J.K. Rowling testifies in 'Potter' lawsuit

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UPDATED 5:13 p.m. PT April 14, 2008

NEW YORK -- Sparks flew in New York federal court Monday as the creator behind one of the biggest studio franchises in history unleashed at a man she once lauded as one of her biggest fans.

"Harry Potter" author J.K. Rowling, testifying in a lawsuit she and Warner Bros. filed to prevent a publisher from bringing out a book based on a popular Potter fan site, said she had been "plundered" by Steven Vander Ark.

Vander Ark is the operator of the site Lexicon and author of an upcoming Potter encyclopedia based on it. The plaintiffs argued the book violates fair use by copying many passages of the book almost verbatim. "I believe that the book contains wholesale theft of 17 years of my hard work. It desecrates what I worked so hard to create," Rowling said.

Lawyers for RDR publisher Roger Rapoport, the sole defendant in the case, argued that the author and publisher had put together a reference book equivalent to any other encyclopedia and that the "Potter" citations were covered under fair use. The point, they said, was underscored by the pair's motives. "Profit was never the point," said defendant counsel Anthony Falzone. "They loved the ('Potter') books."

Rowling and Warner Bros., repped by lead counsel Dale Cedari, are seeking a permanent injunction against RDR, the small Michigan publisher behind the upcoming "The Lexicon Guide," alleging that the publication would interfere with Rowling's ability to write and sell a long-planned encyclopedia of her own as well as other Potter books.

In direct testimony, Rowling described the feeling of seeing her own phrases and details in the Vander Ark book. "The closest you can ask someone is how they feel about their children."

Testimony also turned up a set of exchanges between Rapoport and Barry Meyer and other Warners brass over a timeline that was to be included in a "Potter" DVD, which Rapoport and Vander Ark argued they should be compensated for because it resembled material from Lexicon. Sources said that Vander Ark and Warner Bros. have not yet resolved the DVD dispute.

But the relatively narrow practical questions only hint at the case's larger Hollywood implications.



The case highlights an issue increasingly important as blogs and other sites allow fans to enjoy a closer relationship with creators. Lexicon was one of the most important Potter sites, not just to fans but to Rowling herself, who had given it an award and, it was shown in testimony, on at least one occasion even used it herself to look up a "Potter" fact.

But the case showed the slippery ground that creators step on when fan interest can get too passionate -- and the legal and logistical limits for controlling those fans' efforts. Falzone noted that Vander Ark had himself been flown to the set of one of the "Potter" movies, where a producer told him even he used Lexicon.

Rowling said she made mistakes in granting a fan too much liberty in writing about "Potter."

"Perhaps naively, I was very keen to accept an almost knock-off approach to online fandom," she said. "I simply let it happen."

The consequences of the case for Hollywood were reflected in the extensive PR management of the courtroom Monday, with David Shane, the former ICM publicity guru now at Weber Shandwick, and Warner Bros. TV PR gun Scott Rowe on the scene. Rowling, marking the first time she has testified in person and subjected herself to a cross-examination, said she flew to New York instead of offering a statement as her lawyers had suggested because she felt the issue was too important to handle remotely.

Although much of Rowling's testimony centered on the copying, neither Warners nor Rowling had complained about the Web site. But the online version of Lexicon didn't charge visitors, a distinction Rowling and her reps said was critical given that a publisher planned to sell the book.

Despite the sometimes technical portions of testimony over whether Vander Ark could have classified, say, mythical creatures differently than Rowling had, the day offered moments of meaty drama. Testimony turned especially testy as Rowling traded barbs with David Hammer, the defendant's lawyer, in a combative and sometimes sarcastic cross-examination.

After Hammer suggested that putting hundreds of references in order was not merely a matter of cutting-and-pasting and thus fell under fair use, Rowling volleyed, "It was (indeed) a lot of work. I recall doing it." Other exchanges included Hammer telling Rowling that the book offered not merely a plot summary but actual character descriptions, to which Rowling replied, "You believe so, but I don't." Another one had Rowling saying: "You're a lawyer, so you picked that example," and Hammer volleying back, "Actually, you picked it."

In a moment that evoked laughter from the gallery, Rowling quipped that if she would write an encyclopedia, she could soon find Vander Ark suing her for lifting passages from his book.



Monday's courtroom strategy saw each side cast itself as the underdog. Lawyers for Warner Bros. and Rowling painted the author as a hard-working, creative person who was susceptible to piggybacking once she became famous and was the victim of Rapoport, who exaggerated the scholarship of the site, hid Rowling's disapproval of Lexicon and deliberately tried to keep Warners as well as publishing partners in the dark about the similarities to the original. They also sought to show Rowling as a hard-working author who just wanted to protect blatant copying but blessed fans who put more effort in to their interpretations.

The defense fired back by depicting its defendant as a hard-working middle-class entrepreneur who personally traveled around the country to sell a few copies of his book, in contrast with a millionaire author trying to stop him from earning a living.

Lawyers for the defendant brought up several cases in which they alleged Rowling and her lawyers had stopped books from the likes of fan sites, including MuggleNet, with Hammer saying that Rowling and her reps had "forced" books off the market.

For all the character portraits, though, legal experts said the case will likely turn on the limits of fair use, and whether a comprehensive, dictionary-like effort that simply recontextualized information without adding to it would be legally considered a new work or copyright infringement.

Vander Ark is expected to testify Tuesday. The bench trial is expected to last most of the week, with the judge, Robert Paterson of the Southern district of New York, expected to hand down a decision in the next few weeks.
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