And ensue it did. Last week the trial in the case between Rowling and RDR Books (the publishers of the Harry Potter Lexicon by Steve Vander Ark) took place, with three days of testimony.
This appears to be a landmark case on fair use and copyright, so all you copyright lawyers, I hope you paid attention! For the rest of us, if you know anyone into Harry Potter, well, this is a legal angle.
Description of the "Brain Room" in J.K. Rowling's Harry Potter and the Order of the Phoenix: "What looked like ribbons of moving images flew from it, unraveling like rolls of film…"
Description of the "Brain Room" in Steven Vander Ark's Harry Potter Lexicon: "The brains fly out of the tank, unspooling ribbons of thought like strips of film..."
Below is a recap of what happened in the trial. The parties refused to settle, so the judge rolled the preliminary injunction hearing and the bench trial into one trial — this was the big one.
Before the Trial
Arguing for RDR Books, the company publishing the Harry Potter Lexicon book, was David Hammer. For Rowling and Warner, O'Melveny's Dale Cendali — a big name who has argued for Victoria's Secret before the Supreme Court.
The fact in dispute: what, exactly, is the Harry Potter Lexicon?
RDR argues that it's a valuable tool for organizing the vast Harry Potter world. Therefore, it's a "transformative use" of the original Harry Potter works. Transformative use is a huge factor in fair use analysis.
Rowling argues that transformative use doesn't apply when you start making money off of something. Also, Rowling argues that the Harry Potter Lexicon preempts the market for a similar book Rowling would like to write.
Day One of the Trial
Since Rowling is the plaintiff, Rowling's side went first. Cendali, Rowling's lawyer, started off by claiming that the Lexicon is a "massive, wholesale, and willful" copying of Rowling's work that Rowling "slaved over" for 17 years. The Lexicon, said Cendali, which claims to be a reference guide, is really just quotes and "sporadic, qualitatively meaningless" phrases lifted directly from Rowling's work.
Cendali then went through the four parts of fair use, focusing mostly on the character of the use. Cendali belabored the point that the Lexicon "takes too much and does too little." This means that unlike Harry Potter companion books — of which there are many and which add commentary, analysis, and research — the Harry Potter Lexicon adds nothing new or original but "rearranges the furniture of Rowling's novels."
RDR Books then had an opening statement by Stanford University Professor Anthony Falzone, who runs the Fair Use Project. His argument was that the public will lose out if the Lexicon is not allowed. He also argued that Rowling's power over the fictional world does not translate into power over companion guides written by others.
Then came the big event: Rowling herself took the stand. Rowling broke down and cried on the stand, saying that writing the Harry Potter books meant "setting aside my children."
"This trial has decimated my creative work over the last month," said Rowling. "You lose the [plot] threads and worry whether you'll be able to pick them up again."
"Should my fans be flooded with a surfeit of substandard books — so called lexicons — I'm not sure I'd have the will or heart to continue," added Rowling, who went on to characterize the Harry Potter Lexicon as "sloppy," "lazy," and "incorrect."
Cendali then took various passages from the Harry Potter books and showed them next to portions of the Lexicon to demonstrate they'd been taken almost verbatim.
"It's not about money," concluded Rowling on the stand. "There's a measure of principle at stake. And I'm determined to have my say as an author."
Next up was cross-examination. Rowling held her own here, with the defense largely failing to score points. She was hammered mostly on her claim that the Lexicon was "useless." She was also questioned on how the Lexicon would affect the market for companion guides. Rowling replied that if, when she'd been "choosing between food and a typewriter ribbon," she'd known that anyone could take her words, she'd have been discouraged.
That was the highlight of day one, with RDR owner Roger Rapoport also called to the stand. Rowling's legal beagles tried to show that Rapoport had tried to hide the book's publication from Rowling's publishers while rushing it out for the 2007 Christmas season.
Day Two of the Trial
The second day was another day of fireworks in the trial. Again, the focus was on whether the Harry Potter Lexicon is "transformative" or transforms the text enough to be fair use and not wholesale copying.
Vander Ark took the stand on this day. Rowling argued in her testimony that the Lexicon doesn't "illuminate" the Harry Potter world at all and, in short, is an alphabetical rearrangement of her work with many inaccuracies as well. So Vander Ark was questioned by Cendali on whether the Lexicon "copies" Rowling's work.
Vander Ark danced around that question: "It's a reference book to a piece of literature, so naturally it refers back to the source material...There are places where we use phrases that are identical or similar."
RDR jumped on that by asking what the primary purpose of the Lexicon is. Vander Ark called the Lexicon a "ready-reference" with "synthesizing qualities," where lots of information about the Harry Potter world can be found.
Next up was whether Vander Ark knew he was infringing on Rowling. Cendali tried to get Vander Ark to admit that he knew he was stealing Rowling's works, showing an email that Vander Ark wrote to another fan site.
Then it was on to which was more important — passion or money! Vander Ark had made $6,500 in revenue from advertising on his website between 2000 and 2008. Vander Ark, following Rowling's cue from the day before, took his turn at breaking down in the witness stand. He was basically confronting the fact that his passion, Harry Potter, had hauled him into court to face Rowling herself.
After Vander Ark's testimony two publishing people were questioned. The first was Rowling's witness, Suzanne Murphy of Scholastic, who testified that while the Lexicon is "poor quality," "it has the potential to do quite well in the marketplace." This was meant to establish that the Harry Potter Lexicon could damage the market for Rowling's work.
In contrast, the defense's publishing expert was Bruce Harris, who has spent his career mostly at Crown, Random House, and Workman Publishing — three big names. Harris testified that there was little chance that the Harry Potter Lexicon would damage the market for the most successful author of the 21st century.
Harris gave some figures too. According to him, the Harry Potter Lexicon would publish about 1,500 copies in its initial print run. Harry Potter and the Deathly Hallows sold around 13 million in the US for a total of $250 million.
At the end of the day, Judge Robert Patterson essentially asked the parties to settle it, as both sides had good arguments, and the fair use doctrine was not clear. The judge basically was trying to get off the hook. Alas, it was not to be.
Day Three of the Trial
The judge on day two had asked the parties to settle. Well, he got...part of his request. There were three claims that Rowling had filed: the copyright infringement claim, a false advertising claim, and deceptive trade practices claim. The false advertising and deceptive practices claims were indeed settled. That means that Rowling's name and her quote endorsing the online version of the Harry Potter Lexicon will not appear on the cover of the book version.
So the big issue — copyright infringement — remained.
Day three was a day for the defense. But before things got rolling, the judge offered an ominous prediction: drawing a comparison to Bleak House, the Charles Dickens novel about never-ending court cases, the judge said he suspected this case could be appealed all the way to the Supreme Court, potentially taking years to resolve.
The defense called Janet Sorenson, a professor of 18th and early 19th English literature at UC Berkeley. Sorenson and Hammer basically established that in fantasy, perhaps the most creative novel genre, there is a need (more than for most other works) for a reference work to explicate the nonexistent world the author has made up. They pointed out that Tolkien's Lord of the Rings series and C.S. Lewis's Chronicles of Narnia have both had lexicons to help explain their respective worlds.
Sorenson testified that lexicons can educate on language, critters, mythological references, and so forth used by authors. In a critical part of her testimony, she also stated that reference guides written by authors for their own works are not the last word since authors can assume too much knowledge on the part of their readers.
Cendali, on cross-examination, got Sorenson to admit that the Lexicon contains little interpretive analysis. Sorenson said that sure, that's true, but analysis is not the only value a reference guide can provide.
Sorenson's testimony helped focus in on the core issue of the case: can an alleged reference guide that confines itself to grabbing, compiling, and organizing information from a fictional work — without much analysis — get fair use protection?
That's up to the judge to answer.
But the defense scored some points with the next phase of the trial, when Rowling called her literature expert, Jeri Johnson, a "senior tutor" from Oxford. A senior tutor is apparently like an academic dean in the US. Johnson testified that entries in the Lexicon don't add new "layers of meaning" to the novels.
That's when Judge Patterson interrupted and basically said Johnson's testimony wasn't worth much — it was too general. Then, when the cross-examination happened, Johnson fell apart.
Hammer, RDR's attorney, got Johnson to agree that what is obvious to an Oxford dean might not be obvious to children, which I would assume is the target audience of the Lexicon. Johnson admitted that the work could be useful to a 10-year-old even if it's not academic scholarship.
With that admission (a huge one for the defense), the defense quit while they were ahead. The lawyers for Rowling could do little to rehabilitate her either, trying to argue that Johnson was tired.
So the plaintiffs put Rowling back on the stand, which was a mistake. Again, the judge hammered her on generalities, and Rowling resorted to the argument that if the Lexicon was allowed, the slippery slope of thousands of junk books would pour out.
At the close of the trial, the judge again urged settlement and said, "Maybe I need a reference guide for this case."
In closing arguments Rowling's lawyer emphasized that the Lexicon "takes too much and does too little." RDR's closing statement from Professor Falzone of Stanford argued that synthesis and distillation are what make the Lexicon "transformative." Falzone also argued that quality doesn't matter.
We now await the judge's ruling, then the inevitable appeals.
There are lots of big names and there's a lot of money on both sides of this one, so this will take years to resolve. But ultimately this is a large copyright question: just how far does an author's copyright run? While I'm sure both sides wish a little wand work would solve this one, it will take a bit more mundane kind of work: hard legal work.
