JKR/WB vs. RDR Books Trial: Findings of Fact & Conclusions of Law (pt 2)

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May 11, 2008

Posted by KristinTLC
Uncategorized

This post is part two of our post from earlier today, and includes our summary of the Findings of Fact and Conclusions of Law presented by JKR/WB in this PDF.

Please see the prior post for Editor’s Notes. In addition, please also note that the JKR/WB document is considerably longer that the RDR Books document. In an effort to bring the summary down to a manageable length, on several occasions the reader is directed to the original document for additional reading. Further, note that this summary was written directly after the RDR Books summary, and that we did not re-state in places where text appeared to repeat information discussed in the RDR summary (such as in the summary of the Copyright Act). Please consider the summaries companion text and read them together.

PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

In the first section, the parties are described. The document goes on to describe the how the series came to be, noting “the manner in which the Harry Potter series came into being and the circumstances under which Ms. Rowling created the series have been well publicized.”. The section acknowledges her copyright of the series, and quotes her testimony of what the series means, “¦setting aside my children, everything.”

Companion Guides and Other Harry Potter-related Properties are also described, including Fantastic Beasts and Where to Find Them, Quidditch Through the Ages, and The Daily Prophet newsletters. JKR‘s copyrights are acknowledge, and an attachment provides the copyright information for the newletters.

“In addition to these two Companion Books, Ms. Rowling has repeatedly
stated, since at least 1998, that she plans to publish a Harry Potter encyclopedia once the series was finished and similarly donate the proceeds to charity.”

The document notes that while the market for the companion books is not “nearly as large” as for the novels, they have raised over $30 million for the children’s charity Comic Relief. That JKR also wrote Tales of Beetle the Bard for charity is noted.

Ms. Rowling’s Planned Encyclopedia.

“Ms. Rowling intends for her encyclopedia to contain alphabetical entries
for the various people, places and things from the Harry Potter novels. While she intends to add new material, her encyclopedia will contain “all information in the published [Harry Potter] books.”

The section entitled The Harry Potter Films and Related Merchandising describes the films and film-related copyrights held by WB. The licensing of certain rights to Electronic Arts is also noted, adding that “many of the wizards mentioned in the Famous Wizard Cards are not actually referenced” in the novels.

Copyright information for the Wizard Cards is attached.

Plaintiffs’ Intellectual Property Protection Strategies

The section covers steps JKR has taken, along with WB, to protect “the integrity of her intellectual property rights and that of her Harry Potter novels”, including care in granting licenses to third parties, and issuing “style guides” to ensure that licensed products are “of the highest possible quality”. It is noted that while there are many requests to license Harry Potter, they in fact deny many of them. In the case of companion guides, the Plaintiffs review the books to ensure that it does not suggest JKR or WB endorses the book and to ensure the book doesn’t infringe upon JKR‘s copyrights. “When a book does raise concerns, Plaintiffs attempt to work with the publisher and author to find a non-infringing solution”.

Interest in Harry Potter Spawns Numerous Books and Websites

The document notes that the series has resulted in more than 90 books published in the U.S. alone; this section mentions several of those by name, including companion books. “Unlike the Lexicon, these Harry Potter companion guides analyze and interpret the Harry Potter books and describe the real-world underpinnings for many of Ms. Rowling’s creations. Rather than regurgitating Ms. Rowling’s text in vast quantity, these books only use brief portions of text as jumping off points for commentary or analysis related thereto”. It’s noted that the Plaintiffs have not taken legal action against any of these books.

The document discusses the widespread interest on the Internet that the series has created, noting:

“Plaintiffs allow these fan sites wide latitude in operating provided that these sites are free-to-fans and do not attempt to merchandise Harry Potter or interfere with Plaintiffs’ licensing program”, and that “Ms. Rowling is “keen to maintain an almost entirely hands-off approach to the online fandom where Harry Potter [is] concerned” with the exception of “obvious boundaries of decency that occasionally one would not like to see overstepped”.

JKR testified “”I saw it as a great global book club with a lot of enthusiasm.
I met people who had made real life friendships through posting on Harry Potter message boards, which I thought was a wonderful thing. The fan sites, the fan created fan message boards and the essays and so on, they were all fun. I have never read online fan fiction. It is uncomfortable to see your world restated in that way. But, I never censored it or wanted to censor it.”

As a result of JKR‘s views, the Plaintiffs do not typically attempt to prevent fan fiction, fan art, or Harry Potter rock bands (noting the term “wizard rock”), adding “Ms. Rowling has even recognized the various fan sites by giving “Fan Site Awards”.

The Harry Potter Lexicon Website

This section describes the Lexicon, noting that it is free to fans, that SVA maintains the site with the help of volunteers, and that visitors often “send in corrections and updates as well”. The document notes that the site as little advertising.

In 2004, JKR awarded the Lexicon website her “Fan Site Award”. In addition to other remarks, JKR said the Lexicon is “A website for the dangerously obsessive; my natural home”. JKR testified that the award was meant “as a kind of A for effort” and that she “never intended for this award to be taken as an authorization for them to create and sell an infringing Harry Potter book for profit¦”.

Mr. Vander Ark’s Awareness of Ms. Rowling’s Plans

In this section it’s noted that SVA testified as to being aware of JKR‘s intention to publish an encyclopedia upon completion of the seventh book. SVA also testified that he believed creating an encyclopedia from JKR‘s work constituted copyright infringement. In a 2005 email, he said:

“Basically, it’s illegal to sell a book like that. Jo has reserved all publishing rights to her intellectual property, which means that she’s the only one who may publish any book that is a guide to her world¦”.

The section also notes that in 2000, SVA stated on a public Internet newsgroup:

“[W]ithout her permission, I won’t publish [the Lexicon] in any form except online”.

The document presents an email to Scholastic Editor Cheryl Klein as proof that SVA actually viewed the Lexicon website as a means of deterring third parties from publishing an encyclopedia that competed with JKR‘s planned encyclopedia:

“It might interest you to know that George Beahm commented that he had originally intended to write an encyclopedia of Harry Potter (which Jo has specifically reserved for herself, I understand), but seeing the Lexicon convinced him not to bother. I want you to know that one of the express purposes of the Lexicon is to dissuade people from that sort of thing, so I was happy to hear him saw that. The fact that he copies a lot of the material from his books directly from the Lexicon, however, still rankles.”

According to the document, SVA tried to “back away” from these statements by saying his view of copyright was “just his layman’s impression”. In testimony, however, SVA noted library training and experience with copyright issues, and that he had read “ridiculously large numbers of related books, articles, etc., and even [went] to the occasional conference on the subject of copyright”.

Mr. Vander Ark Seeks a Meeting with Ms. Rowling’s Literary Agent

In mid-2007, SVA contacted JKR‘s representatives at the Christopher Little Literary Agency to request a meeting. Due to the nearness of the seventh book’s release, CLLA responded they would be happy to answer any questions via email. SVA responded that he had planned to move to London and was looking for a job, stating “if she is thinking of working on an encyclopedia, I would be a good candidate for work as an editor, given my work on the Lexicon”. CLLA responded that JKR worked along.

Development of the Lexicon Book

This section covers RDR‘s discovery of the Lexicon and his initial contact with SVA, stating that prior to meeting SVA, RDR was “already working to secure foreign publishers for the proposed Lexicon project”.

The document notes that SVA testified that he expressed concerns regarding the legality of such a book, and that no testimony nor evidence was given to support that RDR sought opinion or counsel regarding the legality. That RDR and SVA “clearly contemplated” that the Plaintiffs might sue for copyright infringement is argued by the contract between the two, in which SVA asked to be indemnified from any claims of infringement. JKR/WB claims this is “atypical in publishing contracts”.

Marketing the Lexicon Book
RDR and SVA planned to put the book to market by late October 2007. The document claims that RDR and SVA expected the book to do well, as the contract includes a bonus for SVA for every week the book was on the New York Times Best Seller list. Although SVA testified that he “meant it as a joke”, JKR/WB argue that “evidence demonstrates otherwise”.

RDR marketed the book to foreign publishers and to U.S. bookstores and sellers as “the definitive Harry Potter encyclopedia”. To one British publisher, RDR stated in an email that “J.K. Rowling has said again and again that the people behind this book are her absolute favorites when it comes to a Harry Potter reference book”. It is noted that in testimony, RDR “concedes” that JKR never used “those exact words” and did not say anything about SVA being her “favorite” when it comes to a “reference book”.

SVA testified that there are three other authors of the Lexicon manuscript.

The document states that RDR expected the Lexicon book to be placed next to the novels in bookstores, and that he intended the book to sell for $24.95 in the U.S. RDR used JKR‘s statements about the website with regard to her fan site award in marketing the book. As a result of marketing efforts, RDR secured oral contracts for rights to the Lexicon book with publishers in several countries and with Borders Bookstore in the U.S.. According to this document, RDR initially testified that there was never a firm order with Borders, later testifying that the order from Borders was cancelled due to the lawsuit.

Plaintiffs Learn of Defendant’s Plans

JKR‘s literary agent Neil Blair first learned of the Lexicon book when he saw it advertised on PublishersMarketplace.com, which “made it clear that the book was intended to be the “definitive” Harry Potter encyclopedia”. The ad stated rights had been sold in England, Canada and Australia and that RDR was offering the worldwide rights with the exception of those countries.

Mr. Blair emailed RDR and SVA; the only response was from SVA, stating “he had been advised to leave these matters to others”.

In Sept 2007, counsel for JKR and WB emailed SVA with a CC to RDR, advising them the book appeared to infringe JKR‘s copyrights and requesting that publication cease.

The document claims that RDR promised to “study the issues” and “get back to them”, while continuing attempts to sell the book, effectively, according to JKR/WB, “stalling”. This email and letter exchange took place until the end of October, noting that RDR refused to provide a copy of the manuscript to JKR and WB. A record of this correspondence appears on pages 22 – 24 of this document.

The document notes:

“On October 11,2007, during the same period that Mr. Rapoport said he
could not respond to Plaintiffs’ letters because of a family emergency, Mr. Rapoport sent the chairman of Warner Bros. a cease and desist letter in which he claimed that Warner Bros. had violated Mr. Vander Ark’s rights in a timeline appearing on the Lexicon Website.” JKR/WB notes that the timeline was based entirely on JKR‘s works. In the letter, RDR stated:

“It has come to our attention that the “Hogwarts Timeline” included
in the extra features of the Warner Bros. DVD versions of Harry
Potter and the Chamber of Secrets, Harry Potter and The Prisoner
of Azkaban, and Harry Potter and the Goblet of Fire was copied
directly from the Harry Potter Lexicon website without Mr.
Vander Ark’s permission. We have been given to understand that
the timeline will also be incorporated in the special features of the
forthcoming DVD version of Harry Potter and the Order of the
Phoenix, announced for December 2007 release . . . . No such
timeline is contained in any of J.K. Rowling’s Harry Potter novels.
Mr. Vander Ark published details that were found nowhere else.
This timeline, like all the material on the 1,000-plus-page Harry
Potter Lexicon, is the original work of Mr. Vander Ark and his
elite team of academic scholars, literary critics and reference
librarians. It is copyrighted 2001 through 2007 by The Harry
Potter Lexicon.”

RDR stated it was seeking “tangible rewards” for SVA for the use of the timeline.

On the Lexicon, SVA states:

“work you find in the Lexicon for your own site. However, I don’t
give permission for people to just copy my work for their own use.
Not only is that illegal, since everything in the Lexicon is
copyrighted, it’s also just plain wrong.”

The document states that “If a user even attempts to highlight and copy any of the materials included on the Lexicon Website utilizing the “right click” function on their mouse, a copyright notice pops up.”

Plaintiffs File Suit and Seek to Obtain a Copy of the Manuscript

JKR/WB filed suit on October 31, 2007.

In the next several sections, JKR/WB assert that the Lexicon:

-copies JKR‘s work extensively
-illegally uses electronic copies of JKR‘s work
-draws virtually exclusively from JKR‘s work

JKR testified that SVA took “all the highlights of [her]
work, in other words characters’ secret history, the jokes certainly, certain exciting narrative
twists, all the things that are the highlights of [her] stories” and put them into the Lexicon for their entertainment value.”

The document argues that the material in the manuscript represents JKR‘s work. “The Lexicon manuscript contains none of the fan artwork, essays or
analysis that appears on the Lexicon website; it consists simply of an alphabetical list of fictional
facts concerning people, places and things taken from the Harry Potter books without the
addition of any criticism or commentary.”

The document asserts that SVA used illegal electronic copies of the books in the production of the manuscript.

“Mr. Vander Ark was aware that making electronic copies of a book would
be illegal, as he explained to an online discussion group. When another poster argued that
“[b]ooks that are copyrighted, that if we have a hard printed copy of our own, we are allowed to make copies for our own personal use,” Mr. Vander Ark responded that “Actually, no, you can’t legally make copies of copyrighted books just because you have the paper version.. . . So any copies of Tolkien books or Harry Potter books in NewtonBook [electronic] format are illegal.”

The document states that the Lexicon book makes it “very clear” where the material comes from. On the first page, it states:

“All the information in the Harry Potter Lexicon comes from J.K.
Rowling, either in the novels, the ‘schoolbooks,’ from her
interviews, or from material which she developed or wrote herself.”

SVA did not dispute in testimony the statement that other than four dictionary citations, no other third-party citations appeared in the manuscript.

From the document:

“As Professor Johnson, Senior Tutor and fellow in English at Exeter
College of the University of Oxford, stated in her declaration, of the Lexicon’s 2,437 entries,
2,034 simply lift information straight from the Harry Potter works. Professor Johnson also testified that most of the remaining 403 entries are also drawn from Ms.
Rowling’s works with perhaps “four or five words” or a line or two of additional material that was not simply directly taken from Ms. Rowling”.

The Plaintiffs claim that the Lexicon:

-copies verbatim songs and poems
-quotes and paraphrases JKR‘s prose without quotation marks or attribution
-extensively copies JKR‘s “fictional facts”
-contains long, detailed plot summaries that recount or retell the plots of the books

EDITOR‘S NOTE: JKR/WB submitted a substantial amount of evidence to support the above claims, many of which are produced in charts which would be difficult to reproduce in this summary. While we will provide examples, the reader is directed to see the original document for complete evidence.

“The Lexicon contains verbatim copies of the creative songs and poems
Ms. Rowling wrote for the Harry Potter Works including, the “Hogwarts’ School Song,” the Sorting Hat Song, and the poem, “His Eyes are as Green as a Fresh Pickled Toad.””

The document notes that at the trial SVA offered to remove these entries, but that neither RDR nor counsel had confirmed or commented on the proposal.

Some examples offered in the document in support of the above claims of direct copying with no quotations or attribution:

From book seven: “”Muggle-borns,” he said. “Goblin made armour does not require
cleaning, simple girl. Goblins’ silver repels mundane dirt, imbibing only that which strengthens it.”

From the Lexicon book: “¦goblin-made armor does not require cleaning, because goblins’ silver repels mundane dirt, imbibing only that which strengthens it¦”

From book six: “What looked like ribbons of moving images flew from it, unraveling like rolls of film.”

From the Lexicon book: “When Summoned, the brains fly out of the tank, unspooling ribbons of thought like strips of film, which wrap themselves around the Summoner”.

In the description of Madam Pince:

From the second book: “the librarian was a thin, irritable woman who looked like an underfed vulture.” and “¦.shriveled face¦”

From the Lexicon book: “Librarian at Hogwarts who looks like an underfed vulture (CS10) with a shriveled face (OP29), and is very strict and suspicious.”

The document states: “RDR claims that having a chapter citation referencing Ms. Rowling’s books forgives the lack of quotation marks. However, not only does RDR not offer any support for this claim, it is contrary to accepted practices in literature”.
which discusses Jane Austen to show words written by Miss Austen with “that’s a work of scholarship. Of course I do.”

The documents state that RDRs expert witness responded to the question of whether she uses quotation marks in her own book

The document notes that no spoiler alerts appear in the text to “warn the reader who has not yet read all of the Harry Potter books that they are about to learn the ultimate outcome of the series or the fates of characters”.

The document claims that in places where information could have been summarized, the book instead makes use of JKR‘s text.

For example:

From book four: “They looked like deformed, shell-less
lobsters, horribly pale and slimy looking,
with legs sticking out in very
odd places and no visible heads. . . .
each about six inches long, crawling
over each other, bumping blindly into
the sides of the boxes. They were
giving off a very powerful smell of
rotting fish. Every now and then sparks
would fly out of the end of the Skrewt
and, with a small phut, it would be
propelled forwards several inches.
. . .now over three feet long, and
extremely powerful. No longer shellless
and colourless, they had developed
a kind of thick, grayish shiny armor.
They looked like a cross between giant
scorpions and elongated crabs – but
still without recognizable heads or
eyes. . . . Every now and then, with an
alarming bang, one of the Skrewt’s
ends would explode, causing it to shoot
forward several yards.”

From the Lexicon book: “pale, slimy, deformed, shell-less
lobsters. They had no heads but had
legs sticking out at odd angles. The
creatures were about six inches long
and smelled strongly of rotten fish.
Sparks flew out from their ends every
so often which propelled them forward
a few inches.
After two months, the skrewts were
about three feet long and extremely i11-
tempered. When kept together, they
attacked and killed each other. They
developed gray, shiny armor and began
to look like a cross between giant
scorpions and elongated crabs. They
still expelled fire from one end,
although since they had no heads it
was difficult to determine which end
that was. This blast of flame shot the
Skrewt in the opposite direction
several yards.”

The document notes that instead the book could have simply said something to the effect that Skrewts are a type of dangerous hybrid creature invited and raised by Hagrid, the gamekeeper at Hogwarts, and discussed in the fourth book.

The document states that “the restatement of Ms. Rowling’s fictional facts is particularly egregious with regard to her Companion Books, which are short, non-narrative books that essentially already are a collection of fictional facts. In many instances, these invented items appear nowhere in the seven Harry Potter books.”

and

“For example, the Lexicon contains over 250 entries taken from Ms.
Rowling’s Companion Book Quidditch Through the Ages, a book that is only 56 pages long.”

The document notes that similar entires to Fantastic Beasts and Where to Find Them occur.

Examples are provided in the document, such as:

From FBaWtFT: “The only Oriental dragon. Scarlet and
smooth-scaled, it has a fringe of golden
spikes around its snub-snouted face
and extremely protuberant eyes. The
Fireball gained its name for the
mushroom-shaped flame that bursts
from its nostrils when it is angered.. ..
Eggs are a vivid crimson speckled with
gold. . . .”

From the Lexicon book: “A species of dragon native to China.
The Fireball is a scarlet dragon with
golden spikes around its face and
protruding eyes. The blast of flame
from a fireball forms a distinctive
mushroom shape. Eggs of a Fireball
are vivid crimson, flecked with gold¦”

Similar examples are given in the document for the Wizard Cards and the newsletters.

In testimony, SVA stated that he had an oral license to post the wizard cards to the Lexicon website, although he did not recall from whom. He admitted he had no documents to support this statement, and that he did not seek permission to use the cards in the book.

The Plaintiffs claim that the book uses substantial plot summaries in its entries, particularly in descriptions of characters. Dumbledore’s entry, fro example, is noted to be five pages in length, and includes details from “the story of his childhood, his interactions with Tom Riddle, his relationship with Harry Potter, Severus Snape and Gellert Grindlewald, and even reveals his death at the hands of Snape”.

The document states: “Most striking, however, is the Lexicon entry for “Harry Potter”. That entry is 11 pages long and provides the key plot points from all seven Harry Potter books.”

SVA stated in the trial that the Lexicon book would be read only by people who had completed the series. The document notes that the Plaintiffs’ disagree, and that RDR‘s expert witness, Professor Sorensen, “testified that she believed the Lexicon could be read in conjunction with a “first reading” of one of the Harry Potter books.”

This section ends with “In sum, the Lexicon book contains synopses and abridgements of the plots and story lines of the Harry Potter books, retelling the entirety of the Harry Potter story from beginning to end and revealing the ultimate outcome of the series.”

The document states further about the book that:

-it fails to serve any of the purposes identified by RDR

-it is not a work of scholarship and contains virtually no criticism, commentary, or analysis, and “merely rehashes the people, places, and things from Ms. Rowling’s universe, placing them in alphabetical order ’ rearranging her “intellectual furniture” in a wholly unoriginal manner”.

-it misses opportunities to provide additional etymological explanations (noting, for example, that it does not mention in the “Lupin, Remus” entry that “Lupin” comes from “lupine” and that “Remus”comes from the legend of twin brothers Remus and Romulus, who were raised by wolves). It is also noted in the document that some etymologies provided by the Lexicon book are incorrect.

The document notes that expert witness Professor Johnson testified that of the Lexicon book’s 2,437 entries, 2,034 entries “simply lift” information from the series with “no commentary or analysis added”. Of the remaining entries, she testified that “many include nothing more than a single line or phrase of material that does not originate with Ms. Rowling, with the rest of the entry extensively paraphrasing or quoting Ms. Rowling’s fictitious facts, plots, and storylines”.

In response to Defense witness Professor Sorrenson’s suggestion that the Lexicon book adds value to the reader by pointing out errors or “flints”, SVA testified that there are “remarkably few” flints in the Lexicon book.

The Lexicon Does Not Serve the Purpose of a Reference Guide to the Harry Potter Works

The document offers several arguments in support of the above statement:

-The Lexicon Takes Too Much to Serve as a Legitimate Memory Aid, countering Professor Sorensen’s assertion by noting that instead of a “thumbnail sketch”, the Lexicon book “retells all of the plots and storylines surrounding a particular character, revealing the ultimate outcome of the series”.

The Lexicon Lacks Any of the Features of a Proper Reference Guide, stating that a “true encyclopedia does not simply reorder another individual’s work without adding additional research or scholarly analysis”. Nor does it, the Plaintiffs claim, provide a “ready-reference”, as the entries are too long. Nor could it be used as an index, as exact citations are not provided.

It is further noted in the document that other companion books differ from the Lexicon book. Several are references, including “The Sorcerer’s Companion: A Guide to the Magical World of Harry Potter. The document states that this alphabetized guide copies far less than the Lexicon and adds substantial original content.

The Lexicon’s Potential Effects on the Plaintiffs

The document states several:

-The Lexicon would likely be successful, citing previous-noted evidence that RDR and SVA anticipated as much. The document notes that RDR in particular promoted the book based upon SVA‘s “celebrity within the Harry Potter community, as well as his ability to advertise the Lexicon on the Lexicon Website, would be helpful in marketing the Book, as demonstrated by Mr. Rapoport’s statements in an email to the purported British publisher of the Lexicon:

“Steve Vander Ark, who created the lexicon is a rock star at academic Harry Potter conferences, not to mention fan events. Rowling herself is a fan. In the Potter name his an Elvis like figure [sic]. I am sure he will continue to attract huge audiences everywhere he goes. This will be great for the book.”

The document notes that SVA testified the Lexicon website gets between 1.5-2 million visits monthly.

-The Lexicon would directly compete with Ms. Rowling’s encyclopedia, citing evidence that RDR marketed the book to children’s bookstores, and that it would be stocked next to the books themselves. In addition, the book would be released before JKR‘s encyclopedia.

-The Lexicon book would harm JKR‘s existing companion books, as consumers would have no incentive to purchase either of the books JKR wrote for charity.

-The Lexicon book would affect JKR‘s series, as a reader of the book might find no reason to read the series after discovering the fates of characters, which would “effectively discourage reading and literacy, undermining Ms. Rowling’s intent in that regard”.

-The Lexicon would harm plaintiff’s licensing efforts

Credibility

The document states that the defendant’s witnesses lack credibility, citing, among other reasons, RDR‘s “pattern of false statements and evasions, both prior to the filing of this suite and during his testimony at trial”. The document also states that SVA‘s testimony and declaration were not credible, in part due to the following:

“At trial, Mr. Vander Ark initially denied that he has refused to allow RDR
to publish additional books he is planning to write because he believes that RDR lied to him and misled him. When confronted with an e-mail containing a statement to that effect, Mr. Vander Ark then acknowledged that he wrote and believed those words, contradicting his earlier trial testimony.”

The document also states: “By her own admission, Prof. Sorensen’s Declaration relied on books she never read, in at least one instance relying on the title alone in deciding whether to include a book on a list of supposedly “helpful” companion guides”.

CONCLUSIONS OF LAW

As noted above, substantial examples are offered, and the reader is advised to review the original document that we have attempted to summarize here.

As with the RDR document, the JKR/WB document review the basics of the Copyright Act. They assert: “RDR has failed to present any testimony or documentary evidence to rebut Plaintiffs’ evidence of copyright infringement”. The document asserts that the Plaintiff’s have shown evidence of copyright ownership, and that there is direct evidence of copying of JKR‘s works.

The document notes that the Lexicon is an unauthorized derivative work, and that as copyright owner, JKR has the right to control derivative works.

The document notes that the copyright infringement is not fair use, providing multiple examples as to the reasons why.

The document also notes that the Plaintiff’s seek statutory damages based upon the infringement of JKR‘s works.

“This Court has the discretion to award statutory damages as it wishes in order
deter this type of infringing conduct, in the amount of $750 to $30,000 per work if non-willful or up to $150,000 per work if the infringement is found to be willful.”

The document notes that RDR‘s willful infringement is a “key factor” in the case.





44 Responses to JKR/WB vs. RDR Books Trial: Findings of Fact & Conclusions of Law (pt 2)

Avatar Image says:

Wow Kirstin well done, I could never imagine understanding all of those documents enough to summarise it.

So does this mean we are close to a desicion?

I am with the Big Guys on this one, and can’t wait until PotterCast this week to hear your opions on this.

Sue, I have read your blog, All I can say is hugs

Mellisa, clever and wonderfully intergrial Mellisa, you get hugs too

Avatar Image says:

I agree with J.K. Rowling and her lawyers assertion that if the Lexicon book were to be published there would be individuals that would buy it and then not bother with buying the two charity books (the Quidditch one and the Fantastic Beasts one) since from what I’ve seen of the Lexicon book in its current form it almost replaces them – especially Fantastic Beasts.

Avatar Image says:

Let’s hear it for Kristin being able to slog through all that paperwork!

Avatar Image says:

Wow Kristin, nice summary there. Was your keyboard smoking after typing all that? I just hope this whole mess gets taken care of soon.

Avatar Image says:

Kristin, thanks for the summary and the links.

Looking at the charts that JKR made, it makes me sick to my stomach. When looking over the Lexicon manuscript you can see things that you distinctly recognize but when you put them side by side its even more disgusting. Some of them aren’t even unquoted paraphrasing but blatant word for word.

And I’m sorry, I will never buy the “we didn’t put page numbers because there are more than on version of the book.” There are tons of versions of every book. That’s what a bibliography is for so that if someone in the UK is reading the guide and wants to find the direct page, they can see whether or not the page came from their version or another version (which probably would still be in relatively the same two pages or so). I would never get away with that in college.

Hopefully we hear from the Judge soon. Thanks again Kristin!

Avatar Image says:

Thank you, Kristen!

You’re a gentlewoman and a scholar.

Avatar Image says:

nice work Kristen! SVA should be ashamed of himself, its completely apparent to me that this is nothing more than a quickly slapped togther attempt to make money, this book should never come to publication, i enjoyed the lexicon website but ill never go there again! SVA to me has killed all his credibility and has burned many bridges inthe hp world and cost him many fans, including me

Avatar Image says:

There comes a time in every man’s life when he should just put his tail between his legs and crawl under a bridge. a little humility and an honest apology can work wonders. the public is very forgiving to a man who comes to terms with his mistakes…you know…like the grinch who stole christmas.

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I’m very sorry that this matter has come to court as I have always been a fan of the Lexicon website. While I side with J.K. on the matter of whether or not the book breaches copyright and causes damage, I don’t believe that Steve meant any harm when he wrote the book. My belief is that he initially believed that such a book would be a copyright infringement (as evidenced by the email statements) but RDR probably told him that it wouldn’t be and he must have believed them, but requested the contract to hold the publishers liable for any suspected infrigement just in case, since it was them who said it was okay. Of course he’s not going to say so now, he has to side with his publisher, but the email where he accuses RDR of lying to him seems to back up my theory. RDR behaved very poorly when the cease and desist letters started arriving. If they really believed that the book was okay (and J.K. has never given anyone reason to believe she’s not a reasonable person) why did they refuse to send a copy of the manuscript? If this matter had been handled better it would never have needed to come to court. As it is, if the book is published I won’t be buying it, but I will continue to visit the Lexicon’s website. I wonder really if there’s much point in publishing the book now since most of the HP fans probably won’t buy it.

What really rankles me though is the journalists, copy-right ‘experts’ and other writers who are having a go at J.K as though she’s some big, rich bully picking on the poor, innocent librarian. People really seem to have a thing against rich people, they want to believe that they’re power-hungry snobs. As for the press, J.K.’s behaved too good in the past for them to pass up any opportunity to slam her.

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Thanks again, Kristin, for the impartial report.

I find it sad that, despite all of the independent (not associated with the trial, RDR, SVA, JKR, or the WB) expert commentary on this issue, fans still believe that this book constitutes clear-cut copyright infringement. Almost everything coming from neutral sources points to the contrary: this case is anything but clear-cut. Even though JKR and WB deliberately chose the most notoriously pro-copyright, anti-fair use jurisdiction in the United States of America to file their suit, the judge in this trial implied that this case could easily go either way when he urged both sides to settle.

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Thanks Kristin, sterling work. Great summary.

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First, let me say that Kristin has an uncanny ability to draw consistent summary of all this material. [If only the court clerks and such could have done the same, there wouldn’t have been so much for the Judge to “wade through”] I am amazed at this body of work. Second, anyone who even hints that Kristin, Melissa or anyone else on the Leaky Staff, is biased, is a liar. I also applaud the many referals to the “original transcript” as an honest way of giving everyone the chance to “summarize” for themselves.[For both sides] All that being said, I am apalled at SVA and RDR’s blatant ability to try and take this to “the logical conculsion” IMHO, the only “logical conclusion” is that not only did SVA commit [by his own words] infringement, but he was give notoriously bad advise, at each turn. It is unfair that SVA should have been taken advantage of, by RDR. However, he [SVA] knew what was going on, in time to stop it. He is not an idiot. All that needed be done, from the begining, was to cooperate, with JKR. This all could have been averted. AGAIN, thank you TLC, and Kristin especially, for going to the trouble to set out both sides. Not an easy task, my dears! Hugs, kisses,thanks and appreciation from the “other side of the pond”.....

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Ginevra Potter, RDR admits to infringement. It’s an affirmative defense, as in, “We infringed but here’s why it should be legal.” And no neutral sources have got their facts right so far so I really don’t at all trust that ther commentary is on, either. The average fan reading here seems way more up on the actual facts, from reading the actual documents, than anyone else. Additionally there have been some great rundowns on blogs from lawyers that don’t include factual inaccuracies, that show that JKR/WB should win: Check out Harvard’s Info law blog and praetorianguard.livejournal.com.

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@ Ginerva It is not unusual, indeed it is common practice for plaintifs in civil actions to seek the jurisdiction most favorable to their case. To not do so would show then to foolish indeed.

Remember, (and this statement not intended to reflect against JKR in any way) the notice on the walls of most courtrooms I’ve seen says, more or less: “We who labor here seek only Truth.” In my experience, those who labor there seek only to WIN! and truth is found only by happenstance or an exceptionally astute judge.

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@ Confederate Lady:

You stated, “Second, anyone who even hints that Kristin, Melissa or anyone else on the Leaky Staff, is biased, is a liar.” Of course they’re biased. They can’t help but be biased. In fact, we’re all biased, no matter which side of the issue we lean toward. Everything we write is filtered through our thoughts, feelings, values, and perceptions, creating a bias, whether we’re aware of it or not.

Having said that, I do agree that the Leaky staff has done a remarkable job in keeping their reporting fairly neutral. Still, it’s obvious where their feelings and their loyalties lie.

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honestly, im getting sick of this whole long tedious trial. dude, c’mon, you lost. you got the publicity you wanted, now DROP IT!!! WILL YOU!!!. whoever said this was right, “There comes a time in every man’s life when he should just put his tail between his legs and crawl under a bridge” amen. i applaud you. i just think this is taking so long, and the guy is a nutter if he thought he was going to get away with publishing it. oh, and Kristin, you are insane for plowing through all that. i give you a standing O for your endurance vive xe

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JKR/WB should win no only on a moral basis, and on a basis of the law as its currently stands, but also on the basis that RDR at no point in this entire fiasco entered in a legitamate speck of evidence. they were all talk, but provided not factual substence.

saying a book is transformative and fair use dosent mean anything unless you point out why it is, which they never did at all.

Roger rappaport can say a apple is a sports car, and if so, i say he should sit on a apple and try to do 140kilometers on the autoban. that way we can laugh at him for being the idiot on the side of the road with a apple up his butt and cars shooting by.

we can laugh at him for being a idiot and not providing a single point of evidence that the lexicon manuscript is fair use, and transformative, and therefore should be published. all he did was say it was, but never fulfill his burden of proof.

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Impressive summary.

Romulus & Remus, “raised by wolves”. So this is really interesting news when there was so much talk about scholarly standards. Of course, in roman mythology it was one she-wolf, in latin lupa; cf lupinus 3; the god lupercus; and by the way, lupanar, which I won’t translate.

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nicely put liz, IF SVA had gotten aan independant legal opiniononf wheather or not his print version of the lexicon would be a copyright violation he could have likely avoided a lot of trouble

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but from the court documents about his contract with RDR, it is blatantly clear he knew it was illegal. if he thought it was legal, there would be no reason to have himself indemified. given that from the moment the court case began, to the court trial itself, he stated what he was doing is legal, it shows he clearly has issues, because on the stand, he said he knew it wasent, but RDR bullied him.

also, it should be noted, if he truly was a fan, when jk rowling’s people sent cease and desist letter to him, he would have bent over backwards to work with her. no fan would deny her the right to challange and verify the legality of any book they have written about her copyrighted and trademarked works.

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The “fair use” status of a concordance is well established. No college literature student of James Joyce’s “Ulysses” gets far without reference to a justly famous concordance to the work. The concordance itself is acknowledged as brilliant scholarship.

Vander Ark’s concordance might not be quite up to that standard, but nevertheless it represents original effort in collating and classifying Potter elements. When Rowling offers that Vander Ark’s efforts do not amount to a “serious” work she implicitly argues that “Harry Potter” itself is not a serious work. Potter is no “Ulysses” and Rowling no James Joyce.

It would seem to me that fans of the work, as opposed to sychophants of the Potter author, would welcome an outsider creating this concordance as opposed to Rowling. She is notoriously confused when it comes to “facts” and notoriously disposed to tinker with the canon in forums outside the books themselves. I feel that Vander Ark’s product is likelly to be better organized and less biased (inclined to “fix” problems in the series after-the-fact).

It is high time to Rowling to let go. In a very real sense Potter is a “trial balloon”, and trial balloons either fly or get shot down by the critics. Mommy can’t protect little Harry forever.

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This was a lawsuit that doesn’t need to happen…....especially in the u.s…...

I’ve just made money off my writing for many years; not as much as jkr…but I made a living…

I love jkr and her writings….

I love sva because he gave us answer, or at least additional clues…and commenary on my questions over the years..

I’ve used the Lexi enough to acquiese to them, some sort of profit after all these years…

As for JKR she never told/explained to this fan why I’d purchase the SVA Lexi…vs the JKR Enclopedia….her fans are rabid…we want it all…authorized or not.

I always thought that most fans would purchase most if not all..

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David, I am going to respectfully disagree.

None of the concordances or lexicons I use professionally contain word-for-word entries to the extent we have seen with the HP Lexicon. Instead, there are paraphrases interspersed with brief direct quotes, there is a degree of textual analysis and of explanation about the symbolism used by the author in question. The extensive use of word-for-word entries taken from a primary text as found in the HP Lexicon —collating as you correctly describe the process—does not constitute originality in the least. Let’s be honest, a patient 10 year old could do that with note cards and a magic marker. And there is a huge difference between preparing a Lexicon on Richardson (mentioned recently in connection with this case), or Shakespeare, or Joyce as you mention…the first two wrote long before the legal foundations of copyright law existed, and the last is long dead (and, I would assume that any Joyce concordance was developed in consultation with the copyright holders/publishers of Ulysses)

The key for me boils down to this segment from Kristin’s summary (from the plaintiff’s arguments):

“Interest in Harry Potter Spawns Numerous Books and Websites

The document notes that the series has resulted in more than 90 books published in the U.S. alone; this section mentions several of those by name, including companion books. “Unlike the Lexicon, these Harry Potter companion guides analyze and interpret the Harry Potter books and describe the real-world underpinnings for many of Ms. Rowling’s creations. Rather than regurgitating Ms. Rowling’s text in vast quantity, these books only use brief portions of text as jumping off points for commentary or analysis related thereto”. It’s noted that the Plaintiffs have not taken legal action against any of these books.”

I had my own work plagairized and cannot do a thing about it (it would cost far too much to pursue legal action, and the possible “rewards” would be too small….); I have watched supposedly important and popular writers (Stephen Ambrose comes leaping to mind, among others) get caught plagairizing the works of others, sued, and in some cases their professional careers ruined. Why should a “lower standard” be allowed in this case for a work that does not have the scholarly value of a true lexicon or the originality of a critical analysis?

Having said that, I also want to repeat myself and beg everyone to stop any personal criticisms of either SVA or JKR (tho, thankfully, those have been fewer and less acidic in the most recent threads)...

Kristin, and the entire leaky staff, our continuing thanks for all that you do…..

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PS @ plaintiffs complaining about the Lexicon entry about Lupin being incomplete: I wonder whether the Mollywobbles of this world would have liked profound explanations about the lupercalia for their ten or eleven year olds; I don’t think so. That’s why SVA would have done something to please Ms Weasly in not over-explaining wolfish elements of Roman folklore to her kids. Sirius, otoh, might have wanted them to know.

:-))

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@ p.f.

What do you mean by the “mollywobbles” of this world? I feel there’s an insult hiding in there some where.

And yeah, I want my kids to be informed (when I have them). You should see how I talk to my nephews (eleven and nine years old). I patiently explain things to them and for the most part, they listen. You’d be amazed at what kids are capable of learning. Besides, it’s really not beyond them. That said, my nephews wouldn’t want a book like the Lexicon anyway, no matter if it was “on their level” or scholarly. Why? Boring. Though, only the nine year old is reading HP. He seems to understand what’s going on well enough without reading something that will just spoil him, especially as he hopes to finish the series before the final movie comes out.

Please don’t try to think for me. We don’t seem to agree on very much.

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Great job Kristen!

I hope we are close to a decision. this is getting exausting! I really hope Jo is the victor and RDR gets what they deserve, nothing.

Live, Love,Harry Potter!

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@ Lindsay They don’t deserve nothing. They deserve to be slapped with damages and to pay WB/JKR’s court costs. I hate to think what the final tally will be, but if RDR stays out of bankruptcy it will be a miracle.

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@Briana Bickel I have read all the transcripts as well as the pre-trial exhibits. I haven’t slogged through the findings of fact yet. As far as JKR’s stealing from others, stis has already been gone over at length in the forum. From what I’ve been able to conclude there is nothing that she has used that isn’t already in the public domain. The story is based on a hero’s journey that has been retold throughout the millenium and is fully in the public domain. Can you cite me anything NOT in the public domain that she has taken?

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@Briana – would you like to expand? Perhaps you are referring to the fact that the HP series is a monomyth, or a “Hero’s Journey”? Monomyths are common across cultures and have been around probably as long as man. Writing a Hero’s Journey does not constitute plagiarism.

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I have read Copyright Laws and have been following this case. No matter how you look at it, this book is a simple Paste and copy of the Original HP books. I do feel badly for SVA since so many people are casting him out but I do feel that he is getting some ‘Just Desserts’ for continueing with this instead of trying to re-do the book. Also RDR Has no right to take claim to having the ‘Definitive Harry Potter Encyclopedia’ since that should be alone for JKR to do. She had information that she still has no released to the public which will be a surprise when she writes her book.

I apologize if I seem Biased but even looking at it from a legal standpoint I do not believe RDR has a leg to stand on.

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@ Lorgasmo:

One time I was composing a piano piece for my music theory class. It was our final project. I started playing chords and tried to figure out a melody to go with them. Eventually I ended up with something pretty good…except my friend/roommate said it sounded like a Sarah McLachlan song. It was just in my head, so they did sound similar (same type of chord changes). I checked my songbooks and my piece was original (and I made an A!). The same thing probably applies here.

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That’s not the point. Everybody knows that this type of fantasy novels all drink from the same sources. And I want to state that I appreciate Rowlings’ books and the way she has handled the plot, although the writing style is somewaht poor and repetitive. What I can’t stand is the dishonesty and the arrogance. Why would it be wrong to acknowledge sources of inspiration? Unless the sources became somewhat less so… more like copies with some genre changes. For God’s sake have another look at the post I’ve just submitted before this one, go to the site and read it with your eyes wide open. Read the description of thecastle, look at the photo of “The Grand Wizard”, read the analogies between the characters. How can she accuse others of plagiarism?

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Well, she’s not accusing RDR/SVA of plagiarism, she accusing them of copyright infringement.

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Thanks Lorgasmo – and I would like to point out that many creators, George Lucas being one of them, acknowledges and never hesitate to list their sources of inspirations.

George Lucas has never hid the fact that Kurosawa’s work, ‘The Hidden Fortress’ heavily inspired the main plot for Episode 4. And that’s just one example.

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Just because things sound similiar don’t mean that is where she got them from. I wrote a book before highlander was made, but didn’t look inot publishing. now it sounds way too much like highlander…. OH an plagarism ISN’T taking one story and using it’s plot as a simalar reference to what your writing. PLAGARISM is copying word for word without citing.

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@Lorgasmo

And I remember that Nancy Stouffer lied in court. She changed pages in her book adding the term “Muggle” (among other things) into her stories and then submitted them to the court claiming that JKR stole her work.

Maybe there is a reason for some of the sites you mentioned to no longer exist.

Roald Dahl used “Muggle-Wump” in his story The Twits. It’s hardly a new word. Hermione came from Shakespeare.

The truth is all authors borrow from each other in some form. Fair Use allows a small amount of one persons work to be used in someone else’s work. As potterdad_sb and tina have already stated, the hero’s journey is not a new concept and is not plagiarism.

I maybe wrong, but I think you underestimate the users on this site. We may all be here because of JKR but what you may not realize is that most of the users here on Leaky (and other Harry Potter web sites) find it fascinating to read other works that fans have pointed out to have a resemblance to the Harry Potter books. A simple name in the Harry Potter books can remind a fan of a poem, book, or short story that used that name as the name of a church for instance. They mention it in a forum and those who want to read that reference do read it. And then have very well thought out discussions about them. We welcome everybody’s point of view. Most users on this site like to read and discuss and make up their own minds. You maybe surprised to find that many users on this site may have read or watched all the references you mention (if they are available). Not everyone on this site thinks JRK should win simply because she is JKR. Some of us have taken the time to read the testimony in this case, granted we may not all (though some Harry Potter fans do) fully understand the law, but we have had discussions and through everyone’s point of view in the facts begin to see perhaps a bigger picture that we may not have noticed before. Everyone has an opinion and through discussion sometimes those opinions become deeper and richer thoughts of understanding.

So thanks for bringing these references to our attention. I am sure for those of us who have not already read or watched these references, will find them most fascinating and still be fans of not only JKR but other authors we find along our journeys through reading.

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And can I also point out that JKR has not mentioned every possible inspiration she used to write her books while she was still writing. This was a decision she made long ago. She was trying to keep her story a surprise for all fans. The final book just came out 10 months ago. I am sure she will now freely give us her inspirations if asked.

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@Lorgasmo:

I did read your post. Just because I read it and understand it, doesn’t mean I’m going to automatically agree with it. Also, for the record, I was neutral on the case until I started reading about the C&D letters, RDR’s refusal to send WB a manuscript while simulataneously sending it to foreign publishers, the four factors of fair use, excerpts from the Lexicon manuscript, etc…. I made my decision based on the facts, not because Jo is Jo. I love the gift she’s given us and I like her (she’s hilarious and more than gracious to fans). Those two things are separate, though.

Gaiman did not invent wizards or the wise old wizard or bad guys or orphans or heroic destinies. This isn’t a case of Vanilla Ice “changing” the beat slightly on Under Pressure and claiming it as his own Ice Ice Baby. Even if she was influenced by Gaiman (and no real proof that she was) it could be something she read years ago and helped lead her to the idea of HP, but she forgot all about the Gaiman story. It’s a case of me listening to Sarah McLachlan a lot and composing a piece that sounds like something of hers, but isn’t.

The end.

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I wonder what Mr. Hammer looks like… is there a pic. of him anywhere???

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from the court documents about his contract with RDR, it is blatantly clear he knew it was illegal. if he thought it was legal, there would be no reason to have himself indemified. given that from the moment the court case began, to the court trial itself, he stated what he was doing is legal, it shows he clearly has issues, because on the stand, he said he knew it wasent, but RDR bullied him.

also, it should be noted, if he truly was a fan, when jk rowling’s people sent cease and desist letter to him, he would have bent over backwards to work with her. no fan would deny her the right to challange and verify the legality of any book they have written about her copyrighted and trademarked works.[/quote]

NotTheHBP: Whether or not he knew it was illegal, he’d have been an idiot not to cover his ass by ensuring legal coverage on the chance that JKR or someone else might decide to sue him. America (and most of the world) has become a sue-happy place and had he not had something put into his contract, he’d most definitely have been hung out to dry by the publisher because they no doubt would have done anything to cover their own asses and denied any wrongdoing on their part and most likely would have attempted to use SVA as a scapegoat.

I am not denying that this published Lexicon idea was a bad one, but to say that if he truly thought that he’d done no wrong he didn’t need to put a clause into his contract is like saying that you shouldn’t get a prenuptual agreement from your spouse before marrying because you’re trusting that things will go well in a divorce on the off chance you might wind up getting one. Only an idiot would enter a marriage or any legal contract without protecting themselves.

I’m sorry NotTheHBP, but the law is a very complex thing, and not something that you can just look at and say, “Well, obviously…..” If that was the case, then this issue of copywrite infringement would not be in question right now. In fact, if the law was a cut and dry issue, we wouldn’t have need of a court system at all, would we?

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Rebecca, I’m not calling you out, however, it is actually very common to indemnify oneself whether or not you think what you doing is legal or not.

My company deals with a lot of legal contracts for entertainment services, computer software, etc. and we indemnify ourselves as much as we can, not because we think we’re doing something illegal or we’re going to screw up someone’s computer, but simply because you never know what could happen or what some stunt someone could pull.

After all, someone sued McDonald’s after they spilled their coffee and burned themselves and claimed that McDonald’s didn’t tell warn them their coffee was hot.

Now, maybe SVA did believe what RDR was doing was illegal, but don’t let the fact that he indemnified himself be evidence to that. Beliveve me, it’s very common.

@ Mollywobbles23, how dare you challenge Vanilla Ice! He’s the Ice Man! He gave us one of the greatest rap songs of all time – and danced with Ninja Turtles….MUTANT ninja turtles. No small feat, I sure you.

And if you’re going to sue him it should probably be over that ‘Cool As Ice’ movie. ;-)

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Laughing Man, I think you completely misread my comments. I am of the opinion that SVA is completely in the right to cover his ass with making sure that if sued he’d be backed up by RDR, and it’s RDR that I believe was in the wrong by pushing for publishing. I was merely informing NotTheHBP that it is completely stupid NOT to make sure that you have legal representation of some sort or that you have covered your ass in some way when doing practically anything nowadays. Please reread what I said in my original post and take note that I was directing comments to something that NotTheHBP had said, which I even quoted above my comments. (note the “[/quote])... It was NotTheHBP that went off on a diatribe saying that SVA was wrong and “knew that what he was doing was illegal” and I was pointing out that SVA would have been stupid NOT to ensure legal representation REGARDLESS of whether or not he believed that what he was doing might be illegal…It seems that you confused what NotTheHBP said with what you thought I had said, which I had merely quoted before starting my response.

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To Tereska: I do in fact know of a picture of Mr. Hammer. I’m not sure how appropriate it is to share here, and it’s definitely off-topic from the main discussion, but I’ll leave my e-mail address if you are still interested.

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radiant_eternity@yahoo.com

Mods: Sorry for the double post. And dubious as I am about this, I wouldn’t be offended at all if my posts here are deleted.

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