JKR/WB vs RDR Books Trial: A partial settlement reached; WSJ summarizes day three of testimony

UPDATE: The Wall Street Journal Law Blog has three entries today about the on-going trial.

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 “[email protected]”. Thank you!