Legal News

Notes from the Potter Trial: After a Partial Settlement, the Defense Digs In

By Ashby Jones

This just in from Law Blogger Dan Slater, who once again is in the gallery over at the Harry Potter trial in Lower Manhattan. Click here and here for yesterday’s dispatches.

NEW YORK — In a sign that the parties in the J.K. Rowling and Warner Bros. v. RDR Books case are steeling themselves for the long haul, the lawyers informed the court this morning that, despite Judge Patterson’s urgings, they had reached a settlement only on the false advertising and deceptive trade practices claims. The settlement means only that neither J.K Rowling’s name nor her quote endorsing the online version of Steven Vander Ark’s H.P Lexicon will appear on the cover of the book version of the Lexicon.

Additionally, Stanford’s Anthony Falzone, who’s representing RDR in the case, told the court that the parties wish to “paper a settlement” on the trademark infringement and unfair competition claims.

So what does that leave? Copyright infringement, the core of the case.

“I don’t want to be influenced by either party’s attitude toward settlement,” said Judge Robert Patterson today, at the start of the third day of trial. “I think this case, with imagination, could be settled . . . . But don’t throw anything out because of my desire to move ahead.”

Just before uttering those words, Patterson, drawing a comparison to “Bleak House,” the Charles Dickens novel about a never-ending court case, said he suspects this case will be appealed, and that it could go all the way to the Supreme Court, potentially taking years to resolve.

Undeterred, however, the parties pushed on. O’Melveny’s Dale Cendali, the lead lawyer for Rowling and Warners, told the judge that the plaintiffs, with yesterday’s testimony of publishing expert Bruce Harris, have concluded their affirmative case of copyright infringement. That leaves it to the defense to establish fair use, which began with this morning’s testimony from lexicon and literature expert, Janet Sorensen, a professor of 18th and early 19th century English literature at U.C. Berkeley.

David Hammer, the lead attorney for RDR, seemed to be most interested in establishing the point that the more creative a work is — a “fantasy” being perhaps the most creative genre of the novel — the more there’s a need for a reference guide to illuminate, for the reader, the unique (and non-existent) world the author has created. Sorensen testified that, historically, lexicons and reference works similar to Vander Ark’s have been helpful for readers seeking to gain a better understanding of such works as J.R.R. Tolkien’s “The Lord of the Rings” and C.S. Lewis’s “The Chronicles of Narnia.” Lexicons like Vander Ark’s, testified Sorensen, can educate a reader on etymologies, mythical references, geography (real and imagined) and the vernacular and slang used by the author. She also said that reference guides written by the authors themselves aren’t necessarily the final word on their own texts, since authors can assume too much knowledge on the part of the reader.

In her cross, Cendali returned to the plaintiffs’ legal motif in the case: The H.P. Lexicon takes too much, and does too little. Cendali pressed Sorensen on the point that the Lexicon contains little interpretive analysis. Sorensen conceded as much, but said that analysis isn’t the only value a reference guide like Vander Ark’s can provide a reader.

For the Law Blog, Sorensen’s testimony sharpened the contours of one of the central issues in the case: Can a purported reference guide that confines itself to culling, compiling, organizing, distilling and synthesizing information from a fictional work — but that is scant on analysis — qualify for fair-use protection?

Full post as published by Law Blog - WSJ.com on April 16, 2008 (boomark / email).