Rowling: I was 'plundered'

Testimony in 'Potter' suit gets testy

Sparks flew in New York federal court Monday as the writer 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 a fan site called the Harry Potter Lexicon and author of an upcoming Potter encyclopedia based on it. The plaintiffs argued that the book violates fair use by copying many passages of the book almost verbatim. "There is no word large enough — flabbergasted, astonished," Rowling said of the Lexicon book. "I believe that the book contains wholesale theft of 17 years of my hard work. It desecrates what I worked so hard to create."

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 Harry Potter Lexicon," 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 in the Vander Ark book. "The closest you can ask someone is how they feel about their children," she said.

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 the Lexicon. Sources said that Vander Ark and Warner Bros. have not yet resolved the DVD dispute.

The case highlights an issue that has become increasingly important as blogs and other sites allow fans to enjoy a closer relationship with creators. Lexicon was a major "Potter" site, 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."

Rowling, marking the first time she has testified in person, said she flew to New York instead of offering a statement 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, the day offered moments of 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."

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 and publishing partners in the dark about similarities to the original.

The defense fired back by depicting its defendant as a hard-working middle-class entrepreneur who traveled around the country to sell 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 that 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 likely will 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 today. 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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