In the first entry, Law Blogger Dan Slater reports that the lawyers involved informed Judge Patterson earlier today that they had reached a settlement on the false advertising and deceptive trade practices claims, meaning that neither JKR’s name nor any words of praise from her toward the online version of the Lexicon will appear on the cover of the print Lexicon, should RDR be successful in pushing forward with publication. The copyright infringement claim is still on the table.
Mr. Slater quotes Judge Patterson: “I don’t want to be influenced by either party’s attitude toward settlement.” and “I think this case, with imagination, could be settled . . . . But don’t throw anything out because of my desire to move ahead”. Patterson remarked that he suspects the case will be appealed, and that it could potentially got the Surpreme Court, taking years to resolve.
Lawyers for JKR/WB stated that their case for copyright infringement had been concluded. Lawyers for RDR Books called University of California Berkeley literature professor and lexicon and literature expert Janet Sorensen to the stand, with the purpose of establishing that a guide to a creative work written by other than the author can be of benefit to readers in understanding the author’s work.
In a second report by Slater, IP (Intellectual Property) expert Ethan Horwitz is asked for his take on the case. Asks Slater:
So you think it’s running neck and neck between Warner Bros. and J.K. Rowling on the one side, and RDR Books on the other?
Horwitz responds that each side can find precedence to support fair-use, and continues on to offer instances of where fair-use has been challenged in court.
Later, Slater asks about the facts of the case. Says Horwitz: “Each side has some strengths and some weaknesses. Another part of the fair-use test involves the effect on the published work’s market, essentially just how clearly the copyright holder has shown that the work will have a damaging economic effect on her publications. That’s a tough argument for Rowling to make here because she, in the past, has been so encouraging of fan Web sites and lexicons and the like. This is where she has her major problem.”
Horwitz also said: “Vander Ark’s biggest issue, I think, is that his site looks so similar to the design of the Potter books. Technically speaking, it’s a trademark issue, but it is going to affect another factor, which is the extent and value of the taking from the original work.”
In response to Slater’s request for a prediction, Horwitz declined to make one.
In his concluding post of the day, Wall Street Journal Law Blogger Slater states that the defense “scores some serious points”.
Judge Patterson concluded that plaintiff expert witness Jeri Johnson failed to add significant evidence to the case. ““It’s not helpful testimony because it draws conclusions without specifics,” he said. “I can’t simply take the expert’s opinion as my own”.
In Slater’s opinion, Johnson’s testimony “unraveled” when pressed by the defense. David Hamer, attorney for RDR Books, asked “Could a work be useful to a 10 year-old even if it’s not something she would classify as a work of academic scholarship?” Johnson agreed; Hammer ceased questioning.
When JKR took the stand, according to Slater, she compared her novels to a cake, claiming that the Lexicon takes all the best “crumbs,” repackages them and sells them for “entertainment value.”
Judge Patterson asked if she believed the Lexicon would be read for entertainment value. JKR replied: “No… but, without seeming arrogant or vain, there are entertaining things in it — and I wrote them.”
In a closing statement, defense attorney Falzone stated that ““Quality shouldn’t matter”. According to Slater, he concluded that if this is the case, then the solution is not to supress the material, but for Rowling to write her own.
EDIT: If you see an article on the trial that you believe we should list here at Leaky, please email to “staff@the-leaky-cauldron.org”. Thank you!
This is what I’ve been hearing on many other (non-HP) sites. Apparently, as much as we’d like it to be a clear-cut case, it is actually going to be very close either way.
ahhh….i hope this won’t get appealed and take years to sort out! I keep on thinking the arguments over….and i thought: why would JKR say that the book copies her word for word and offers no insight if she wasn’t being truthfull. That’s the whole point of this case…isn’t it? copyright. So I really want Jo to be able to write her Scottish book.
” ...That’s a tough argument for Rowling to make here because she, in the past, has been so encouraging of fan Web sites and lexicons and the like. This is where she has her major problem.”
Isnt this what we’ve been saying? If she/WB loose the case even partially because of this arguement, doesnt that mean that other authors will be much controlling of what’s allowed? Not a good scenario.
How about they settle, in that Mr. Vander Ark can publish only AFTER The Scottish book is published. Like, he has to wait 12 months after the JKR’s book, then he’ll be allowed to publish. After all, he says it’s not about money.
While yes, it would not be fun if authors started clamping down on things – I’m not sure the judge is to rule on that. He supposed to rule on the law (in this case fair use and copyright). So while yeah, it wouldn’t be fun for fandom if that was a repercussion of the case IF SVA wins, it isn’t part of the case itself.
I personally think that after what has happened to SVA through this ordeal, establishing that JKR stands to lose a significant market share if Lexicon is published is going to be difficult to say the least. Because lets be frank – how many people in fandom are going to buy it (particularly if you can access it for free online?). And given the press of this, what parent will?
I agree with Mr. Horwitz in that the Copyright issue and I’m by no means an expert is not clear. That’s exactly why RDR has settled in the other issues. However, if the IP issues are not clear, IMHO other factors should be taken into account, and that factors are JKR/WB have acted with good faith (permitting fan sites and companion books who did comply with the copyright holder’s demands) and SVA/RDR haven’t.
(did Steve get a bad, bad lifting? I saw him in Youtube, he looks creepy :s)
We really can’t use the whole other-authors thing here, because it can go both ways. If Jo loses, then other authors will most likely be much more strict abotu the use of their work. On the flip side, if Jo wins, that’ll set a precedent, and not necessarily a good one: if ever an author is fighting against something that uses his/her material, that author can always cite this case and say that because of this so-and-so can’t be allowed. In a way, this case will redefine fair use. And this won’t extend just to companion books, but to the online fandom as well. For all of those who are saying how dare Steve write stuff about HP without Jo’s consent – how would you feel if Jo suddenly disallowed Leaky or Mugglenet? And don’t say that she’s always been supportive of fansites, she’s always been supportive of companion books too as far as I know. So I’m rooting for Steve, despite the toll it might have on our favorite author.
Beth, by reading between the lines on everything Steve has been saying and all of the emotions he has been expressing, which are better detailed by other sources by the way, I believe that Steve would drop the case in an instant if only that decision was in his power. I would be willing to bet that it isn’t. Steve surely gave RDR the publishing rights when signed the contract, and whether or not to publish is in RDR’s hands right now, not Steve’s. Again, reading between the lines, RDR’s wishes and Steve’s wishes seem to diverge significantly.
I don’t know if Jo’s going to be able to prove this will affect her economically; the lawyers on this site have been right: the court’s decision isn’t going to be as clear-cut as we all though it was.
If RDRwins, can someone give me a hand with writing a Narnia Encyclopedia, I need to get it released before or during the release of Prince Caspion movie to gain maximum profit. You’ll get 5%. Ok thats negotiable. I will ask RDR to help publish it. Then I will do speeches to plug the book. $$$$$. I’m not in it for the money, understand. Narnia fans have been longing for a “ready reference” in book form and I feel I am “The One”. Example entries of deep character analysis:
Peter: Oldest brother of 4. “High King”
Magician’s Nephew: Nephew of Magician. Spotty and often dirty. Builder of wardrobe.
Well, one thing is a fan site, to talk about HP between fans, but to actually put a lot of information togehther and make an extra book out of it, is going much to far and should be forbidden.
Anyway I am sure that the contents of this book would not be “new nor special” I am surprised that Jo needs a court to stop this guys, she wrote HP that should be enough to stop anyone fusing arround.
Have you guys heard of Anne Rice? She wrote the popular Vampire Chronicles with Louis and Lestat. She’s also notorious for NOT supporting fanfiction involving her books among other things.
JKR has been very lenient with us fans in many respects and encouraged creativity. Not every author is as accommodating as she has been! It’s AWFUL that her trust is being compromised now thanks to SVA’s greed and need for “recognition”. I’m scared that more authors will most definitely start putting restrictions on things like fanart, fanfiction, & websites to protect their copyrights as a result of this mess.
Though I agree, that this wouldn’t harm Jo financially if it were published, its the fact someone is profiting from her creative work, without any original commentary added to it.
"I must go back to the feast, Minerva, I've got to give out a few notices. Come, Severus, there's a delicious-looking custard tart I want to sample --"
This is what I’ve been hearing on many other (non-HP) sites. Apparently, as much as we’d like it to be a clear-cut case, it is actually going to be very close either way.