JKR/WB vs RDR Books Trial: Testimony

Apr 16, 2008

Posted by: KristinTLC


As a follow up to yesterday’s post regarding Steve Vander Ark’s testimony in the case of J.K. Rowling and Warner Brothers vs. RDR Books, we have the following details. Please note that Leaky was in attendance, and as on Monday, all notes were handwritten as recorders were banned.

General facts

During Steve Vander Ark’s [SVA] testimony, he was asked if, in July of 2007, he was in a position where he needed extra money. He responded “I’m always in a position where I need extra money.”

During questioning, it was established that SVA does not have a degree in Library Science, and that he was asked for his resignation from his job as a librarian in October.

He contacted the Christopher Little Literary Agency in May of 2007 and again in July via e-mail.

Concerning copyright problems

SVA told RDR that he was concerned about copyright issues with a print version of the Lexicon.

In response to a question about sales of MuggleNet’s book “What Will Happen in Harry Potter 7”, SVA said “I heard [that they had sold over 300K copies]; I really wasn’t aware of that until later, but yes.”

Roger Rapoport of RDR Books used to work at Ulysses, which published the MuggleNet book. When asked if he and RDR had had a conversation about the potential Lexicon book making as much money as the MuggleNet book, he responded: “I don’t remember a conversation like that….I only knew it was on the New York Times bestseller list.” He also said he “only brought up as a joke” the possibility of the book making the New York Tmes bestseller list.

Regarding beating MuggleNet to publication:

WB: “you wanted to beat MuggleNet to the punch?”
SVA: “Right…the two books coming out at the same time, they would be seen as equal.”
It was noted the Lexicon book would be rushed to stores for two reasons: because of the publication of the MuggleNet book, and because of the Christmas season.
Warner Brothers asked if a third reason was because interest in Harry Potter was at a high. SVA responded with “I don’t remember thinking that, no.”

Steve Vander Ark’s knowledge of copyright rules

WB asked SVA if he was knowledgeable about copyright issues, to which he responded: “I’m no expert.” When asked if he was knowledgeable about copyright infringement, he said: “I’m not sure how to answer that.”

WB asked if as a media specialist, one of his areas of expertise was copyright.

SVA: “Yes.”

WB asked if he had read a lot of books about copyright or attended conferences on copyright. SVA responded: “I don’t think I’ve read a lot of books copyright. I’ve attended conference as relates to children using copyright…” The judge asked for clarification on this statement, and SVA explained that part of his job was to instruct children on what is allowed and what isn’t.

WB showed postings from a forum regarding the old Newton device, in which Mr. SVA had posted in 2000 that he reads “ridiculously large numbers” of books on copyright; in the post, he also stated that he attended conferences. SVA said: “I don’t doubt that I made the comments, I just don’t remember making this particular post.”

WB asked if he used electronic versions of the books for creating the manuscript: “Yes, we do. We scanned them in from our copies. We have multiple copies of the book.”

WB then showed an e-mail between SVA and the co-authors requesting text files of the JKR schoolbooks for the production of the manuscript: “If anyone has the text files of QA [Quidditch Through the Ages] and FB [Fantastic Beasts and Where to Find Them], that would be enormously helpful.”

SVA stated that he did not believe it wrong to scan his own copies because they were not distributed, and that, “it’s a lot easier to search electronic copies” than the paper ones, “of which we have many.”

WB then asked whether it is easier to cut and paste from a text file of an HP book: “I don’t know because I’ve never done that.” He was asked again if he’d ever cut/pasted from the books: “I don’t recall doing that, no.”

The defense objected to the line of questioning, stating that there was no clam of infringement in the use of electronic copies in the filings. The judge overruled the objection, but said he’d take the note into consideration.

WB asked SVA if knew he couldn’t make electronic copies of the book: “Actually there are instances where this is allowed…but I don’t know how it relates to [the case].” WB then showed a post SVA had made on the previously mentioned Newton message board that read: “You can’t legally make copies of copyrighted books just because you own them.”

When asked to confirm that he had written the post, SVA responded: “I don’t have that document in front of me but I’m not disputing it.” He went on to explain that the comments were in references to the short-lived Newton electronic device and the small resultant community’s desire to share what they had relating to it and the legality of that.

Authorship of the material on the Lexicon/in the Lexicon book

SVA was shown his declaration where he said he and his staff composed the text of the manuscript. “We wrote the Lexicon manuscript,” he said. WB asked “Do you think that the book copies J.K. Rowling’s work?” He answered, “The Lexicon book is a reference book to a piece of literature. That’s the kind of book it is.” WB repeated the question, and a defense lawyer objected, saying the word “copy” is large and ambiguous. SVA stated: “There are places where we use phrases that are identical or similar. In the process of creating a book of that kind that would be expected…It’s a standard type of reference guide.”

WB asked whether it was true the book was 90 percent JKR‘s work. SVA said, “I don’t think that’s the case.” He was asked to give a percentage as to how much of the Lexicon book was JKR‘s work; the defense objected to this question, but it was overruled. SVA responded: “I’m really not sure how to answer the question. I have not analyzed the text in that way.”

He said it was “not the Lexicon’s aim to be exhaustive.”

The part of his declaration where he says the text uses JKR‘s words “in a few places” was highlighted. WB asked, “Only in a few places?…is that what you believe?”

SVA responded: “That’s what I wrote.”
WB followed up: “Is that what you believe?”
SVA responded: “That is what I believe.”

The Lexicon entry on the Brain Room, which was discussed during day one of the trial was brought up again, in which the same words to describe the unspooling brains as resembling filmstrips were used in both OOTP and the Lexicon book. SVA was asked if he considered that copying: “I wouldn’t call that copying. That’s similar. The only way I can make a book about this is from the source text.” He was asked if he thought it was a paraphrase. “I suppose you could use that term. I did cite it, however.”

Regarding an entry about Goblins imbibing metal, SVA said the words used were said by a character (“According to Phineas Nigellus, goblin-made armour does not require cleaning, because goblins’ silver repels mundane dirt, imbibing only that which strengthens it”), “So yes, we had to use those words.” He was asked why he didn’t use quotes around the portion of text that came from the character’s mouth. “That not the form of the sentence,” he responded.

WB asked SVA to describe “clankers”.
SVA asked: “Do you want me to read from the description [in the HPL]?”
WB: “Can you answer [without doing so]?”
SVA: “They are metal objects used to frighten a dragon.”
WB asked why he could describe the clankers without using the same words as JKR, but that he did not do so in the manuscript: “You asked me to describe it, you didn’t ask me what I would put in a reference book, there’s a difference. When you create a reference work you have to create a balance between the two.”

The David Colbert book was again referenced as “another HP encyclopedia,” and SVA said, “I wouldn’t call this an encyclopedia. There are similarities between the two but it doesn’t aim to be exhaustive or complete. Mr. Colbert’s purpose is to talk about other things than the Harry Potter books,” while the purpose of the Lexicon book is to be a “ready reference” so that people can look things up quickly.

SVA said repeatedly that while all the entries on the Lexicon site were represented in the book, each was shorter, with the aim of not including everything in the book so that it would drive people back to the novels. “The Lexicon book would be pretty much useless without the novels.”

Regarding Other Harry Potter material and works and permission to use them

Regarding Fantastic Beasts and Where to Find Them, Quiddich Through the Ages and the Wizard Cards, SVA said they were presented with “quite a challenge” but that they [the Lexicon authors] left out a lot of information. Regarding the Wizard Cards, he said, “I had permission to use that material.”

WB asked if he had permission to use those cards in a book version of the Lexicon; SVA said, “I had permission on the Web site.”
WB asked him to confirm that he had not talked to anyone about using that information in a book.

SVA mentioned whom he had spoken to about the website permissions [the name of person is unclear]. WB then asked if in 2002, when he got that permission, if it could have been for anything but the Lexicon website. SVA said no.

Regarding other books referenced in the Lexicon, the portion of the book that says all information came from JKR was highlighted. WB asked if it was true that he only sourced a specific outside reference four times.

SVA: “I haven’t counted it up.”
WB: Does it sound right?”
SVA: “I have no idea.”

More on etymology

WB asked if about one percent of entries contained etymology. SVA responded that if she had counted up he’d be happy to agree.

The term “Flints” was referenced, which SVA defined as a fan term for continuity errors. He said there are “remarkably few” because JKR is “very good at continuity.”

He was asked if he counted JKR among one of the contributors to his book. SVA responded: “The Lexicon is a reference book to an original source. If I was writing [about] Shakespeare, I wouldn’t quote Shakespeare…In that kind of book you would not do it that way.”

When asked about fan contributions to the site, SVA said it would be “difficult for me to show where” other fans had contributed information to the eventual HPL manuscript. WB asked if he ever advised fans that their work might be included in a for-profit book; this question was objected to and sustained.

When asked if he ever told JKR‘s representatives about his plan for the book, SVA responded: “No, I didn’t think I needed to.”

The FAQ page of the HP Lexicon website, in which SVA says that it’s not right for others to copy his work, was mentioned. WB said: “You don’t like people to infringe your work”. SVA responded, “I’m not sure how to answer that question.”

WB referenced the exhibit in which SVA said he had “sicced” his lawyer onto someone for copying the Lexicon; SVA said that was an instance in which someone had taken pages from the Lexicon and JKR‘s site and was selling them on the Web site. He said he wrote to the CLLA at the time to tell them.

In the same note he mentioned that three books had “plagiarized quite extensively” from the Lexicon When asked which books he was referring to, SVA responded: “I don’t remember exactly which books these were. I knew at the time.”

George Beahm’s book mentioned and WB asked if that was one of the three books mentioned above. SVA said “What Beahm did is not plagiarism; he used the Lexicon for structure…however what he did was not wrong.”

WB then showed an e-mail in which SVA said Beahm “copies a lot of the material for his book, directly from the Lexicon.”

SVA clarified: “He lists material in the same order, he includes things he would not have except for the Lexicon. What he did was not wrong, it just bothered me.”

The e-mail to Cheryl Klein in which SVA said he understood that J.K. Rowling had reserved rights to an encyclopedia was mentioned; in the same email, he said he had advised George Beahm from doing an encyclopedia. SVA said: “I wrote that note because I was hoping for a response. I was hoping that she would say, ‘Yes, I’m glad you did that, or something that would have verified it. I was testing the water, I wanted to get a response. No, she did not respond.”

A video in which SVA said that “Jo has quit, she’s done, we’re taking over now” to a room full of fans was played. The judge asked “Is that the whole clip?” and WB said yes; SVA interrupted that it was a small portion of what was available at YouTube.

SVA said he made the comments because “There was a lot of worry at that time that the Harry Potter fandom would die [and the people who ran the conference said] “We’d like you to say something [to encourage fans to] stay fans, keep writing.”

Steve Vander Ark’s statements on the last book’s epilogue

He was asked if he told fans to disregard the Epilogue from DH and said he’d like to explain the greater context of his comments to that effect (but did not).

WB: “Is it true that you told fans you did not accept that Ms. Rowling has the right to decide for herself the fates of her characters?”
SVA responded: “I really don’t remember exactly what was said. It sounds like something I would not say.”
WB: “You don’t like the epilogue?”
SVA: “I’m neither here nor there on it, actually.”

The Book Timeline and Vander Ark’s attorney

The timeline was mentioned again. SVA said “There are two timelines…[the one in question is one which] a large portion of it invented…some of the dates are given in a book. I have made guesses, figured out.” Some discussion occurs about discussing the timeline with two people at WB, and having a deal with RDR in which RDR got 15 percent (not half as reported earlier) commission from money paid by WB, in exchange for RDR taking up his cause. He accepted the deal. He was asked if he talked about it with people at WB. SVA responded: “Confidential and without prejudice so any content of that discussion is not something we can talk about here.”

The lawyers debated whether the question should be allowed to continue:

WB: “While RDR and plaintiffs have resolved the [issue] you have refused to resolve your claim…Mr. Harris is not your lawyer?”
SVA: “No, he is not.”
WB: [You have recently retained a lawyer?]
SVA: ”…it was considered to be a good idea to have an attorney of my own.”
WB: [statement unclear; they appear to have asked whether the process was still ongoing regarding the timeline]
SVA: “I guess the answer to that would be yes.”
WB: “You hope to receive money?”
SVA: “I was more interested in receiving recognition.”
WB: “But you always want to receive money.”
SVA: “I wouldn’t object to it.”

Steve Vander Ark on J.K. Rowling’s testimony

SVA said that he not only hadn’t seen the testimonies from the day before, but hadn’t read any articles and didn’t know anything about what Jo said on the stand.

In conclusion, a note from Melissa:

In the remainder of this proceeding an e-mail of mine was brought into question; therefore, for many reasons, I will recuse myself and longer post news about this case. Kristin will do so from now on. She has been provided raw transcription notes from the this testimony in order to give it equal time as JKR‘s had; this is only the examination, and not cross-examination, as I stopped taking notes as soon as the e-mail was brought in. The rest of the information will be culled from other sources and posted here; thanks, everyone!

The Leaky Cauldron is not associated with J.K. Rowling, Warner Bros., or any of the individuals or companies associated with producing and publishing Harry Potter books and films.