First Day of JKR/WB vs RDR Books Trial
Apr 15, 2008
Posted by Melissa AnelliUncategorized
As many of you know, today was the first day of the trial in the JKR/WB vs. RDR Books case, in which JKR and WB are attempting to block publication of a print version of of the A-Z listing of the online Harry Potter Lexicon.
There have been several articles about it:
NYT: JK Rowling and the Courtroom of Muggles
Wall Street Journal
Update:Reuters video of JKR reading a statement after testifying in court.
And many more; please leave them in the comments if you feel we should list them.
Leaky was in attendance today, when JK Rowling and Roger Rapoport took the stand; the following can only be guaranteed to about 90 percent accuracy as words were sometimes muffled, writing hands cramped (no recorders allowed) and it was a long eight hours of testimony. No significant words or facts have been changed and whenever in doubt words were put in brackets or estimated.
Some of the more prevalent/basic facts and revelations:
JKR said that if RDR wins, and the market is flooded with books similar to the Lexicon (“an avalanche of dross, so that by the time my encyclopedia book comes limping to the marketplace, everyone will be sick to the back teeth of Harry Potter encyclopedias”), she might be without “the will or the heart” to finish her own version
A WB lawyer said that Steve Vander Ark is apparently “still pressing” his wish to be compensated for a timeline he believes has been reproduced on the Harry Potter DVDs; according to JKR he has asked for an “absolutely extortionate amount” of money, which amounted to “more money than I received for my first three novels.”
She said it was her understanding that this is what was discussed in meetings, and passed on to her through her lawyer, Neil Blair, and that Steve Vander Ark and Roger Rapoport were planning to split the proceeds of that settlement. Regarding the timeline, JKR said that “He has copied down some dates.” At this point the defendants objected due to relevance, and the plaintiffs pointed out that the matter didn’t speak to the merits of the claim but J.K. Rowling’s fear that Steve Vander Ark would accuse her of plagiarizing him in her own encyclopedia, and the judge noted it but did not stop the commentary. JKR said: “Absolutely any fool, forgive me, any fool could write a timeline based on a number of dates in a book. I literally do not understand what he thinks he’s done of value and why he thinks he deserves money for that.”
JKR said she only has used the Lexicon twice, and then only to say that she had used it so that she could award what she saw as an “A for effort.” She said the Fan Site Award did not represent an acknowledgment of high quality. She said she could easily Google her information and find it on other sites as well. “The fact is that [a Google search] will give you the information you need…because I knew of [the Lexicon], I wanted to say I used it and do the nice thing and give them the award. Do I now regret that? Yes, bitterly.”
A previous question centered around whether RDR had sold rights to the book in Britain and Australia, as mentioned in the original announcement of the book, at the time of the lawsuit; Roger Rapoport said that only oral agreements had been made at the time but the terms of the contract had not yet been fulfilled.
JKR was asked whether the Lexicon was “just a Xerox copy” of her work: she said it was “very slightly more than that.” David Hammer said that there was text for every character, and she said, “Yes, is that the best you can say for the Lexicon, ‘It has text’?” Mr. Hammer responded that a lot of work had gone into it, and she said, “Yes, it was a lot of work. I remember doing it.”
Steve Vander Ark was present at the beginning of the proceedings but was asked to leave a short way into them (and as far as I can tell did not return after JKR‘s testimony, though it’s entirely possible I missed it).
A funny moment began the case: The lawyers were introducing themselves and David Hammer, lawyer for RDR Books, said, “and the man without whom none of us would be here, Roger Rapoport.” Dale Cendali, JKR‘s lawyer, quickly suggested that “none of us would be here without Ms. Rowling.”
Contrary to what was stated in the press, J.K. Rowling was not called to the stand by the defendants but by the plaintiffs. A lawyer for the plaintiffs mentioned a conversation in which Judge Robert Patterson had said he was willing to accept her declaration as enough testimony but she wanted to testify. She said she wanted to come from Scotland for this specifically because, “This is very personal to me. This is why I did not feel comfortable with this happening at arm’s length. There is a massive principle at stake here, and I am determined to have my say if nothing else.”
She said, “I think that this book [is] wholesale theft of 17 years of my hard work.
There is “little in the way of commentary,” and that the “quality of that commentary is derisory” and that it “debases that which I worked so hard to write.”
The plaintiffs went over JKR‘s history, including the time she spent on welfare and the 8000-pound grant she once received, which was “an absolute fortune” to her at the time. She said there were “weeks when the food ran out,” and asked whether she was surprised at Harry’s success, said, “There isn’t a word big enough. Flabberghasted, astonished. It was my life, apart from my children.” Asked what Harry meant to her, she started to choke up and said, “I really don’t want to cry, because I’m British. It meant pu tting aside my children, everything.”
“It’s very difficult to understand to someone who hasn’t created, what it means to be a creator. [It’s like asking] ‘How do you feel about your child?’”
“These books, they saved me…there was a time they saved my sanity.”
The Fantastic Beasts and Where to Find Them book and Quidditch Through the Ages were quoted as having sold more than 18 million pounds, or close to or more than $36 million at the current exchange rate.
Regarding the encyclopedia she wants to write:
“It’s been my long stated intention” to do so. She has begun work, and is at an early stage, but said she is fleshing out the plan; she once said it was going to take 2-3 years but recently, “four weeks ago, demands of the court case have been such that it has caused me to halt work…It’s really decimated my creative work over the past month.
“Should my fans be given a surfeit of substandard books – so called lexicons – I’m not at all convinced I would have the will or the heart to continue with my encyclopedia.”
She said the encyclopedia wasn’t the same as writing a novel, that it was not something she’s approach with “the same lightness of heart that you’d approach a novel,” but that the “drudgery” would be worth it because she believes her fans want it and that it would be an opportunity to raise a lot of money for charity.
She learned about the book during her Oct. 2007 book tour and was “genuinely shocked. I had assumed that Mr. Vander Ark was operating in good faith. I believed his pronouncement that this was something was did as a hobby. I did feel a degree of betrayal.”
She said she had read “every word” of the Lexicon.
“I believe [the book] is sloppy, lazy, and that it takes my work wholesale.”
This exchange between JKR and David Hammer took place (again I predict about 90 percent accuracy, but no significant words have been willingly altered):
JKR: “An alphabetical [list] is the laziest way to rearrange and sell my work.”
DH: [But is it useful?]
JKR: “In what way?”
DH: “Is it easy to get information.”
JKR: “I don’t understand.”
DH: “Have you ever used a dictionary?”
JKR: “Are you telling me Mr. Vander Ark is going to teach me how to spell?”
JKR: “Part of the reason we’re all here – when you access – if you [pay $25 to] access information that is already in the Potter books, aren’t you being suckered out of your money?”
“Should it be published, I firmly believe that carte blanche will be given to anyone who wants to make a quick bit of money, to divert some Harry Potter profits into their own pockets. … I’m not delighted to have work I consider to be this shoddy associated with Harry Potter.”
“It abridges my plots. And what does it have? Facetious comments, a tiny amount of etymology, often wrong. A child with a pocket Latin dictionary could decipher what words [Steve Vander Ark] has deciphered.”
She said there were places in the Lexicon manuscript where Vander Ark “quite plainly has not understood the books. In the loosest sense, I do not consider this a worthwhile guide. … I think it is a travesty.”
“I absolutely see no use for it. I do not see what the use is.”
“In every entry, you will see my plots, my words, often verbatim, rarely with quotation marks..it sometimes [is] actually misleading.” She said that of the four or five times she was able to find an instance where there is no copying, “on every account [Vander Ark] gets it wrong.”
She also said that he has misunderstood how Harry survived the final battle with Voldemort (the book, she says, says it is because Harry’s wand would not work against Voldemort, and she said it is because of the blood sacrifice made by Harry’s mother), “What I think is a serious error.”
She talked about a chart she had made with her daughter, Jessica, at her dining room table in her home, comparing the Lexicon book to her text; no one asked her to make the chart, she said, but “I felt extremely strongly.”
JKR referenced the entry on the Brain Room from the Ministry of Magic, which used imagery about the brains that spun from the green tank and attacked Ron, and how the trails that lagged behind them were like that of celluloid film. She said she had thought hard to come up with the analogy and showed that the Lexicon entry used the same imagery she had toiled over, verbatim. Since it has no quotations, “in Mr. Vander Ark’s so-called book, it is an assertion that he wrote it.”
In cross examination, Hammer asked JKR why she had not, in her own analysis, quoted the entire Lexicon entry; she said that she literally did not have time to do every entry fully, because it would have taken her a week to list all the places where her work had been lifted or copied. She said that actually “much more of it is lifted, may I show you where?” and identified three other places in that entry where the wording in the Lexicon matches that of her books, and said she had highlighted the movie reel imagery because she felt it was more of a unique image than some of the others, which were more common language but still used to define the same things in her book and the proposed book. “[It was a] particularly shameless example,” she said. Hammer asked why she hadn’t used the “according to” words that had been used in the Lexicon (ie, “According to Phineas Nigelllus…” etc) and JKR said, “He thinks putting ‘according to’ means that anything that follows does not need a quotation mark.”
She said that if quotation marks were put around everything that merited them, there would be quotation marks around “virtually the entire book.”
Another point mentioned the goblin-made armor and how it only imbibes those materials that strengthen it; she again pointed to the identical words used on each entry. Asked about the phrase, “imbibing only that which strengthens it” and whether she had worked hard on that phrase, she said, “I can’t pretend I bled over that one [but] this happens on virtually every entry.”
She said Vander Ark abridges at “every possible opportunity,” and that the approach is that, “wherever it lists a character it gives a character’s appearance, verbatim, in my words, without quotation marks, and then abridges the plot.”
Of the Voldemort entry:
“I think it represents both wholesale lifting of my plots and and it represents the most enormous missed oportunity. Other critics have found a lot to say about Voldemort, about what he represented, his psychology, the archetype of a villain…I think it is lazy, just very very lazy.”
Regarding Quidditch Through the Ages
“Quidditch Through the Ages has been plundered. There is absolutely no reason to purchase it [if one owns the Lexicon], why would anyone want to buy it? … Mr. Vander Ark has gutted that book. there is [no] interpretation there, there’s no commentary, he’s simply taken it and copied it.”
Cross-examination: Hammer tried to argue to JKR that the entry wasn’t a plot summary because plot summaries are chronological and this clearly wasn’t chronological because it begins with information from book six. “This doesn’t describe the character, it simply shows what the character does,” JKR said, “Please show me in that entry where he shows the character. … It so happens that in book six [there is] pre-story, therefore he starts with the pre-story then goes [through the rest of the books chronologically].”
Regarding the Chudley Canon entry:
“Again, the fictional facts, which evidently have intrinsic entertainment value, have simply been taken. There is nothing there that I haven’t written. There’s tiny paraphrasing.”
“What particularly galls is the lack of quotation marks,” she said, and repeated that most of the book would be put in quotation marks if everything copied was given that treatment.
Regarding Fantastic Beasts:
“As with Quidditch Through the Ages, Fantastic Beasts has simply been taken. Taken, and taken wholesale. I see no incentive whatsoever to give the money to Comic Relief if they had bought the Lexicon, because the wholesale book has been taken.”
In opening statements, lawyers said that the content of the Lexicon had recently been edited by Steve Vander Ark to reduce the amount of verbatim copying from the two companion books J.K. Rowling has written.
Regarding the entry in FB about the Chinese Fireball dragon:
“Far from exceptional…simply uses my words. He has taken my creation, because after all, it has no existence outside my words. If we were both describing a giraffe, undoubtedly [they would share words, but] the Chinese Fireball has no existence.
“There is a tiny amount of what purports to be commentary.”
She said many of the etymologies listed in the book are erroneous: “Most often he will simply translate the Latin word [from a spell]; a 7-year-old with a pocket Latin dictionary can do that.”
Regarding missed opportunities in the book:
“Where to begin?” she said and cited the entry on “Abraxan,” which has “no attempt at etymology.” The lawyers for the defense objected on the grounds that the case was about what was in the book and not what wasn’t in it; the judge said it was noted and allowed the testimony to continue.
She also discussed the entry on “ogre,” in which she said “goes to the heart of the largest objection” she has to the book. The entry only says that Ron and Hermione think they see an ogre in the context of the HP story. JKR said, “If a child read the word ogre…what is the Lexicon telling them? It’s telling them that Ron and Hermione thought they saw and ogre…. an ogre in folklore is a flesh-eating giant, which I think is of some interest if you have an interest in ogres.”
They also discussed the entry on “death,” which JKR said was “truly laughable,” and that the Lexicon “should have a lengthy entry on death as it is the theme of the seven book series,” and perhaps would comment on different characters’ approach to death and the psychology that implies, objects they use to try to overcome death, and more. She said this entry didn’t do that “presumably because doing any of that would require research or work.”
On cross-examination David Hammer referenced the Death entry and said that the entry wasn’t meant to be about death itself but the character of Death as it appears in the books. JKR said, “Mr. Hammer, with respect, I don’t think you’re showing familiarity with my work,” and pointed out that any entry in a Harry Potter book about death should go into some thematic detail about it.
She talked about the Occamy (her lawyer asked if she was pronouncing it correctly and she said, “You can pronounce it any way you like”), listed as a beast in her Fantastic Beasts and Where to Find Them book. She said it was a prime example of one of the “missed opportunities,” and that it should have been a “sitting duck” for Steve Vander Ark because “he claims that one of the books he used…was the dictionary of Phrase and Fable,” and that book contains a reference to the 14th-century logician and Franciscan Friar William of Ockham, most known for “Occam’s Razor” a statement that says, basically, that any explanation should be the simplest one possible. She said it was her little joke that an Occamy has a lot to it which is not necessary (it is a two-legged serpentine-bodied creature with wings).
She also mentioned the entry on Remus Lupin: “I would have thought this would be an easy one to add commentary. I would have thought his name would be an easy one – obviously a double allusion to the fact that he is a werewolf…[also] the lycanthropy is an HIV metaphor,” a metaphor for someone infected early, who is prejudiced against and fearful of passing his condition on. It was also an example of “why people might become embittered.” She said none of these things were addressed in the book.
The lawyers also brought up the Daily Prophet articles that she wrote for her publisher in 1998 and which had a limited run, referring to an entry on Daghert Pips; asked if Daghert Pips was a real person, JKR said, “If he is I’m sure we’ll find out after this court case.”
Regarding other A to Z guides on Harry Potter:
JKR said she objected to “profit-driven attempts to resell to the public that which it already knows,” but that she thought that many of the available companion books were good. She said, of David Colbert’s Magical Worlds of Harry Potter, “I really like this book; they can put that on the blurb if they want.”
They referenced an entry in The Idiot’s Guide to Harry Potter on Paracelsus, and said that unlike the Idiot’s Guide, “The Lexicon does not even explain that Paracelsus existed,” and that the Idiot’s Guide had a “succinct but very interesting paragraph about that real person.”
She said the Lexicon constituted a “shameless attempt to sell [fans] the same information” they have in their books.
Another book mentioned was Fact, Fiction and Folklore by George Beahm, and an entry on Florean Fortescue, which apparently discussed background and roots of the character that JKR wasn’t aware of [but I couldn’t make out what it was, sorry].
Also: from Colbert’s book, she discussed the Fawkes entry, and how, the Lexicon’s entry was a “far from exhaustive list of all the times the pet phoenix appears in the book,” but that Colbert has a three-and-a-half page entry that mentions Egyptian connotations, mythological context and the explanation that Fakes’ name is derived from Guy Fawkes, who tried to blow up parliament.
Regarding The Sorcerer’s Companion, “I consider this is a genuine guide or reference book,” and mentions that the flying carpets entry talks about the Koran and some fairy tales. “It’s an interesting entry.”
In cross-examination her familiarity with these other books was challenged, and she said that while she knew that there was “massive commentary” in those books she couldn’t say with confidence whether the books were comprehensive. She was asked whether one of them contained a comprehensive list of all her characters, and said she didn’t know because she didn’t comb through them, and asked if the lawyer wanted him to do that now. He said yes, so she paged through one of the books for several minutes to see if all her characters were listed, and said no. She was then instructed to do similar with the Idiot’s Guide to Harry Potter, which David Hammer said was “the one you like so much”; it was no longer with JKR on the witness stand, and she said so, and Mr. Hammer made what he later admitted was a “snide remark” about always carrying it with him (or perhaps that he thought Jo always carried it with her).
Mr. Hammer tried to make the point that the other books about Harry Potter were shorter, and had longer entries, and it was because the Lexicon was longer that it had shorter entries (and perhaps the book was better because of it): JKR said, “I don’t think that follows at all.” He also brought in two books which he said had been “forced” from the market by J.K. Rowling’s representatives, and JKR classified them as books that she thought were similar to the Lexicon book. There was also discussion over the letter from one of her lawyers to MuggleNet in which the lawyer requested on behalf of JKR that MuggleNet not go through with publishing its encyclopedia (they acquiesced). There was some back and forth about whether her lawyer, Dale Cendali, had the right to say, “Ms. Rowling requests” when they hadn’t had consulted with each other on that specific issue; JKR said her representatives frequently act on her wishes without telling her ahead of time, but that if she had talked to MuggleNet directly she would have said, “You know, I want to do my encyclopedia. Please don’t do this.” Hammer asked if she gave Ms. Cendali guidelines to follow; she said, “I haven’t given her guidelines, she follows the law; those are her guidelines.” She said the only lawyer with whom she regularly discusses these things is Neil Blair.
Hammer gave her a copy of a book by Fiona Boyle, and asked if she had ever seen it; she said no, and Mr. Hammer said he had no further questions about it.
Regarding the Fan Site Award:
“I believed that Mr. Vander Ark was showing a quite obsessive interest in the Harry Potter books, but in a positive way. I didn’t think that what he was created was of immense use and I thought it demonstrated a passion for my work.” She said the award was an “A for effort.” Her lawyer asked, “Because it has great quality?” and she said, ‘No. I never saw any harm in it. I didn’t [think] anyone was exploited by it, there was no charge for it.”
She said it wasn’t a website that competed with her books; asked why not, she said, “It’s not a book.”
JKR was also asked whether she believed publication would cause harm to her: she said a win for RDR would “only be to the advantage of plagiarizers and people who want to make a fast buck on the back of other people’s work.”
Regarding her encyclopedia: “I said I would do it and I have never yet failed to do what I said I would do in my work,” but that, “I would rather not do it at all than be forced” to rush it into bookstores before “the avalanche starts.” Asked what she meant by avalanche, she said a win for RDR would mean taht “anyone will be able to [reproduce] a popular author’s book and sell it as their own.”
Regarding the timeline that Vander Ark claims he is to be recompensed for:
She said it once made her “choke on my coffee” when someone pointed out to her that there were copyright disclaimers calling the Lexicon work Vander Ark’s own, all over the site. ”’This is my original work, don’t copy.’ Mr. Vander Ark has decided that no one must copy him but what’s on the Web site it my work. What will happen [when I publish my encyclopedia] – will Mr. Vander Ark sue me?”
She was asked if she thought that every fan who bought the Lexicon would also buy her encyclopedia: “No, I’m not that arrogant. The companion book market is smaller…[the Comic Relief books did well but] didn’t sell anything like the quantity of the novels.”
“We all know I’ve made enough money; I didn’t come here [because I worried] I might sell three fewer novels. It’s not why I’m here.”
Regarding the quality of the Lexicon: “I think it is dire. I think it is atrocious.”
She was asked why, and an objection was raised and noted that “we can be here for an hour” hearing why she thought it was so; she said, instead that the book is “sloppy, it has little research, I don’t consider it an original work.”
There was discussion on the root of the word Alohomora: JKR said it came from a West African word that meant “friendly to thieves,” and not the Hawaiian “Aloha,” as mentioned by the Lexicon. In cross-examination David Hammer asked her if she ever said publicly or told Steve Vander Ark the derivation of the word; she said, “There is a much easier way to find out, and that is to do some actual research.”
She was asked why she didn’t just correct Steve Vander Ark: “I am not in the business of correcting Mr. Vander Ark; I am writing my own novels.” David Hammer asked if there were some subconscious meanings (to things in her books? It was muffled); she said, “If they’re subconscious I don’t really know how I would know that. [But] It’s not such a stretch to find out what the underlying meanings are. It’s not as though I’m throwing Scrabble letters in the air [and using the resultant words].”
Regarding her relationship with fan Websites:
“Perhaps naively, I was very keen to maintain an almost hands—off [relationship] to online fandom. I simply let it happen. I saw massive positivity in it…I have never read online fanfiction, it is uncomfortable to see your work recreated that way, but I never censored it or wanted to censor it. [Should RDR books win], other authors will look sideways and say I needed to exercise control. ‘She was an idiot. She let it all go.’
Outside the courtroom JKR gave a statement which said: “It gives me no pleasure to take legal action, but I am here today because I feel very strongly about an important issue that affects everyone and not just me. If books that plagiarize other works are permitted, authors, fans and readers stand to lose. There are lots of books in many languages that comment on or criticize Harry Potter and that’s fine. But the book in this case is different. It provides no analysis and virtually no commentary. It takes far too much and it offers precious little in return. I would just like to add that I am extremely grateful for the incredible support of Harry Potter fans everywhere.”
Roger Rapoport’s Testimony
This testimony had a lot fewer statements that constituted information not already in public documents, and consisted mostly of reviewing e-mails that indicated that RDR Books acted in bad faith and/or infringed copyright willingly.
It went over the events that led to Mr. Rapoport contacting Steve Vander Ark and asking him to consider publishing the Lexicon as a book; the plaintiffs tried to show that as a man familiar with the news, Mr. Rapoport was aware of JKR‘s July NBC quote in which she said she was definitely planning on the encyclopedia. Rapoport maintained that he did not know that she was planning an encyclopedia at the time.
Asked whether he expected to compete with the HP books, Rapoport said, “Of course not.” Plaintiffs showed an e-mail from August 29, 2007, in which Rapoport said that bookstores were “telling me it should be a paperback” because all the other Harry Potter books were in paperback and the Lexicon would have a hard time competing that way.
Regarding how quickly the book was put together: “We publish our books very quickly and this was not an atypical situation for us.” Rapoport also said repeatedly that he didn’t believe the Lexicon was assembled between the time of the signing of the contract and the contract’s deadline, but over the seven years in which the site had been online. He said his company has put together books, from scratch, in less than two weeks, which he said were reviewed well.
“This is a book that had been worked on for seven years. You’re making it sound like there hadn’t been a lot of work done,” said Rapoport.
It was revealed that RDR had made a deal (which, because of the lawsuit, was never completed) to get an advance from Methuen; Rapoport said they agreed to 5,000 pounds. One e-mail indicated that he thought that was a low figure compared to what was being offered from other countries in Europe; he said that only one other country had offered a higher figure.
Another email to Methuen showed Rapoport saying that JKR said “again and again that [the Lexicon site editors] were her absolute favorite when it comes to a Harry Potter reference book.” The plaintiffs’ lawyers said, “You weren’t being honest, were you?” and Rapoport said no. He asked several different ways (“You were making things up, weren’t you?”, and “You put words in Ms. Rowling’s mouth”), and Rapoport said “No.” The lawyer asked if he had one indication that JKR had said any of those things. Rapoport said, “You just showed a quote…There was a very longstanding relationship, awards had been given.”
“You were exaggerating to Peter Tummons.”
“I don’t think so.”
“Where did Ms. Rowling say again and again that the people behind the Lexicon were her favorites?”
“She didn’t use those exact words.”
Rapoport was asked whether the clause in which he indemnified Steve Vander Ark was standard, and he said that every publishing contract was different and that there was no standard contract; the plaintiffs’ lawyer then showed an e-mail to Steve Vander Ark in which he said, “Anything you say in public can and will be used against you…you were not sued and it is also noteworthy that if you are sued, we have agreed to defend you…in standard publishing contracts, the reverse is true.” Rapoport answered that the indemnification was something he felt comfortable doing.
The plaintiffs said that Rapoport was doing everything it could to keep the book a secret until it was published; Rapoport said, “We genuinely don’t discuss our porjects until the books are in-house.”
WB: “You took special efforts in this case.”
RR: “Actually that’s not true.”
The next exhibit showed an e-mail between Rapoport and Richard Harris, today referred to as the managing editor of RDR Books, which said, “The HP project looks like a go…we’re not telling anyone about this book and I would really appreciate you keeping our cover. I’ll explain the details in a phone call this weekend.” Another e-mail said, “We do not want to sell this to any of the [companies] currently publishing Harry Potter books.”
The lawyer went over the timeline of the cease and desist letters that were sent in the beginning of the case, and addressed the letter in which Roger Rapoport said that a personal situation had interrupted “all” his work, while showing e-mails that indicated sales and other marketing around the HPL were still ongoing at the time (sometime the same day). Rapoport said that the Publisher’s Marketplace listing (through which Neil Blair was first made aware of the book) “certainly seemed to catch the attention of Neil Blair. Would you call that secrecy?”
There was also another e-mail to a foreign publisher in which Rapoport said there was only an “unlikely event” the book would be challenged, but the letter was sent after two cease and desist letters had been sent.
WB: “You weren’t very honest with [the recipient].”
RR: No, I disagree with you.”
Later, WB asked, “Did you tell any publishers that [JKR] had raised objections?” and Rapoport said no.
The lawyers also focused on RDR‘s unwillingness to send WB a manuscript (they told them to hit “print” on the Lexicon web site instead) when it was sending the book via e-mail to foreign publishers (which Rapoport admitted) at the same time.
Regarding the DVD timeline:
RR: “He created an original timeline that ended up on the DVDs.”
WB: “You know that Ms. Rowling created the seven original books and then was copied [in the HPL]”
WB: “Is it your testimony that he did not copy from the books.”
WB: “Are you saying that he did?”
WB: “I think that cleared it up, Your Honor.”
Judge: “It normally does.”
WB then asked Rapoport if he thought that Vander Ark copied JKR‘s work with the Lexicon and he said no. The judge asked him to clarify; “He asked a general quesiton and I gave a general answer.” The judge explained that back to the lawyer, who said the concept was lost on him – the judge said, “That’s why I thought I would bring it to your attention.”
WB: “You are aware that Mr. Vander Ark copied specific language from J.K. Rowling’s books?”
RR: “You nee to ask me specifics.”
WB: “In all 400 pages -“
RR: “The answer is that the book, the Harry Potter Lexicon, is fair use.”
Rapoport said that during the courtesy call Dale Cendali gave him on Oct. 31 to say that they were going to court, “as I recall, I was asked repeatedly to declare I would stop publication of the book..I remember Ms. Cendali screaming at me at the top of her lungs for 20 minutes, ‘Will you stop this book.’” He then said they sent the book in to WB, and the plaintiffs’ lawyer clarified, “for discovery.”
The WB lawyer asked if the other three authors of the book would be compensated; Rapoport said he did not have a contract with them but that Steve Vander Ark intended to compensate them. WB asked if any of the many people who have contributed to the Lexicon over the years were in line for compensation. After a few back-and-forths without answers, he said, “If the book is successful, there is a lot of possibility,” Rapoport said. He said the book was “a lot like Wikipedia,” in the way in which the fans have contributed over the years.
The plaintiffs asked if Rapoport had considered that publicity around the case would increase the likelihood of success of the book if they won, and Rapoport said he had never thought about it. Later he said he hadn’t “really” thought about it. “No, I was thinking about whether Ms. Cendali was going to call me up again and scream at me,” he said.
He said he never expected the book to be a bestseller and that the clause in Steve Vander Ark’s contract which says that if it reaches the New York Times bestseller list he gets a bonus is one that he’s had in other contracts but which has never kicked in; he’s never published a NYT bestseller, he said. The most any of his books have sold are 10,000 copies.
The intended first print run of the book, Rapoport said, was 10,000. The judge asked if that meant they would print more; “maybe 20,000 if we were lucky,” he said.
WB: “You know that if you win you stand to make a lot of money.”
RR: “No, I don’t.”
RDR‘s lawyer asked if he ever expected to compete with JKR‘s books, and he said, “Not in my wildest dreams.”
He also said that Barnes & Noble was considering buying 2-3,000 copies; wholesaler Baker & Taylor was going to buy 500 copies for library distribution, and Borders was considering buying 1500 copies. The lattermost figure, he said, was just a consideration but then Borders got back to him and said that they were buying zero copies; the judge said, “because of the lawsuit.” Rapoport said yes. B&N also pulled out because of the lawsuit.
Tomorrow, Steve Vander Ark, and potentially RDR‘s expert witness, are expected to take the stand.