being. No one else 22 has the right to use my work. That's on your web site, 23 correct? 24 A. Yes, ma'am. 25 Q. And you wrote those words, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 310 84FVWAR2 Vander Ark - direct 1 A. I did. 2 Q. Now, you believe you worked hard on the Lexicon manuscript, 3 right? 4 A. Very hard. 5 Q. And you don't like it when people infringe the Lexicon, 6 right? 7 A. I'm sorry, are we talking about the web site or the book 8 now? 9 Q. Either. 10 A. I'm not sure how to answer that question. Would you like 11 me to clarify what this is about? Would that help? 12 Q. Well, let's look at Exhibit 27-N. Maybe I can clarify it 13 that way. 14 Now, let's go to the second page of Exhibit 27-N. And 15 there's -- and it says, Something I had to do, and it's dated 16 May 11, 2007, posted by Steve at 3:10 p.m. Could you explain 17 what Exhibit 27-N is to the Court? 18 A. Certainly. Yes. There was someone in the lead-up to Book 19 7 who was selling -- 20 Q. Forgive me -- 21 MR. HAMMER: She asked him to explain; he's trying to 22 explain. She doesn't like it -- 23 THE COURT: Yes, you asked the question. Let him 24 explain. 25 MS. CENDALI: I just wanted him to explain the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 311 84FVWAR2 Vander Ark - direct 1 document and then -- 2 MR. HAMMER: You asked him to explain; and he's giving 3 an explanation. 4 THE COURT: Let him give his explanation. Don't 5 interrupt him. 6 BY MS. CENDALI: 7 Q. Please explain. 8 A. There was someone who was taking pages, full pages from the 9 Lexicon, and also from Ms. Rowling's web site, and making them 10 available, selling them to people online. They were just 11 taking whole pages. Maps, charts, pages from Ms. Rowling's web 12 site, pages from the Lexicon. 13 What I did at that time was try to contact that person 14 to tell them not to sell whole pages from the Lexicon web site 15 I also contacted Mr. Blair, or I think it was Mr. Blair, it 16 could have been Ms. Schlessinger, just to let them know that 17 that was going on. I had no idea whether they did anything 18 about it. 19 But what was objectionable was full pages, I mean with 20 everything included, hyperlinks and everything, was just being 21 sold on the web. 22 Q. Now, you wrote -- I just wanted to know what was the -- 23 what were you posting this to? What forum were you writing 24 this on? 25 A. This is the What's New on the Lexicon web site itself. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 312 84FVWAR2 Vander Ark - direct 1 Q. Okay. So this is part of what you put on the Lexicon web 2 site. 3 A. That's correct. 4 Q. Okay. 5 A. Sort of a blog. 6 Q. And you wrote in this paragraph, Believe me, two days ago I 7 did something I've never done before, I sicked my lawyer on 8 someone. And you wrote, Believe me, this is not the way I like 9 to operate. People steal material from the Lexicon all the 10 time. Contributions for Wikipedia are famous for it. Yeah, it 11 bothers me -- 12 THE COURT: Contributors. 13 MS. CENDALI: Forgive me. Thank you, your Honor. 14 Q. Stealing is wrong. At least three published books had 15 plagiarized quite shamelessly, and never even given credit to 16 the Lexicon. It bothers me a lot. 17 What three published books do you believe had 18 plagiarized from the Lexicon? 19 A. I don't remember exactly which ones those were. I knew at 20 the time. 21 Q. So you knew the three books that you believe plagiarized 22 from you shamelessly in May of 2007, and none of them come to 23 mind now? 24 A. I couldn't be absolutely sure. At the time I was seriously 25 thinking about this in deciding what to do, so I was paying SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 313 84FVWAR2 Vander Ark - direct 1 attention to those kinds of details, and I don't recall exactly 2 what they were. 3 Q. Because it bothered you a lot, right? 4 A. Yes, it bothered me when someone was taking whole pages and 5 selling them, yes. 6 Q. Were the books that plagiarized quite shamelessly from you, 7 what did they do to plagiarize quite shamelessly from you, do 8 you remember? 9 A. Copy text from the Lexicon. You see that would be -- 10 from -- if someone is creating a reference book, then they are 11 copying the exact reference book over again. It's a little 12 different than taking material from a totally different format, 13 say like a story. 14 Q. Okay. Now -- 15 A. Would you like me to explain a little bit what I mean by 16 that? 17 THE COURT: Just -- 18 THE WITNESS: I'm sorry. 19 THE COURT: Just answer the question. 20 Q. Now, you understand that -- you don't remember what books 21 that you were talking about, so we can't look at what it is 22 that these books copied in order to see how it was that they 23 plagiarized you shamelessly, is that right? 24 A. That's correct. I'm sorry. 25 Q. So we have no way of knowing whether these books, other SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 314 84FVWAR2 Vander Ark - direct 1 than what you've testified to, whether they copied your text or 2 paraphrased your data, right? 3 MR. HAMMER: Your Honor, I object. This is not an 4 issue in this case. And he's answered that question two or 5 three times. 6 THE COURT: As I understood it, you said these books 7 downloaded your material, is that right, distribute them for 8 sale? 9 THE WITNESS: No, sir. What was being distributed for 10 sale was not these books. That was a web site that a man had 11 set up where he was selling pages from Ms. Rowling's web site, 12 from my web site and a couple of others. He was selling them. 13 THE COURT: So this is something else. 14 THE WITNESS: This is something else, yes. 15 THE COURT: Do you know whether this was a downloading 16 situation also or -- 17 THE WITNESS: No. This was published books that had 18 used material from the Lexicon in the published work, and 19 that's what I was referring to. 20 THE COURT: Used it, paraphrased it or directly 21 quoted. 22 THE WITNESS: I'm sorry, I don't recall exactly what I 23 was referring to. 24 THE COURT: All right. 25 BY MS. CENDALI: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 315 84FVWAR2 Vander Ark - direct 1 Q. Mr. Vander Ark, you have in front of you, I believe, the 2 George Beahm book, Fact, Fiction and Folklore? 3 A. Mm-hmm. 4 Q. Isn't it true that that's one of the books that you believe 5 plagiarized shamelessly from your Lexicon? 6 A. What Mr. Beahm did was not plagiarize. What he did was use 7 the Lexicon as the sourcing structure for his material. 8 However, what he did was not wrong. It bothered me, but it 9 wasn't wrong. 10 Q. Let's put on the screen, Mr. Hoy, if you can, one of the 11 exhibits I used in my opening statement. I believe it was the 12 one that mentions Mr. Beahm and his book. I think it was in 13 the P.S. to the email to Cheryl Klein of Scholastic. 14 THE COURT: Do you have an exhibit number? 15 MS. CENDALI: Yes, your Honor. As soon as they find 16 it, I will reveal it to all. 17 THE COURT: How much longer are you going to be? 18 MS. CENDALI: I'm towards the end, your Honor. Now, 19 do you have the exhibit number? Is that Exhibit 29-A? Exhibit 20 29-A, your Honor. 21 THE COURT: Thank you. 22 BY MS. CENDALI: 23 Q. Now, this is an email that you wrote to Cheryl Klein, the 24 P.S. portion of an email that you wrote to Cheryl Klein of 25 Scholastic on August 3rd, 2006, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 316 84FVWAR2 Vander Ark - direct 1 A. That is correct. 2 Q. And you wrote, P.S., It might interest you to know that 3 George Beahm commented that he had originally intended to write 4 an encyclopedia of Harry Potter which Jo has specifically 5 reserved for herself, I understand. But seeing the Lexicon 6 convinced him not to bother. I want you to know that one of 7 the express purposes of the Lexicon is to dissuade people from 8 that sort of thing, so I was particularly happy to hear him say 9 that. The fact that he copies a lot of the material for his 10 books directly from the Lexicon, however, still rankles. 11 How does Mr. Beahm copy a lot of the material from the 12 Lexicon in the Fact, Fiction and Folklore book in front of you? 13 A. What he does is he includes material in the same order and 14 includes things which he would not have except from the 15 Lexicon. As I said, what he did isn't wrong, it just bothered 16 me. And I've spoken with Mr. Beahm about this. 17 Q. Now, you wrote in this email that -- excuse me, go back to 18 where we were in that exhibit. You wrote -- can you just 19 highlight it please, again. Again, we're still on the same 20 exhibit. 21 It says that -- you were talking about Mr. Beahm, 22 commenting that he had originally intended to write an 23 encyclopedia of Harry Potter. And you wrote, Which Jo has 24 specifically reserved for herself, as I understand. What did 25 you mean by that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 317 84FVWAR2 Vander Ark - direct 1 A. That at that point I believe that that was something that 2 Ms. Rowling wanted to have for herself. As a matter of fact, 3 it's interesting that you bring this one up because I actually 4 wrote that in there to Ms. Klein because I was hoping for a 5 response. 6 At that point, I had never heard any official 7 statement to that effect or that I had believed that, and I was 8 kind of hoping that she would come back and say, Yes, I'm glad 9 you did that or something which would have verified. In fact, 10 she never responded to that email. 11 Q. But you knew that Ms. Rowling had said for a long time that 12 she wanted to write her own encyclopedia, right? 13 A. Yes. 14 Q. And you wanted to protect Ms. Rowling, right? 15 A. My understanding was that she didn't want anyone else to 16 publish an encyclopedia. I didn't know that for a fact, which 17 is one of the reasons I put this P.S. on this email, to try to 18 find out, because I wasn't sure. 19 Q. But what you did know, because you wrote it in this email, 20 was I want you to know that one of the express purposes of the 21 Lexicon is to dissuade people from that sort of thing. So what 22 you were saying was one of the express purposes of the Lexicon 23 you were doing was to dissuade other people from doing a Harry 24 Potter encyclopedia because you knew that Ms. Rowling wanted to 25 do it herself, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 318 84FVWAR2 Vander Ark - direct 1 A. That was my belief at the time. And again, one of the 2 reasons I added that P.S. was because I was kind of testing the 3 water. I wanted to get a response. No, she did not respond. 4 Q. Now, you understand that Ms. Rowling has now finished the 5 Harry Potter series, correct? 6 A. Yes, that's correct. 7 Q. But you understand that she still owns the copyrights -- 8 A. Of course. 9 Q. -- to the Harry Potter books. 10 And you know that the Harry Potter isn't in the public 11 domain, correct? 12 A. Absolutely. 13 Q. Now, isn't it true that last August you spoke at a Harry 14 Potter convention, right? 15 A. That's right. 16 Q. And isn't it true that that was the same month you signed 17 the contract with RDR, right? 18 A. That was before I signed that contract. I'd had no contact 19 with RDR at that point. 20 Q. Okay. So was the convention in July or August of 2007? 21 A. I think that one was in August, Toronto. 22 Q. And RDR first contacted you on or about August 6th of 2007, 23 is that right? 24 A. I would have to check, but I don't believe that I've had 25 any contact with RDR Books at the time that I was at that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 319 84FVWAR2 Vander Ark - direct 1 conference. 2 Q. Okay. But isn't it true that at that convention you told a 3 roomful of fans Jo has quit; she's done; we're taking over now? 4 A. Would you like me to explain that statement? 5 Q. Did you say it? 6 A. Yes, I did. Would you like me to explain that statement? 7 Q. Yes. 8 A. Okay. Thank you. I had been asked by the people who ran 9 that convention, there was a lot of concern at that time that 10 with the end of the seventh book, that Harry Potter fans would 11 die because a lot of what sustained the Harry Potter fan boom 12 was wondering what was going to happen next. 13 Book 7 tied up so many of those loose ends and 14 answered so many of those questions, that the promoters of that 15 convention had come to me and said, We'd like you to say 16 something which encourages people to stay fans, to keep 17 writing, to keep creating. And so that small segment which 18 you're referring to is out of a one-hour long talk, the goal of 19 which was to encourage people just because the books are done 20 does not mean that you have to stop being a Harry Potter fan. 21 There's so much more to do, so much more to create in that 22 wonderful world. 23 Q. Isn't it true, Mr. Vander Ark, that what you really said at 24 that occasion was, Fans, disregard the epilogue that 25 Ms. Rowling wrote, ignore it; we're taking over now, we're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 320 84FVWAR2 Vander Ark - direct 1 going to do our own thing? 2 MR. HAMMER: I object. The question is that he really 3 said that or that he really meant that? 4 A. I would be happy to explain that statement. 5 Q. Well, let's play exactly what you -- 6 THE COURT: Is that statement -- 7 THE WITNESS: Yes. And, again, I would be happy to 8 explain that statement. It was part of an hour-long talk. 9 THE COURT: All right. You'll have the chance. You 10 have a lawyer, and he can bring it out in due time. 11 THE WITNESS: I understand. 12 THE COURT: Let's go on. Your next question. 13 BY MS. CENDALI: 14 Q. Mr. Vander Ark, isn't it true that you told the fans that 15 you did not accept that Ms. Rowling had the right to decide for 16 herself the future of her characters? 17 THE COURT: Future of her characters? 18 MS. CENDALI: Yes, your Honor. 19 A. I really don't remember exactly what was said. It sounds, 20 from the way that you're describing it, as something I wouldn't 21 have said. But it's possible as part of that presentation that 22 I did. Again, it was a much larger presentation with a 23 specific purpose; so I guess -- I'm not going to dispute with 24 you, but I guess I would have to be able to explain how that 25 fit into the -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 321 84FVWAR2 Vander Ark - direct 1 THE COURT: Have you got the -- 2 MS. CENDALI: Yes, let's play it, your Honor. Let's 3 play the video clip for what you said. 4 THE COURT: What's the exhibit number? Whoa. Cut it 5 out. 6 MS. CENDALI: Stop, stop, stop. What's the exhibit 7 number? 8 MR. HOY: 78. 9 MS. CENDALI: 78. Can you make the audio as loud as 10 possible? 11 THE COURT: Exhibit 78. 12 MR. HAMMER: Is there an accompanying transcript, your 13 Honor? 14 THE COURT: Where was this taken? 15 MS. CENDALI: It was at the Prophecy Conference. And 16 where was it taken? 17 THE WITNESS: In Toronto. 18 THE COURT: Date? 19 MS. CENDALI: Let's play the clip. 20 THE COURT: I asked for the date. 21 MS. CENDALI: I'm sorry, what was the date? 22 THE COURT: That's what I asked. 23 MS. CENDALI: I'm sorry, I thought he said it. I 24 apologize. 25 THE COURT: What's the date? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 322 84FVWAR2 Vander Ark - direct 1 MS. CENDALI: What is the date of the clip? Do you 2 remember when you spoke? 3 THE COURT: No, I'm asking you for the date. You're 4 playing something. 5 MS. CENDALI: Right. And I understand it was in the 6 beginning of August of 2007. 7 THE COURT: You don't have the exact date? 8 MS. CENDALI: I do not have the exact date. 9 MR. HAMMER: Your Honor, I listened to this clip at 10 counsel's law firm two weeks ago. It was impossible to 11 decipher. I was told I would be supplied a transcript. If 12 there is a transcript, I would like to have it because I was 13 not able to understand the tape itself. 14 MS. CENDALI: There's no transcript. Let's listen. 15 THE COURT: You didn't provide him with a transcript? 16 MS. CENDALI: We don't have a transcript. 17 THE COURT: All right. You should have told him that. 18 Go ahead. 19 MS. CENDALI: Could you play the tape please. 20 (Videotape played) 21 THE COURT: That's the whole clip? 22 MS. CENDALI: There was more to what you said, isn't 23 that true? 24 THE COURT: Is that the whole clip? Will you please 25 answer my question, Ms. Cendali? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 323 84FVWAR2 Vander Ark - direct 1 MS. CENDALI: That is the whole clip we have, your 2 Honor, yes. 3 THE COURT: What? That's all you have? That's not 4 just a portion? 5 MS. CENDALI: That's the whole thing, your Honor. 6 THE COURT: That's all you have. All right. 7 THE WITNESS: That is, however, only a small portion 8 of what's available on Utube. 9 BY MS. CENDALI: 10 Q. And isn't it true that you are unhappy -- this clip has 11 been featured on Utube very frequently, right? 12 A. I don't know about that, but I know it's on Utube. 13 Q. And isn't it true that this clip has created some 14 controversy in the Harry Potter universe? 15 A. I have no idea. Why do you say that? I've never heard 16 that. 17 Q. Isn't it true that you believe -- isn't it true that you 18 told fans at this convention they should ignore the epilogue 19 Ms. Rowling wrote to Book 7 about what happens to the next 20 generation of the Harry Potter characters? 21 MR. HAMMER: Your Honor, I object, because the 22 question -- is she asking whether somewhere else on this clip 23 you made that statement or is she asking him -- 24 THE COURT: She says there is no more to that clip. 25 She's verified to the Court that that's the entire clip that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 324 84FVWAR2 Vander Ark - direct 1 they have in their possession. 2 MR. HAMMER: Well, then he didn't say it. It's clear. 3 BY MS. CENDALI: 4 Q. Mr. Vander Ark, did you speak longer than that clip at that 5 convention? 6 A. Yes, I certainly did. 7 Q. And at that time that you spoke, did you state that fans 8 should disregard the epilogue Ms. Rowling wrote to Book 7 of 9 the Harry Potter series? 10 A. I made that statement within a larger context, yes. 11 Q. And you don't like the epilogue to her books, right -- Book 12 7, right? 13 A. Neither here nor there on it, actually. 14 Q. And isn't it true that you told the fans to ignore what she 15 wrote because you're taking over now? 16 A. Okay. Are you telling me why I said that? 17 Q. I'm asking you. 18 A. You're asking me why I said it? 19 Q. I'm asking you what you said. 20 THE COURT: She's asking if you used that language. 21 A. I used language to that effect within a larger context, 22 yes. 23 Q. Okay. Now, Mr. Vander Ark, isn't it true that you believe 24 that you have created a timeline to the Harry Potter universe? 25 A. Yes, I have. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 325 84FVWAR2 Vander Ark - direct 1 Q. And isn't it true that you believe that timeline was 2 infringed by Warner Brothers when it included a timeline in the 3 DVD versions of various Harry Potter movies? 4 A. There are two timelines on the Lexicon. One of them is 5 strictly material from the books, and that is not what I am 6 referring to. There is another which is in calendar format 7 which large portions of it I invented. That's the one that I 8 am talking about. 9 Q. When you say that there is a calendar version, large 10 portions of which you invented, what do you mean by that? 11 A. On -- some of the dates are given in the books, and those 12 obviously are nothing of mine. But there are other ones which 13 are not given in the books, and I have simply made guesses, 14 figured out written -- it says on the pages themselves that 15 this is invented, and so that material is what we're talking 16 about. We're not talking about whether Harry Potter was born 17 on July 31; that's given in the books. 18 Q. So what you believe is your property is your dates that you 19 think things happened in the Harry Potter books, is that right? 20 A. That's what that is referring to, yes. 21 Q. And isn't it true that in October 2007 you contacted RDR 22 about -- you discussed this timeline issue with RDR, the 23 defendant in this case? 24 A. I may have, yes. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 326 84F5WAR3 Vander Ark - direct 1 BY MS. CENDALI: 2 Q. In fact, isn't it true that you worked out a deal with RDR 3 whereby RDR would be your agent in presenting a claim to Warner 4 Brothers in exchange for a 15 percent agent's commission on any 5 money Warner Brothers paid you as a result of the claim? 6 A. Yes. He sent me an e-mail to that effect. 7 Q. And you accepted the deal? 8 A. Yes, I did. 9 Q. And, isn't it true that RDR in fact sent a cease and desist 10 letter to Warner Brothers? 11 A. I don't know what letter was sent because I was not given a 12 copy. But, I understand that he did contact them. 13 Q. And, isn't it true that RDR told you that they wrote to 14 Warner Brothers? 15 A. That he wrote an e-mail to Warner Brothers, yes. I believe 16 so, yes. 17 Q. And, isn't it true you've discussed with RDR the 18 possibility of Warner Brothers paying you some money because of 19 this infringement of what you believe to be your creating a 20 work in a Harry Potter time line? 21 A. I don't remember the exact conversations, but that sounds 22 reasonable. 23 Q. Isn't it true that in November of 2007 you spoke to Neil 24 Blair, the Christopher Little agents and Haley Katz of Warner 25 Brothers about your claim that your claim that your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 327 84F5WAR3 Vander Ark - direct 1 intellectual property in a Harry Potter time line was being 2 infringed by Warner Brothers? 3 A. I had a conversation with Mr. Blair and Ms. Katz which was 4 confidential and without prejudice so any content of that 5 discussion is not something we can talk about here. 6 Q. Isn't it true, Mr. Vander Ark, that you know that RDR and 7 the plaintiffs in this case have worked out an agreement in 8 principle, or at least are on the way to? 9 MR. HAMMER: Objection. This is settlement 10 discussion. There have been settlement discussions in this 11 case about certain of the claims. Counsel herself has, on 12 prior occasions, said that settlement discussions should not 13 have an evidentiary import. I object to any discussions of the 14 settlement of those claims. 15 MS. CENDALI: This is not about settlement discussions 16 with RDR. The settlement we discussed and in the agreement 17 that has not yet been signed which is -- 18 MR. HAMMER: But she's -- 19 MS. CENDALI: Sir -- 20 MR. HAMMER: No. 21 MS. CENDALI: Mr. Hammer, may I please finish before 22 you interrupt me? 23 MR. HAMMER: I object to detailing the terms of the 24 settlement discussions. 25 MS. CENDALI: I'm not going to detail any of the terms SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 328 84F5WAR3 Vander Ark - direct 1 of the settlement. I am just trying to show that, lay the 2 predicate for the fact -- 3 BY MS. CENDALI: 4 Q. Mr. Vander Ark, isn't it true that while RDR and plaintiffs 5 have resolved their claims with regard to the time line, you 6 have refused to resolve your claims with regard to the time 7 line? 8 MR. HAMMER: Your Honor, I object. 9 First, there is no signed settlement agreement with 10 RDR. We have never been provided with an executed copy of any 11 settlement discussion. And, I object to any questioning of 12 this witness about his own negotiations for a settlement of any 13 claim that he might have. 14 MS. CENDALI: Mr. Hammer is not your lawyer, is he, 15 Mr. Vander Ark? 16 A. No, he is not. 17 Q. Isn't it true you have recently retained a lawyer to pursue 18 the time line claim against Warner Brothers? 19 A. I have a lawyer but it was not specifically about any 20 claim. It was just because -- it was considered to be a good 21 idea that I have an attorney of my own. 22 Q. Isn't it true, Mr. Vander Ark, that you continue, to this 23 day, to maintain that Warner Brothers has infringed your 24 intellectual property in a Harry Potter time line that was 25 included in their DVDs? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 329 84F5WAR3 Vander Ark - direct 1 A. I guess the answer to that would be yes. 2 Q. Isn't it true that you hope to receive money as a result of 3 that claim? 4 A. I was more interested in receiving recognition. 5 Q. But you also want to receive money? 6 A. I wouldn't object to it. 7 THE COURT: Now, now. I think we are getting into the 8 settlement discussions. 9 Q. Mr. Vander Ark -- 10 THE COURT: I don't think you should ask those 11 questions. I think those questions should be withdrawn. 12 Q. Mr. Vander Ark, isn't it true that you're still unemployed? 13 A. Excuse me. 14 Q. You don't have a job, do you? 15 A. I guess the answer to that would be, no, I don't. 16 Q. Isn't it true that your primary source of income is making 17 money off of your Harry Potter expertise? 18 THE COURT: His Harry Potter what? 19 Q. Expertise or -- withdrawn. 20 Isn't it true that your primary source of income is 21 making money off of Harry Potter? 22 MR. HAMMER: I object. That's framed in such an 23 insinuating way. Can she ask a more specific question as to 24 what he makes money off of? How he earns his living? 25 THE COURT: I am going to sustain the objection and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 330 84F5WAR3 Vander Ark - direct 1 suggest you ask it the way Mr. Hammer asked. 2 Q. Mr. Vander Ark, can you please tell the Court what are some 3 of the things that you do to make money off of Harry Potter? 4 THE COURT: To make money? Just answer that, how you 5 support yourself. 6 A. How I support myself. I'm writing a book right now and I 7 also have some income from the website. 8 Q. And, isn't it true that you also lead travel tours in 9 England about Harry Potter? 10 A. There was going to be one this summer but, because of the 11 lawsuit, it was cancelled. 12 Q. And that's something that you -- it is an enterprise that 13 you have organized to help make money off of Harry Potter, 14 right? 15 A. No, no. I was asked to do that by a travel company. 16 Q. And your trip and expenses are all paid for by the travel 17 company? 18 THE COURT: It hasn't taken place, Ms. Cendali, if I 19 understood you correctly and the questions and answers, so 20 don't then imply differently. 21 Q. Have those tours taken place in the past? 22 A. No. Not with me involved. They have taken place. 23 Q. Now, the book you are currently writing is about Harry 24 Potter, right? 25 A. It is about travels in Britain looking for Harry Potter SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 331 84F5WAR3 Vander Ark - direct 1 locations, yes. 2 Q. And, isn't it true that you are planning yet additional 3 books about Harry Potter? 4 A. Yes. 5 Q. And, isn't it true that these books are being done with a 6 different publisher than RDR? 7 A. That is correct. 8 Q. And, isn't it true that the reason these books are being 9 done with a different publisher is that you believe RDR has 10 lied to you and misled you in this case? 11 A. No, that's not true. 12 MR. HAMMER: Objection. Objection. Unless it is 13 about the issue of infringement what is it -- 14 THE COURT: It is not true and -- I won't make any 15 comment at this time. 16 Q. I would like to show you what we will mark as Exhibit -- 17 let me get the exhibit number. 18 Your Honor, I am handing Mr. Hammer Exhibit 196. 19 Mr. Vander Ark, is Exhibit 196 a series of e-mails you 20 exchanged with a Melissa Annelli? 21 A. Yes, it is. 22 Q. Who is Melissa Annelli. 23 A. She is the web mistress of another Harry Potter fan site. 24 Q. And turning to the second to last page, 4 of 5 of that 25 exhibit it states in the middle: I am more than ready to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 332 84F5WAR3 Vander Ark - direct 1 disassociate myself from RDR. They have lied to me, misled me, 2 taken advantage of me and, in the end, ruined my good standing 3 with fans and with Rowling. 4 Do you see that? 5 MR. HAMMER: I'm sorry. Can you identify the 6 paragraph? This is very detailed. 7 THE COURT: What paragraph on page 4? 8 MS. CENDALI: Can we put it on the screen, Mr. Hoy? 9 It is right over here, Mr. Hammer. 10 Q. Again, do you see that where you wrote: I am more than 11 ready to disassociate myself with RDR. They have lied to me, 12 misled me, taken advantage of me and, in the end, ruined my 13 good standing with fans and with Rowling. 14 Do you see that? 15 A. Yes, I do. 16 Q. You wrote that, right? 17 MR. HAMMER: I object, your Honor, to the relevance to 18 this lawsuit -- to the issues in this lawsuit. 19 THE COURT: I'm going to allow the question and see 20 whether it has relevance. 21 A. Could you ask me the question again, please? 22 Q. That was something you wrote and believed, correct? 23 A. Yes. 24 Q. Isn't it true that once this is over, as you wrote, for 25 better or worse, I won't be working with them anymore. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 333 84F5WAR3 Vander Ark - direct 1 Right? 2 A. Yes, ma'am. 3 Q. And that your current book, which will be published this 4 June, is for Methuen, right? 5 A. Methuen, yes, ma'am. 6 Q. And you know for a fact they won't be using RDR for the 7 rights which is fine with you, right? 8 A. That's what it says. 9 Q. And that you won't write my more books for RDR at all, 10 right? 11 A. Right. 12 Q. Why not? 13 A. Well, when I wrote that I was very, very frustrated partly 14 because I had gotten no advance on the book and Methuen was 15 willing to pay an advance and so that came out of any 16 frustration. 17 MS. CENDALI: No further questions. 18 THE COURT: All right. Cross-examination. 19 CROSS EXAMINATION 20 BY MR. HAMMER: 21 Q. Good morning, Mr. Vander Ark. We have met before. You 22 know I'm David Hammer, I'm RDR counsel. 23 A. Yes. 24 Q. Where do you live today? 25 A. In London. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 334 84F5WAR3 Vander Ark - cross 1 Q. How old are you? 2 A. 50. 3 Q. What is your profession? 4 A. I consider myself to be a writer. 5 Q. And, how long have you considered that to be your 6 profession? 7 A. Probably around eight or nine months. But I have been a 8 freelance writer for about 25 years. 9 Q. And before you decided that your profession was that of a 10 professional writer, what was your profession? 11 A. I was a librarian and a teacher. 12 Q. Where did you teach? 13 A. Byron Center Christian School, in Michigan. 14 Q. Is that also where you were librarian? 15 A. Yes. That's correct. 16 Q. How long did you work as a teacher? 17 A. 15 years. 18 Q. When did you first become aware of the Harry Potter novels? 19 A. I read the first one in 1998. 20 Q. How did you come to read that book? 21 A. Well, I was a children's librarian, and librarians, we kind 22 of discuss new books when they come out and that was one that a 23 lot of my librarian friends said, oh, you've got to read this 24 book. It's great. 25 Q. What was your response to the book? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 335 84F5WAR3 Vander Ark - cross 1 A. I loved it. I loved it. 2 Q. When did you read the next one? 3 A. As soon as it came out in the United States, I believe that 4 was in 1999. 5 Q. What was the name of the second novel? 6 A. Harry Potter and the Chamber of Secrets. 7 Q. At that point after you read the second novel, did you 8 start doing something with respect to the Harry Potter books? 9 A. Yeah. I started taking notes. When I read the first one I 10 had a -- I saw a lot of the kind of exciting details that have 11 always fascinated me about books but I kind of resisted the 12 urge to take notes and to write things down and keep track. 13 But, yeah, I didn't get very far into the second book 14 and it was just too compelling. I just -- I loved it too much 15 so I started taking notes. 16 Q. Now, these were private notes? 17 A. Yes. 18 Q. Did the time come when you began to exchange your notes 19 with other people? 20 A. I started putting some lists together of facts. 21 I was part of a group called Harry Potter for 22 Grown-ups which was an online discussion group for adult fans, 23 and a lot of them were discussing things in the books. They 24 were writing their own fan fiction and things and so I wrote a 25 lists of things that -- and found that they were useful for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 336 84F5WAR3 Vander Ark - cross 1 people on the -- online. 2 Q. Website? 3 A. Yeah. 4 Q. What kind of lists are these that we are talking about? 5 A. For example, a list of all the spells that had been in the 6 books. A list of characters. Lists of the names, the 7 imaginative names of books and things like that. 8 Q. At this point would it be anything more than simply the 9 names of the spells or the names of the characters? 10 A. Typically it would be the name and then just a very short 11 sentence just kind of telling what that thing was. 12 Q. By the way, you used the term "fan." Do you make a 13 distinction between fans of Harry Potter and just ordinary 14 readers? 15 A. Fans are, would be people who, for whom it is their hobby. 16 People who would spend a lot of time reading the books, maybe 17 re-reading them, discussing them, and quite often fans are 18 very, very creative and will create fan fiction and artwork and 19 wizard rock songs. Fans are an amazing bunch of people. 20 Q. Did the time come when you established your own website? 21 A. Yes. 22 Q. When was that? 23 A. I started working on it in 1999 and it went live in 2000. 24 Q. You put it up yourself? 25 A. Yes, I did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 337 84F5WAR3 Vander Ark - cross 1 Q. What was the name that you gave the site? 2 A. The Harry Potter Lexicon. 3 Q. At the time you first opened it, in August of 2000 I think 4 you said? 5 A. Yes. 6 Q. What did it contain? 7 A. Basically it was the lists that I had made with hyperlinks 8 to connect things together. So, it was basically the notes 9 that -- the lists that I had put together with some additional 10 notes. 11 Q. Can you just tell us, although I am sure everyone knows, 12 what a hyperlink is? 13 A. A hyperlink is something you can click on on a web page 14 which will then take you to another location either in that 15 page or in the website to allow you to move from place to place 16 and research things. 17 Q. So, at the time that you started this website in August 18 2000 -- withdrawn. 19 Are you familiar with the term "web page"? 20 A. Yes. 21 Q. What is a web page? 22 A. A web page, it is a document kind of like you might create 23 with Word but it goes on to the internet which means it doesn't 24 have any bottom to the document. It can be quite long. 25 Q. About how many web pages did you have when you first SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 338 84F5WAR3 Vander Ark - cross 1 established the site? 2 A. 20 to 25. 3 Q. As of today about how many web pages of material do you 4 have? 5 A. I'm not actually sure. I think it is around 800. 6 Q. When you established the site, what was your mission? What 7 did you think the purpose of the site would be? 8 A. Well, especially at that time when there was a lot of 9 discussion going on I wanted to create a sort of a central 10 location which would have all this information collected for 11 fans to use; lists and things. 12 Q. Now, in this case the term Harry Potter Encyclopedia has 13 been used? 14 A. Yes. 15 Q. Was it your intention to create an encyclopedia? 16 A. Yes. 17 Q. What did you mean by an encyclopedia? 18 A. An encyclopedia is an organized -- it is a kind of 19 reference, the kind of reference that organizes information 20 from another source and turns it into an easily accessed form 21 for people to use. 22 For example, you could do an encyclopedia of animals 23 and, you know, write facts about them, then organize it in a 24 way that makes those facts easy to find. 25 Q. Do you draw a distinction between encyclopedia and a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 339 84F5WAR3 Vander Ark - cross 1 lexicon? 2 A. A lexicon technically means a list of words and that is 3 what it started out to be, which is why I got that name. But, 4 encyclopedia tends to be a little bit more fleshed out. But, 5 there are many variations on the idea of an encyclopedia. 6 Q. So, in your mind what you are now providing is basically an 7 encyclopedia? 8 A. That's right. A somewhat limited one, yes. 9 Q. And it is limited to what? 10 A. Well, limited mostly in the fact that the link has to be 11 shortened from all of the material that would be available in 12 order to fit into a book form. 13 Q. Initially did anyone else work with you on this website? 14 A. No. I did it all myself at the beginning. 15 Q. When did you do your work? You had a day job, right? 16 A. Yes. I worked on the lexicon -- it was a hobby so in the 17 evening, weekends, things like that. 18 Q. Did the time come when you recruited additional people to 19 work with you? 20 A. Yeah, when -- when book 5 came out there was a lot of new 21 material, a lot of new information became available and fans 22 were clamoring to see that on the website. They kept sending 23 e-mails saying please update this. And I didn't have time to 24 do it all myself as fast as the demand so eventually I found 25 someone to help and to add material to the -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 340 84F5WAR3 Vander Ark - cross 1 Q. What do you mean when you say that book 5 added information 2 that needed to be included in the site? What do you mean by 3 "information" in this sense? 4 A. Well, there were a number of new characters, new spells, 5 new details like that which were new to book 5 but also if 6 there would be entries from previous books there would be new 7 facts that might come up which we would then incorporate into 8 these previous entries. 9 Q. I think you said that you initially recruited a single 10 person to help you? 11 A. That's right. 12 Q. As of today, how many people do you have working with you 13 on the site? 14 A. I have four primary editors. There are a number of other 15 people who do various types of jobs on the site, so maybe about 16 seven or eight total regular staff. 17 Q. What's the job of an editor of the site? 18 A. The editors are usually assigned to a section of the 19 website. Lisa Bunker, for example, is assigned to the 20 character section. And so, it is her responsibility to edit 21 that, to make sure it is up-to-date, add any new information 22 that becomes available, and she is the one that takes care of 23 that particular section of the site. And the editors are all 24 assigned to different areas. 25 Q. Do any of these editors have specialized knowledge or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 341 84F5WAR3 Vander Ark - cross 1 education? 2 A. Besides myself, two others are librarians and one of my 3 staff is a teacher of Latin and Greek. 4 Q. Is there anything about the training or skills of the 5 librarian that is useful in establishing a site of this kind? 6 A. Well, a site like a lexicon is a reference tool and in 7 order to understand how a reference tool is created, I mean, 8 that's the kind of thing we study in library school. 9 For example, we will -- one of the things we learn 10 about is what kind of -- how to answer what is called a 11 reference question, if a child would come up to you and say ask 12 a question to understand what kind of information are they 13 looking for. 14 If somebody would -- if some 12-year-old kid would 15 walk up to me and ask for something about, I don't know, 16 airplanes or something, they're going to typically ask it like 17 that. I need something about airplanes. A librarian is 18 trained to think about is he looking for a story, is he looking 19 for facts, what kind of resource is going to be most 20 appropriate? Is he writing a report? Does he need to draw a 21 picture? That's called a reference question. 22 So, we are trained to kind of look behind the question 23 that gets asked to understand what kind of information a person 24 is looking for, what they need from you. 25 Q. All right. How is that sort of training useful to you in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 342 84F5WAR3 Vander Ark - cross 1 doing the entries on the website? 2 A. Well, the website has always been a resource for fans, 3 that's what it is. And so, when we get asked questions, again, 4 we find out what sort of things fans need to know, what are 5 they looking for, what kind of information is useful to them. 6 I had a person who was talking to me, she is a 7 professor of literature and she was -- 8 MS. CENDALI: Objection. Hearsay. 9 MR. HAMMER: It is not hearsay. He is simply 10 describing why some other people's views had changed his own 11 personal intentions. 12 THE COURT: I'm not going to allow it for the truth of 13 the consents of what she says. I will allow it for the fact 14 that he was told that. 15 MR. HAMMER: Continue, Mr. Vander Ark. 16 A. Okay. This is -- I'm saying this as an example of the kind 17 of questions we get. 18 She needed to speak about women in literature. She 19 wanted to include Harry Potter because she is a Harry Potter 20 fan and so she went not to her collection of the novels which 21 would have taken an enormous amount of time to go through to 22 try to find all the references. She actually told me she went 23 to the Harry Potter Lexicon website because that's the kind of 24 reference it is. It collects the facts in a way that makes 25 them easy to access for somebody who needs that information SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 343 84F5WAR3 Vander Ark - cross 1 quickly. 2 Q. Let's go back to that. How was the information on the site 3 originally organized? 4 A. Originally it was organized by topic. So, for example, all 5 the spells are together, all of the creatures are together. 6 That way works particularly well for a website. 7 Q. Did the time come when you organized the site's information 8 in a different fashion? 9 A. Yeah. A couple of years ago we started getting a lot of 10 feedback from users who were saying they were having trouble 11 finding the information that they needed. We organized it by 12 topic which was nice but they couldn't find a particular fact 13 if they needed it in a hurry. So, at that time we actually 14 started creating an index to the site which was simply a list 15 of terms with hyperlinks to the places in the website where 16 that information could be found. 17 Q. So, this would simply be an index at the back of a book? 18 A. Right. Exactly. 19 Q. But instead of page numbers you would have a hyperlink that 20 would take you there? 21 A. That's correct. 22 Q. You said that two of your other editors are librarians? 23 A. Yes. 24 Q. In addition to the librarians -- 25 THE COURT: Just so you understand it, telephones are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 344 84F5WAR3 Vander Ark - cross 1 not allowed in the court house, as most of you know. 2 Q. In addition to the librarians, do editors have any other 3 kinds of specialized types of skills or knowledge? 4 A. I mentioned that Clint Hagen, he worked with programming on 5 the site but he is also kind of our consultant on languages and 6 classics which is his area of expertise. 7 Q. I want to just talk about the organization of the site. I 8 think you testified that initially the site was organized 9 simply by topic? 10 A. Yes. 11 Q. And then you added an A to Z listing with hyperlinks? 12 A. That's right. 13 Q. What does an A to Z listing provide that a topic 14 organization does not provide? 15 MS. CENDALI: Objection. Leading. 16 MR. HAMMER: The question was what does it do. 17 THE COURT: I will allow the question. 18 A. I guess what an A to Z index does is it meets the needs of 19 a person who is looking for a specific word, specific term. 20 They're going to know that term and the easiest way for them to 21 find it is alphabetically that's the way you arrange that. 22 If they were looking for something that happened, like 23 important events that happened in 1944, the best way to arrange 24 it would be chronologically. It depends on the reference you 25 are creating to how to organize it to make it most successful SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 345 84F5WAR3 Vander Ark - cross 1 for the users. 2 Q. As of today, what would you say the percentage of 3 material -- how much of the percentage -- how much of material 4 on the website did you personally write? 5 A. Probably 50 or 60 percent. 6 Q. Where does the remaining 40 percent come from? 7 A. Some of it comes from contributions from outside, people 8 have submitted essays and things like this. The rest of it is 9 written by my editors. 10 Q. Has Ms. Rowling herself ever praised the site? 11 A. She mentioned it on a fan site award on her site. 12 Q. To your knowledge, how many fan site awards have ever been 13 granted? 14 A. Eight or nine maybe. 15 Q. Do you have any idea how many websites there are that are 16 devoted to Harry Potter? 17 A. My guess would be hundreds of thousands but I guess I don't 18 know, no. 19 Q. Now, of the materials that you now have on your website, 20 what is -- withdrawn. 21 Where do you get the information from that you use in 22 crafting the entries on the website? 23 A. Well, the website is about the Harry Potter books and so 24 what we are doing is referencing that material but we also use 25 background information, outside sources that help to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 346 84F5WAR3 Vander Ark - cross 1 illuminate -- the books are incredibly rich. I mean, there is 2 so much meaning buried in the name of a character, for example. 3 She is just amazing at putting that kind of a thing together. 4 I mean, I have read the books I don't know how many times and I 5 still read them and find new things. It is an amazing 6 experience. 7 So, we need -- 8 Q. Let me just interrupt you. 9 A. I'm sorry. 10 Q. How many times have you read the Potter novels? 11 A. I'm really not sure. 30 or 40 times, probably. 12 Q. So, please go on with your answer of where you got the 13 information from. 14 A. What I was saying is that something in the book might be -- 15 might come from English folklore, for example, and so looking 16 that up in a book of English folklore or a mythological 17 reference or those kinds of things, it just adds so much detail 18 to and so much understanding and just adds so much -- I don't 19 know, illumination, I guess, to the books. 20 Q. Can you give us an example of some of the reference work 21 that you have used in creating entries on your website? 22 A. Certainly an etymological dictionary which is a dictionary 23 of the source of words. A lot of historical references, 24 mythological, like Bulfinch's mythology. That sort thing. 25 Also, I have a book called, for example, the Field SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 347 84F5WAR3 Vander Ark - cross 1 Guide to the Little People which is just a guide to all the 2 little like fairies and things which tells where they come 3 from. 4 So, for example, there is a -- it is -- there are 5 creatures in the book that I never heard of but, lo and behold, 6 like a Red Cap for example is in the books. Well, I found in 7 this book that that actually comes from folklore which I hadn't 8 realized and that's the kind of detail that those kinds of 9 outside sources can provide. 10 It is fascinating. 11 Q. Do you refer, for example, to Bulfinch's Mythology? 12 A. Right. 13 Q. You say the Field Guide to Little People? 14 A. Yes. 15 Q. Any encyclopedias you have used? 16 A. Online encyclopedias like the Encyclopedia Mythica. There 17 is a site called Haunted Britain which has a lot of the legends 18 and things. 19 Yeah, a lot of different sources that we use. 20 Q. Ms. Cendali brought out on her questioning that you rarely 21 actually cite these specific reference sources when you create 22 an entry on the website. Is there a reason for that? 23 A. Well, typically it will be, for example, if I -- I remember 24 when I wrote -- when I write about a gytrash, G-Y-T-R-A-S-H, I 25 believe, which Ms. Rowling added to the video games, I had no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 348 84F5WAR3 Vander Ark - cross 1 idea what that was and it turned out that that's actually a 2 part of -- it is a legendary creature. I didn't realize that. 3 So, that would be the kind of thing where I would go 4 into a source like that to find that information. 5 Q. So, you have just mentioned the sources outside 6 Ms. Rowling's own world that you used to create these entries. 7 In terms of the sources that are associated with 8 Ms. Rowling, aside from the seven novels, are there any 9 materials that you have used? 10 A. Yes. There are things. Wizard cards, which she wrote. 11 The Daily Prophet Newsletter, which is a newsletter that she 12 created for short lived fan clubs for Bloomsbury back in the 13 late 1990s. Also her interviews. I think's all. 14 Q. Have you read many of her interviews? 15 A. I have read all of them but you can never tell. 16 Q. What are the famous wizard cards that we are talking about? 17 Can you describe them? 18 A. Originally they were -- I don't think they were full 19 physical cards. They were mentioned in one of the novels. 20 They were actually mentioned in a number of the novels just as 21 trading cards that the kids trade and they have pictures of 22 famous magical people on them. Somewhere between books 4 and 5 23 this list of cards became available, Electronic Arts used them 24 for their video games program and what they were is very, very 25 short biographies of famous magical people, most of them about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 349 84F5WAR3 Vander Ark - cross 1 one sentence long. 2 Q. Kind of like baseball cards? 3 A. Right, but they don't exist as actual cards. As it turned 4 out, some of them were released as actual cards by Wizards of 5 the Coast who did those kinds of things. But originally, 6 though, they were used as background material for the video 7 games is I believe where they came from. 8 Q. And the amount of text that these little cards contain is 9 how much, about? 10 A. Usually about one sentence. Sometimes not even a whole 11 sentence. 12 Q. And you in fact describe or refer to these cards on the 13 website? 14 A. Yes, I do. 15 Q. Did the reference to these cards create special problems 16 for you in creating entries? 17 A. Well, yeah. We were creating -- when we were doing the 18 website, for example, I wanted to get permission to use it 19 because it is such a small amount of text you can hardly -- 20 there is nothing to do except given the couple of words that 21 are there and I wanted to have permission to do that which is 22 why I talked with the -- with Electronic Arts and Wizards of 23 the Coast. 24 Q. Does the site generate any revenue? 25 A. A little bit, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 350 84F5WAR3 Vander Ark - cross 1 Q. As of the time that this lawsuit commenced in October of 2 2000, how much revenue did the site throw off? 3 A. In that entire time that it had been in existence, about 4 $6,500. 5 Q. So, that's the period from 2000 to October 2007? 6 A. Right. 7 Q. And that figure you gave was $6,500? 8 A. Yeah. About -- maybe between that and $7,000. 9 Q. Perhaps a thousand a year would you say, on average? 10 A. Yeah. That would be reasonable. 11 Q. How much -- what were the expenditures that were associated 12 with the site? 13 A. We didn't have much. It kind of varied. Occasionally we 14 had to buy software, some reference books. Things like that. 15 Occasionally if I would be traveling I would have to 16 pay for internet access, things like that. But there wasn't a 17 lot of cost associated with running the site. 18 Q. How did it compare to the amount to the $1,000 a year of 19 revenue? 20 A. I would say about probably about the same. I maybe made a 21 little bit. 22 Q. Where did the revenue come from? 23 A. From the advertising I put on the site. 24 Q. What kind of advertising did you have on the site? 25 A. First I had a link with Amazon.com which is still there and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 351 84F5WAR3 Vander Ark - cross 1 that generated a little, maybe about $15, $20 a month. And 2 then I had, about two years ago, started putting on Google ads 3 which generated a little bit more, maybe about $100 a month. 4 Q. So, up until October of 2007 there was no profit? 5 A. Not a lot, no. 6 Q. How much revenue does the site generate today? 7 A. I added additional ads beginning of this year and it is 8 about $400 a month right now. 9 Q. In revenue? 10 A. Yes. 11 Q. Have your expenses increased as well? 12 A. Not really. They're going to but they haven't yet. 13 Q. When you say they're going to, why do you anticipate that 14 your expenses will increase? 15 A. I am going to shift the hosting of the site at some point 16 and then I will have to be paying for that new hosting. 17 Q. Is that why you increased the amount of ads? 18 A. Yes, it was. 19 Q. Now, you have described the lexicon website as a fan site. 20 What do you mean by that? 21 A. A fan site is a website which is created by the fans of 22 something -- in this case Harry Potter -- and typically is 23 created to be used by other fans for their reference and things 24 like that. 25 Q. Are there any restrictions on the use of the site? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 352 84F5WAR3 Vander Ark - cross 1 Passwords required? 2 A. No. 3 Q. Do you have to pay a fee to use the site? 4 A. No. 5 Q. Do you have any idea how many visitors there are to your 6 website a year? By visitors, of course, I don't mean people 7 who take tours of the site, I mean people who log on. 8 A. That is a difficult question to answer because I don't have 9 full statistics on the site. I can go by the link on the main 10 page to the Google ads, it gets about 350,000 visitors per 11 month on that one page. 12 Q. And, however, there are pages that don't have Google ads 13 that people visit? 14 A. Right. Right. I have ads on about half the pages right 15 now, so. 16 Q. Can you come up with some rough estimate of what total 17 number of visits there are here? 18 A. Maybe one and a half to two million. 19 Q. Per year or per month? 20 A. I would guess probably per month. It is very difficult to 21 say because I don't have statistics on all of that. 22 Q. Do you have any demographic information on who it is that 23 visits the website? 24 A. Only in general terms. I get a lot of e-mail from all over 25 the world so I know that people from all over the world use it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 353 84F5WAR3 Vander Ark - cross 1 but I don't have -- again, I don't have specific statistics. 2 It is nothing -- not something that I have ever really 3 concentrated a whole lot on. 4 Q. You told Ms. Cendali that the entries on the site are 5 regularly revised. How is the process of revising the entries 6 performed? 7 A. The various editors are constantly going through the pages 8 updating them with information that they have. They will 9 frequently interact with fans in a forum situation. 10 When they put up a new section quite often we will get 11 a discussion going on the What's New page which is like the 12 blog where people will comment, make -- point out errors, make 13 suggestions, and things like that. 14 And so, in that case the editor would be updating that 15 page quite frequently after it has been posted. 16 Q. I would like to get this clear.when there is a suggested 17 new entry it goes on a special page? 18 A. When there is a suggested new entry it comes in, usually by 19 e-mail. We have a person whose job it is to answer that e-mail 20 or to receive that e-mail. She will pass the e-mail along to 21 the correct editor depending on what the e-mail is about. That 22 editor will read it, consider it, decide whether it is 23 something that should be included or whether it is correct or 24 whether it is worth looking into more. And then, if they 25 update a large section of a new page or something, then they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 354 84F5WAR3 Vander Ark - cross 1 will go to the blog and they will actually post, hey, I did a 2 new page, here it is; put a link, and then people will go to 3 that page, come back on that blog, leave responses with 4 suggestions. 5 So it becomes very much an ongoing process as those 6 things are updated. 7 Q. The initial suggestions, I think you told Ms. Cendali, come 8 from the fans on some occasions? 9 A. On some occasions, yes. 10 Q. Do they come from other people, sources other than the 11 fans? 12 A. Well, the editors themselves are constantly going through 13 and looking at their pages. We all tend to read the books a 14 lot or listen to them on audio books and, as a result, I know 15 for myself and I can speak for others as well we will listen to 16 it or read it and spot something new and then we will kind of 17 make a note and go back and try to add that to website. 18 Q. So there is a constant feedback process going on? 19 A. Yes. That's right. 20 Q. With editors fans and other sources? 21 A. Uh-huh. 22 Q. Did you ever try to prevent people from writing their own 23 reference works based upon materials that was in the website? 24 A. Yes, I did. 25 Q. And what, precisely, was it that you were trying to avoid? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 355 84F5WAR3 Vander Ark - cross 1 A. What was happening a lot and not so much anymore, but for a 2 few years there a lot of people were creating their own Harry 3 Potter websites and they would just take the pages from the 4 lexicon and make that into their site and that was the thing 5 that I -- I mean, I'm a reference librarian. For somebody to 6 use a reference source that I created is a great compliment but 7 there is a difference between that and taking a whole page and 8 slapping it onto a web page. 9 There were some that were actually putting the web 10 page -- such a complete copy would actually have the hyperlinks 11 back to the Lexicon that they didn't bother it take out. So, I 12 was trying to discourage that kind of thing. 13 Q. When did you first get the idea of putting material from 14 the website in a book? 15 A. Probably 2003. That was when the first Harry Potter 16 convention was, which was Nimbus in Orlando, and at that point 17 I started getting a lot of request from fans for a print 18 version of the lexicon. 19 Q. And what kind of response did you make to these fans? 20 A. I told them that that wasn't something I was going to be 21 doing. 22 Q. Did you give them reasons for saying that? 23 A. I had basically two reasons, one would be that -- well, it 24 wouldn't be a complete encyclopedia or list or book or whatever 25 because the series wasn't finished. I figured any kind of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 356 84F5WAR3 Vander Ark - cross 1 worthwhile companion book I would go to the trouble of making 2 to print I would want it to be as complete as possible. But, 3 also at that time I believed that wouldn't be allowed by 4 copyrighting. 5 Q. You are not a lawyer yourself? 6 A. No. 7 Q. Did you ever speak to a lawyer about what copyright law 8 would allow? 9 A. No. 10 Q. Where did you get the idea then that it wouldn't be allowed 11 by copyright law? 12 A. I'm actually not sure. It was kind of common belief at 13 that time in fandom but I have no idea where it came from. I 14 have looked and seen no official statement anywhere -- as a 15 matter of fact, that e-mail that Ms. Cendali brought up to 16 Ms. Klein -- 17 Q. Who is Ms. Klein? 18 A. That e-mail that I had sent had that P.S. on there, as I 19 said, almost to test the waters. 20 This was kind of common belief at that time among 21 Harry Potter fans. I didn't actually know if that was true and 22 especially since I have never been able to find any statement 23 by any official person associated with Ms. Rowling saying that 24 that was the fact. I'm not sure where we got that idea, to be 25 honest with you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 357 84F5WAR3 Vander Ark - cross 1 Q. Just sort of in the air. 2 A. Yes. 3 Q. So you say there were two reasons, one was this 4 incompleteness problem? 5 A. Correct. 6 Q. Because the books weren't finished. And the second one was 7 your notion, wherever it came from, that it would be against 8 copyright law to do it? 9 A. That's right. 10 Q. Did the time come when you changed your mind about 11 publishing a Lexicon book? 12 A. Yes. 13 Q. When was that? 14 A. That would be August of 2007. 15 Q. Well, what happened in August of 2007 to change your mind? 16 A. I had a conversation with Mr. Rapoport of RDR Books. He 17 actually contacted me and we had a discussion about the 18 possibility of publishing a book based on some of the material 19 in the Lexicon website. At that time he suggested that a good 20 one to create would be an encyclopedia. I told him of my 21 concerns. And he said he would get back to me on that. And 22 about a week -- 23 Q. Let's be a little more specific. 24 A. Sorry. 25 Q. When you say you told him of your concerns -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 358 84F5WAR3 Vander Ark - cross 1 A. Right. 2 Q. -- what were the concerns that you raised with him? 3 A. Well, the fact that I wasn't sure if it would be allowed 4 legally. 5 Q. If copyright law would allow it in book form? 6 A. Right. Exactly. 7 Q. And Mr. Rapoport said what in response to that? 8 A. He got back to me. 9 MS. CENDALI: Objection. Hearsay. 10 MR. HAMMER: We are talking about his state of mind, 11 something that was inquired into by Ms. Cendali at immense 12 length in her direct. 13 MS. CENDALI: He is reporting -- he is the party 14 offering, it is hearsay. 15 THE COURT: I'm going to allow it insofar as it a fact 16 was stated and statements were made but not for the truth of 17 the statements -- what is contained in the statements made. 18 Q. Mr. Vander Ark, did Mr. Rapoport did get back to you on 19 this question? 20 A. Yes, he did. 21 Q. When did he get back to you? 22 A. A few days later. Maybe a week. I'm not exactly sure. 23 Q. And this would be when? 24 A. August of 2007. 25 Q. What did Mr. Rapoport tell you about what he had found out? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 359 84F5WAR3 Vander Ark - cross 1 A. He found out he told me that he had found out. 2 MS. CENDALI: Same objection. 3 THE COURT: Same ruling. 4 A. He told me that he had found out that the book would be 5 legal. 6 Q. Did the time come when you entered into a contract with 7 Mr. Rapoport and published a Lexicon book? 8 A. Yes. 9 Q. When was that? 10 A. August 21, I believe, of 2007. 11 Q. Does the contract itself state what the contents of the 12 book would be? 13 A. No, it doesn't. 14 Q. Did you have an oral understanding about what the book 15 would contain? 16 A. Yes. 17 Q. And what was your understanding about what the book would 18 contain? 19 A. That it would contain the, what we were referring to as the 20 encyclopedia portions of the Lexicon website which was the 21 alphabetically organized facts and things. 22 Q. And was there -- and you said before that there were other 23 sections of the website -- 24 A. That's correct. 25 Q. -- other than the encyclopedia section? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 360 84F5WAR3 Vander Ark - cross 1 A. Uh-huh. 2 Q. Was there a reason why you focused entirely on the 3 encyclopedia section and didn't include, say, the essays? 4 A. Mostly it was a matter of length. We just simply didn't 5 have space in a book to include everything. We talked about a 6 lot of different possible books which could be written from 7 that material and this was the one that we decided on. 8 Q. Now, during our questioning Ms. Cendali pointed out that 9 the contract with Mr. Rapoport contains an unusual 10 indemnification provision which, in fact, Mr. Rapoport, as 11 publisher, indemnifies you as author; is that correct? 12 A. That is correct. 13 Q. Did you negotiate that with Mr. Rapoport? 14 A. Yes. I asked him to put that in. 15 Q. And, what were your reasons for asking him to put that in? 16 A. Because I was a little bit uncertain. I had spent many 17 years believing that that might not be legal. He was the one 18 that guaranteed to me that it was and I asked him to put a 19 statement in there to that effect. 20 Q. So he agreed to do so? 21 A. He agreed to do so, yes. 22 Q. At the time that you entered this contract were there other 23 books already on the market that were similar to the book that 24 you were intending to produce? 25 A. Yes, there were. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 361 84F5WAR3 Vander Ark - cross 1 Q. Can you give us a couple of names? 2 A. There were sections -- I know that George Beahm's first 3 book, for example, had a chapter which was an A to Z 4 encyclopedia. There were other books like that as well which 5 had complete A to Z encyclopedias of facts or sometime 6 organized by topic, lists of spells, lists of characters. 7 So, there were a number of books that had that kind of 8 material in them already. 9 Q. Well, what were your reasons for thinking that your book 10 could be successful if there were books that were on the market 11 before you? 12 A. Well, the books that had come out before had all come out 13 before book 7 and so the Lexicon book would be the first one 14 that was complete, I was hoping, based on the information from 15 all 7 novels. 16 So, that was the biggest reason. 17 Q. Was the comparative quality of the book you were intending 18 to produce a factor in leading you to hope that your book would 19 be successful? 20 A. Well, again, I was creating a reference book, and as a 21 librarian one of the things you constantly run into is the fact 22 that what looks like a good source might not be a good source 23 because it is not complete or doesn't have all the information 24 that's necessary. 25 So, yes, I wanted to make sure that I was creating SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 362 84F5WAR3 Vander Ark - cross 1 something which would be complete that would be useful for the 2 purpose that we were writing it for which was to help readers 3 get the information they need for fans if they're creating 4 things. The kind of thing which a person maybe doesn't have an 5 easy way to go through 200 chapters of books to find certain 6 pieces of information. 7 Q. When did you begin actually composing the manuscript for 8 the book? 9 A. The middle of August 2007. About the same time as the 10 contract. 11 Q. What is the process? 12 THE COURT: Let me ask a question. 13 Do the Harry Potter books have an index in them? 14 THE WITNESS: No. There is no index. There is no 15 glossary. There is no official guide in any way for a reader 16 to be able to find information. That's one of the reasons that 17 we created the lexicon, is because that doesn't exist. 18 Q. Actually, let's go into that in a little more detail. 19 The novels themselves don't have footnotes, do they? 20 A. No. 21 Q. The novels themselves don't have glossaries of names or 22 spells, do they? 23 A. No. 24 Q. The novels themselves don't have an index of characters so 25 you can see if a character appears in a specific book? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 363 84F5WAR3 Vander Ark - cross 1 A. No. There is no index at all. 2 Q. So, someone needing an index of characters or needing to 3 find out where a character appears has to go outside the 4 novels, correct? 5 A. Either that or re-read the entire series, yes. 6 Q. Ms. Rowling, up until the end of 2007, had not written a 7 book in addition to the novels that might provide that 8 information, is that correct? 9 A. No, there is nothing like that. No. 10 Q. So that from the time the first novel appeared through the 11 end of 2007, readers in fact were without a comprehensive guide 12 to the novels? 13 MS. CENDALI: Objection. Leading. 14 MR. HAMMER: This is, by the way, cross. 15 MS. CENDALI: This is -- this is -- 16 THE COURT: I don't like the question so I'm going to 17 sustain the objection. 18 BY MR. HAMMER: 19 Q. When was the first Potter novel published? 20 A. In Britain in 1997. 21 Q. As of December 31st, 2007, was there any comprehensive 22 guide in book form anywhere that listed all the characters, 23 spells, creatures of the Potter novels? 24 A. Until December? 25 Q. Of 2007. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 364 84F5WAR3 Vander Ark - cross 1 A. I don't -- 2 Q. I will actually use the date of the contract, August 2007. 3 A. I don't believe so. No. 4 Q. Obviously there is something in your mind that happened 5 between August and December? 6 A. Well, I know there were a number of books that came out 7 after book 7. Duriez' Field Guide to Harry Potter; the Idiot's 8 Guide. I haven't read these books so I can't tell you for 9 sure -- I know that Fionna Boyle's book has quite an extensive 10 encyclopedia but I believe that came out a year or two ago. 11 Q. You say you have read, you think, all the interviews that 12 Ms. Rowling has given over the years about Potter novels? 13 A. I believe so, yes. 14 Q. When did Ms. Rowling first start talking about writing her 15 own book? 16 A. Oh, man, that's -- maybe 2001. 17 Q. As of today, is there a book by Ms. Rowling on the market? 18 A. You mean an encyclopedia? 19 Q. Obviously in that sense we are all here because of 20 Ms. Rowling. 21 A. No, I don't believe it is written yet. 22 Q. Is there a companion guide of the sort we are talking about 23 by Ms. Rowling? 24 A. She wrote two companion guides but they're not of that 25 sort, no. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 365 84F5WAR3 Vander Ark - cross 1 Q. Can you describe the process of creating -- of composing 2 the manuscript of the book? Were you able to just cut and 3 paste parts of the website? 4 A. Pretty much, no. 5 We used the website material but because of the space 6 limitations in a printed book we ended up having to cut out a 7 lot of material, a lot of references, a lot of the background 8 material that we had accumulated. It was kind of painful to do 9 this because it was just so much. As I said, it is such a 10 rich, rich world. But, we had to do that for space. We cut 11 out all the illustrations, the images and things like this. 12 And a lot of that was cut but it was still on the website of 13 course. And, as matter of fact, in my introduction I make a 14 comment to the fact that, please, go back to the website for 15 more. 16 Q. Well, aside from the space problem, was there another 17 problem about translating material from the website into a book 18 form? 19 A. Well, entries in the -- on the website were quite long. 20 There was no space limitation on a website so you can have a 21 very long entry with every conceivable piece of information. 22 We just couldn't put that much information into the Lexicon 23 book. It was -- 24 Q. But you said earlier that there is an index on the website, 25 correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 366 84F5WAR3 Vander Ark - cross 1 A. Yes, there is. 2 Q. And the index has entries that are connected to the text? 3 A. Yes. 4 Q. By hyperlinks? 5 A. Yes. 6 Q. Were you able to do that in a book form? 7 A. No. No. Obviously, no. A book doesn't have hyperlinks, 8 so. 9 Q. So, is that another reason why it was impossible to just 10 cut and paste material from the web onto a book? 11 A. I see what you mean. It wasn't existing in a strictly A to 12 Z encyclopedia format, we had to create that. 13 Again, a website you can have a structure based on the 14 fact that it is a website, that you can link to various places. 15 If you are going to create a print reference it has to be in a 16 form which is going to -- if have you got fans, readers who 17 want information, they need to be able to find it quickly and 18 alphabetical structure is usually the easiest way for that. 19 Q. Now, there was testimony earlier that the A to Z structure 20 of the book is not original, there being other A to Z reference 21 guides on various topics? Was the originality an important 22 achievement for you in putting out this book? 23 THE COURT: I don't understand the question. Reframe 24 the question. Reframe the question. 25 Q. I would like to just go over again why you decided in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 367 84F5WAR3 Vander Ark - cross 1 book form to place the material in an A to Z format rather than 2 organize it in another way, say, by topic. 3 A. Again, it is a print reference guide. It is the kind of 4 thing that someone might have next to them while they're 5 reading the novels. 6 In a reference book or a reference guide of any kind 7 there has to be a structure to it. The structure is designed 8 to allow the user to find the information they need as quickly 9 as possible. That's what you do. So, a different -- different 10 types of reference material are going to have different 11 structures based on what is that user going to need to be able 12 to find what they need in a hurry. 13 In this kind of a case somebody will be looking for -- 14 they may encounter a name of a character, for example, 15 Mundungus Fletcher, let's say. They're going to need to look 16 that up by that name which is the word "Fletcher" so they're 17 going to automatically look under F for that. 18 Other types of reference material would have a 19 different structure because you might be looking for things in 20 a different way. 21 Q. So, encouraging speed of access was one of your 22 considerations in using this A to Z listing? 23 A. Although the whole purpose of the book is to be useful for 24 the fans and readers of the books. 25 Q. How long did it take for you to complete the process of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 368 84F5WAR3 Vander Ark - cross 1 devising a manuscript? 2 A. The four of us worked for about a month. I believe we were 3 done in the middle of September. 4 (Continued on next page) 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 369 84FVWAR4 Vander Ark - cross 1 Q. Of 2007? 2 A. 2007, yes. 3 Q. Can you give us an approximate percentage of the material 4 in the web site encyclopedia section that is now contained in 5 the book? 6 A. Inside the encyclopedia section? 7 Q. Let me rephrase it. In the entire web site, how much is in 8 the book? 9 A. Maybe about half of it. 10 Q. And in terms of just the encyclopedia section of the web 11 site, can you give us an idea of how much is in there? 12 A. I think we have all of the entries, but we shortened each 13 one. It's a little hard to say for sure what the exact 14 percentage is. 15 Q. Why have you shortened the entries? 16 A. Again, just because it's going into a different format, a 17 book format. We were forced to leave a lot of things out, edit 18 entries down; some of them had to be rewritten to become 19 shorter and more concise. And, again, we were creating a quick 20 reference, the kind of thing that somebody who's reading would 21 need to look up a fact or, for example, a fan who is writing a 22 story and needs to know some fact about a character for their 23 story. That's the kind of reference this is. So we tried to 24 make a concise, easy-to-use reference, but also one that was as 25 complete as possible. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 370 84FVWAR4 Vander Ark - cross 1 Q. Did you make any decision on using quotations in the book? 2 Are all of the quotations that are on the web site in the book? 3 A. No, we had to leave a lot of those out. 4 Q. And what was your reasoning in leaving out quotations? 5 A. Again, just space. And also because we still have complete 6 citations of where to find the material. I guess the structure 7 of a lexicon book, if anything, continually points a person 8 using it back into the novel, sort of the source material, 9 because it references it and right away gives you the place to 10 look to go find it. So if you're looking for a fact about a 11 character, for example, it will give you the basic facts, but 12 if you really need more information, it will show you where to 13 go in the series of novels. 14 Q. To your mind, what is the primary value of the Lexicon book 15 that you've created? 16 A. Again, it's a, what I would call a ready reference, that's 17 a librarian term for the kind of reference book or reference 18 source that you can use to quickly find information. 19 If a person comes to you and asks a question, often 20 they just need a quick answer, you know, who invented the 21 lightbulb or something like that. And having what's called a 22 ready reference is a place you can go quickly; you don't have 23 to go through the entire World Book Encyclopedia; you can go to 24 a quick reference book where that fact is going to be easy to 25 find. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 371 84FVWAR4 Vander Ark - cross 1 Q. Is there something about the Potter novels that makes a 2 ready reference guide particularly useful to readers? 3 A. To readers, to fans in particular, the Potter universe is 4 just amazing, okay. It's just -- it's so full of beautiful 5 connections and meanings to the words and things like this. 6 I mean the name of a character might be a reference to 7 something which average, especially younger readers, maybe 8 would have no idea; but when you look at the meaning of it, all 9 of a sudden it becomes clear why that name was chosen. A world 10 like that, when you read books like that, if you're a reader, 11 you're immersed in this incredible magical world, and you 12 constantly have things coming at you which are not in our real 13 world; you don't have another frame of reference for them. 14 You'll see a name of a character or a name of a thing or a 15 creature. And as you read, you're not going to stop and you're 16 not going to dig through the entire series trying to find that 17 one item. That's where this kind of a book comes in handy; you 18 pop that open and go, Oh, that's right. 19 If you've never read the books before, you're not 20 going to be doing that. This is for fans; people who want to 21 immerse themselves in this incredible world that Ms. Rowling 22 has created. 23 Q. Was your intention to write an academic reference book, a 24 scholarly reference book? 25 A. You mean like a -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 372 84FVWAR4 Vander Ark - cross 1 Q. Like the Encyclopedia of National Biography, like -- I mean 2 something that, in fact, would be considered an exhaustive 3 scholarly reference. 4 A. No. It would be wonderful to do something like that, but 5 that wasn't the scope of this book, no. 6 Q. By the way, does every character in Potter novels appear in 7 every novel? 8 A. No. 9 Q. Some characters appear in only a few? 10 A. Right. 11 Q. Any characters appear, say, in the first and then not until 12 the fourth or fifth novel? 13 A. Yes, there are some. 14 Q. Does that fact, the intermittent appearance of characters 15 in the books, create a value to a reference guide? 16 A. Yeah. Clearly if somebody was reading -- I don't know, 17 chugging through one of the books and came across a name of a 18 character, for example, as you mentioned, or a creature or a 19 spell, their immediate reaction might be, Okay, I know I've 20 read that before; where did I see that? And, again, a book 21 like this allows them to look that up quite easily and find out 22 where that appeared. 23 And also, a lot of the beauty of these books is the 24 way that things connect to each other. And so you can have 25 details that are spread across almost a million words, this is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 373 84FVWAR4 Vander Ark - cross 1 a huge set of material. This material could be scattered all 2 through, but it all kind of comes together into understanding, 3 for instance, a character or all of the details about a 4 Quidditch team and things like this. 5 And so, yes, some of it might come from Quidditch 6 Through the Ages, some of it might come from a famous wizard 7 card. 8 One of the characters, Gwenog Jones, first turned up 9 actually in the Daily Prophet newsletters. Now, those are not 10 available anywhere. I have not published them online; I've 11 never seen them published online. So for a user, when they -- 12 or for a reader, when they encounter that character, there are 13 things about that character which they really have no way to 14 know without a reference guide like this. There is no where 15 else where that information is available. 16 MR. HAMMER: I wonder if we could have a few-minute 17 break. I'm getting near the end, and I don't think it will 18 take more than 15 or 20 minutes. 19 THE COURT: We'll take a five-minute break and come 20 back. 21 (Recess) 22 BY MR. HAMMER: 23 Q. Mr. Vander Ark, in your declaration, you went on at some 24 length about the synthesizing qualities of the Lexicon. Could 25 you describe to us, explain to us, what you meant by that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 374 84FVWAR4 Vander Ark - cross 1 A. Synthesizing would be the fact that there's a -- we're 2 talking about a book series which is -- I think it's about 3 100 -- just about 200 chapters, along with quite a bit of 4 supportive material in terms of the famous wizard cards, the 5 Daily Prophets, the interviews, of which there are quite a few, 6 hundreds, I believe. All of this material is scattered quite a 7 wide range of places where this comes from. 8 In order to create a reference of the kind we're 9 talking about, all of that material gets pulled together and 10 then synthesized into something which is a concise entry. That 11 kind of synthesis, that kind of pulling together of 12 information, is something which is very difficult to do for the 13 casual reader. And I think that's one of the real strengths of 14 the Lexicon web site and the Lexicon book. 15 Q. I'd like to show you now a few passages from the Lexicon. 16 The first one is Chudley Cannons, which you were shown by 17 Ms. Cendali. I'd ask you if you can explain how the 18 synthesizing function applies there. 19 So, first of all, once again, what is the Chudley 20 Cannons? 21 A. The Chudley Cannons is a Quidditch team. 22 Q. And just for those of us who really are not knowledgeable, 23 what is Quidditch? 24 A. Quidditch is a sport that's played in the wizarding world. 25 It's the equivalent of football soccer. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 375 84FVWAR4 Vander Ark - cross 1 Q. Well, it's the equivalent, except it's played in midair, 2 right? 3 A. Yeah. It's played on broomsticks. 4 Q. Yeah. Slight difference. Now, you have an entry in the 5 Lexicon on Chudley Cannons. 6 A. That's correct. 7 Q. Chudley Cannons is connected, it comes from, among other 8 places, Quidditch Through the Ages? 9 A. Yes. Notice the reference in the first line is to CS4, 10 that's Chamber of Secrets, that's the second novel. In the 11 third line there's DH33, that's the seventh book. So we've got 12 the second book and seventh book, facts coming from two 13 completely different places. 14 Notice all down toward the bottom it's DP1 at the very 15 surline for the bottom at the bottom, that's from the Daily 16 Prophet newsletters, which, again, this is something which most 17 fans have no access to because it's not available anywhere. 18 So this is the kind of information which is pulled 19 from all those different locations and put together into one 20 concise entry. So if, for example, a fan was going to be 21 writing a story and wanted to include some information about 22 the Chudley Cannons, mention the name of the manager or 23 something, they can look it up in the Lexicon reference and 24 then they would be able to find that out. 25 Q. Right. But there's also a reference there to QA7, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 376 84FVWAR4 Vander Ark - cross 1 A. Right. That's Quidditch Through the Ages. 2 Q. All right. And that was the reference, I think, in the 3 passage immediately before it that you were shown by 4 Ms. Cendali. 5 A. Yes. 6 Q. But the larger entry in the Lexicon draws on sources 7 outside Quidditch Through the Ages? 8 A. Right. Quite a few. I see a title there, too. 9 Q. I'd like to show you now another entry from the Lexicon on 10 Medical Magic. What is Medical Magic in the Potter novels? 11 A. Well, it's not actually named that. That's the category of 12 just various spells and things which kind of replace medicine 13 in our world, if you will. 14 Q. Who gave this entry the name "Medical Magic"? 15 A. Well, I did. 16 Q. You gave it that name to describe something that does not 17 have a specific name in the Potter novels? 18 A. That's correct, yes. 19 Q. And in this paragraph on Medical Magic, how many different 20 sources do you draw? 21 A. Wow. Three, four -- looks like it comes from just about 22 every novel, and the Daily Prophet newsletters. Yeah, that 23 one's got a lot. 24 Q. And in assessing your own achievement here in the Lexicon, 25 you would say that the drawing on all the different sources in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 377 84FVWAR4 Vander Ark - cross 1 Ms. Rowling's works is one of the things that makes it a useful 2 reference guide? 3 A. Well, again, as was mentioned, there's no index, and so 4 someone who is -- 5 Q. No index to the novel? 6 A. To the novels, that's correct. So someone who wants more 7 information about this, perhaps writing a story about it or is 8 just curious about some of that kind of thing, really have no 9 way to pull this kind of information together in any reasonable 10 amount of time. 11 This is the kind of thing which we put together as 12 reference librarians, if you will, pulling that kind of 13 information together into one place. This kind of a reference 14 simply does not exist and would be almost impossible for the 15 average reader to be able to create. 16 Q. Now, you also were trying to explain, during Ms. Cendali's 17 examination, of why certain entries in Fantastic Beasts and 18 Where to Find Them were particularly hard to do without 19 overlapping language with Ms. Rowling, is that correct? 20 A. Right. 21 Q. And I'd like to show you an entry from the Lexicon about a 22 character -- a character. A creature called the Acromantula. 23 A. Yes. 24 Q. What is the Acromantula in Ms. Rowling's work? 25 A. It's a gigantic and very terrifying spider. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 378 84FVWAR4 Vander Ark - cross 1 Q. Okay. Does it have other qualities other than being a big 2 spider? 3 A. Yeah. It is intelligent; it speaks with human speech; its 4 venom is useful as a potion ingredient. There is a lot of 5 details about that creature, made of dibornio, I believe. 6 Q. And did doing a entry about the Acromantula create certain 7 problems in not using language that overlapped with 8 Ms. Rowling's? 9 A. Well, part of the problem is that, again, it exists only in 10 the Harry Potter books. So our only, I don't know, viewpoint, 11 the only way we can view that item, we can't go down to the zoo 12 and see one and write a description. Our only viewpoint on 13 that creature is the novel, and so are these various sources. 14 So we ran into a problem because we did not want to -- 15 especially in the case of Fantastic Beasts, we didn't want our 16 listings to replace what was in that special case an actual 17 encyclopedia. And so we intentionally left details out of our 18 description that were in Fantastic Beast. We intentionally 19 left them out and put a note, Please see Fantastic Beasts and 20 Where to Find Them. 21 Q. All right. Now, this is the entry on the Acromantula in 22 the Lexicon. And it contains at the bottom what appears to be 23 an etymology, is that correct? 24 A. That's right. 25 Q. And the etymology is in the italicized print, and it says SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 379 84FVWAR4 Vander Ark - cross 1 acro, from across, Latin for peak, plus mantula, from 2 tarantula, English, a species of large black spider. 3 A. Right. 4 Q. Does that etymology appear in anything that Ms. Rowling 5 wrote? 6 A. No. 7 Q. Who provided that? 8 A. I think I wrote that one. 9 Q. And in doing that -- 10 A. Although I think I must have gotten the Latin part from the 11 Clint, because we typically check with him. 12 Q. This is just your sense of how Ms. Rowling came upon this 13 name, correct? 14 A. Right. Yeah. I would assume. I guess it's an assumption 15 on my part. 16 Q. There's a little bit of guesswork that's involved in that? 17 A. Yes, quite a bit. 18 Q. Now, yesterday there was some testimony that Ms. Rowling 19 thought that you got the derivation for a word called Alohomora 20 incorrect. 21 A. Oh, really. Great. What is it? 22 Q. Well, I believe the testimony was that you had said that it 23 came from "aloha" in Hawaiian. 24 A. Right. 25 Q. And it actually came from a West African dialect. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 380 84FVWAR4 Vander Ark - cross 1 A. Really. Sorry. That's very exciting stuff for somebody 2 like me. 3 Q. I'm thrilled myself. 4 A. Did she happen to mention which West African dialect it 5 was? 6 Q. We'll talk about that later. We'll have a conference on 7 that, which the parents will take over. 8 But is it possible that you got that wrong? 9 A. Of course. We were making our best guess, and that was one 10 that I came up with. That was the closest I could come up with 11 using the sources I had, so this is exciting news for me. 12 Q. Okay. I'd like to show now the Exhibit 44 that the 13 plaintiffs used. And Acromantula appears on that exhibit, and 14 they have provided on the left the section from Fantastic 15 Beasts where the Acromantula is referred to, and on the right a 16 portion of the Lexicon definition. 17 A. Right. 18 Q. Okay. And that shows overlapping language. The Fantastic 19 Beasts refers to a monstrous eight-eyed spider capable of human 20 speech, they originated in Bornio. And you refer to a gigantic 21 black spider; "monstrous" is changed to "gigantic," but capable 22 of human speech, it is native to Bornio. 23 So there is an approximation of -- or we can even call 24 it an overlap on that. 25 A. Yeah. I don't know how else I'd do it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 381 84FVWAR4 Vander Ark - cross 1 Q. Yeah. And, once again, the problem in avoiding some sort 2 of overlap is what in dealing with Acromantula? 3 A. Oh, the problem, especially with Fantastic Beasts, this is 4 also true of the famous Wizard Cards, also true of some parts 5 of Quidditch Through the Ages, the original source was very 6 short or very obvious. 7 I remember one thing was described as having 8 tentacle-like warts, for example. The problem we have with 9 that is that I just am not sure how else to say things like 10 that. But particularly with Fantastic Beasts, some parts of 11 Quidditch Through the Ages, we had very little to go on, and we 12 had to make a decision between being complete, which, of 13 course, if you're creating a reference work, being complete is 14 very, very important. And also with not wanting to be an 15 absolute, you know, a substitute for is a good way to put it 16 for Ms. Rowling's work. 17 Q. The other thing I want to bring out about this chart is 18 that the selection makes it appear, does it not, that the 19 entire Lexicon definition is a single sentence, and the entire 20 reference in Ms. Rowling's work comes from Fantastic Beast. 21 Can we go back now to Exhibit 44? I mean, I'm sorry, 22 the Lexicon. Forgive me. 23 So the actual Lexicon entry is considerably longer 24 than the portion that's shown on plaintiffs' exhibit, correct? 25 A. That is correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 382 84FVWAR4 Vander Ark - cross 1 Q. And, in fact, the actual entry refers to a variety of 2 sources rather than just the Fantastic Beasts. 3 A. That is correct. 4 Q. Thank you very much. Now, let's turn now -- I think we're 5 getting close to the end. 6 In the course of this lawsuit, you made some revisions 7 to your entries on Fantastic Beasts, isn't that true? 8 A. Yes, I did. 9 Q. That was about a month ago? 10 A. Yes, I believe so. 11 Q. Why did you make those revisions? 12 A. As we considered the information that had come from the 13 other side on this, we saw that they had -- I guess we're 14 willing to work with it to try to make the manuscript more 15 acceptable; so we removed some of the extra description that 16 got submitted separately. 17 Q. The other side, Ms. Rowling's side, pointed out some 18 genuine overlapping language, right? 19 A. Mm-hmm. 20 Q. So you made revisions to take those overlaps out? 21 A. That's right. That's right. 22 Q. Have you also decided -- there are certain songs that were 23 objected to in the preliminary papers in this case. 24 A. Yes. 25 Q. Okay. What do we mean by songs? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 383 84FVWAR4 Vander Ark - cross 1 A. I think there's maybe four entries of the whole book which 2 have the lyrics to songs or poems reproduced in the whole 3 thing. 4 Q. And do you think their objections to the reproduction of 5 those three or four songs is legitimate? 6 A. Yeah, I do. 7 Q. Is it your intention to take those songs out of the final 8 manuscript? 9 A. I informed Mr. Rapoport of that, yes, that I would like to 10 do that. 11 Q. Now, in talking about the gigantic eight-limbed spider who 12 speaks human speech, you could have used -- I don't know, I 13 like to call them euphemism; you could have referred to a large 14 multi-limbed spider. 15 A. Arachnid creature. 16 Q. Yeah, arachnid creature. And that would have avoided any 17 overlap at all. Is there a reason you didn't take that sort of 18 path? 19 A. I was creating a reference work. The idea of a reference 20 work is to clarify; is to make things more clear for a reader, 21 for example, of the Harry Potter books to be able to get 22 clarity to be able to understand better; to be able to make 23 more sense of that material. 24 If I would have used language like that, it would have 25 actually been more confusing. So it never really occurred to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 384 84FVWAR4 Vander Ark - cross 1 me to be that sort of devious about the way I wrote things, 2 because that really wouldn't have suited the purpose of the 3 book at all. 4 Q. In your declaration you refer not only to fans, but to 5 something you called the Harry Potter community. Can you tell 6 us what you mean by the Harry Potter community? 7 A. It's probably more or less the same thing as fans. The 8 Harry Potter community would be, again, those people who 9 consider Harry Potter fandom or Harry Potter interests to be 10 kind of their defining hobby. That's what they prefer to do in 11 their spare time, and whether they make wands or create web 12 sites or attend conventions, talk online a lot. That's what I 13 would consider the Harry Potter community. 14 Q. Do you consider yourself a member of that community? 15 A. I did, yes. 16 Q. Well, I'm sorry, you no longer consider yourself a member 17 of that community? 18 A. Yeah, I do. 19 THE COURT: You no longer do? 20 THE WITNESS: I do. I do. 21 THE COURT: "I do." 22 THE WITNESS: Yes, sir. I do consider myself a part 23 of that community, yes. 24 Q. This is evidently an emotionally-charged question for you. 25 Can you explain why this is so charged? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 385 84FVWAR4 Vander Ark - cross 1 A. It's been -- 2 Q. All right. We'll go on. Are you able to answer the 3 question? 4 A. Yes. It's been difficult because there's been a lot of 5 criticism obviously, and that was never the intention. But -- 6 and I understand where that comes from, but it's been very, 7 very difficult. This has been like an important part of my 8 life for the past nine or ten years. And to have it turn 9 into -- can we go on, please? 10 Q. I'm going to ask you, actually -- and I want you to compose 11 yourself. Do you honor Ms. Rowling's achievement? 12 A. Yes, very much. 13 Q. Do you respect Ms. Rowling? 14 A. Yes, I do. 15 Q. Is it your desire to celebrate Ms. Rowling's achievement by 16 doing this book? 17 A. That was the intention, yes. 18 Q. Did you ever receive -- are you able to continue, 19 Mr. Vander Ark? 20 A. Yes, sir. 21 Q. Did you ever receive any public recognition as an expert on 22 Harry Potter? 23 A. Yes, I've spoken at a lot of conventions, I've been 24 interviewed by the press quite a bit, I was on The Today Show, 25 a number of organizations have interviewed me, done radio, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 386 84FVWAR4 Vander Ark - cross 1 things like this. 2 I also was asked to be part of a documentary which was 3 filmed before the release of the Order of the Phoenix film. 4 And I was one of three "experts" who were brought in to comment 5 on the series. And so I was part of that, which was filmed for 6 Arts and Entertainment Network, and appeared on the DVD of the 7 fifth film. 8 Q. I think you testified yesterday that, in fact, you were 9 flown in by Warner Brothers to visit the site of one of the 10 Potter movies? 11 A. Yes. In September of 2006, they flew me to London to visit 12 the sets of the film, Leavesden Studios. And I interviewed 13 some of the people involved in things like that. 14 Q. Did you have conversation with David Heyman? 15 A. Yes, I did. 16 Q. Who is David Heyman? 17 A. The producer of the films. 18 Q. Did Mr. Heyman tell you anything about the web site, the 19 uses of the web site that Warner Brothers made at that time? 20 A. He told me they use it almost everyday. 21 MS. CENDALI: Objection. Hearsay. 22 MR. HAMMER: Actually, it seems to me it's an 23 admission by a party. 24 THE COURT: Same ruling as before. I'll allow it for 25 the fact that he was told, but I can't allow it for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 387 84FVWAR4 Vander Ark - cross 1 content. 2 BY MR. HAMMER: 3 Q. Did you ever have any conversation with anyone at 4 Electronic Arts? 5 A. Yes, in July of 2007 I visited the Electronic Arts studios 6 at the invitation of the person who was -- who was in charge of 7 that sort of thing, Lisa Humphreys. 8 Q. What is Electronic Arts? 9 A. They're the company that makes the video games. 10 Q. What did you see at the Electronics Arts studio when you 11 went there? 12 A. The walls were covered with printouts from the Lexicon web 13 site, which I thought was pretty cool. 14 Q. Now, you say you've read or you think you've read all of 15 Ms. Rowling's comments, all of her interviews. 16 A. I believe I have, yeah. 17 Q. Have you ever read any interviews with her in which she 18 describes what exactly she intends her encyclopedia to include? 19 A. A couple of them, yeah. 20 Q. And what, in fact, has she said about her intentions for 21 her encyclopedia? 22 A. I know she referred to it some years ago as being an 23 opportunity to give all the details about the characters that 24 didn't make it into the books. 25 Recently she said in an online interview that she was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 388 84FVWAR4 Vander Ark - cross 1 describing it as having a lot of the discarded plot points, 2 material from the process of writing that didn't make it into 3 the books itself, as well as, I think, an encyclopedia kind of 4 thing with factual details and background details. 5 Q. Has she ever discussed using back-story? 6 A. Yes. 7 Q. What is your understanding of the meaning of back-story? 8 A. A back-story would be the story of a character, the things 9 about their life which, especially to us fans, would be 10 incredibly interesting, because so much of it informs the 11 character. 12 She gave some back-story to the character Dean Thomas 13 on her web site which, again, minor character in a way, but 14 just knowing that about this character just livens that 15 character up. It's wonderful stuff. I mean we look forward 16 eagerly to that. 17 Q. Does the Lexicon include any back-story about the 18 characters that's not in the novels themselves? 19 A. Just a few things; things which have been mentioned in 20 interviews and so, but very, very little. 21 Q. Aside from things that Ms. Rowling has mentioned in 22 interviews, things that she might devise for her new 23 encyclopedia, do you have any entries on back-story? That's an 24 incredibly bad question. 25 A. I'm not sure what you just asked me. I'm sorry. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 389 84FVWAR4 Vander Ark - cross 1 Q. If Ms. Rowling has not described in an interview about the 2 back-story she intends to include in her encyclopedia, do you 3 have any source for knowing what she wants to do? 4 A. Unless it's -- no, she hasn't revealed it on her web site 5 or in an interview, we would have no way of knowing. 6 Q. And no way of including it in your book? 7 A. Well, no. 8 Q. And in terms of discarded plot lines, do you have any way 9 of knowing what plot lines she has discarded other than what 10 she has said in an interview? 11 A. No. 12 Q. In terms of extra details about characters, I assume that 13 the recent revelation at Dumbledore's gaze is an example of 14 this. Do you have any access to what materials may have been 15 discarded other than what Ms. Rowling has chosen to disclose? 16 A. No. 17 Q. So Ms. Rowling's future encyclopedia may contain a whole 18 list of materials that the Lexicon can't anticipate. 19 A. She has said that it will, yes. And I, for one, can't wait 20 to read it. 21 THE COURT: I'm sorry? 22 THE WITNESS: I said I can't wait to read it. 23 MR. HAMMER: One second, your Honor. I may be just 24 about over. I have no further questions of Mr. Vander Ark, 25 your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 390 84FVWAR4 Vander Ark - cross 1 THE COURT: It's 1 o'clock. Do you want to start at 2 2? What about this witness that you're going to have to take? 3 MS. CENDALI: The next witness will be Suzanne Murphy, 4 but I will have redirect of -- recross of Mr. Vander Ark. 5 THE COURT: What about the witness that we discussed 6 yesterday afternoon? 7 MR. HAMMER: Your Honor, Ms. Sorensen, I think is that 8 the witness that we're talking about? 9 THE COURT: That's right. 10 MR. HAMMER: I just had discussion with counsel 11 earlier today about Janet Sorensen, who is our expert, who has 12 to leave tomorrow. 13 We initially said that we would put her on first thing 14 tomorrow, to be followed by Dr. Johnson. I've since learned 15 that Ms. Sorensen has been able to change her flight; so she'll 16 be available all day tomorrow. So we would like to put her on 17 basically at the end of plaintiffs' testimony, which we assume 18 will be sometime around noon tomorrow. 19 THE COURT: Not the way this thing is going. 20 MR. HAMMER: Well, can you give us a second? Can we 21 report back to you after lunch on that? If you urge us to put 22 her on first thing tomorrow, we'll obviously -- 23 THE COURT: You said you'd work it out; but you better 24 work it out in a way that takes into account the amount of time 25 that this so-called three-day trial is going to take in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 391 84FVWAR4 Vander Ark - cross 1 reality. All right. Let's go. See you at five after two. 2 (Luncheon recess) 3 A F T E R N O O N S E S S I O N 4 2:05 P.M. 5 MR. HAMMER: Your Honor, may I just take up a 6 scheduling issue that you raised before? Ms. Sorensen is able 7 to be here Thursday. We don't need to take her out of order. 8 However, because I did tell counsel earlier that -- and they 9 did, in fact, make accommodation for me to put her on today, I 10 would ask that we go through the witnesses other than the two 11 experts today, even if we have to break at 4:30 and we have the 12 two experts on tomorrow. 13 THE COURT: I have other matters on this afternoon. 14 MR. HAMMER: Okay. So that will be fine then. 15 THE COURT: The 4 o'clock or so, I'm not sure. I have 16 a plea of guilty in a criminal matter at 4. 17 What was your application, Mr. Hammer? 18 MR. HAMMER: No, we don't need to take Ms. Sorensen 19 out of order anymore. 20 THE COURT: I gathered that. 21 MR. HAMMER: Right. So actually, my application was 22 simply that my understanding is that after Mr. Vander Ark, 23 Ms. Murphy will take the stand; and that, I guess, we break 24 after -- then we break and we resume tomorrow morning. There 25 will be three remaining witnesses. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 392 84FVWAR4 Vander Ark - cross 1 THE COURT: We'll see how far we get. 2 MR. HAMMER: Okay. 3 THE COURT: I hope we get -- move a little faster. 4 MS. CENDALI: Shall I proceed, your Honor? 5 THE COURT: Please. 6 STEVEN JAN VANDER ARK, resumed. 7 REDIRECT EXAMINATION 8 BY MS. CENDALI: 9 Q. Mr. Vander Ark, you discussed with Mr. Hammer the concept 10 of an index several times during your testimony earlier today, 11 correct? 12 A. Yes, I did. 13 Q. And as a courtroom librarian, you are familiar with 14 indices, correct? 15 A. Yes. 16 Q. And let's look at Exhibit 73, the index page to the book 17 The Completed Idiot's Guide to the World of Harry Potter. 18 That's after page 238. And we're putting it on the Elmo, your 19 Honor, to make it easy to see. 20 Mr. Vander Ark, you can see that? 21 A. Yes, I can. 22 Q. And that's an example of an index, isn't that true? 23 A. Right, the way it appears in the back of a book, yes. 24 Q. Right. And isn't it true, Mr. Vander Ark, that if somebody 25 wanted to do an index to the Harry Potter novels, it wouldn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 393 84FVWAR4 Vander Ark - redirect 1 be necessary to reproduce Ms. Rowling's prose and fictional 2 facts, right? 3 A. Yes, that's true. 4 Q. And isn't it true, Mr. Vander Ark, that the Harry Potter 5 Lexicon includes more of Ms. Rowling's copyrighted expression 6 than would be necessary to do an index? 7 A. I never said that the book was an index; so, yes, I guess 8 that would be true. 9 Q. And as you look at the sample index that we're looking at 10 with regard to The Idiot's Guide, that's an example of an index 11 that just simply lists things and page numbers where they can 12 be found, is that right? 13 A. That's correct. 14 Q. Now, isn't it true, Mr. Vander Ark, that the point of an 15 index is to tell people where they could read more about the 16 item that they are interested in, right? 17 A. Yes. 18 Q. So you use the index to go back to the thing that's being 19 indexed? 20 A. Yes. 21 Q. That's right? 22 A. That's correct. 23 Q. So the index isn't supposed to serve as a substitute for 24 the original thing, correct? 25 A. That is correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 394 84FVWAR4 Vander Ark - redirect 1 Q. And the way an index does this is similar to the sample 2 that we're looking at; it lists just the page numbers where 3 something appears, it doesn't reproduce everything in the book 4 that was said on that subject? 5 A. That is correct. 6 Q. Right. And now, an index is also supposed to list all the 7 times a person or thing or country appears in a book, isn't 8 that right? 9 A. I would expect so, yes. 10 Q. And isn't it true, Mr. Vander Ark, that the Lexicon 11 manuscript does not attempt to list all of the times a 12 character or a fictional thing appears in the Harry Potter 13 universe? 14 A. That's true. The Lexicon book is not an index. 15 Q. And it doesn't even necessarily list even the first 16 appearance of the character, right? 17 A. It could be. 18 Q. And it doesn't list, as you mentioned, page numbers; it 19 just has general references when it does list something? 20 A. It lists by book and by chapter, because pagination is 21 different in different editions in the books. 22 Q. Okay. And so in going back to the sample index that we're 23 looking at in terms of The Idiot's Guide, Exhibit 73, you see 24 that it lists under the first entry for A, Abraxans, correct? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 395 84FVWAR4 Vander Ark - redirect 1 Q. And it just says page 26. 2 A. Correct. 3 Q. And it doesn't reproduce what the book says about Abraxans, 4 right? 5 A. Correct. 6 Q. And so if you want to learn more, you have to go back to 7 page 26 to find out about Abraxans, right? 8 A. That's right. 9 Q. And the index then doesn't substitute for the original, 10 right? 11 A. No. 12 Q. Right? 13 A. That's correct. 14 Q. But would you agree with me, Mr. Vander Ark, if the index 15 did include all the information about Abraxans right next to it 16 right there quoting even or paraphrasing everything that was 17 said in a book with Abraxans, you wouldn't need to go back to 18 the original book. 19 A. Are you suggesting that if you would put the text into the 20 index itself, so it would no longer be an index, but it would 21 be, for instance, an encyclopedia that you would -- I'm not 22 quite sure I understand where you're going with this. 23 Q. Well, I'm just asking you, if instead of just saying 24 Abraxans, page 26, it listed either in identical language or in 25 close paraphrasing language whatever was said about this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 396 84FVWAR4 Vander Ark - redirect 1 fictional Abraxans in the beginning part of the book, then you 2 wouldn't need to look at the book, right? You just had it 3 right there. 4 A. That would depend on the source material. If what you were 5 looking for was simply the facts, that may be true. The source 6 material in the case of the Harry Potter books is almost all in 7 narrative form, in story form. So there's a lot more to 8 talking about a particular subject than just the facts. 9 Q. But there isn't a narrative for the Wizard Cards -- 10 A. No, which is why I said that there was -- I did not mean to 11 interrupt. I'm sorry. 12 MR. HAMMER: I would just object. She's creating a 13 hypothetical. If you'd written an index -- 14 THE COURT: Objection overruled. 15 Q. And as you discussed, there's not a narrative in much of 16 the material that Ms. Rowling has created in terms of the 17 Fantastic Beasts, the Quidditch books, and the EA cards, for 18 example? 19 THE COURT: I'm sorry, I couldn't hear you. 20 MS. CENDALI: Forgive me. 21 Q. There's no narrative with regard to the Fantastic Beasts, 22 the Quidditch cards, and the EA cards, isn't that right? 23 They're not parts. 24 A. Some parts of those books are in encyclopedia form, as we 25 talked about, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 397 84FVWAR4 Vander Ark - redirect 1 Q. Now, you said today that you would not include the verbatim 2 reproduction of Ms. Rowling's songs and poems in the Lexicon -- 3 A. That's right. 4 Q. -- is that right? 5 Now, this case was filed on October 31st, isn't that 6 correct? 7 A. Yes, I believe so. 8 Q. And isn't it true this is the first time you've mentioned 9 this? 10 A. To you, you mean? 11 Q. Yes. 12 A. It's not the first time I've mentioned it at all. 13 Q. But as far as you know, it's the first time that RDR ever 14 told plaintiffs they're going to drop the -- 15 A. I don't know anything about that contact. All I know is 16 what I said. 17 Q. Would you be willing to delete from the Lexicon all the 18 other times the Lexicon copies or quotes from Ms. Rowling's 19 prose? 20 A. I would have to look at each one individually and decide 21 whether it's appropriate or not. 22 Q. Now, I believe that you also said that, Oh, if Ms. Rowling 23 is not deterred from writing her encyclopedia and writes, that 24 she may write some additional back-stories, some additional 25 fiction; isn't that what you testified to? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 398 84FVWAR4 Vander Ark - redirect 1 A. Yes. 2 Q. But you don't know what Ms. Rowling will or won't do, isn't 3 that right? 4 A. All I know is the things that she said in interviews. 5 Q. Right. And isn't it true that you would see real value if 6 Ms. Rowling were to write more about Harry Potter? 7 A. Of course. 8 Q. And isn't it true that if Ms. Rowling were discouraged from 9 writing about Harry Potter, that would be a loss? 10 A. Yes, I agree. 11 Q. And isn't it true that were Ms. Rowling to write an 12 encyclopedia that did include some additional back-story, isn't 13 it true that you would add that additional cannon to the 14 Lexicon? 15 A. Are you asking me to guess what I would do and that would 16 happen? 17 Q. I'm asking what your practice would be. 18 A. We haven't made a decision on that, so I don't know what I 19 would do. 20 Q. Is there any cannon that Ms. Rowling has ever created 21 related to Harry Potter that you have not put in the Lexicon? 22 MR. HAMMER: I'm sorry, are we talking about the web 23 site or the book? 24 Q. Start with the web site. 25 A. I don't know for sure. I don't think so. But I don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 399 84FVWAR4 Vander Ark - redirect 1 know. 2 Q. So you have no reason to believe that if she wrote 3 something else, you wouldn't copy that and put it in, as well? 4 A. The reason that I say it that way is because I don't know 5 when that would happen. A couple of years was mentioned. I 6 don't know whether we will be still updating the Lexicon web 7 site then, the way we are now, because it serves its purpose as 8 it is. 9 The book that she describes will have a different 10 purpose, and I don't -- I can't say whether that material will 11 be on the web site or not. It could be. You're asking me to 12 talk about a book which doesn't exist. But it could be that I 13 would look at that and say, Well, we don't need to, you know, 14 people can get -- it's all about access; it's about people 15 being able to find information that they need. We may look at 16 it and say, We don't need to do anything here; this is 17 accessible the way it should be. 18 Q. Let's not deal with the future -- 19 A. Thank you. 20 Q. -- in light of this, as you say, speculation. 21 Could you tell me of a single instance in the past 22 when you have not included part of Ms. Rowling's cannon in the 23 web site encyclopedia? 24 A. I can't think of any, no. 25 Q. And the only reason that the book version of the web site SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 400 84FVWAR4 Vander Ark - redirect 1 is not as complete as the web site version, is you and RDR 2 would think it would be impracticable to publish such a large 3 book reproducing the whole Lexicon, isn't that right? 4 A. No, I wouldn't say that's the only reason. 5 Q. That's one of the reasons, right? 6 A. Most of the reason is the purpose of that book, and the 7 purpose of the book dictates that we make concise entries. 8 Q. Well, didn't you testify that the -- in your declaration 9 that the web site gives you effectively infinite page count? 10 A. Yes. 11 Q. And that in the book you needed to cut it down and leave a 12 lot of text on the cutting room table? 13 A. I understand what you mean. Yes, that was a factor. 14 Q. Now, that hasn't deterred Encyclopedia Britannica from 15 publishing multi-volumes of the book, right? I mean it's 16 possible to write long books and various volumes of books, 17 right? 18 A. Presumably so. 19 Q. And isn't it true that the reason that you and RDR have 20 decided that the Lexicon manuscript should be the length that 21 it is, is you think that that would be the most commercially 22 salable version? 23 A. I don't know. I was just -- when we talked about it being 24 about 450 pages, that seemed about right. I don't know all the 25 logic behind it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 401 84FVWAR4 Vander Ark - redirect 1 Q. Thank you. 2 THE COURT: Are you talking printed pages or -- 3 THE WITNESS: Yes, sir. 4 MS. CENDALI: Thank you, your Honor. No further 5 questions. 6 MR. HAMMER: I have no questions, your Honor. 7 MS. CENDALI: I'd like to move in, your Honor, the 8 demonstratives of the other exhibits that I used with 9 Mr. Vander Ark, Exhibits 165 to 171, 193, 194, and 196. 10 THE COURT: These are not already the subject of a 11 stipulation by the parties? 12 MS. CENDALI: I believe some of these were the 13 additional impeachment material that we dealt with today. And 14 the others were just simply the demonstratives that I used with 15 him. 16 THE COURT: Hold on. 17 MR. HAMMER: I don't agree that anything was simply 18 used for impeachment. 19 THE COURT: I'm sorry? 20 MR. HAMMER: I don't agree that materials that were 21 simply used for impeachment necessarily come in. They should 22 have come in at the time they were used to see whether or not 23 he identified them or authenticate them, a whole variety of 24 questions which were not asked. So I only agree to the 25 admission of documents that were on the exhibit list. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 402 84FVWAR4 Vander Ark - redirect 1 MS. CENDALI: I did ask him to identify, and we 2 authenticated all three of the documents, your Honor. 3 MR. HAMMER: They should have been moved in at that 4 time. 5 THE COURT: I'll have to look. 6 MS. CENDALI: They were the two Newton talk. 7 MR. HAMMER: One of these, 196, is an email. 8 THE COURT: 165 is not already in evidence? 9 MS. CENDALI: Yes, 165 and 171 were all discussed 10 yesterday with Ms. Rowling, but I wasn't sure if we had them -- 11 THE COURT: They are all in evidence. 12 MS. CENDALI: Okay. 13 THE COURT: So you're offering the same thing. 14 MS. CENDALI: Forgive me. We weren't sure if they 15 were. It's 193, 194 and 196 are the only ones I'm seeking to 16 move in. 17 MR. HAMMER: 193 and 194 are the two eight-year-old 18 emails about the Newton that Mr. Vander Ark was not able to, in 19 fact, identify because he didn't know what threads, what longer 20 discussions, they were part of; didn't remember these; was not 21 able to describe what discussions they were part of. 22 MS. CENDALI: Mr. -- 23 THE COURT: Wait a minute. 24 MS. CENDALI: That goes to the weight, not to the -- 25 MR. HAMMER: It goes to the admissibility. He can't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 403 84FVWAR4 Vander Ark - redirect 1 identify the document. 2 MS. CENDALI: He identified them; it's words that he 3 had written, and he identified that he wrote those words on 4 those posts. 5 MR. HAMMER: Your Honor, counsel -- normally, if you 6 want to introduce a document during cross, you introduce it at 7 the time you show it to the witness. 8 THE COURT: I understand that. 9 MR. HAMMER: I'm sorry, Judge. 10 THE COURT: I now have to look at these exhibits. I 11 have trouble with 194. It doesn't provide -- it says that it's 12 in different context. They're all out without understanding. 13 The other is 196? 14 MR. HAMMER: 196 was this email in which -- which was 15 not shown to counsel, to us, before this cross-examination, 16 that was written in January during the midst of this suit in 17 which there was actually no authenticating questions asked, 18 email in which Mr. Vander Ark says that he's had disagreements 19 with Roger Rapoport. 20 MS. CENDALI: Your Honor, not only -- 21 THE COURT: His admission that he made those 22 statements about Mr. Rapoport seems to me stands for itself. 23 And the rest of the exhibit contains a lot of things that there 24 is no testimony whatsoever about, and is not authenticated by 25 him. So I'm not going to allow 196. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 404 84FVWAR4 Vander Ark - redirect 1 MS. CENDALI: Your Honor, on 196, this was a document 2 that Mr. Vander Ark, who'd been subpoenaed, was supposed to 3 produce. He was under our -- if you recall -- 4 THE COURT: Well, you still have to authenticate it. 5 MS. CENDALI: He testified that it was an email that 6 he had written to Ms. Anelli. 7 THE COURT: He said that he had written it to 8 Ms. Anelli, but most of it is not relevant to anything in 9 dispute. 10 MS. CENDALI: But he authenticated it as an email he 11 had written. 12 THE COURT: Part of it is an email to Ms. Anelli, part 13 of it is and part of it isn't. That's my point. 14 MR. HAMMER: Also, he was under no obligation by 15 subpoena to produce this document. 16 THE COURT: Her statements are not in her email he 17 didn't testify about. 18 MS. CENDALI: I will redo this to only include the 19 portion that Mr. Vander Ark -- 20 THE COURT: I am standing by my ruling. I'll allow 21 what I said. It's testimony; he's admitted the statements. 22 That's the testimony. I'm not allowing the exhibit. 23 MS. CENDALI: Okay. 24 THE COURT: 193 and 194 are in. 25 (Plaintiff's Exhibit 193, 194 received in evidence) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 405 84FVWAR4 Vander Ark - redirect 1 THE COURT: Next witness. You are excused. 2 (Witness excused) 3 MS. RAY: Your Honor, Claudia Ray of O'Melveny & 4 Myers. The plaintiffs call Suzanne Murphy. 5 THE COURT: Thank you. 6 SUZANNE MURPHY, 7 called as a witness by the Plaintiffs, 8 having been duly sworn, testified as follows: 9 THE DEPUTY CLERK: State your name; spell your first 10 and last name slowly for the record please. 11 THE WITNESS: Suzanne Murphy; S-U-Z-A-N-N-E, 12 M-U-R-P-H-Y. 13 MS. RAY: Thank you, your Honor. 14 DIRECT EXAMINATION 15 BY MS. RAY: 16 Q. Good afternoon, Ms. Murphy. Can you tell us what your 17 current job is? 18 A. I am vice president and publisher of trade publishing and 19 marketing at Scholastic. 20 Q. How long have you held that position? 21 A. I've held the position since publisher since January. 22 Q. How long have you been at Scholastic? 23 A. I will have been there a year this July. And before 24 becoming publisher, I was vice president of trade marketing for 25 Scholastic. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 406 84FVWAR4 Murphy - direct 1 Q. And so total, how long have you been at Scholastic? 2 A. It will be three years in July. 3 Q. What are your job responsibilities as vice president of 4 publishing? 5 A. I oversee all marketing publicity, as well as the editorial 6 and art departments at Scholastic. 7 Q. And in carrying out those responsibilities, what kind of 8 things do you do? What are you involved in? 9 A. I'm involved in the acquisitions, in publishing of books, 10 as well as the marketing and positioning, selling the books. 11 Q. In your work at Scholastic, do you have any responsibility 12 for the Harry Potter books? 13 A. Yes. 14 Q. And what is your responsibility for those books? 15 A. For the time up until the end of last year I was 16 responsible for all the marketing in the U.S. for the Harry 17 Potter books. 18 Q. And since the end of last year? 19 A. I'm sorry? 20 Q. Since the end of last year? 21 A. Now I'm responsible for the publishing, as well. 22 Q. Where did you work before Scholastic? 23 A. Before Scholastic I was at Simon & Schuster Children's 24 Publishing for eight years. I was most recently there as vice 25 president of marketing. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 407 84FVWAR4 Murphy - direct 1 And prior to that I was at Random House Children's 2 Books, where I was in marketing, as well. And prior to that I 3 was at Bantam Doubleday Dell. And I started my career out at 4 Doubleday Books for nonreaders. 5 Q. In addition to the Harry Potter books, what are some of the 6 other children's book titles that you've been involved with? 7 A. I've been involved in the marketing of Magic Treehouse 8 Books at Random House by Mary Pope Osborne. 9 I was involved in the launching "His Dark Materials" 10 series by Philip Pullman, with the launch of "The Golden 11 Compass" while I was there. 12 At Simon & Schuster I was involved in the campaigns 13 for the Olivia Books by Ian Falconer; the Eloise books; The 14 Spider Chronicles. And that's some of the campaigns I've 15 worked on. 16 Q. Are you involved in any book publishing trade groups or 17 industry groups? 18 A. I'm vice chair of the Children's Book Council, which is the 19 trade organization of children's publishers in the U.S. 20 Q. Can you tell us what rights Scholastic has in the Harry 21 Potter books? 22 A. We publish the Harry Potter books in the U.S. 23 Q. Does Scholastic have any rights in any future books by 24 Ms. Rowling? 25 A. We have an option on future Harry Potter novels, books. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 408 84FVWAR4 Murphy - direct 1 Q. Now, in your experience in children's book publishing, is 2 it common for authors to be concerned about the quality of 3 materials associated with their works? 4 A. Absolutely. 5 Q. Why is that? 6 A. An author is the creator of their own material. They 7 usually put a tremendous amount of work into what they create; 8 and for them they're like children, their books, and it's very 9 important that the quality is high for everything related to 10 those books. 11 Q. Can you tell us how you would describe the quality of the 12 Harry Potter novels that Scholastic has published? 13 A. Yes. 14 Q. And how would you describe that quality? 15 A. I describe it as the highest -- of the highest quality. We 16 take a lot of care in design of the books; everything from the 17 font that's used to the covers, to the paper that it's on, 18 paper is high quality, it's recycled, and it's very important. 19 Q. Have you read the parties' submissions in this case, the 20 briefs, the declarations, and the exhibits to the declarations? 21 A. Yes. 22 Q. And among those exhibits, have you read the manuscript for 23 the Harry Potter Lexicon? 24 A. Yes, I have. 25 Q. Having read that manuscript, do you have any opinions as to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 409 84FVWAR4 Murphy - direct 1 the quality of the Lexicon? 2 A. Yes, I do. 3 Q. What is your opinion? 4 A. I don't find it -- I find it of poor quality. I feel that 5 it doesn't really add anything, new insights or essays or 6 critical analysis for Ms. Rowling's work. It really is just -- 7 it really felt to me and appears to me that it's just really a 8 repackaging and a rearranging of Ms. Rowling's work. 9 Q. Ms. Murphy, are you familiar with the term "spoiler alert"? 10 A. Yes, I am. 11 Q. What does that term mean? 12 A. "Spoiler alert" is a term that's used when people are 13 writing about books, whether it be in reviews or online. It's 14 a courtesy to readers who may not have read all of the work or 15 read all of the books, to let them know that what is about to 16 be discussed or written about will reveal key plot points so 17 that -- the key to that is that the reader can decide to stop 18 reading if they don't want to know the key plot points to 19 something that they intend on reading. 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 410 84F5WAR5 Murphy - direct 1 BY MS. RAY: 2 Q. Are there any spoiler alerts in the Lexicon manuscript that 3 you read? 4 A. No. 5 Q. And, does that factor into your opinion of the quality of 6 the book? 7 A. Yeah, absolutely. 8 There is a tremendous amount of plot that is revealed 9 in the entries in the Lexicon. For example, if you look at the 10 entry for Dumbledore you get not just a description of who the 11 character is but exactly what happens to the character and 12 other key plot points that are throughout the books. 13 Q. And why does it matter that the book reveals plot points? 14 A. I'm sorry? 15 Q. Why does it matter that the Lexicon manuscript reveals key 16 plot points? 17 A. I feel that because the Lexicon is -- RDR is selling and 18 marketing the Lexicon books to children's buyers and therefore 19 to children particularly I'm concerned about it. You know, 20 kids are aging into the series. And by that I mean that there 21 are kids every day learning how to read and they're learning -- 22 their reading is getting proficient enough that they would be 23 able to read the Harry Potter books, for example. And I really 24 feel that having the Lexicon in the children's section and also 25 alongside in many cases I would -- my opinion is that it would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 411 84F5WAR5 Murphy - direct 1 be alongside Ms. Rowling's work. It might be bought as a gift 2 for a child, the child might purchase it themselves, a child 3 might check it out at the library. And if they read the 4 Lexicon thinking they're going to get some key information 5 perhaps about the books, they will actually get a tremendous 6 amount of plot and I really do believe that kids will be 7 discouraged from reading further. 8 Q. Ms. Murphy, in your experience in children's book 9 publishing what is a typical schedule for putting out a book? 10 A. Typically, in terms of from when to when? 11 Q. How long it takes from, say, putting -- writing the 12 manuscript to getting it to market. 13 A. Typically we would get a manuscript a year out, sometimes 14 closer on occasion, but solicitation for a title would happen 15 at least five to six months ahead of time and then ahead of the 16 release of the book. 17 Q. And, in the materials that you have seen in connection with 18 this case, was there any connection of how quickly the lexicon 19 was put together? 20 A. Yes. From what I have seen I have seen an agreement was 21 made to publish the Lexicon between Mr. Vander Ark and RDR 22 Books sometime in August and the book was expected to ship in 23 November. And that's a very, very fast schedule. 24 Q. Do you have any opinion as to whether that schedule could 25 have affected the quality of the Lexicon? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 412 84F5WAR5 Murphy - direct 1 A. Absolutely. 2 Q. How would it have affected it? 3 A. Well, since Harry Potter and the Deathly Hallows wasn't 4 published until July 21st of 2007 and because we did not 5 provide advance reading copies to anyone, from that time on to 6 the time of publication of what is being claimed by RDR Books 7 to be a comprehensive and complete guide to all things Harry 8 Potter, that is a very quick schedule. It would not have 9 allowed a lot of time for writing and editing and doing all the 10 things that you should do well and completely for a manuscript 11 to be published. 12 Q. You mentioned that Harry Potter and the Deathly Hallows was 13 published in July of 2007. Is that a lengthy book? 14 A. I'm sorry? 15 Q. Is Harry Potter and the Deathly Hallows a lengthy book? 16 How many pages is it? 17 A. Oh, I'm sorry. Yes. It is. It is very lengthy. 18 Q. More than 500 pages? 19 A. I'm sorry? 20 Q. Is it more than 500 pages? 21 A. Yes, it is. 22 Q. And that was new material that no one had access to prior 23 to July of '07? 24 A. That's right. 25 Q. Ms. Murphy, do you have any opinion as to whether -- excuse SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 413 84F5WAR5 Murphy - direct 1 me. 2 Do you have any understanding as to Ms. Rowling plans 3 to write an encyclopedia to her Harry Potter books? 4 A. Yes. 5 Q. What is your understanding? 6 A. My understanding is that she plans to write an encyclopedia 7 for Harry Potter. 8 Q. And what is your understanding based on? 9 A. My understanding is based on published reports and 10 knowledge from my colleagues at Scholastic also that she has 11 had this intention for a long time, and particularly when the 12 last book was about to be published, it was a big question that 13 was asked repeatedly of her because everyone is curious to know 14 what she will be doing next. 15 Q. You say it was asked repeatedly of her. Was that asked in 16 the press? 17 A. Yes. 18 Q. And did she answer that question? 19 A. Yes. 20 Q. And she told -- what did she tell people? 21 A. That her intention was to write an encyclopedia for her 22 world of Harry Potter but that she may not be getting to it for 23 a while. 24 Q. Do you have any view as to whether if the lexicon were 25 published it would harm the sales of Ms. Rowling's own SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 414 84F5WAR5 Murphy - direct 1 encyclopedia that she plans to write? 2 A. Yes. 3 Q. And what is your opinion? 4 A. I think there is a distinct advantage to being 5 first-to-market in publishing. 6 Obviously, once the book 7 was published, consumers 7 were waiting for the next thing, something that's unique that 8 would come after quite a big publishing event like that. And I 9 believe that the Lexicon actually, since it is really just a 10 repackaging and rearranging of Ms. Rowling's own copyrighted 11 material, would have that advantage should it be allowed to be 12 published. And she would lose the advantage of that and also 13 lose the advantage of having a distinct work based on her own 14 copyrighted material. 15 Q. Let's start with the first point that you raised, the 16 first-to-market advantage. Why is that significant? 17 A. It is a key selling point for many books. 18 Again, I think that, you know, consumers are hungry 19 for something unique and different, and certainly any 20 encyclopedia that would be published using Ms. Rowling's 21 copyrighted material would be -- that would be first to market 22 would enjoy the advantages of being out there first and be 23 something that consumers were more likely to purchase than 24 anything that came after that was similar. 25 Q. Ms. Murphy, have you seen anything in the materials that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 415 84F5WAR5 Murphy - direct 1 you reviewed in this case that related to first to market? 2 A. I'm sorry? 3 Q. That related to this point about being first to market? 4 A. Yes. I have seen some e-mail correspondence written by 5 Mr. Rapoport referring that this, the Lexicon would be the 6 first to market. 7 Q. I will ask Mr. Hoy to put on the screen for us Exhibit 14N. 8 Mr. Hoy, if you can highlight the next to last sentence on that 9 page? It starts, It is also... 10 And Ms. Murphy, can you see that sentence? 11 A. Yes. 12 Q. Is this one of the things that you saw that talked about 13 being first to market? 14 A. Right. Yes, it is. 15 Q. Can you tell us what this is? What your understanding is 16 of this document? 17 A. Mr. Rapoport is writing to, I believe it is a Canadian 18 publisher that the Lexicon would be the first complete 19 reference book on the series. 20 Q. Thank you. 21 Let's talk about the second factor that you mentioned, 22 you talked about Ms. Rowling's planned encyclopedia possibly 23 losing its distinctiveness. Can you tell us what you mean by 24 distinctiveness in that context? 25 A. In this case it is -- in this case it is the author's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 416 84F5WAR5 Murphy - direct 1 ability to use their own works to create something of their own 2 creation and publish it. How the distinctiveness of anything 3 Ms. Rowling -- how it would be affected if the lexicon was 4 allowed to be published first is that, in essence, someone else 5 will be publishing her material in an encyclopedia format and 6 obviously then anything she does after is less distinct. 7 Q. Ms. Murphy, let me ask you about the potential audience for 8 a Harry Potter encyclopedia authored by Ms. Rowling. Who would 9 the people be who might be interested in such a book? 10 A. I think obviously the Harry Potter fans would be interested 11 in it but also I think the general consumer book market would 12 be appealing to people who are buying gifts for kids, for kids 13 themselves. In general, book buyers. Really, the whole market 14 of, that exists out there for the Harry Potter books 15 themselves. 16 Q. Ms. Murphy, you mentioned earlier the concept of the 17 children aging into the Harry Potter series does that concept 18 also factor into who the audience would be? 19 A. Yes. 20 Q. How does that factor into it? 21 A. Again, I think there are new readers coming to books all 22 the time. There are new readers coming to the Harry Potter 23 books. There are readers who haven't been born yet. And once 24 they start reading, they're potential readers for Harry Potter 25 and they would be potential readers for encyclopedias for sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 417 84F5WAR5 Murphy - direct 1 Q. Ms. Murphy, are you aware of a lexicon website? 2 A. Yes, I am. 3 Q. Are you familiar with that website? 4 A. Yes, I have looked at it. 5 Q. Do you think the fact that much of the material or at least 6 some of the material in the Lexicon manuscript also appears in 7 the lexicon website would suggest that a publication of the 8 book the Lexicon would not harm the market for Ms. Rowling's 9 encyclopedia? 10 A. No I don't think that's true. 11 MR. HAMMER: Can you repeat that question? I didn't 12 quite grasp it. 13 Q. I will rephrase it. 14 Ms. Murphy, you said you are aware of the Harry Potter 15 Lexicon website, is that correct? 16 A. That's correct. 17 Q. Is it your understanding that much of the material in the 18 Lexicon manuscript that you reviewed is taken from the Lexicon 19 website? 20 A. Yes. 21 Q. Do you think that fact suggests that publication of the 22 Lexicon manuscript as a book would not harm Ms. Rowling's 23 planned encyclopedia? 24 A. No, I believe it would harm -- publication of a Lexicon 25 book would harm sales of Ms. Rowling's encyclopedia. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 418 84F5WAR5 Murphy - direct 1 Q. Do you think that there is a difference between the Lexicon 2 website and the Lexicon manuscript? 3 A. Yes, I do. 4 Q. What is the difference between those two things? 5 A. The manuscript -- or should it become a book -- is very 6 different from a website. You can't easily, with a push of a 7 button, print out a website. It would be very difficult and 8 onerous to try to do that. And a book, obviously, is 9 everything collected in one volume that sits upon a shelf. 10 Q. Ms. Murphy, we talked about Ms. Rowling's planned 11 encyclopedia and possible impact of the publication of a 12 lexicon on that. Now let me switch gears a little bit and ask 13 you whether you have any view as to whether if the Lexicon book 14 were published it might harm Ms. Rowling's series of Harry 15 Potter novels. 16 A. Yes, I do. 17 Q. What is your view? 18 A. I feel that, again, from the manuscript that I read it 19 really is just like reading Ms. Rowling's works out of order. 20 I don't feel that it brings any new insights into the work and 21 I do think that, you know, yes, maybe there are die hard fans 22 out there but, again, when you think about the larger consumer 23 book-buying public and, again, people who are coming to the 24 series, particularly children, I just feel that many people 25 might get a copy or read it, buy a copy of the Lexicon and get SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 419 84F5WAR5 Murphy - direct 1 so much of Ms. Rowling's work in that form that it might deter 2 them from reading her books. 3 Q. Ms. Murphy, has Scholastic published other books by 4 Ms. Rowling other than the Harry Potter novels? The seven 5 novels? 6 A. Yes. We have published two companion guides. 7 Q. How have those books done? 8 A. They did well but they have only sold a fraction of the 9 number of copies we have sold of her novels. 10 Q. Do you think that the publication of the Lexicon might also 11 affect the performance of those books as well? 12 A. Yes, I do. 13 Q. Why? 14 A. It would affect the sales of the guides, yes, just the same 15 way that I feel that it would affect the sales of novels. 16 Those are Ms. Rowling's works. I feel like if I have -- you 17 know if you are -- if you purchase the Lexicon you are getting 18 so much of that information that you wouldn't need -- you might 19 feel that you don't need to purchase the companion guides. 20 Q. Ms. Murphy, if the Lexicon book were published, do you 21 think it would be the only such book on the market? 22 A. No. 23 Q. Why not? 24 A. I feel as if this book is allowed to be published. I think 25 it just opens up the flood gates for others to publish books SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 420 84F5WAR5 Murphy - direct 1 using Ms. Rowling's copyrighted material in this way. And, it 2 will saturate the market. 3 And I also -- I truly believe that it will have effect 4 on not just her copyrighted works but could have implications 5 and effects on other authors as well. 6 Q. Ms. Murphy, do you think that having books like the Lexicon 7 on the market might actually increase the interest in the Harry 8 Potter novels? 9 A. It might -- it might for some but, again, I don't feel it 10 brings anything new to the works so I really don't think it 11 would increase interest. 12 Q. Ms. Murphy, do you have any view as to what the effect 13 might be if books like the Lexicon became widespread? 14 A. That -- I'm sorry? 15 Q. Do you have any view as to what the effect might be on 16 authors if the -- if books like the Lexicon became widespread? 17 A. You know, from someone who has been in children's 18 publishing and in publishing and in marketing for over 20 years 19 I -- it does make me nervous to contemplate how authors will 20 have to be more cautious about what they allow fans to discuss 21 and produce online, for example. I think it will have a 22 chilling effect on what is, should be a wonderful relationship 23 that creators have with their fans. 24 Q. Ms. Murphy, if the Lexicon were published, do you have any 25 view as to how it might perform in the marketplace? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 421 84F5WAR5 Murphy - direct 1 A. I think it has potential to do quite well. 2 Q. Why do you think that? 3 A. In looking at the materials that I reviewed there is a 4 couple of key things here on the publishing side that the 5 Lexicon would have going for it. There is the Lexicon site 6 itself which is a brand with many Harry Potter fans and that 7 site, if RDR's catalog copies is right, I believe it has 25 8 million viewers a year. And so, that's a big -- potentially 9 big market for promoting the book. And, I'm sure that the book 10 would probably be promoted on the website. 11 And also, Mr. Vander Ark has been on The Today Show, 12 for example and has done other national media. He speaks at 13 academic conferences. And those are all opportunities for him 14 to promote his book. 15 Q. Ms. Murphy, you mentioned the materials you have seen and 16 RDR's statements about the website and Mr. Vander Ark. 17 Mr. Hoy, I will ask you to put Plaintiff's Exhibit 22 18 on the screen. I apologize, 22A. 19 Ms. Murphy, do you see this document? 20 A. Yes. 21 Q. Is this something you have seen before? 22 A. Yes, it is. 23 Q. I will direct your attention to the right-hand side of this 24 document, it is what appears to be a cover of a book and then 25 immediately under that is a paragraph that starts: Steven SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 422 84F5WAR5 Murphy - direct 1 Vander Ark's Harry Potter analysis... 2 Do you see that? 3 A. Yes. 4 Q. And does this relate to -- is this some of the materials 5 you said you saw that talked about Mr. Vander Ark? 6 A. That's right. 7 Q. And what does this say about him? 8 A. It says that he -- his analysis has been featured on the 9 BBC, Today Show, A&E documentaries and The New York Times. 10 Q. Turning to the second page of this same exhibit I will ask 11 you to look at the fourth paragraph of six which starts: 12 Author Vander Ark... 13 THE COURT: I'm sorry, the second page of what? 14 Q. Do you have an understanding what the second page is 15 Ms. Murphy? 16 A. I believe that is a flier for the book, a marketing flier. 17 THE COURT: It is a different document? It is a 18 different document than first page? 19 MS. RAY: Yes, it is, your Honor. These two documents 20 were included as Exhibit A to Ms. Murphy's declaration. 21 THE COURT: I just want to be sure what we are looking 22 at. Go ahead. You are taking a paragraph. 23 What is your question? 24 Q. My question is, Ms. Murphy, if you look at the fourth 25 paragraph that starts author Vander Ark, does that also discuss SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 423 84F5WAR5 Murphy - direct 1 Mr. Vander Ark and his public appearances? 2 A. Yeah. This mentions where he is a keynote -- frequently 3 keynotes at academic conferences and repeats some of the 4 national media attention that he has received. He has done -- 5 and also mentions there is an interview with him on the DVD of 6 Harry Potter and the Order of the Phoenix. 7 Q. If you look at next paragraph it starts with, More than... 8 What does that talk about? 9 A. That's where RDR claims that there are more than 25 million 10 visitors to the Lexicon website each year as a way of showing 11 that there is a vast market for the book. 12 Q. And, Ms. Murphy, I'm going to ask Mr. Hoy to turn back to 13 Exhibit 14N which we looked at earlier. And if we can go to 14 the second page of Exhibit 14N? 15 If you look at that it is about five lines up from the 16 bottom of the first paragraph, the sentence starting: Response 17 at... I wonder if you can highlight that sentence. 18 Ms. Murphy, do you see that highlighted sentence? 19 THE COURT: Sorry, this is 14 what? 20 MS. RAY: 14N, your Honor? 21 THE COURT: Okay. 22 Q. The second page of 14N and it bears RDR 1158. 23 Looking at the highlighted sentence in that document, 24 can you read that for us, please? 25 A. It says: Response at the Frankfurt book fair was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 424 84F5WAR5 Murphy - direct 1 overwhelming. 2 Q. Do you know what the Frankfurt book fair is? 3 A. Yes. It is an international book fair in Frankfurt every 4 fall and it is all publishers from around the world, adult and 5 children's publishers attend and exhibit there. And rights are 6 sold. 7 Q. What is your understanding of what Mr. Rapoport is saying 8 here? 9 A. He is saying that when you say: Response -- that when he 10 says: Response at the Frankfurt book fair was overwhelming, he 11 must have gotten very positive feedback from foreign publishers 12 over the prospect of publishing the Lexicon in their countries. 13 Q. Mr. Hoy, I will ask you to put up what has been marked as 14 Exhibit 137. And if you will please highlight the second 15 sentence? 16 Ms. Murphy, do you see that sentence? 17 A. Yes. 18 Q. What does that say? 19 A. This is an e-mail from Roger Rapoport to Susan Aikens who 20 is a children's book buyer at Borders, and he says in the 21 highlighted spot: I am delighted to know that you are 22 interested in starting with a Harry Potter Lexicon order of 23 roughly 1,500 copies. 24 Q. And this is one of the materials that you looked at in the 25 case? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 425 84F5WAR5 Murphy - direct 1 A. I'm sorry? 2 Q. This is one of the materials you have looked at in the 3 case? 4 A. Yes. 5 Q. Ms. Murphy, you mentioned that Ms. Aikens is a children's 6 book buyer. Do you have any understanding, based on materials 7 you have reviewed, as to whom RDR was marketing the Harry 8 Potter Lexicon to? 9 A. Yes, I do. 10 Q. What is your understanding? 11 A. My understanding is that they were marketing on soliciting 12 children's book buyers at the national chains -- Borders and 13 Barnes & Noble -- as well as children's book buyers at general 14 book stores and children's-only book stores. 15 Q. Ms. Murphy, based on your experience from a marketing 16 perspective, where would you expect the Harry Potter Lexicon to 17 be shelved in book stores? 18 A. Based on Mr. Rapoport's marketing and solicitation efforts, 19 in the children's section. And most likely with Ms. Rowling's 20 Harry Potter books. 21 Q. Do you think it is significant that it would be shelved 22 there? 23 A. I'm sorry. 24 Q. Do you think it is significant that it would be shelved 25 there? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 426 84F5WAR5 Murphy - direct 1 A. Yes, I do. I think it is significant in that it would be 2 competitive with those titles. 3 MS. RAY: Thank you. I have no further questions. 4 THE COURT: Cross-examination. 5 CROSS EXAMINATION 6 BY MR. HAMMER: 7 Q. Good afternoon. I'm David Hammer. I'm the lawyer for RDR 8 Books -- one of the lawyers for RDR Books. 9 It is unusual, isn't it, for a novelist to try to 10 suppress the companion book to his or her novels? 11 MS. RAY: Objection, your Honor. 12 THE COURT: Objection overruled. 13 A. I don't know if it is unusual or not. 14 Q. Sitting there can you name a single other instance in the 15 history of literature when an author has tried to suppress a 16 companion book to his or her novels? 17 A. Off the top of my head I can't. 18 Q. Cannot. 19 Now, you say that one of the things that you are 20 afraid of is that a child might read the lexicon for the plot 21 summaries and therefore not read one of Ms. Rowling's novels; 22 is that correct? 23 A. That's correct. 24 Q. And you also say that the lexicon is dull and not 25 entertaining, is that correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 427 84F5WAR5 Murphy - cross 1 A. Correct. 2 Q. Rowling novels -- excuse me, in fact the Rowlings are 3 highly entertaining and delightful, isn't that correct? 4 A. Yes. 5 Q. You, nevertheless, are afraid that a child will read the 6 dull, flat, unentertaining Lexicon instead of the delightful 7 Rowling novel? 8 A. I think what they're reading in the lexicon is her work 9 rearranged in a not very artful way and that might be a 10 deterrent for them to want to read her novels. 11 Q. Most of the Rowling novels were made into movies, isn't 12 that true? 13 A. That's true. 14 Q. So that a child looking to avoid the difficult act of 15 reading to just see a movie, isn't that true? 16 A. Perhaps. But with the movie they're not getting all of the 17 plot that's contained in the novels. 18 Q. So your fear is that there is some marginal amount of plot 19 that's not in the movie but it is in the Lexicon but that they 20 might get from reading the lexicon? 21 A. I'm sorry. Could you rephrase that? 22 Q. It is too complicated to rephrase. 23 A. It is. 24 Q. Let's go on. 25 You say that the Lexicon book was put together SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 428 84F5WAR5 Murphy - cross 1 quickly, correct? 2 A. It appears to have been put together quickly, yes. 3 Q. But, you understand that the material in the book has been 4 on the website for years, isn't that true? 5 A. I don't know how that can be since Harry Potter and the 6 Deathly Hallows was published on July 21st, 2007. 7 Q. So, what was put together quickly then was the material 8 about that one book, the Deathly Hallows, correct? 9 A. Perhaps. 10 Q. Well, you have no information that the material about 11 anything other than the Deathly Hallows book was put together 12 quickly, isn't that true? 13 A. That is true. 14 Q. And you have not done any exhibits for us showing that the 15 quality of the Deathly Hallows entries are lower than the 16 quality of anything else on the website, correct? 17 A. I have not done that, no. 18 Q. In fact, you haven't done analysis of that, have you? 19 A. I have not, no. 20 Q. Now you say that any encyclopedia that was first to market 21 would have an advantage, is that true? 22 A. Yes. 23 Q. But, in fact -- and you say also that you have read the 24 submissions that the parties have put together in this case, 25 isn't that true? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 429 84F5WAR5 Murphy - cross 1 A. Yes. 2 Q. So that you have read the William Landes declaration, isn't 3 that so? 4 A. I believe I have. 5 Q. He is the economist that plaintiff has hired to do an 6 economic analysis of this case, isn't that true? 7 A. I believe that was what that -- I don't recall it exactly. 8 I would have to see it again. 9 Q. So you are not sure whether you read your own submission on 10 the economics of this case, your own party's submission? 11 MS. RAY: Objection, your Honor. She is not a party. 12 THE WITNESS: It wasn't my own submission. 13 THE COURT: Objection overruled. 14 Q. Well, you are aware that Professor Landes identified the 15 sales of another encyclopedia by Colin Duriez, the Field Guide 16 to Harry Potter? 17 A. I would have to see it again. 18 Q. I would like you to look at the Field Guide to Harry 19 Potter, it is number 525. 20 I am going to approach, your Honor. 21 THE COURT: Exhibit what? 22 MR. HAMMER: 525. 23 THE COURT: Yes, you may. 24 Q. If you want to take a second to look at that, you may. 25 Now, Professor Landes notes that that book was an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 430 84F5WAR5 Murphy - cross 1 encyclopedia published after the Deathly Hallows book came out. 2 Are you aware of how many books that book sold, the Duriez book 3 sold? 4 A. Not off the top of my head, no. 5 Q. Well, I think we can stipulate that Professor Landes 6 identified 201 sales of that book. So is 201 sales not a lot 7 of sales of an encyclopedia, correct? 8 A. No. 9 Q. That book, in fact, is the first encyclopedia of Harry 10 Potter to come out after Deathly Hallows, isn't that correct? 11 A. I'm not sure I would characterize this the same as I would 12 characterize a lexicon. This book has additional material. 13 For example, it gives the -- supports spirituality and other 14 themes in Harry Potter. I wouldn't consider this a 15 comparable -- comparable work. 16 Q. Now, Ms. Murphy, Ms. Rowling's own book will not be exactly 17 comparable to the Lexicon, isn't that true? 18 A. If she's allowed to use her own copyrighted material it 19 will have many similarities to the lexicon. 20 Q. Well, it will have similarities but, like this book, the 21 Duriez book, it will have additional material, it will have 22 back story; correct? 23 A. I believe that's what she said. 24 Q. It will have plot lines that have been dropped, is that 25 correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 431 84F5WAR5 Murphy - cross 1 A. I believe that's what she has said but there is no -- I 2 haven't seen that manuscript. 3 Q. And, I believe your testimony was that any encyclopedia 4 that's the first to market would have a distinct advantage, 5 isn't that true? 6 A. Yes. 7 Q. That encyclopedia sold 201 copies and it is the first to 8 market so that first-to-market advantage can't be very 9 profound, can it? 10 A. I'm not sure I agree with you. 11 Q. Have you done any studies to in fact calculate what the 12 first-to-market advantage would be for a Harry Potter 13 encyclopedia? 14 A. No, I have not. 15 Q. Are you aware of any studies that anyone at Scholastic has 16 made of what the effect of the first-to-market advantage would 17 be? 18 A. No, I have not. 19 Q. So, this is simply an intuition that you have, correct? 20 A. It is my expert opinion. 21 Q. It is an expert opinion that is not based upon any actual 22 studies, correct? 23 A. It is based on my experience in publishing and my 24 experience in marketing for over 20 years in children's 25 publishing and in publishing. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 432 84F5WAR5 Murphy - cross 1 Q. Can you give us an example of another encyclopedia you have 2 experience with in which the first-to-market advantage was 3 studied? 4 A. That it was studied? 5 Q. Yes. 6 A. I can't give an example of an encyclopedia, no. 7 Q. The two companion books that Ms. Rowling wrote, the 8 Quidditch Through the Ages and the Fantastic Beasts, those are 9 the two books, right? 10 A. Yes. 11 Q. You say they did well? 12 A. Yes, they did. 13 Q. In fact they did very well? 14 A. Yes, they did very well. 15 Q. Each sold over a million copies, isn't that correct? 16 A. I can tell you that we have over a million copies in print. 17 Q. And that's true even though these books were written back 18 in 2001, isn't that so? 19 A. Yes. 20 Q. And that 2001 was before the height of the Harry Potter 21 phenomenon -- before the Harry Potter phenomenon reached its 22 height, isn't that true? 23 A. Well, the books have been out since 2001 so, obviously, 24 they sell. They've sold steadily since 2001. They didn't sell 25 that many copies, you know, right out the gate. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 433 84F5WAR5 Murphy - cross 1 Q. Has Ms. Rowling ever written anything about Harry Potter 2 that has not done phenomenally well? 3 A. I don't think so. Yeah, I don't think so. 4 Q. Is there any reason to believe that if she wrote a Harry 5 Potter encyclopedia with back story and dropped plot lines that 6 it would not do phenomenally well? 7 A. I think there is reason to believe that if she's not 8 allowed to use her own copyrighted material and something else 9 is first to market, I feel that it would do well but it 10 wouldn't do as well. 11 THE COURT: Why do you think that she's not allowed to 12 use her own copyrighted material? 13 THE WITNESS: Well, I think that -- I think that -- my 14 concern is that -- 15 THE COURT: Well, what basis do you have to think that 16 she couldn't use her own copyrighted material? 17 THE WITNESS: Because if the Lexicon is published it 18 would be copyrighted by another author and it contains much -- 19 many of -- much of her own material. 20 THE COURT: But if her only material is already 21 copyrighted, doesn't that trump anything that might be copied 22 in a Lexicon? 23 THE WITNESS: One would hope that was the case but I 24 think that's what we are here to discuss. 25 THE COURT: Do you have any reason to believe it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 434 84F5WAR5 Murphy - cross 1 wouldn't be the case? 2 THE WITNESS: It is my opinion that there -- it would 3 be copyrighted material. I mean, I have seen the RDR, you 4 know, go after the Warner Brothers regarding the time line. 5 THE COURT: You are not answering the question. 6 THE WITNESS: Sure. 7 THE COURT: I'm asking you about whether, in any way, 8 her -- Ms. Rowling's -- copyrighted material wouldn't still 9 have a valid copyright and be usable by her in any encyclopedia 10 she might write. 11 THE WITNESS: I would hope so. 12 THE COURT: What? 13 THE WITNESS: I would hope so, that it would; yes. 14 THE COURT: You have no reason to believe otherwise, 15 do you? 16 THE WITNESS: No. No other reason to believe 17 otherwise. 18 THE COURT: All right. 19 THE WITNESS: Right at this moment. 20 THE COURT: All right. Any other qualifiers? 21 THE WITNESS: No, your Honor. 22 THE COURT: All right. 23 BY MR. HAMMER: 24 Q. Ms. Murphy, what was the promotional budget for the Deathly 25 Hallows book at Scholastic? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 435 84F5WAR5 Murphy - cross 1 A. We don't reveal those publicly. 2 Q. I know you don't but I'm asking you a question in Court. 3 THE COURT: I'm sorry. Could I hear the question? 4 MS. RAY: I'm going to object, your Honor. 5 Q. What was the promotional budget that -- Scholastic's 6 promotional budget for the Deathly Hallows book? 7 MS. RAY: Objection? 8 THE COURT: What is the point? 9 MR. HAMMER: The point? I want to contrast it to the 10 promotional budget at RDR for the Lexicon book. 11 MS. RAY: Objection. 12 MR. HAMMER: Withdrawn, your Honor. I have no further 13 questions. 14 MS. RAY: Your Honor, I have two or three more 15 questions. 16 THE COURT: Is he all done? 17 MR. HAMMER: I'm all done. 18 THE COURT: Fine. 19 REDIRECT EXAMINATION 20 BY MS. RAY: 21 Q. Ms. Murphy, I will be brief. Let me ask you one question 22 first. Have you ever testified before? 23 A. No, I have not. 24 Q. Are you nervous? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 436 84F5WAR5 Murphy - redirect 1 Q. When you said that you were concerned about whether 2 Ms. Rowling would be able to use her copyrighted material and 3 you talked about first-to-market, you said you reviewed the 4 Lexicon manuscript; does the Lexicon manuscript incorporate, in 5 your view, Ms. Rowling's copyrighted works? 6 A. In my view, yes. 7 Q. And, if Ms. Rowling wrote a book, an encyclopedia also 8 using her own copyrighted works, how many books would there be 9 on the market that used those works for encyclopedia? 10 A. I'm sorry. Could you repeat that? 11 Q. If the Lexicon were on the market that used Ms. Rowling's 12 work and then she came and wrote another book, an encyclopedia 13 that also used her work, would there be more than one 14 encyclopedia on the market using the same material? 15 A. Yes, there would. 16 Q. And what would be the impact of that be on Ms. Rowling's 17 book if it were not first? 18 A. It would have a negative impact on it, I feel, that people 19 who purchased the first book would be unlikely -- perhaps be 20 unlikely to purchase the second book because they feel as if 21 they've already purchased the material. 22 Q. Is that what you meant when you talked about a loss of 23 distinctiveness? 24 A. Yes. 25 THE COURT: Loss of what? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 437 84F5WAR5 Murphy - redirect 1 Q. Distinctiveness. 2 A. Yes, it is. 3 Q. Ms. Murphy, you were asked questions about the Field Guide 4 to Harry Potter by Colin Duriez. Do you know when that book 5 came out? 6 A. This book? 7 Q. Yes. 8 A. No. 9 Q. Do you have any idea how long it has been on the market? 10 A. No, I don't. 11 Q. Do you know how many copies it has sold, in total? 12 A. Only from what Mr. Hammer just said. 13 Q. Ms. Murphy, are you familiar with a book published by 14 Mugglenet about Harry Potter? 15 A. Yes, I am. 16 Q. Is that the book What Happens in Harry Potter 7? 17 A. Yes. Yes. 18 Q. Do you know when that book came out? 19 A. I believe that book came out in -- sometime in 2006 or 20 2007. 21 Q. Do you know how that book did? 22 A. Yes. I have read a published report that it sold over 23 300,000 copies and also was on the New York Times Best-Seller 24 list for many weeks. 25 Q. Ms. Murphy, can you give any examples from your experience SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 438 84F5WAR5 Murphy - redirect 1 in publishing where being first-to-market was important? 2 A. Yes. 3 Q. Can you give us an example, please? 4 A. After any major event consumers are hungry for information. 5 The best example I can think of is coming out with a bio for 6 children on a presidential candidate who has just been -- just 7 won the election. And there is a rush to market to be the 8 first out there with that. 9 MS. RAY: Thank you, Ms. Murphy. I have no more 10 questions? 11 THE WITNESS: Thanks. 12 THE COURT: Are you all done with the witness? 13 MS. RAY: Yes, your Honor. 14 THE COURT: Mr. Hammer, are you all done? 15 MR. HAMMER: Your Honor, I have no questions at this 16 point. 17 THE COURT: Thank you. You are excused. 18 THE WITNESS: Thank you. 19 MS. CENDALI: I think, your Honor, we are currently 20 out of witnesses as we reached agreement with the two experts. 21 THE COURT: We have got to go ahead. 22 MR. HAMMER: If we can put on a witness out of order I 23 can put on Bruce Harris. 24 MS. CENDALI: That would be fine, your Honor. 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 439 84F5WAR5 Murphy - redirect 1 MR. HAMMER: I don't suppose I could have a second, 2 your Honor, or actually about a minute and a half? 3 THE COURT: You can have a couple of minutes. 4 We can break for a few minutes. 5 MR. HAMMER: Thank you, Judge. 6 (Recess) 7 MR. HAMMER: Your Honor, so defendants are calling out 8 of order now the defendant's expert on publishing, Mr. Bruce 9 Harris. 10 BRUCE HARRIS, 11 called as a witness by the Defendant, 12 having been duly sworn, testified as follows: 13 THE WITNESS: Bruce Harris. H-A-R-R-I-S. 14 DIRECT EXAMINATION 15 BY MR. HAMMER: 16 Q. Mr. Harris, you know who I am; David Hammer, right? 17 A. Yes. 18 Q. Where do you live? 19 A. I live at 300 East 59th Street in New York City. 20 Q. What do you do? 21 A. I'm now a publishing consultant for book publishing firms. 22 Q. How long have you been in the publishing industry? 23 A. Over 40 years. 24 Q. Let's go back to college. Where did you graduate? 25 A. I graduated from NYU. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 440 84F5WAR5 Harris - direct 1 Q. What year? 2 A. 1960. 3 Q. After you left NYU what did you do? 4 A. I became a secretary at Crown Publishers. 5 Q. Did you stay at Crown Publishers for a while? 6 A. I did. I was there for 28 years and I rose to being the 7 publisher at Crown. 8 Q. What does a publisher do? 9 A. A publisher is responsible for acquisition, marketing, 10 production -- all phases of book publishing. 11 Q. How long did you stay at Crown? 12 A. I was there for 28 years. 13 Q. So, just bear with me, that would mean, what, in 1988 that 14 you left? 15 A. That's right. Well, I didn't leave. 16 Q. What happened? 17 A. Crown was bought by Random House. 18 Q. Did you go to Random House? 19 A. I did. I became president of the trade sales and marketing 20 division of Random House which included 14 imprints. 21 Q. How long were you at Random House? 22 A. I was at Random House for 12 years. 23 Q. And what year did you leave? 24 A. I left in 1998. 25 Q. Where did you go after you left Random House? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 441 84F5WAR5 Harris - direct 1 A. I became publisher and chief operating officer at Workman 2 Books. Largest independent trade publisher in the U.S. 3 Q. What kind of books did Workman publish or does it publish? 4 A. All kinds of trade books, paperback, hardback, children's 5 books, adult books. 6 Q. How long were you the publisher at Workman? 7 A. Five years. 8 Q. When did you leave Workman? 9 A. In 2004. 10 Q. What have you done since 2004? 11 A. I became a consultant to publishing companies. 12 Q. What kinds of things do you consult about? 13 A. I consult about all kinds of publishing matters for clients 14 as diverse as Alfred Knopf; Time, Inc.; Newsweek. Other 15 publishing companies. 16 Q. Do you teach at all? 17 A. I do. I teach at the Stanford University publishing 18 courses during the summer and I also teach at Pratt. 19 Q. What do you teach at Stanford? 20 A. I teach mainly trade sales and marketing. 21 Q. You know that we have some lawyers on our case from 22 Stanford? 23 A. Yes, I do. 24 Q. Did they bring you into the case? 25 A. No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 442 84F5WAR5 Harris - direct 1 Q. In preparation for your testimony today what have you read? 2 What have you reviewed? 3 A. I have reviewed several of the declarations. 4 Q. Was Ms. Murphy's one of them? 5 A. Ms. Murphy's was one. Ms. Rowling's was another. 6 Q. Mr. Vander Ark's? 7 A. Mr. Vander Ark's. And I looked at the manuscript of the 8 Lexicon. 9 Q. And, on the basis of the materials that you read and on 10 your 40 years experience, have you developed an opinion as to 11 whether publication of the Lexicon book is likely to have an 12 impact on the sales of an encyclopedia by Ms. Rowling? 13 A. Yes, I have. 14 Q. What is your opinion? 15 A. I think it is extremely unlikely that it would have effect 16 on the sales of the next book by Ms. Rowling. 17 Q. Let's look at the basis for your opinion. Did you consider 18 the distribution channels in the United States for distributing 19 books in your opinion? 20 A. Yes. 21 Q. How are books distributed in the United States? 22 A. Well, there are many different channels, the retail book 23 stores being the ones that are most familiar, then there are 24 wholesalers, there are libraries, and there are online book 25 sellers. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 443 84F5WAR5 Harris - direct 1 Q. Can you give us an example of a retailer? 2 A. Barnes & Noble and Borders would be the most familiar. 3 Q. Those are the large chains? 4 A. Yes, they are. 5 Q. Can you give us an example of a wholesaler? 6 A. A wholesaler would be Ingram Book Company or Baker & 7 Taylor. 8 Q. Online seller, is that Amazon? 9 A. That would be Amazon. And there are smaller ones, too. 10 Q. Now, you have heard testimony that the publisher of the 11 Potter novel is Scholastic. Are you able to determine if 12 Scholastic has had success with the Potter novels? 13 A. Yes, they've had tremendous success. 14 Q. Can you quantify that? 15 A. Yes. 16 According to their last quarterly filing they 17 announced they had sold over 13 million copies and collected 18 over $250 million. 19 Q. That was for the Deathly Hallows book alone? 20 A. That was. 21 Q. Where do you -- where do we get data from on book sales in 22 the United States? 23 A. The most reliable data is from A.C. Nielsen which studies 24 retail sales of all kinds. And the book data is compiled by 25 something called BookScan. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 444 84F5WAR5 Harris - direct 1 Q. How does Nielsen break down its data? 2 A. They have several different categories, the largest are 3 retail and then discount. 4 Q. What does retail include? 5 A. Retail includes book stores, both chain and independent. 6 Q. What percentage of total U.S. sales are accounted for by 7 chains? 8 A. I would estimate between 40 and 50 percent of the books 9 sold are sold at chains now. 10 Q. Where does that statistic come from? How do you arrive at 11 that? 12 A. It comes from my 40 years experience in the book business. 13 Q. Well, as publisher, do you deal with national chains? 14 A. Yes, I did. 15 Q. In your experience, how do national chains decide what 16 books to buy for their stores? 17 A. The most important criteria is obviously the author's 18 previous track record and reputation. 19 Q. Why is the previous track record and reputation the most 20 important criteria? 21 A. Because it is something very concrete that they have to go 22 on showing that they actually sold books. 23 Q. Do we know what Ms. Rowling's -- the sales of Ms. Rowling's 24 latest novel, Deathly Hallows, were through the national 25 chains? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 445 84F5WAR5 Harris - direct 1 A. Well, we know that in the retail section that BookScan 2 looked at there were over 7 million copies of Harry Potter and 3 the Deathly Hallows sold. 4 Q. In your experience is that unusually high for a single 5 book? 6 A. That's interestingly high. Very significant. 7 Q. Based on that data, can you come up with even a rough 8 estimate of what the national chains would order for an 9 encyclopedia by Ms. Rowling? 10 A. Conservatively they would order at least a million copies. 11 Q. Is that a piece or is that all together? 12 A. No, a piece. 13 We know that Barnes & Noble told over 2 million copies 14 in the first few months of Deathly Hallows. 15 Q. Now, would it matter that in deciding to order a million 16 copies a piece that the next book was not itself a novel? 17 A. No, because, as I read in Ms. Rowling's declaration, she is 18 going to include original material and her fans are so 19 enthusiastic that they would order it as if this was another 20 book in the canon. 21 Q. Are you aware that Ms. Rowling has published two small 22 companion books? 23 A. Yes. 24 Q. Have you come up with any sales figures for those two 25 books? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 446 84F5WAR5 Harris - direct 1 A. Yes. According to BookScan both of those books have sold 2 over a million copies. 3 Q. When Ms. Rowling does publish her encyclopedia, where would 4 you expect a book chain to place it in their stores? 5 A. I would expect them to place it with the other Harry Potter 6 books by Ms. Rowling. 7 Q. Why would they place it there? 8 A. Because it is the next book by Ms. Rowling. And people 9 would expect to find it there. 10 Q. Would they also place it in the front of store, do you 11 think? 12 A. They would definitely place it in the front of the store. 13 There was such tremendous enthusiasm when the last 14 book was published they had to have special parties, open the 15 store at midnight. It was a real event so the book was given 16 very prime, front of store, placement. 17 Q. Would you expect the book stores would be open to midnight 18 for Mr. Vander Ark's Lexicon? 19 A. No. It would be highly unlikely. 20 Q. Would you expect -- where would you expect Mr. Vander Ark's 21 book to be placed? 22 A. I think some book stores would place it with 23 Mr. Vander Ark's work and some book stores would place it under 24 reference. 25 Q. To the extent that it is placed under reference, would that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 447 84F5WAR5 Harris - direct 1 affect its sales? 2 A. Yes, because reference sells a lot slower than fiction. 3 Q. So then why would they put it in reference? 4 A. Well, it would have a book number which would indicate that 5 it was basically a reference work. 6 As librarians can tell you, they number books and put 7 them into categories. And since this would be numbered into a 8 reference category, some book stores would place it there. 9 Q. Are you able to reach an estimate of what the retail sales 10 of Mr. Vander Ark's Lexicon would be? 11 A. The total retail sales? 12 Q. Well through a chain, any one of the national chains. 13 A. Well, I think we heard that Borders was considering 14 ordering 1,500 copies. 15 Q. Does that strike you about right for Barnes & Noble as 16 well? 17 A. Yeah. Probably. 18 Q. How many Barnes & Noble outlet stores are there? 19 A. There are over 600 stores, so by placing an order for 1,500 20 you would guarantee that there was at least one book in each 21 store and some overage. 22 Q. Is there a reason why they might not buy more than one or 23 two or three books per store? 24 A. Well, they have no track record to go by and this is going 25 to be a reference work by an unknown person. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 448 84F5WAR5 Harris - direct 1 Q. Let's turn to the wholesalers. 2 You mentioned Ingram, how many major wholesalers are 3 there? 4 A. There are three major wholesalers. 5 Q. And their names are? 6 A. Ingram, Baker & Taylor, and Charles Levy. 7 Q. Do they have special niches? 8 A. Yes. Ingram specializes in re-supplying the book stores 9 and does some online business. Baker & Taylor is a specialist 10 in libraries and also has now taken on some big box retailers 11 like Costco. And, Charles Levy supplies Target and airport 12 stores. 13 Q. You know what's a big box retailer? 14 A. A big box retailer would be a store where they sell many 15 other items besides books. 16 Q. Has Ms. Rowling had success with wholesalers? 17 A. Yes. Her book has been the most successful book of last 18 year for everyone who handled it. 19 Q. Is Mr. Vander Ark likely to make significant sales through 20 wholesalers? 21 A. No, because many of the wholesaler's customers only stock 22 best-sellers. And since his book is highly unlikely to be a 23 best-seller, it would not be stocked in any significant 24 quantity. 25 Q. Are you able to come up with an estimate of what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 449 84F5WAR5 Harris - direct 1 wholesalers might order for a Rowling encyclopedia? 2 A. I think they'd order at least 300,000 and probably more 3 each. 4 Q. Are you able to come up with an estimate of what they might 5 order for a Vander Ark Lexicon? 6 A. I would doubt that they would order more than 500 copies a 7 piece. 8 Q. Now, you also mentioned libraries as a distribution 9 channel. About how many libraries are there in the United 10 States? 11 A. There are over 20,000 libraries in the United States now. 12 Q. How do the libraries, in your experience, decide what books 13 to purchase? 14 A. Libraries have their circulation development person 15 basically watch patron usage. 16 Q. That's kind of like a past track record for retailers, 17 right? 18 A. Exactly. 19 Q. So, was the patron usage for Ms. Rowling's novels high? 20 A. It was probably the highest of any book of the year. They 21 had to have multiple copies in every branch. 22 Q. Mr. Vander Ark has never written a book before, how would 23 they determine patron usage of his book? 24 A. Well, in libraries his book would definitely be cataloged 25 under reference and they have very small budgets to buy SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 450 84F5WAR5 Harris - direct 1 reference books so they would buy them for the main libraries 2 and if the branches could buy them -- although their budgets 3 are quite challenged these days -- they would buy them in very, 4 very small quantity. 5 Q. Let's turn to the online distribution channel, that was 6 Amazon-type organizations? 7 A. That's right. 8 Q. Is Amazon the largest? 9 A. Amazon is the largest. 10 Q. What was Amazon's record with Ms. Rowling's last book? 11 A. We know that they sold over 2,200,000 copies almost in the 12 first few weeks. They had advance orders for that according to 13 the New York Times. 14 Q. And what is the -- is that an unusually high figure of 15 sales for online? 16 A. I think it was probably the highest sale they had all year. 17 Q. Are there concrete consequences or benefits that a 18 publisher gets for publishing a book in such high volume? 19 A. Yes. There are advertising allowances that accrue to the 20 publisher which allow them to advertise the next book, and 21 there would be quite a bit of money available for Ms. Rowling's 22 next book for online to do banner ads and home page 23 announcements and for physical brick and mortar stores to do 24 displays, parties and other things like that. 25 Q. So, when you talk about last book you mean the success of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 451 84F5WAR5 Harris - direct 1 Deathly Hallows through Amazon would lead to promotional 2 benefits for an encyclopedia for Ms. Rowling? 3 A. Absolutely. 4 Q. Would there be any promotional benefits that 5 Mr. Vander Ark's Lexicon would likely gain from Amazon? 6 A. No. He would have to give extra money in order to get any 7 kind of mention and I doubt that he could afford anything like 8 a home page announcement. 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 452 84FVWAR6 Harris - direct 1 Q. So I'm just going to ask you now to summarize the factors 2 that are relevant in forming your opinion here. Ms. Rowling's 3 niche in the publishing industry, is that unusual? 4 A. Yes, I think she is the bestselling author of the 21st 5 century. 6 Q. Does Mr. Vander Ark have a niche in the publishing 7 industry? 8 A. Not as yet. 9 Q. If you were a publisher, if you were in charge of 10 Scholastic, what would be your run of the encyclopedia? 11 A. I would publish at least seven and-a-half million copies. 12 Q. And if you were Mr. Rapoport, what be would be a prudent 13 run of the Lexicon? 14 A. I think anything over 10,000 copies would be risky. 15 Q. Thank you very much. 16 MR. PUTNAM: If I may, your Honor. I should introduce 17 myself to the Court, since I wasn't here. It's Marvin Putnam 18 of O'Melveny & Myers, P-U-T-N-A-M. And I'm also going to 19 approach, if I may, your Honor, give you a copy of the exhibit. 20 CROSS-EXAMINATION 21 BY MR. PUTNAM: 22 Q. Mr. Harris, I think most of the exhibits you'll have seen 23 before; if not, obviously we have copies, we'll be placing some 24 up here, okay? 25 A. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 453 84FVWAR6 Harris - cross 1 Q. Mr. Harris, you'd indicated that -- 2 MR. HAMMER: I'm sorry, I'd just like to know this 3 gentleman's name. 4 MR. PUTNAM: I just announced it for the Court. I am 5 happy to do it again, if you'd like. 6 THE COURT: Marvin Putnam. 7 MR. HAMMER: Marvin Putnam? 8 MR. PUTNAM: Yes. P-U-T-N-A-M, also from O'Melveny & 9 Myers, also representing the plaintiffs here today. 10 MR. HAMMER: Okay. 11 BY MR. PUTNAM: 12 Q. So, Mr. Harris, you've indicated that you'd been in 13 business for over 40 years, correct? 14 A. That's correct. 15 Q. You've been at Crown, Workman, Random, is that correct? 16 A. Yes. 17 Q. I noticed that in your declaration of this matter, I'm 18 actually going to put it up for ease of reference, if that's 19 all right. 20 A. Sure. 21 Q. It's Defendant's No. 529. And again, mostly this will be 22 for ease of reference. 23 MR. PUTNAM: And, your Honor, that's the first exhibit 24 in your book. 25 THE COURT: I have it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 454 84FVWAR6 Harris - cross 1 Q. It says here that when you were at Random, the second 2 paragraph, there were fifteen imprints, correct, that you were 3 in charge of? 4 A. We're not looking at that, we're looking at the Workman 5 paragraph? 6 Q. I'm sorry, no, the second, the second paragraph. 7 THE COURT: But you misspoke and said Random. 8 MR. PUTNAM: I apologize. 9 Q. When you were at Random, this is what I'm speaking of, the 10 imprints there -- 11 A. Oh, yes. 12 Q. -- you were in charge of 14, correct? 13 A. That's correct. 14 Q. Because there were no imprints, were there, at Workman? 15 A. Yes, there are imprints. 16 Q. Well, actually, there are two, correct? 17 A. What? 18 Q. Two imprints at Workman? 19 A. No, there are four, actually. 20 Q. What are they? 21 A. Story, Algonquin and Artisan and Workman. 22 Q. Okay. And are any of those children's imprints? 23 A. Workman has the number one children's bestseller right now. 24 Q. But are any of them of the imprints? Is that -- what is it 25 called? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 455 84FVWAR6 Harris - cross 1 A. What is what called? 2 Q. The book called. 3 A. Gallop. 4 Q. Gallop. And what is it? 5 A. It's a children's book. 6 Q. What is the topic? Is it a horse? 7 A. It's a book in which pictures appear to move. 8 Q. Pictures appear to move. 9 A. Yes. 10 Q. Is there a story? 11 A. Loosely. 12 Q. Loosely. The reason I ask is isn't it true that Workman by 13 and large has cookbooks and picture books and calendars? 14 A. Yes, but it has a large children's book publication. It 15 publishes a lot of books by Sandy Boynton who sold millions of 16 copies. We have -- at Workman we've sold over probably ten 17 million copies of her books alone; so we have quite a bit of 18 children's books. 19 Q. Now, Sandy Boynton, is she the one who's the cartoonist? 20 A. Yes, she is. 21 Q. So this is a cartoon book? 22 A. Yeah, it's a picture book. 23 Q. And so beyond picture books, are there a lot of children's 24 prose books at Workman? 25 A. Children's novels, no. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 456 84FVWAR6 Harris - cross 1 Q. No, there really aren't, right? And of the 14 imprints you 2 were in charge of when you were at Random, were any of those 3 children's imprints? 4 A. No. 5 Q. Have you ever been in charge of a children's imprint? 6 A. Yes. At Crown I was in charge of Lillterbly and Shepherd 7 before we sold it to Morrow. 8 Q. That was how long, 30 years ago? 9 A. Well, I guess it's getting -- 25. 10 Q. Twenty-five years ago. And in the 25 years since, your 11 emphasis has not been in any measure in children's books, has 12 it? 13 A. No, it's been on adult books. 14 Q. And going on from there, Scholastic, conversely, you would 15 say, would you not, is a children's imprint that specializes in 16 children's books? 17 A. Yes. 18 Q. And would you agree that it's one of the finest children's 19 publishers in the world? 20 A. Yes, it's very good. 21 Q. And you've indicated that you had left Workman in 2004, 22 correct? 23 A. That's true. 24 Q. And Workman, as you said, is one of the largest, if not the 25 largest, independent trade entities, but it isn't considered SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 457 84FVWAR6 Harris - cross 1 one of the big publishing houses, is it? 2 A. It depends. 3 Q. On what? 4 A. Well, depends on the kind of year you're having and 5 everything else. I consider it pretty big. 6 Q. Okay. And since 2004, you haven't worked for a publishing 7 house, correct? 8 A. I've worked as a consultant. 9 Q. But you haven't actually been employed by a publishing 10 house as a salaried employee, correct? 11 A. No, I've been employed as a consultant. 12 Q. Some people, when they become consultants, it's after they 13 retire. Had you retired? 14 A. Yes, semi-retired. 15 Q. Okay. So this is what you're doing in your retirement, is 16 that correct? 17 A. That's true. 18 Q. And would you agree that there had been rapid changes since 19 you retired in the publishing business? 20 A. Not that rapid. And I keep up with things. Obviously I 21 wouldn't be worth much as a consultant if I didn't keep up with 22 things, and that's what teaching at Stanford helps me to do. 23 Q. Well, how does it help you do that while you're teaching at 24 Stanford? 25 A. Well, Stanford is a very progressive place. They are very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 458 84FVWAR6 Harris - cross 1 up on digital publishing, and so I've become quite familiar 2 with what's going on. 3 Q. Well, then there's an example, digital publishing. 4 A. Yeah. 5 Q. Isn't that a pretty dramatic change in the publishing 6 business in over the last course of, say, five or six years? 7 A. Well, it looks like it's a dramatic change. 8 Q. But it's not? 9 A. Well, we don't know yet. 10 Q. Are we heading in that direction? 11 A. I guess so. 12 Q. And wouldn't you also say that in the time since you've 13 retired there's been some pretty dramatic changes in the means 14 of distribution for books, and not just digital being one of 15 them; but, for example, the increase in online sales for books? 16 A. That happened while I was working at Workman. Amazon was 17 our second largest customer; so I don't think things have 18 changed quite as much as you are trying to suggest. 19 Q. So you don't think in 2004 until today there's been a large 20 increase in the number of book sales on Amazon? 21 A. Relatively to other book sales, no. 22 Q. Now, did you put it that way because of the decline in book 23 sales generally over the last five years? 24 A. Yeah. 25 Q. Because there has been a pretty notable decline in book SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 459 84FVWAR6 Harris - cross 1 sales, have there not? 2 A. No, there's been a decline in unit sales, but not in 3 dollars. 4 Q. So, again, the number of books sold has declined 5 dramatically over the last five years, hasn't it? 6 A. Not dramatically, no. 7 Q. Has it declined? 8 A. No. It's about two or three percent. Is that dramatic? 9 Q. But it has declined? 10 A. Yes. Units. 11 Q. You are here today as an expert, correct? 12 A. Yeah, I suppose. 13 Q. Have you ever testified before as an expert? 14 A. No. 15 Q. Have you ever been hired as an expert before to testify in 16 some measure, whether it be a declaration, to give advice on a 17 lawsuit or anything of that nature? 18 A. No. 19 Q. But you have testified before in a case, correct? 20 A. Yes. 21 Q. But it was as a fact witness, not as an expert? 22 A. Yes. 23 Q. When were you first approached to be an expert in this 24 matter? 25 A. Several weeks ago. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 460 84FVWAR6 Harris - cross 1 Q. So just recently? 2 A. Yes. 3 Q. And who approached you? 4 A. Mr. Hammer. 5 Q. And do you know why he approached you? 6 A. No. He had gotten my name from somebody. 7 Q. And do you know who he got your name from? 8 A. I think he got my name from Larry Kirschbaum, former 9 chairman of Time. 10 Q. I know who he is. The reason I was asking is because there 11 were a number of Harrises in this case. There's a Harris who 12 works for Mr. Hammer, in fact, and there's a Harris at the 13 defendant RDR, and I was just curious if you were related to 14 either of them? 15 A. I don't know any of the other Harrises. 16 Q. Okay. Richard and David. So when he approached you, what 17 did he ask you? 18 A. He asked me whether I'd be willing to think about being an 19 expert witness, and he had some things he wanted to talk to me 20 about and show me. 21 Q. And what were those things? 22 A. Those were the declarations. 23 Q. And did you agree right away that you would be an expert? 24 A. Yeah, after I read it. I was pretty sure I would be able 25 to help. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 461 84FVWAR6 Harris - cross 1 Q. What do you mean by be able to help? Did he tell you what 2 opinion he hoped you'd be able to provide? 3 A. He asked me some questions and he asked me about the 4 channels, and I thought I would be able to fill in some things 5 that he needed filled in. 6 Q. Filled in for what purpose? 7 A. To testify to get the facts out. 8 Q. Well, did he indicate to you at the time he approached you 9 that he was looking for an expert witness who would be able to 10 say that he didn't think there was a market problem with the 11 Lexicon, particularly vis-a-vis the intended publication of the 12 encyclopedia by Ms. Rowling? 13 A. No, he wasn't that definite about what he was looking for. 14 He said he was looking for an expert witness, asked me to come 15 in, and I came in and read the materials. 16 Q. And could you be any more precise as to what he asked you, 17 what type of opinion he was hoping you'd be able to provide? 18 A. Not really. 19 Q. And you said that was a couple of weeks ago? 20 A. Yes. 21 Q. And how soon after he contacted you were you able to give 22 him the opinion that you're providing here today? 23 A. Took me about a week to write something. 24 Q. To write something. Did you come up with that opinion 25 before you wrote it, however? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 462 84FVWAR6 Harris - cross 1 A. Well, I had the general outlines in my mind. 2 Q. But, for example, my understanding is that your opinion 3 here today is that the Lexicon will not compete in any 4 meaningful way with the intended encyclopedia by Ms. Rowling, 5 is that correct? 6 A. That is correct. 7 Q. And how soon did you come up with that opinion after you 8 were contacted by and spoken with by Mr. Hammer? 9 A. When I was able to look at the Lexicon and Ms. Rowling's 10 declaration. 11 Q. So once you saw those two pieces, you agreed that that, in 12 fact, was the proper opinion? 13 A. I did. 14 Q. And when you said you had to write something, was it the 15 declaration that I had shown a moment ago? 16 A. It was a rough, yeah. 17 Q. Okay. Generally. Are you being paid for your testimony 18 here today? 19 A. Yes. 20 Q. And how much are you being paid? 21 A. $5,000. 22 Q. Is it a set fee or is it according to how many hours you 23 work? 24 A. It's a set fee. 25 Q. Now, you'd indicated that you had reviewed a number of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 463 84FVWAR6 Harris - cross 1 items to come to this opinion. And I think it was Ms. Murphy's 2 declaration, if I recall correctly, Ms. Rowling's declaration, 3 the Lexicon, and I think there was one more. 4 A. Mr. Vander Ark's. 5 Q. Mr. Vander Ark's, as well. You didn't review any of the 6 other -- 7 A. No. 8 Q. -- declarations or testimony? 9 A. No, I didn't see any. 10 Q. And you understand that RDR is the publisher here, correct? 11 A. Yes. 12 Q. And had you ever heard of them before you were approached 13 by Mr. Hammer? 14 A. No, I hadn't. 15 Q. And did you at any time speak with anyone from RDR prior to 16 writing your declaration? 17 A. No. 18 Q. You did not. Did you read -- well, first of all, I should 19 ask, do you know who the publisher is for RDR? 20 A. I've met Roger now. 21 Q. Did you read Roger's declaration? 22 A. I'm not sure. I don't think so. 23 Q. Well, let me see if I can help you with that one. If we 24 can look at paragraph 3 of the declaration, maybe this will 25 help. Right there, you see at the bottom it says, In SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 464 84FVWAR6 Harris - cross 1 preparation for giving this opinion, I reviewed several 2 declarations submitted in connection with plaintiffs' motion 3 for a preliminary injunction, including Ms. Rowling's 4 declarations, the declarations of Suzanne Murphy, and the 5 declaration of Steven Vander Ark. I also reviewed the last 6 Lexicon which appears as an exhibit to Mr. Vander Ark's 7 declaration. 8 Does that refresh your recollection as to whether or 9 not you had reviewed any other declarations besides the ones 10 mentioned? 11 THE COURT: Oh, please. Your question was whether he 12 reviewed Mr. Rapoport's. 13 MR. PUTNAM: Okay. I'm sorry. That was what I was 14 getting to, your Honor. I apologize. 15 THE COURT: Let's stick to your question. 16 Q. Does that refresh your recollection as to whether you saw 17 Mr. Rapoport's? 18 A. I don't think I did. 19 THE COURT: How could it? Let's go ahead. 20 Q. Did you know there was a declaration by Mr. Rapoport? 21 A. I don't know. 22 Q. Did you ask for any materials to help you in reaching your 23 decision? 24 A. No. 25 Q. Did you go look at Bookscan or any other resource to come SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 465 84FVWAR6 Harris - cross 1 up with your declarations? 2 A. Yes. 3 Q. Was Bookscan one such source? 4 A. Yes. 5 Q. And was there any other source? 6 A. No. Oh, actually, I did look at the Wikipedia entry on 7 Deathly Hallows, sales of Deathly Hallows. 8 Q. For what purpose? 9 A. Just to find out more. 10 Q. As someone involved with the marketing for over 40 years of 11 publications, might it have been useful to know a little bit 12 about the entity that was publishing the work in determining 13 how effective they would be in actually being able to sell it? 14 A. It might have, but Ms. Rowling is such a figure in 15 publishing that I really didn't think it would matter whether 16 Mr. Vander Ark published or not. 17 Q. So are you saying that almost regardless of who came out 18 with any form of encyclopedia in whatever measure by whatever 19 publisher, because of the nature of -- the unique nature of 20 Ms. Rowling, there could really be no impact on her work? 21 A. Well, I don't want to say anything that broad, but since 22 we'd never heard of Mr. Vander Ark, let's say, the publication 23 of his work, whether it came out or not, is not going to affect 24 the publication of her next book. 25 Q. Irrespective of its quality or what plans had been put into SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 466 84FVWAR6 Harris - cross 1 place or prior orders that were in existence at the time? 2 A. Yes, because there was such exuberance about Ms. Rowling's 3 work, because she is the bestselling author of the 21st 4 century, her book was going to be given prime placement no 5 matter what else came out. 6 Q. So why did you look at the Lexicon then? 7 A. I wanted to see what was -- what we were talking about. 8 Q. So, historically, as a person who's been in marketing and 9 publishing for over 40 years, when you're making a 10 determination of whether a book will succeed or not, how to 11 market it or not, if you had a successful author, would you not 12 look to any other materials to determine how best to do that? 13 MR. HAMMER: I'm sorry, reframe the question. 14 A. I don't really understand the question. 15 Q. I'll start again. You have marketed books in publishing 16 for over 40 years, correct? 17 A. Yes. 18 Q. Had you ever marketed the books of a very successful 19 author? 20 A. Yes. 21 Q. Who is the most successful author that you've ever marketed 22 a book for? 23 A. Probably Martha Stewart. 24 Q. Okay. Martha Stewart. There was a time in the late 20th 25 century where one could argue she was really at the top of her SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 467 84FVWAR6 Harris - cross 1 game, very popular, well-known, correct? 2 A. I think she's still quite popular. 3 Q. Okay. Great. Okay. I'm going back to the time when you 4 would have been marketing her books. 5 And if someone had come out with a competitive work at 6 that time for one of her books, say a weddings book, which is 7 one of her most famous, correct? 8 A. Yes. 9 Q. Would it not matter what that book was like, the quality or 10 the publisher, in terms of whether or not it would have the 11 impact on her work? 12 A. Actually, it would not matter. 13 Q. Why is that? 14 A. Because Martha is sui generis; because she is Martha; and 15 because she is somebody very special. 16 Q. And so take the -- 17 A. And there are many other weddings books that did come out, 18 and her book is still selling them out. 19 Q. So let's take the hypothetical a bit further. Let's say 20 the number one test person in Martha Stewart's kitchen, okay, 21 wrote -- took all of her recipes, took all of her designs, took 22 all of the ideas there unique to Martha Stewart, the person 23 developed them, wrote them, did all the testing, and came out 24 with a book just prior to Ms. Stewart's wedding book with the 25 headline, The Person Who Made Martha Martha, and that book came SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 468 84FVWAR6 Harris - cross 1 out, do you think that would have no impact? 2 A. That's so hypothetical, I can't -- 3 Q. The beauty of being an expert though is I get to ask you 4 some hypotheticals to see what you think. So what do you 5 think? 6 MR. HAMMER: Can you restate the hypothetical, because 7 I kind of lost it. 8 Q. Do you understand the hypothetical, sir? 9 A. I think so. 10 Q. Okay. Could you answer it, please? 11 MR. HAMMER: I'd still like to hear it again. 12 THE COURT: He's asking to hear it again. Do you want 13 to read it back or do you want -- 14 MR. PUTNAM: It can be read back, please, your Honor. 15 THE COURT: Do you want it read back? Could you read 16 back the question. 17 (Record read) 18 A. Well, I think it might have an impact, but I think the 19 difference is that that's nonfiction, and Ms. Rowling's book is 20 fiction. 21 Q. Well, could you explain that a little further? What do you 22 mean that being a difference? 23 A. Ms. Rowling's work is in her head. And what she says in 24 her declaration is that in her next book there is going to be 25 things that didn't appear in the other Harry Potter books which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 469 84FVWAR6 Harris - cross 1 her fans are going to be very eager to see. 2 If somebody who stole Martha's recipes, they would be 3 revealing everything that Martha had, so I think there's a 4 difference there. 5 Q. What are these creative additions that you are speaking of? 6 What are you thinking about in terms of what Ms. Rowling is 7 going to add at this point? 8 A. She talked about having a back-story, she talked about 9 having right-hand pages and left-hand pages where there were 10 almost going to be annotations of things that hadn't appeared 11 before. 12 Q. As a long-time figure in the publishing business, you would 13 agree with me that one of the beauties of having a copyright, 14 is it not, is that you can decide how best to use your 15 copyright and not be made to act only in one way in terms of 16 what type of work you'll come out with? 17 A. I'm not an expert on copyrights. 18 Q. You are an expert in publishing though, however? 19 A. Yes. 20 Q. So if Ms. Rowling, for example, had decided that while she 21 at the moment is considering writing one type of encyclopedia, 22 but determines that in the future she'd like to write a 23 different type that didn't add these materials and, thus, the 24 creative input that she was going to add to it is her actual 25 thoughts in her etymologies, her actual reasons for why a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 470 84FVWAR6 Harris - cross 1 character did a certain thing, at the same time bringing 2 together the various references and the various books and the 3 like, would your opinion be different? 4 MR. HAMMER: I'm sorry, but that is the most 5 complicated question I've ever heard asked in a courtroom. 6 A. Opinion about what? 7 MR. HAMMER: It's such a compound question. Can we 8 break it down a little bit? 9 Q. We can break it down. Why don't we move on to your actual 10 opinions, sir. 11 A. Okay. 12 Q. On paragraph 22, there seems to be a summary of your 13 opinion. It says, Based on these considerations, I conclude 14 that the Vander Ark Lexicon will have no perceptible effect on 15 the sales of Ms. Rowling's contemplated encyclopedia in any 16 channel of bookselling. Do you see that? 17 A. Yes. 18 Q. And that is the opinion you're giving here today, correct? 19 A. Yes. 20 Q. And if you go through how you got to that opinion, the 21 paragraph above, paragraph 21, where you went through the 22 analysis that you went through here today with Mr. Hammer, 23 where you came up with the fact that you thought there would be 24 about 10,000 copies, that if you were publisher here, is what 25 you would put into a first printing? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 471 84FVWAR6 Harris - cross 1 A. Yes. 2 Q. Is that correct? 3 A. Yes. 4 Q. Now, why did you go through that analysis of the different 5 channels and how much you thought it was likely to be sold 6 and/or printed compared to the likely amount it could be sold 7 or printed for Ms. Rowling if the numbers didn't matter, 8 because of who she is, there could be no perceptible effect on 9 the numbers, given her stature? 10 A. Well, I wanted to put some numbers down that made sense to 11 me. 12 Q. Could you explain how it makes sense to you to do that if 13 the numbers don't matter? 14 A. I was trying to give a comparison between Mr. Vander Ark's 15 book and Ms. Rowling's book. 16 Q. But irrespective of the numbers, is it not true that you're 17 saying that there could be no effect on her market because of 18 who she is? 19 A. Yes. 20 Q. I'm going to go through very quickly each of these two 21 items, both the larger opinion, the one that we have here in 22 22, and then how you got there, your methodology, which is 23 summarized in 21, okay? 24 A. Okay. 25 Q. So first going with the two numbers. One, when you do your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 472 84FVWAR6 Harris - cross 1 declaration, going through this analysis that you've created, 2 you've indicated that you would print 5,000,000 copies of 3 Ms. Rowling's book, correct? 4 A. At least, yes. 5 Q. Okay. So now, two weeks later, it's 7.5 million. Did her 6 stature rise? 7 A. Actually, I had more information on her actual sales two 8 weeks later. So 5,000,000 was a very conservative estimate; 9 seven and-a-half million is a less conservative, but still very 10 conservative, estimate. 11 Q. And what is that greater information on her sales that you 12 have today that you didn't have at the time of your 13 declaration? 14 A. Well, just seeing the rate of sale at Amazon was a tip-off 15 that they needed to have a lot more books ready for the first 16 printing. 17 Q. And you didn't have that previously? 18 A. I -- no, it took me a while to find that. 19 Q. Are there other things that you found since you made your 20 declaration that have changed your opinion here today? 21 A. No. 22 Q. But you would agree, would you not, that if you had looked 23 into other items, your opinion here might be different? 24 A. That's a really speculative question. 25 Q. Well, let me give you another example. You'd indicated SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 473 84FVWAR6 Harris - cross 1 that you thought, we'll get to it in a moment, go through your 2 analysis, that you thought there would be 1,000 books each for 3 Barnes & Noble, for Borders, and for -- I can't remember the 4 name of the third entity. 5 A. Books-a-Million. 6 Q. Books-a-Million. You thought there would be 1,000 each. 7 A. Yeah. 8 Q. As I understand, you thought there would be 1500 each. So 9 there's a 50 percent increase in both of these figures with 10 just a little bit more information, correct? 11 A. Yeah, because when I was here in court, I saw the letter 12 that Roger had written to Borders. 13 Q. So going back to my original question to you then, if you 14 actually had information other than the three declarations 15 provided to you by Mr. Hammer when he asked you for an opinion, 16 your actual opinion might be terribly different, no? 17 A. Not terribly different. 18 Q. So that 50 percent increase in both is not terribly 19 different? 20 A. Not when you're going from from 1,000 to 1500 versus 21 millions. 22 Q. So 5 million to 7.5 million -- 23 THE COURT: I think he's talking about other figures. 24 MR. PUTNAM: Okay. Thank you, your Honor. 25 THE COURT: Mr. Putnam. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 474 84FVWAR6 Harris - cross 1 Q. Would none of those books, the 10,000 you speak of, you 2 don't think any of those would detract in any way from the sale 3 of Ms. Rowling's books? 4 A. Not really. I mean I can't imagine that they would. 5 Q. That's irrespective of what she places in her book and what 6 is in the Lexicon? 7 A. Yes. 8 Q. Really. One of the imprints that you had was Fuller's, 9 correct? 10 A. That's correct. 11 Q. And that's one of the most famous travel guides? 12 A. Yes. 13 Q. And Frommer's would be one of their competitors? 14 A. Yes. 15 Q. And in recent years, some new competitors have arisen, 16 correct? 17 A. That's correct. 18 Q. Hidden Planet being one of them, for example? 19 A. Lonely Planet. 20 Q. Oh, Lonely Planet, thank you. That being one of them, 21 correct? 22 A. Yes. 23 Q. Now, would you agree that Lonely Planet is taking -- is a 24 competitor today of one of your prior imprints, Fuller's? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 475 84FVWAR6 Harris - cross 1 Q. And would you also agree that as a competitor, it's taking 2 some of the sales away from Fuller's? 3 A. I don't really know. 4 Q. It was your imprint; you've been in business for 40 years. 5 A. Yes, but you're asking me whether a imprint that I don't 6 know is taking away sales from an imprint that I last had 7 business with nine years ago. 8 Q. You last were in the children's book business over 30 years 9 ago. 10 A. Yes. 11 Q. And you're giving me an opinion on that here today, are you 12 not? 13 A. Well, I think Ms. Rowling's book is bigger than just a 14 children's book; it's a bestseller. And best-sellers behave 15 very differently from non-bestsellers, whether they are 16 children's books or not children's books. 17 Q. Is Fuller's not a bestseller? 18 A. No. 19 Q. It isn't? 20 A. No. 21 Q. It's not one of the bestselling travel guides in the world? 22 A. It is, but travel guides sell very little compared to when 23 you look at novels or general nonfiction. 24 Q. Now, if her index was not a work of fiction, as I believe 25 you were describing here today, and let me explain what I mean SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 476 84FVWAR6 Harris - cross 1 by that, clearly everything in there is fictional; it's her 2 creation, correct? 3 MR. HAMMER: I'm sorry, I don't understand. 4 A. I'm sorry, you said -- 5 Q. The Lexicon, would you consider the Lexicon a piece of 6 fiction? 7 A. The lexicon I would consider a reference book. 8 Q. All right. Though if she were to create a similar 9 reference book, all right, would your opinion be different than 10 today? So we're not talking about something where she's adding 11 fictional material. 12 A. It really wouldn't be different. I see her as a very 13 special case, unique and special case. 14 Q. So even if she were to come out with an index, not adding 15 new material, but simply relying on the material she's already 16 created, though explicating and explaining its nature, you 17 think that there would be no competition with the lexicon that 18 we're here to discuss today? 19 A. Not really. 20 Q. All right. There's been testimony here, I think -- 21 THE COURT: It's about 4 o'clock. 22 MR. PUTNAM: Okay. 23 THE COURT: I just want to warn you. Go ahead. 24 MR. PUTNAM: I have quite a bit more, your Honor, 25 because I want to go through the whole methodology to show all SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 477 84FVWAR6 Harris - cross 1 the problems with it. 2 THE COURT: You're going to go for much longer? 3 MR. PUTNAM: Mm-hmm. I'm sorry, your Honor. 4 THE COURT: All right. Go ahead. 5 MR. PUTNAM: Thank you, your Honor. 6 THE COURT: Let me say something before we -- while I 7 have a moment, because I won't be able to do it at the end. 8 I've been thinking about this case since it developed. 9 I'm concerned that this case is more lawyer-driven than it is 10 client-driven. Despite Ms. Rowling's strong feelings, I'm 11 concerned that it's lawyer-driven. 12 You have the fair use people on one side, the lawyer 13 group, and you have a large company with a lot of money on the 14 other side. And sometimes these things get lawyer-driven. And 15 I think that the parties really ought to think about, that is, 16 RDR and Ms. Rowling and Mr. Vander Ark, to either think about 17 seeing if there can't be a way to work this thing out. And I 18 think you ought to think about it, because there are strong 19 issues in this case, come out one way or the other. It is not 20 a clear case, so that's the judge's viewpoint. 21 The Fair Use Doctrine is a doctrine that is not at all 22 clear. And, consequently, I think the parties ought to talk 23 together, think about the case, what's best for their 24 interests, instead of possibly playing Russian Roulette. 25 So why don't you think about that. I'm bringing it up SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 478 84FVWAR6 Harris - cross 1 now so you can take it up before you get into the rest of your 2 case, because sometimes these things aren't always best to 3 resolve in courts of law. 4 I just want to say that to you because I hope that 5 that sort of result, maybe it's too late, maybe you're too far 6 down the road, but maybe you haven't gone too far down the 7 road. And I think you really ought to think about it very 8 seriously, because I think we're down to everyone's -- everyone 9 will be best served -- as a judge here used to say, a 10 settlement is better than a great lawsuit. And he liked to try 11 cases as much as I do. But that doesn't mean that's what's 12 best for the parties. So let me just say that. 13 Now, I have to find out about this 4 o'clock, Robert. 14 (Pause) 15 MR. PUTNAM: Your Honor, if you like, we can pick this 16 up in the morning. I will shorten what we have left, given the 17 opinion that is being presented. 18 THE COURT: I wanted to say that while we have the 19 parties present. I don't see Mr. Vander Ark here, but -- 20 MR. HAMMER: He's not a party, your Honor. 21 THE COURT: He's not a party, but he is a player, and 22 he ought to be a participant, because he's a player. As the 23 author, he has control over the content in his book, and that's 24 an important consideration in reaching an accommodation. I 25 guess we'd better adjourn till tomorrow. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 479 84FVWAR6 Harris - cross 1 THE DEPUTY CLERK: 9:30? 2 THE COURT: Yeah. 3 (Adjourned to April 16, 2008 at 9:30 a.m.) 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 480 1 INDEX OF EXAMINATION 2 Examination of: Page 3 STEVEN JAN VANDER ARK 4 Direct By Ms. Cendali . . . . . . . . . . . 246 5 Cross By Mr. Hammer . . . . . . . . . . . . 333 6 Redirect By Ms. Cendali . . . . . . . . . . 392 7 SUZANNE MURPHY 8 Direct By Ms. Ray . . . . . . . . . . . . . 405 9 Cross By Mr. Hammer . . . . . . . . . . . . 426 10 Redirect By Ms. Ray . . . . . . . . . . . . 435 11 BRUCE HARRIS 12 Direct By Mr. Hammer . . . . . . . . . . . . 439 13 Cross By Mr. Putnam . . . . . . . . . . . . 452 14 PLAINTIFF EXHIBITS 15 Exhibit No. Received 16 193, 194 . . . . . . . . . . . . . . . . 404 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300