1 84E3WAR1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 WARNER BROS. ENTERTAINMENT, 3 INC. and J.K. ROWLING, 4 4 Plaintiffs, 5 5 v. 07 CV 9667 (RPP) 6 6 RDR BOOKS, 7 7 Defendant. 8 8 ------------------------------x 9 New York, N.Y. 9 April 14, 2008 10 9:30 a.m. 10 11 Before: 11 12 HON. ROBERT P. PATTERSON, JR., 12 13 District Judge 13 14 APPEARANCES 14 15 O'MELVENY & MYERS 15 Attorneys for Plaintiffs 16 BY: DALE M. CENDALI 16 DANIEL N. SHALLMAN 17 CLAUDIA E. RAY 18 LAW OFFICE OF DAVID S. HAMMER 18 Attorney for Defendant 19 BY: DAVID S. HAMMER 19 -and- 20 STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 20 BY: ANTHONY T. FALZONE 21 JULIE A. AHRENS 21 -and- 22 CREATIVE INDUSTRY LAW GROUP 22 BY: LIZBETH HASSE 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 84E3WAR1 1 (In open court) 2 THE DEPUTY CLERK: Warner Bros. Entertainment and J.K. 3 Rowling v. RDR Books. Is the plaintiff ready? 4 MS. CENDALI: Yes, your Honor. 5 THE COURT: Good morning, Ms. Cendali. 6 MS. CENDALI: Thank you, your Honor. 7 THE DEPUTY CLERK: Defendant ready? 8 MR. HAMMER: We are, your Honor. 9 THE COURT: Good morning, Mr. Hammer. I've been 10 served several letters over the weekend, and including an 11 amended complaint, which the Court was expecting and I think 12 the defense was expecting in view of Friday's conference. A 13 second amended complaint. 14 Then also, on Friday, there was a letter motion 15 brought with respect to the plaintiff's witness Mr. Harris, 16 expert witness Mr. Harris. His testimony. And I'm going to 17 allow that testimony. The cases which the plaintiff cites have 18 to do really with raising a new issue at the last moment. And 19 this issue has been raised by plaintiff earlier by its expert 20 Technovation, and so I'm going to allow it for whatever it is 21 worth. Having said that, I think I've ruled on any outstanding 22 applications so let's -- 23 MR. HAMMER: May I just make one point. Over the 24 weekend I realized that out of my own dumbness I omitted a page 25 from the Power Point of our expert Janet Sorensen. It was a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 84E3WAR1 1 single page, it was a blow-up of the single entry of the 2 Lexicon. I sent it to plaintiffs. 3 MS. CENDALI: We have no objection, your Honor. Over 4 the weekend both parties have been working hard to exchange 5 demonstratives and the like. 6 THE COURT: Thank you very much. Then let's hear, you 7 want to make opening remarks? 8 MS. CENDALI: Yes, your Honor. Shall I introduce 9 counsel at the table, your Honor? 10 THE COURT: Surely. 11 MS. CENDALI: I'm Dale Cendali of O'Melveny & Myers, 12 and with me -- and I'm counsel for Warner Bros. and 13 Ms. Rowling. With me at counsel table is my client, J.K. 14 Rowling, as well as my colleague from O'Melveny & Myers, Dan 15 Shallman, and Claudia Ray. Also here on behalf of Warner Bros. 16 is Jeremy Williams and Mr. Jim Hoy, who is our technical aid. 17 THE COURT: Welcome. 18 MR. HAMMER: May I introduce our team, your Honor. 19 This is Mr. Anthony Falzone from Stanford University. Next to 20 him is Ms. Lizabeth Hasse, who has been counsel to RDR Books. 21 That is Julie Ahrens from Stanford. At the end, the man 22 without whom none of us would be here, Roger Rappaport of RDR 23 Books. 24 MS. CENDALI: Other than suggesting that the person 25 without whom none of us would be here is Ms. Rowling. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 84E3WAR1 1 MR. HAMMER: He's sufficient in his own, though. 2 MS. CENDALI: Shall I proceed, your Honor? 3 THE COURT: Yes. 4 MS. CENDALI: Good morning. May it please the Court, 5 I am privileged here to be here today representing Warner Bros. 6 and J.K. Rowling. 7 This is a case about the massive wholesale copying, 8 willful copying, beyond anything that could possibly be excused 9 by the fair use doctrine, of the life work of the history 10 making author J.K. Rowling, the creator of the Harry Potter 11 series. 12 The evidence will show that the copying of 13 Ms. Rowling's work in the Lexicon manuscript at issue here was 14 both systemic and complete. Duplicating her poems, abridging 15 her plots, and copying and paraphrasing her words. Words that 16 you will hear Ms. Rowling herself explain she slaved over to 17 craft the best way possible as only a fine writer can, now 18 appear in a book under the name of someone else. And, to add 19 injury to insult, you will hear that defendant's plan was to 20 covertly rush to market with the Lexicon in order to scoop 21 Ms. Rowling's own long announced plans to publish a 22 comprehensive encyclopedia of her work and to donate all the 23 proceeds from that book to charity. 24 RDR eagerly sought the first to market advantage 25 touting its book as the definitive Harry Potter encyclopedia. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 84E3WAR1 Opening - Ms. Cendali 1 Which it is not. 2 While you will no doubt hear defendant's attempt to 3 characterize the Lexicon as a research guide, merely slapping 4 on a self-serving label, the evidence will show, does not make 5 it so. And you will hear both Ms. Rowling and Professor Jeri 6 Johnson of Oxford University explain. Rather, the evidence 7 will show, unlike the many books about Harry Potter on the 8 market, including other A-to-Z guides, the Lexicon both takes 9 too much and does too little. 10 You will hear that the Lexicon takes much more of Ms. 11 Rowling's fictional facts and copyrighted expression that is 12 necessary to comment on and discuss the Harry Potter books, and 13 you will hear the Lexicon provides virtually no analysis or 14 commentary, as much as RDR strains to inflate the import of 15 sporadic qualitatively meaningless phrases. 16 Simply put, the evidence will show that in keeping 17 with the long settled law of this circuit, it is copyright 18 infringement that cannot be excused by the fair use doctrine 19 and should be enjoined. 20 But to better understand the issues here, your Honor, 21 it is important, we suggest, to understand the facts. And the 22 facts here should start with the Harry Potter books at issue. 23 Now, while it might be interesting to think of it that way, the 24 Harry Potter books did not just magically appear. Rather, they 25 were the product of the hard work and time and the true SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 84E3WAR1 Opening - Ms. Cendali 1 creative genius of Ms. Rowling. 2 The evidence will show that Ms. Rowling spent 17 years 3 of her life working on the series, overcoming tremendous 4 hardship before achieving her well-deserved success. 5 Ms. Rowling carefully crafted each line of the books, and 6 created a whole new universe of people, places and things that 7 never before existed, but now seem so real. 8 We have on the screen -- I'm sorry not everyone in the 9 courtroom can see it -- just some of the images from the U.S. 10 editions of her works. 11 In fact, as you will hear, a major part of the appeal 12 of the series lies in this meticulous fascinating fictional 13 world Ms. Rowling created. Lord Voldemort, Dumbledore, 14 Hogwarts, Bertie Botts' ever flavor beans, Quidditch. These 15 fictional facts and characters go to the heart of Ms. Rowling's 16 award winning work, and are a major factor in their appeal. 17 But Ms. Rowling did not just stop there. In addition 18 to the seven Harry Potter novels, she also wrote two companion 19 books, Quidditch Through The Ages and Fantastic Beasts and 20 Where To Find Them. She has donated all the proceeds of these 21 books, over $30 million to date and counting, to charity. 22 The evidence will show that these books, like 23 Ms. Rowling's famous wizard cards that are given out with 24 electronic arts games, among other things, further highlight 25 the entertainment value of Ms. Rowling's fictional facts, as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 84E3WAR1 Opening - Ms. Cendali 1 the books and cards have no plot. There is no story. Harry is 2 not fighting Voldemort in these books. Their appeal is just in 3 enjoying the clever nominative genius, the clever things and 4 names Ms. Rowling creates. 5 You will also hear that as a further reflection of the 6 importance of these fictional facts to the Harry Potter books, 7 Ms. Rowling has repeatedly announced as far back as 1998 that 8 she intended to write a definitive encyclopedia of the people, 9 places and things in her books, and to, once again, donate all 10 proceeds to charity. 11 The evidence will show that Steven Vander Ark, the 12 ostensible author of the Lexicon manuscript and the owner of 13 the Harry Potter Lexicon fan site, was well aware of 14 Ms. Rowling's plans, and that he repeatedly recognized that it 15 would be infringing for anyone else to publish a Harry Potter 16 encyclopedia. 17 Just two years before this case was filed, Mr. Vander 18 Ark was approached by two fans asking, as the e-mail on the 19 screen indicates, whether they could publish or it might be 20 possible to publish the Lexicon Web site in book form. And 21 Mr. Vander Ark said "as editor of the Lexicon, I get mail every 22 so often from fans asking me to publish the Lexicon in book 23 form so I've dealt with this question before. Basically, it is 24 illegal to sell a book like that. Jo has reserved all 25 publishing rights to her intellectual property. Which means SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 84E3WAR1 Opening - Ms. Cendali 1 she is the only one who may publish any book that is a guide or 2 encyclopedia to her world. And since we're fans and supporters 3 of Jo, we wouldn't do anything that would violate her rights, 4 even if we could get away with it." 5 Again, just one year before contracting with RDR 6 Mr. Vander Ark wrote to the one of the editors at Scholastic, 7 Ms. Rowling's U.S. publisher, "P.S., it might interest you to 8 know that George Beahm" another author of the companion book, 9 "commented that he had originally intended to write an 10 encyclopedia of Harry Potter, which Jo has specifically 11 reserved for herself, I understand, but seeing the Lexicon Web 12 site convinced him not to bother. I want you to know that one 13 of the express purposes of the Lexicon is to dissuade people 14 from that sort of thing. So I was particularly happy to hear 15 him say that." 16 Now, all of this changed though, your Honor, in the 17 summer of 2007. Last year. Let's look at the calendar for 18 July to see what I mean. July 21 was a red letter day in the 19 world of Harry Potter. Because on that date, the long 20 anticipated release of Harry Potter and The Deathly Hallows 21 came out. There was tremendous excitement in the air to find 22 out who would live and who would die. Meanwhile, Mr. Vander 23 Ark found himself unemployed and looking for a chance to move 24 to London. He contacted Emma Schlessinger at the Christopher 25 Little Agency, Ms. Rowling's literally agent, and asked if he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 84E3WAR1 Opening - Ms. Cendali 1 could be an editor on Ms. Rowling's upcoming encyclopedia 2 project. Ms. Schlessinger responded on July 10 that it was a 3 particularly busy time in light of the upcoming release of the 4 book and declined Mr. Vander Ark's request to work on 5 Ms. Rowling's encyclopedia and she didn't want to collaborator. 6 RDR then enters the picture. Mr. Rappaport, the 7 principal of RDR, sees an article in the newspaper about 8 Mr. Vander Ark's Web site. And that article was published on 9 July 23. Significantly, on July 26, Ms. Rowling again goes on 10 national television and once again tells the world that she 11 intends to do her own encyclopedia which she sees as a gift in 12 a sense to her fans. Shortly thereafter, on August 6, RDR 13 first contacts Mr. Vander Ark about a book deal. 14 Now, even before the meeting with Mr. Vander Ark, RDR 15 had already contacted the UK publisher, Methuen, about 16 publishing the Lexicon. And later it even sought an advance 17 from Methuen so it could rush to publication. An August 13, 18 RDR and Mr. Vander Ark meet, and work began immediately on the 19 Lexicon manuscript. RDR and Vander Ark sign a contract on 20 August 23, and then rush to complete the manuscript by 21 September 15, in order to get the book out on the stores 22 sitting next to the Harry Potter books by November. 23 You will see evidence that the contract between RDR 24 and Mr. Vander Ark is telling. The evidence will show that RDR 25 and Mr. Vander Ark were well aware the book would infringe SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 84E3WAR1 Opening - Ms. Cendali 1 Ms. Rowling's rights, as is shown by the indemnity provision of 2 the contract itself. The evidence will show that the standard 3 practice in publishing agreements is for the author to 4 indemnify the publisher if the book infringed copyright. 5 If you look on the screen, you'll see Exhibit 14-J, 6 the indemnity provision in question which initially tracks the 7 normal procedure. The author Vander Ark hereby indemnifies the 8 publisher against all actions arising out of any claim that the 9 work constitutes an infringement of copyright. But, then it 10 goes on to say "except that the publisher indemnifies the 11 author for any claims of copyright infringement by J.K. Rowling 12 or any of her licensees or assignees such as Warner Bros." 13 Now, despite being in frequent touch with 14 Ms. Rowling's representatives, Mr. Vander Ark never mentions to 15 Ms. Rowling anything about his plans to suddenly publish the 16 Lexicon in book. 17 Turning to September, Neil Blair, Ms. Rowling's London 18 lawyer at the Christopher Little agency, happens to see an ad 19 touting the availability of foreign publishing rights to the 20 Lexicon, and he e-mails Mr. Vander Ark and says what's going 21 on, what's the plan here. 22 Then September and October proceed on two tracks. On 23 the first track is the series of e-mails and letters from 24 plaintiffs to Mr. Rappaport asking RDR to confirm the nature of 25 the proposed book, and to provide a copy of the manuscript and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 84E3WAR1 Opening - Ms. Cendali 1 to hold off publication until things could be discussed. The 2 evidence will show that at least five times plaintiffs wrote, 3 e-mailed or called RDR. 4 But as you will hear, in response, plaintiffs were met 5 with RDR's stalling tactics. A series of letters saying that 6 it was looking into the allegations, that it needed time to 7 respond, and that a family tragedy prevented a quicker 8 response. 9 Meanwhile, however, what was really happening, was 10 that on October 11, RDR found time to write a letter to Warner 11 Bros. accusing it of infringing Mr. Vander Ark's copyright in a 12 Harry Potter timeline Warner Bros. included in the Harry Potter 13 movie DVD. Again, starting the tune of Mr. Vander Ark 14 beginning to think that he had some form of proprietary right 15 in the world that Ms. Rowling created. 16 But the evidence will show that this was just the tip 17 of the iceberg. On track two, unbeknownst to plaintiffs while 18 they were sitting, waiting, wondering what was going on, the 19 evidence will show RDR was secretly doing everything it could 20 to sell the Lexicon as fast as possible all over the world and 21 to rush it to market to beat Ms. Rowling to the punch, and 22 before Ms. Rowling's lawyers could try to stop it. 23 In promoting the book, RDR touted it as the first 24 comprehensive Harry Potter encyclopedia. In an e-mail dated 25 September 6, one of the potential foreign publishers for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 84E3WAR1 Opening - Ms. Cendali 1 Mr. Rappaport himself, he writes "Although this is an 2 unofficial book, it is without a doubt the definitive book on 3 the series, and will come out way ahead of any possible 4 competitors." Way ahead of Ms. Rowling. 5 In an effort, moreover, to keep the nature of the book 6 a secret from plaintiffs, the evidence will also show that RDR 7 intentionally did not offer the book to any publisher anywhere 8 in the world that was also publishing the Harry Potter novels 9 that might look at the manuscript and say, wait a minute, this 10 takes too much, what are you guys doing. That same e-mail from 11 Mr. Rappaport goes on to say "we do not want to sell this to 12 any of the publishers currently publishing the Potter books." 13 Your Honor, they knew what they were doing. 14 Finally, and in the nick of time, after giving RDR one 15 last chance to provide them with a copy of the manuscript to 16 see if it might be possible to reach some sort of amicable 17 resolution, which was utterly rebuffed, plaintiffs had no 18 choice but to file this lawsuit on October 31. The fact it was 19 Halloween, your Honor, was just a coincidence. In order to 20 protect the rights to Harry Potter, rights that Ms. Rowling 21 worked so hard to obtain. 22 Thanks to this Court's expedited discovery order, 23 plaintiffs finally got to see the Lexicon manuscript that RDR 24 had refused to provide, and as you will hear, it confirmed 25 Ms. Rowling's worst suspicions about the misappropriation of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 84E3WAR1 Opening - Ms. Cendali 1 her work. 2 Now, in terms of copyright infringement, there is no 3 dispute that plaintiffs own valid copyrights. Nor should there 4 be any issue as to copying. Mr. Vander Ark admits he used 5 Ms. Rowling's preexisting works to write the Lexicon. He sat 6 there and he took notes. She said a word and he would write 7 down what it said. The evidence will show that the copying was 8 wholesale and pervasive and took multiple forms that bear, your 9 Honor, not just on infringement but also on fair use in 10 considering the totality of the taking, the substantiality of 11 the taking. 12 In terms of these forms of copying, some of the 13 copying was of entire songs or poems that Ms. Rowling wrote. 14 Such as the Hogwarts school song. Some of the copying was 15 taking of evocative beautiful phrases crafted by Ms. Rowling 16 reproduced in the Lexicon without even the courtesy of a 17 quotation mark. And a good example of this is the entry of the 18 Lexicon for Madam Marchbanks that repeated Ms. Rowling's 19 memorable phrase describing this character saying that Madam 20 Marchbanks' face was so lined it looked as though it had been 21 draped in cobwebs. 22 The Lexicon entry: Madam Marchbanks, her face so 23 lined, it appeared draped in cobwebs. 24 Even in this courtroom, the beauty of that phrase, the 25 evidence will show, is apparent. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 84E3WAR1 Opening - Ms. Cendali 1 Another form of the copying restates Ms. Rowling's 2 fictional facts. For example, the entry for the annual broom 3 race of Sweden just restates without any analysis whatsoever 4 the entertaining facts that Ms. Rowling made up about a pretend 5 annual broom race of Sweden that she discussed in her Quidditch 6 Through The Ages. You can take judicial notice that there is 7 not actually, as far as I know at least, a broom race in Sweden 8 of magical wizards, at least not in this dimension. 9 The final example of the systemic nature of copying is 10 the copying of Ms. Rowling's plots in numerous longer Lexicon 11 entries, entries that retell the stories of the major 12 characters. Plot summaries that -- the Harry Potter entry, for 13 example, is 10 pages long, and as you will hear from 14 Ms. Johnson of Oxford, it simply abridges the entire story of 15 Harry Potter without adding any analysis. 16 Mr. Hoy, can you just scroll through the 10 pages of 17 that particular plot entry, please. 18 Faced with this wholesale copying, RDR seeks to avoid 19 infringement by claiming fair use. But the evidence will show, 20 your Honor, that RDR's use was neither fair nor useful. You 21 will hear evidence showing that RDR cannot meet its burden of 22 establishing any of the fair use factors as RDR has taken too 23 much, and done too little. The evidence will show that the 24 nature of the copyrighted work factor favors plaintiffs, as 25 there can be no doubt that Ms. Rowling's award winning SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 84E3WAR1 Opening - Ms. Cendali 1 wonderful books are creative, expressive works, at the core of 2 what copyright law is intended to protect. 3 The evidence will also show that the amount and 4 substantiality of the portion used factor also favors 5 plaintiffs. As you will hear Ms. Rowling and Ms. Johnson 6 discuss, the Lexicon takes too much, it restates and abridges 7 Ms. Rowling's entire universe. As the very first page of the 8 Lexicon manuscript states, all the information in the Harry 9 Potter Lexicon comes from J.K. Rowling, either in the novels, 10 the school books -- those are the companion guides I 11 mentioned -- from her interviews or from material which she 12 developed or wrote herself. 13 As you will hear Mr. Vander Ark admit, the Lexicon is 14 comprised only of what he terms canon. And canon is defined as 15 coming from my client, J.K. Rowling. 16 You will also hear that RDR made a conscious decision 17 in producing the Lexicon to have it only deal with 18 Ms. Rowling's fictional universe, and not any real world facts. 19 As an e-mail from Richard Harris, a former lawyer and an editor 20 at RDR Books wrote to Mr. Vander Ark copying Roger Rappaport in 21 August of last year. "Hi Steve, my preference would be to keep 22 this book focused on the fictional world and leave the real 23 world details of J.K. Rowling's life, as well as anything else 24 that's outside the parameters of the story itself, for another 25 project." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 84E3WAR1 Opening - Ms. Cendali 1 The evidence will show that RDR has taken far more 2 than is necessary to do a Lexicon or guidebook to the Harry 3 Potter books. As is shown by the existence of other 4 alphabetical guides to the Harry Potter universe that engage in 5 far less copying and have far more analysis of their own in 6 order to make their points. I think we have a slide of some of 7 those. 8 As you will hear Ms. Rowling and Ms. Johnson discuss, 9 rather than just use a word or two or a short phrase in the 10 Harry Potter books as a jumping off point for its own analysis, 11 instead RDR copies the entire set of fictitious facts, all the 12 plots of the Harry Potter universe, and thereby usurps for 13 itself a big part of the entertainment value of Ms. Rowling's 14 books. 15 For example, the evidence will show that there are 274 16 entries in the Lexicon pulled from Ms. Rowling's 64-page 17 Quidditch Through The Ages book. I'm holding it up, your 18 Honor. It is not a very big book and they have 274 entries 19 about it alone. Similarly, in her 63-page book, Fantastic 20 Beasts and Where To Find Them, there are 222 Lexicon entries 21 pulled from this book. 22 As you will hear Ms. Rowling discuss, there is no 23 reason to buy these books if you have the Lexicon. The same is 24 true with regard to not needing to buy or read her wizard cards 25 that talk about various wizards through history she created, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 84E3WAR1 Opening - Ms. Cendali 1 because all of their content is duplicated in the Lexicon. 2 In tacit recognition that it had a problem, just three 3 weeks before trial, you will hear that Mr. Vander Ark revised 4 the Lexicon entries for the Fantastic Beasts book to take away 5 some of the verbatim copying, but the overall number of entries 6 and the reproduction of her fictional facts remains the same. 7 Now, the evidence will also show that the purpose and 8 character of the use factor similarly favor plaintiffs in terms 9 of the commercial aspect of this factor, the evidence will be 10 undisputed that Lexicon is intending for sale at $24.95 in the 11 children's section of bookstores to be put on shelves right 12 next to Ms. Rowling's books. 13 You will hear Ms. Johnson and Ms. Rowling describe how 14 the Lexicon adds nothing new or original to our understanding 15 of Harry Potter. But it merely rearranges her work in 16 unoriginal, alphabetical order. You will hear Ms. Rowling 17 discuss the numerous, missed opportunities to do even the most 18 basic analysis that kids all over America are probably doing in 19 their high school classes. And as you will hear Professor 20 Johnson explain, how the Lexicon is drawn almost entirely from 21 Ms. Rowling's works. You will hear her explain that the scant 22 new material that the Lexicon offers is insignificant in 23 quantity and quality, and consists largely of facetious asides, 24 statements of the obvious, and sporadic frequently wrong 25 etymologies. In other words, the Lexicon does too little. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 84E3WAR1 Opening - Ms. Cendali 1 While RDR labels the book as a research guide, the 2 evidence will show that this was merely a calculated 3 self-serving label designed to bolster its case. As one of 4 RDR's own internal e-mails shows, again, in an e-mail from 5 Richard Harris, former lawyer editor at RDR to Steven Vander 6 Ark copying Roger Rappaport. Excuse me. To Roger Rappaport 7 dated September 30, after there were a number of cease and 8 desist letters. It's: Hi Roger, here is a rewritten 9 disclaimer. I've tried to take out some stuff. Just because 10 you said it is a critical reference book or covered by the fair 11 use doctrine, doesn't mean it is. 12 That's what this case is about, your Honor. You can 13 label something a reference guide, but it doesn't mean that it 14 actually is one. As you will see, the lack of original 15 material in the Lexicon is also evidenced when the Lexicon is 16 compared to other alphabetical guides to the Harry Potter 17 series. But these books, unlike the Lexicon, take less, and do 18 more. 19 I think an example of the evidence is if we look at 20 the moke entry from Ms. Rowling's -- for the moke entry from 21 the Lexicon, all you'll see there in the Lexicon is a one line 22 entry that says moke. A small magical lizard that can shrink 23 at will. FB. Fantastic Beasts and Where To Find Them. That's 24 all it provides. Well, if you contrast that to Exhibit 74, the 25 Fact Fiction and Folklore in Harry Potter's World book, that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 84E3WAR1 Opening - Ms. Cendali 1 entry will say moke. A Lizard that can shrink at will. But 2 then it will go on to provide useful information. A professor 3 at the University of Illinois explaining to people what a moke 4 is. The Lexicon does not engage in that activity other than on 5 extremely rare occasions. 6 Now, RDR at times seems to contend that it can satisfy 7 the purpose and character of the use factor by somehow 8 qualifying as useful. But it is not clear what RDR sees as the 9 purpose of the Lexicon other than, we'll show, to make money. 10 If it is supposed to be a work of criticism or analysis, the 11 evidence will show that it takes too much of Ms. Rowling's work 12 for that purpose, and adds no -- or virtually no -- analysis. 13 Now, if it is supposed to be some sort of an index to 14 her work, it also takes too much. As if you are going to do an 15 index to the Harry Potter works, you don't need to take so much 16 of Ms. Rowling's prose for that purpose. Not only that, as an 17 index, it also does too little again, because as you will hear 18 from Ms. Rowling and Ms. Johnson, the citations in the Lexicon 19 are not like you would have in an index. They don't purport to 20 list all the times a character appears, the first time a 21 character appears, it is just some generics and general chapter 22 references and that's that. So as you will see, the Lexicon is 23 neither useful nor fair. 24 Now, turning to the effect on the market factor of the 25 fair use analysis, the evidence will once again show that this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 84E3WAR1 Opening - Ms. Cendali 1 factor favors plaintiffs. Now, here, just like copying took 2 many forms, your Honor, here the market harm also takes several 3 forms. The first type of market harm at issue here is the harm 4 to sales of Ms. Rowling's own planned encyclopedia. You will 5 hear, your Honor, that RDR plans to have its book sit on a 6 shelf right next to Ms. Rowling's books in direct competition. 7 Second, you will hear that RDR and Mr. Vander Ark contemplated 8 that the Lexicon would be a best seller. There is even a 9 provision in the contract providing additional money for 10 Mr. Vander Ark should that happen. 11 You will see evidence that they worked very hard to 12 tout the fact that Mr. Vander Ark had become a professional 13 Harry Potter fan, and that they were using his celebrity to try 14 to make sales of the book. You will hear that other Harry 15 Potter companion books, such as the Mugglenet book, what would 16 happen in Harry Potter book seven, became major bestsellers 17 earning over $2 million in over 330,000 copies of sales. And 18 you will see that Mr. Rappaport saw an advantage in being the 19 first to market, and sought that advantage for his company. 20 Now, the second type of harm that you will hear about, 21 your Honor, is the harm to the market from Ms. Rowling's 22 companion books, the Quidditch Book and Fantastic Beast, as 23 well as the market for the wizard cards that I mentioned 24 earlier. Because as you will hear the evidence of taking from 25 these books is so complete as to eliminate the need to purchase SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 84E3WAR1 Opening - Ms. Cendali 1 those products. And thereby eliminate the money that would go 2 to charities for people buying the Quidditch and Fantastic 3 Beasts book. 4 The third type of harm is the harm to the Harry Potter 5 books themselves. Because of the extensive plot summaries 6 presented without any spoiler warnings. These can provide a 7 convenient or all too convenient substitute for a person, 8 perhaps a child, who may have thought, you know, I haven't 9 quite finished those big, long, thick books, maybe I can just 10 read the spoiler summary and find out did Harry ever defeat 11 that Golden Wart guy after all. 12 Ms. Rowling's concern here is not about incremental 13 sales on the Harry Potter books. This is not a case about 14 money. But, one of the wonderful things, as you will hear her 15 say, that satisfies her as someone who had been trained as a 16 teacher, is that the Harry Potter books have encouraged 17 reading. And providing that kind of detailed plot summaries, 18 taking her entire narration, you will hear, undercuts that. 19 The fourth type of market harm is harm to plaintiff's 20 overall licensing programs. Programs that they worked very 21 hard, as you saw in some of the declarations submitted to the 22 Court, to ensure the high quality of the Harry Potter products 23 and to make sure that Harry Potter lives forever. 24 And you will hear, your Honor, that the Lexicon is not 25 a quality book. You will hear from Ms. Rowling and Ms. Johnson SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 84E3WAR1 Opening - Ms. Cendali 1 that it does not reflect well on the Harry Potter series, and 2 it undermines and tarnishes it. For it to be touted as the 3 definitive Harry Potter encyclopedia is an injustice to 4 Ms. Rowling's work. 5 Now, RDR's primary response to plaintiff's evidence of 6 multiple market harms is to argue that well, Ms. Rowling is so 7 popular, people will buy anything she buys. Doesn't she have 8 enough money anyway? 9 But, the evidence will show that while Ms. Rowling is 10 undeniably and deservedly popular, the market for companion 11 books is not the same as the market for her Harry Potter 12 novels. While her Harry Potter novels have sold fabulously, 13 her existing canon books, though they've done well, have not 14 done as well as the novels. People will not just buy anything 15 that has her name on it. Moreover, there is the basic 16 difference, as you will hear Ms. Murphy from Scholastic, the 17 senior marketing person there, testify, that there is a basic 18 difference between the hard core Harry Potter fan who, if they 19 had the money, would buy everything they could, and the more 20 casual fan, the grandparent who might want to buy a gift for 21 their grandchild, who may not say, well, I already bought one 22 Lexicon, one guide to Harry Potter, do I really need to buy 23 another. And who may not be quite sure about the difference 24 between the two or the quality of same. 25 Now, in assessing fair use, your Honor, bad faith is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 84E3WAR1 Opening - Ms. Cendali 1 also an equitable consideration that, as you know, this Court 2 may take into account. And here, the evidence will show that 3 RDR's bad faith cuts against a finding of fair use. The 4 evidence cited previously regarding RDR's clandestine stalling 5 tactics shows that this consideration too favors plaintiffs. 6 Now, just as RDR cannot meet its burden of 7 establishing fair use, the evidence will show it cannot meet 8 its burden of establishing its other affirmative defenses of 9 copyright misuse, and unclean hands. RDR, in terms of 10 copyright misuse, essentially suggests that plaintiffs, 11 Ms. Rowling, is not entitled to protect her copyright to the 12 Harry Potter series because she has somehow gone beyond her 13 copyright rights to restrain trade, to quash speech, to prevent 14 people from talking about Harry Potter. 15 But the evidence will show that plaintiffs merely 16 engaged in the normal policing of their copyrights, relying on 17 directly applicable leading cases of this circuit. You will 18 see that RDR cannot show any objectively baseless conduct as 19 would be required to avoid the Noerr-Pennington doctrine. 20 In any case, your Honor, the proof is in the pudding. 21 Far from being overly restricted, the evidence will show 22 plaintiffs have given wide latitude to all sorts of activities 23 about Harry Potter. There is fan fiction, there is fan art, 24 there is Harry Potter wizard rock bands. There is a virtually 25 unfettered Internet that has become a giant Harry Potter book SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 84E3WAR1 Opening - Ms. Cendali 1 club. All this activity goes on and is not just tolerated, it 2 is encouraged. Warner Bros. even provides kits for fans to be 3 able to use images on their Web sites. 4 You will also see that there are numerous companion 5 books that have been published about Harry Potter on topics, as 6 the slides show, ranging from Harry Potter and religion, Harry 7 Potter and literature, kids and Harry Potter, science and 8 psychology in Harry Potter, what we can learn about Harry 9 Potter and parodies of Harry Potter. 10 The evidence will show, as indicated earlier, that 11 there are also other guidebooks to the Harry Potter series. 12 That these guidebooks, unlike the Lexicon here, take much less 13 and do much more. Approximately 100 books have been printed in 14 the United States alone about the Harry Potter series. 15 Your Honor, the evidence will show that if plaintiffs 16 did intend to limit First Amendment expression with regard to 17 Harry Potter, that they haven't done a very good job of it. 18 There is even less evidence, your Honor, to support 19 RDR's unclean hands defense. RDR to this date has not even 20 articulated the nature of this defense. But the evidence will 21 show that it's hard to imagine a less likely candidate to be 22 accused of having unclean hands than J.K. Rowling. Remembering 23 her past, Ms. Rowling has repeatedly used her Harry Potter 24 copyrights to benefit those in need. Time and time again, she 25 has given of herself, despite the needs of her young family, to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 84E3WAR1 Opening - Ms. Cendali 1 all sorts of fan activity, of helping sick children, etc. The 2 idea that she would be accused without any evidence whatsoever 3 of unclean hands, the inclusion of this defense, your Honor, 4 the evidence shows, just highlights RDR's desperation. 5 Now, in addition to presenting evidence as to 6 liability, we will also present evidence that a permanent 7 injunction should issue. In terms of irreparable injury, as 8 you already heard me discuss in terms of the market harm, fair 9 use factor, that market harm is unquantifiable in nature and in 10 and of itself constitutes irreparable injury of the sort that 11 requires injunctive relief. 12 But, the irreparable injury in this case, your Honor, 13 is far greater than that. The evidence will show, as you will 14 hear from Ms. Rowling herself, goes to the heart of what 15 copyright law is intended to protect. You will hear 16 Ms. Rowling sit there on the stand and explain how publication 17 of the Lexicon hurts her as a writer. How it undermines and 18 disincentives and even jeopardizes her desire to write her own 19 encyclopedia and to write more about Harry Potter from the 20 betrayal that she feels that she's facing today. And you will 21 hear her talk in human terms about how the Lexicon has already 22 delayed and interfered with her work, which is why she flew 23 here from Scotland, despite your Honor's point that you would 24 just take her declarations, instead to hear her testimony. You 25 will also hear Ms. Rowling explain her concern as part of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 84E3WAR1 Opening - Ms. Cendali 1 irreparable injury factor about how publication of the Lexicon 2 would exploit her fans and destroy the previous wide latitude 3 plaintiffs have given fan sites. 4 Now, by contrast, in terms of the balance of the 5 hardships, your Honor was presented with many long briefs and a 6 declaration with regard to the preliminary injunction briefing, 7 and RDR has yet to identify anywhere any harm it would suffer 8 from an injunction being issued, other than not being able to 9 make money off an infringing book. 10 Now, in terms of the public interest factor in 11 assessing injunctive relief, there is no doubt that RDR's 12 eminent and learned counsel will try to portray decision 13 enjoining the book as the death knell to companion guides or 14 reference books. But that, your Honor, is an argument we 15 suggest that is best made when someone has not actually read 16 the Lexicon, to see that it is not the reference book presented 17 it to be. The evidence will show that this is shown by 18 comparison of the Lexicon to the very lexicons and other 19 historical books and guides of other work that RDR's own expert 20 Janet Sorensen has pointed to as saying that it's great to have 21 books like the Lexicon, but it does a disservice to those 22 books, books that take far less and books that do much more, in 23 truly analyzing how did Shakespeare come up with his plots. 24 What did Pynchon mean by this term, where did he come up with 25 this. What could be the meaning of this phrase. Those books SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 84E3WAR1 Opening - Ms. Cendali 1 do more, and it is a disservice to equate the Lexicon to those 2 true works of scholarship. 3 Contrary to RDR's assertion, the evidence will show 4 that public policy here favors plaintiffs. An injunction would 5 favor public policy as it would help confirm that authors can 6 protect the works they struggled to create as is contemplated 7 by the United States Constitution. 8 Now, this will help and benefit, your Honor, the 9 evidence will show, not just Ms. Rowling, but all authors who 10 care about the integrity of their work. Authors who may not 11 have the resources or the passion to be able to go to trial to 12 fight for their rights. You will hear Ms. Rowling is not here 13 because of any monetary reason. She is here because she's 14 concerned about her fundamental rights as an author. 15 And the evidence will also show in terms of public 16 policy, that an injunction here would incentivize prospective 17 authors of derivative books to do what the law requires. To do 18 what the fair use doctrine requires, and add something new. 19 And not just repackage in alphabetical order the work somebody 20 else worked to create. 21 While these policy issues are interesting, and no 22 doubt contribute to the packed courtroom today, although there 23 may be one or two other reasons for that, the issue that is 24 really before the Court is evidence concerning this one 25 particular book. Not all Lexicons, not all research guides, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 84E3WAR1 Opening - Ms. Cendali 1 this one particular book. Is it fair use, it is copyright 2 infringement or not. The evidence will show that as much as 3 RDR tries to make a silk's purse out of a sow's ear, the 4 Lexicon is still a sow's ear. It takes too much, and it does 5 too little. 6 In closing, it seems right to go back to Ms. Rowling's 7 words. At the end of Harry Potter and The Goblet of Fire, 8 Professor Dumbledore, headmaster of Hogwarts, cautions the 9 students that there may come a time when they must choose 10 between what is right and what is easy. 11 We submit, your Honor, that by taking too much and 12 doing too little, RDR chose to do what was easy. But the 13 evidence and controlling law of this circuit show that it was 14 not right. At the end of the evidence in this case, plaintiffs 15 Warner Bros. Entertainment and Joanne Rowling will respectfully 16 ask this Court to issue a permanent injunction enjoining the 17 Lexicon from publication. 18 Thank you, your Honor. 19 THE COURT: Thank you. Mr. Hammer. 20 MR. HAMMER: Mr. Falzone will do the opening, your 21 Honor. 22 THE COURT: Mr. Falzone. 23 MR. FALZONE: Thank you, your Honor. May it please 24 the Court, my name is Anthony Falzone. I represent RDR Books 25 along with my co-counsel here. As Mr. Hammer mentioned, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 84E3WAR1 Opening - Mr. Falzone 1 principal of RDR Books, Mr. Roger Rappaport is here. 2 Ms. Rowling has indeed created one of the most 3 enchanting and profitable worlds known to the history of 4 literature. The story of how she did it is both remarkable and 5 inspiring. 6 As the creator of the world of Harry Potter, she is 7 used to exercising full power and complete control over what 8 happens in that world. But the power she asserts here today, 9 your Honor, is very different. The question here today before 10 your Honor is whether Ms. Rowling has the power to make the 11 Lexicon disappear from our world, never to be seen in libraries 12 or bookstores across the country. 13 So let's start with the Lexicon because this case 14 really is about one book. The Lexicon. We will show your 15 Honor that the Lexicon is nothing like what plaintiffs have 16 described here this morning. The snippets and outtakes that 17 were shown to your Honor simply do not capture the true nature 18 of the Lexicon. 19 It is, above all else, a reference guide. And if that 20 term is a label, it is not a self-serving label. It is an 21 accurate label. We'll show your Honor the Lexicon was created 22 by Steve Vander Ark with help from many other contributors. 23 Mr. Vander Ark is a librarian by training. He's trained to 24 organize information and help people find it. And that, your 25 Honor, is one thing the Lexicon does. It helps organize and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 84E3WAR1 Opening - Mr. Falzone 1 discuss what was described to your Honor accurately here as the 2 complicated and elaborate world of Harry Potter. 3 And in that respect, your Honor, it is very much like 4 an encyclopedia. But in addition it provides citations, 5 thousands of citations to the specific places in the voluminous 6 Harry Potter novels and other sources where specific 7 information about specific things and specific characters can 8 be found. In that respect, your Honor, it is a research tool. 9 On top of that, the fact is the Lexicon does provide 10 lots and lots of additional insight into the Harry Potter 11 world. It provides insight into geography, etymology, 12 mythology and more. And it also provides some original 13 thoughts and suggestions about what makes the key characters in 14 the Harry Potter world tick. 15 While it is certainly true, your Honor, that the 16 Lexicon draws a significant amount of information from the 17 Harry Potter books, the question here is whether the Lexicon 18 makes fair use of that material. 19 Above all, your Honor, fair use protects works with 20 the transformative purpose. That is works that are meant not 21 to substitute for the original copyrighted works, but to add 22 something to the world that wasn't there before. Something 23 different, something with a valuable purpose. That 24 transformative function, your Honor, can take many forms. It 25 is true that transformative purpose can be found in works that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 84E3WAR1 Opening - Mr. Falzone 1 offer criticism, analysis, or commentary of copyrighted works, 2 but it goes way beyond that. A work does not have to be a 3 scholarly work, fit to be published in an academic journal to 4 qualify as transformative. In fact, that transformative 5 function that is so critical to fair use could be found in a 6 work that simply organizes a lot of information that would 7 otherwise be difficult to find or keep track of. Like an index 8 does or an Internet search engine does. 9 While transformation is the heart and soul of fair 10 use, plaintiffs have very little to say about it. Instead they 11 try to focus your Honor's attention on extraneous issues like 12 the supposed admission by Steve Vander Ark that the Lexicon 13 would be infringement. 14 Steve Vander Ark is a lay person, your Honor. He has 15 no legal training. He did not offer that opinion on a legal 16 conclusion after any inquiry whatsoever. It was an 17 off-the-cuff mark he made, completely uninformed, about a legal 18 issue. It is completely besides the point, and his 19 misunderstanding about that legal issue has since been 20 corrected. 21 You heard them speak about the indemnity provision in 22 the publishing contract. It was put in there because upon 23 looking into the issue, Mr. Rappaport felt this was fair use, 24 and on that assurance, promised to indemnify Mr. Vander Ark if 25 any liability arose out of this. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 84E3WAR1 Opening - Mr. Falzone 1 The story about supposed bad faith, your Honor, is 2 likewise simply beside the point and shows no bad faith. The 3 fact of the matter is there simply is no obligation for an 4 author or publisher to submit a prepublication of a manuscript 5 to somebody who wants to review and censor it. The law makes 6 very clear that fair use protection applies whether you ask 7 permission or not. 8 Insofar as the plaintiff does discuss transformation, 9 they suggest at times, your Honor, that the Lexicon is nothing 10 but a summary or a regurgitation of the Harry Potter story. 11 They suggest, for instance, as one witness does, that it simply 12 rearranges the furniture. We will show your Honor that it is 13 simply not so. 14 You will hear from Professor Janet Sorensen. She will 15 testify about the very important role lexicons in general have 16 played in the history of literature for hundreds of years. 17 They have helped readers better understand and enjoy literary 18 works. They have done so unconstrained by copyright law. 19 Professor Sorensen will explain this particular Lexicon as 20 specific and very significant value. 21 First and foremost, the organizational value is 22 paramount. The Harry Potter novels are spread across seven 23 books, hundreds of chapters, thousands of pages, somewhere 24 around a million words. Characters appear and disappear 25 literally and figuratively only to show up several books later. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 84E3WAR1 Opening - Mr. Falzone 1 Other characters appear consistently throughout the story. But 2 so much happens to them, your Honor, it is hard to keep track. 3 In fact, Professor Sorensen will tell you when she was 4 reading the first Harry Potter novel, she came across toward 5 the end of it the characters Filch and Peeves. She remembered 6 she had come across them before, but she couldn't remember how 7 or where. As she was reading the first Harry Potter novel, she 8 referred to the Lexicon to help her remember. 9 And that's the point here, your Honor. If a student 10 or scholar or just a casual reader wants to remember or connect 11 details about the Harry Potter stories, the Lexicon is the 12 place to go. But you won't simply have to take Professor 13 Sorensen's world on this organizational value. We'll show you 14 that plaintiffs themselves confirm the value of the Lexicon. 15 The printed Lexicon at issue here, your Honor, is, as you know, 16 drawn from the Lexicon Web site which has been available online 17 without objection for many years. We will show you, your 18 Honor, that Ms. Rowling has admitted to using the Lexicon Web 19 site herself to check facts, no less. 20 You will hear from Steve Vander Ark, Warner Bros. flew 21 him to the set of the fifth Harry Potter movie where he spoke 22 to producer David Heymen. Mr. Heymen told Mr. Vander Ark that 23 he and his production team used the Lexicon Web site almost 24 everyday in the production of that film. 25 You'll hear Mr. Vander Ark tell you he also visited SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 84E3WAR1 Opening - Mr. Falzone 1 the Electronic Arts studios in Guilford, England. That's the 2 company that make the Harry Potter video games. Mr. Vander Ark 3 will tell you that when he visited Electronic Arts, he saw page 4 upon page of printout from the Lexicon Web site hanging in the 5 studio where they were making the Harry Potter games. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 84E7WAR2 Opening - Mr. Falzone 1 MR. FALZONE: Why would these folks use The Lexicon 2 alongside the Harry Potter books to do their work? It's 3 precisely because, your Honor, The Lexicon -- whether in 4 website form or book form -- is a valuable and useful tool to 5 find and remember details from this elaborate world that 6 Ms. Rowling has created, and it confirms The Lexicon's value as 7 a reference guide. 8 Professor Sorensen will also tell you that the 9 organizational value is not the only thing that makes The 10 Lexicon helpful, useful and transformative. She will tell you 11 The Lexicon offers plenty of additional insight, and there is 12 no need to strain to inflate it. The fact is it's in The 13 Lexicon for everybody to see, and she will tell your Honor 14 about the etymology The Lexicon discusses, Latin derivations, 15 other derivations from other languages. She will tell you 16 about the discussions The Lexicon has concerning geography. 17 She will tell you about the mythological references it 18 illuminates. She will tell you about the literary references 19 it notes. She will tell you that other entries combine several 20 of the above, so when you get to the entry for avada kedavra, 21 the killing curse, The Lexicon talks extensively about the 22 possible derivations from the Aramaic language, Judaic 23 mythology and the Phoenician alphabet. 24 She will tell you that on top of that The Lecon offers 25 occasional insights about key characters in the Harry Potter SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 84E7WAR2 Opening - Mr. Falzone 1 books. For instance, it discusses the nature of Neville 2 Longbottom's bravery. It talks about Luna Lovegood's changing 3 relationship with Harry Potter, and that there is more to Draco 4 Malfoy than simply being Harry Potter's nemesis. 5 Now, I don't suggest to your Honor that this is the 6 primary purpose of The Lexicon. I don't think that matters. 7 The point is, your Honor, that these are useful observations 8 that curious readers young and old should have the benefit of, 9 and it complements the organizational value of The Lexicon as a 10 helpful research and reference guide. It helps readers better 11 understand and access the many layers of the Harry Potter 12 books. 13 You have heard plaintiff suggest that The Lexicon is 14 something like a cheap attempt to make a quick buck off the 15 backs of the Harry Potter novels. We will show, your Honor, 16 that couldn't be further from the truth. 17 The Lexicon began with the personal notes that Steve 18 Vander Ark took as he read the first two Harry Potter novels. 19 As he developed those notes, and they become more and more 20 elaborate, he turned them into a website. It became his hobby 21 and to some extent his passion and labor of love, and it 22 attracted other contributors. All of them worked for years in 23 their spare time on a completely voluntary basis to put 24 together The Lexicon website. It wasn't easy. It was far from 25 easy. It was time consuming. But profit was never the point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 84E7WAR2 Opening - Mr. Falzone 1 They did it because they loved these books, and they felt like 2 they had something to say about them. In fact, Mr. Vander Ark 3 will tell you that he has read the Harry Potter novels nearly 4 50 times. 5 Plaintiffs try to emphasize how much The Lexicon 6 borrows from the Harry Potter novels and other books, but the 7 question of transformation, your Honor, centers not on what The 8 Lexicon uses; it centers on how it's used, to what end and to 9 what purpose. We will show your Honor that The Lexicon uses 10 this material for a good and valuable purpose. It uses it to 11 organize the information and help readers understand the Harry 12 Potter books better. 13 Reference guide research tool, these are not labels, 14 they are not self-serving labels. They do in fact describe 15 accurately what The Lexicon is, and we intend to show you that, 16 your Honor. 17 The amount of material that The Lexicon uses is 18 reasonable in light of those specific purposes, because, your 19 Honor, reference guides need to be comprehensive by their 20 nature. 21 Let me speak briefly to the fourth factor, the market 22 effect. That centers on the effect of The Lexicon on the value 23 of the copyrighted works. You heard plaintiffs suggest, your 24 Honor, that The Lexicon could reduce sales of the Harry Potter 25 novels. We will show you that that simply is not so, is not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 84E7WAR2 Opening - Mr. Falzone 1 plausible. The Lexicon is not a plausible substitute for any 2 of the Harry Potter novels. The fact is if you haven't read 3 any of the Harry Potter novels, The Lexicon is pretty much 4 useless; and, if anything, you would expect The Lexicon to 5 generate more interest in the Harry Potter world, and drive 6 sales of still more books. 7 So, what is the specific harm plaintiffs talk about? 8 Well, at the end of the day it centers on the fact that Ms. 9 Rowling apparently wants to write her own companion guide, and, 10 as you heard, she has intended to do so since at least 1998, 11 and she says that The Lexicon might reduce sales of the 12 companion guide she may one day write and may one day publish. 13 We will present to your Honor the testimony of Bruce 14 Harris. He is a publishing executive with more than 40 years' 15 experience. Among other things he was the president of sales 16 and marketing at Random House. He will talk to you about the 17 specific nature of the wholesale and retail purchasing 18 decisions in the publishing industry. Based on that, and Ms. 19 Rowling's phenomenal success and popularity as an author, he 20 will explain why there is no plausible basis to think The 21 Lexicon will have any effect on the sales of any companion 22 guide Ms. Rowling one day wrote. 23 This is an author who is one of the most popular 24 authors to ever live. She sells books by the millions upon 25 millions. Fans throw parties when her books come out, and they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 84E7WAR2 Opening - Mr. Falzone 1 devour them with a voratious appetite unrivaled in publishing. 2 It's simply not plausible to believe that Ms. Rowling's sales 3 are going to be hurt in any meaningful way, and we will show 4 your Honor that. But if this book is suppressed, the public 5 will lose out on a valuable and useful reference guide. 6 That brings me to my final point, your Honor. You 7 heard plaintiff speak about the heart of copyright law, so I 8 want to hit on that point specifically, your Honor. 9 The purpose of copyright law is to encourage the 10 production of new works. The reason the fair use doctrine 11 exists is to balance the need on one hand, to protect 12 copyrighted works, yet at the same time protect the right to 13 build on them. The question here, your Honor, which turns on 14 fair use is whether The Lexicon is the sort of thing that 15 copyright law ought to encourage rather than suppress. 16 We intend to show your Honor The Lexicon is not a book 17 that should be suppressed. It's valuable, it's important, it's 18 transformative. It will have no more than a trivial effect, if 19 any, on the sales of Ms. Rowling book. There is simply no good 20 reason, your Honor, to make The Lexicon disappear. Thank you. 21 THE COURT: Let's take the morning break and come back 22 to hear the first witness. 23 (Recess) 24 MR. SHALLMAN: It looks like we might have a movement 25 before we call our first witness. Before we do, based on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 84E7WAR2 Opening - Mr. Falzone 1 court's ruling from Friday and the parties' stipulation, 2 plaintiffs would like to move into evidence the following 3 exhibits: Plaintiff's Exhibit 1 through 32, 43 through 48, 50 4 through 53, 73 through 75, 69 -- we will provide this list to 5 your courtroom deputy as well -- 86 through 99, 101 through 6 105, 108 through 123, 141, 143 and 192. 7 THE COURT: Just slow down a second. 8 MR. SHALLMAN: In addition, we will be moving in 9 defendant exhibits. 10 THE COURT: Let them move in theirs. 11 MR. HAMMER: Thank you, your Honor. Glad to have 12 something to do. It was my understanding that our stipulation 13 was that in fact all double starred exhibits would simply be 14 moved in and would not be subject to being moving by a witness. 15 THE COURT: Well, I don't know which number. I 16 suggested you had to cut down a number of exhibits on Friday 17 because we wouldn't be through this case for weeks otherwise. 18 MR. HAMMER: Well, counsel has very nicely given me a 19 list of what I want to move in, and I expect they will continue 20 to provide this service throughout the rest of the trial. 21 So, 501 to 507 -- I'm counting on his honesty and 22 integrity, which I think is fair -- 521, 523, 525, 526, 527, 23 559, 574, 576 to 577, 579 to 584, 587 to 596, 598. We have 24 already discovered one thing that was left off, no doubt 25 inadvertent. 520 we want to add. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 84E7WAR2 Opening - Mr. Falzone 1 THE COURT: Is that all right? 2 MR. SHALLMAN: So stipulated, your Honor. 3 THE COURT: All right, fine. 4 MR. HAMMER: I'm sorry. Forgive me 598, 599 and 600 5 as well. 6 THE COURT: All right. Thank you. 7 (Plaintiffs' Exhibits 1 through 32 received in 8 evidence) 9 (Plaintiffs' Exhibits 43 through 48 received in 10 evidence)? 11 (Plaintiffs' Exhibits 50, 51, 52, 53, 69 73, 74 and 75 12 received in evidence) 13 (Plaintiffs' Exhibits 86 through 99 received in 14 evidence) 15 (Plaintiffs' Exhibits 101 through 105 received in 16 evidence) 17 (Plaintiffs' Exhibits 108 through 123 received in 18 evidence) 19 (Plaintiffs' Exhibits 141, 143 and 192 received in 20 evidence) 21 (Defendant's Exhibits 502 through 507 received in 22 evidence) 23 (Defendant's Exhibits 520, 521, 523, 525, 526, 527 24 received in evidence) 25 (Defendant's Exhibits 559, 574, 576, 577 received in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 84E7WAR2 Opening - Mr. Falzone 1 evidence) 2 (Defendant's Exhibits 579 through 584 received in 3 evidence) 4 (Defendant's Exhibits 587 through 596 received in 5 evidence) 6 (Defendant's Exhibits 598 through 600 received in 7 evidence) 8 THE COURT: All right. First witness. 9 MS. CENDALI: Thank you, your Honor. 10 MS. CENDALI: Plaintiffs call Joanne Rowling. 11 JOANNE ROWLING, 12 called as a witness by the plaintiff, 13 having been duly sworn, testified as follows: 14 DEPUTY COURT CLERK: Please state your name and spell 15 your last name slowly for the record, please. 16 THE WITNESS: Roanne Rowling, R-O-W-L-I-N-G. 17 MS. CENDALI: May I proceed, your Honor? 18 THE COURT: Yes, you may. 19 DIRECT EXAMINATION 20 BY MS. CENDALI: 21 Q. Good morning, Ms. Rowling. 22 A. Good morning. 23 Q. Do you also have a pen name? 24 A. I do. 25 Q. What is it? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 84E7WAR2 Rowling - direct 1 A. J.K. Rowling. 2 Q. Have you ever testified in any court proceeding? 3 A. No. 4 Q. Are you nervous? 5 A. I am. 6 Q. Are you the creator of the Harry Potter series? 7 A. Yes, I am. 8 Q. Do you own the copyrights to the seven Harry Potter books? 9 A. Yes, I do. 10 MS. CENDALI: Your Honor, may I approach and hand the 11 witness an exhibit? 12 THE COURT: Surely. 13 MS. CENDALI: I would like to hand the witness what 14 has been previously marked as Plaintiff's Exhibit 1, The 15 Lexicon manuscript. 16 Q. Have you seen that manuscript before, Plaintiff's Exhibit 17 1? 18 A. Yes, I have. 19 Q. Is that the manuscript that's the subject of this lawsuit? 20 A. Yes, it is. 21 Q. Did you license any of your copyrights to RDR for use in 22 connection that book? 23 A. No, I did not. 24 Q. Do you have a view as to whether that book should be 25 published? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 84E7WAR2 Rowling - direct 1 A. Yes, I have a very strong view. 2 Q. Could you please briefly tell the court what your view is? 3 A. I believe that this book constitutes wholesale theft of 17 4 years of my hard work. I believe that it adds little if 5 anything in the way of commentary, that the quality of that 6 commentary is derisory, and that it debases what I worked so 7 hard to create. 8 Q. Now, Ms. Rowling, I'd like to talk to you a little bit 9 about your background and how you came to create the world of 10 Harry Potter. Let's start in the beginning. Where were you 11 born? 12 A. I was born in Yate, in England. 13 Q. Did you go to university in England? 14 A. I did, yes. 15 Q. Where do you live now? 16 A. I live in Scotland, in Edinburgh. 17 Q. Are you married? 18 A. Yes. 19 Q. To who? 20 A. To Dr. Neil Murray. 21 Q. Does he work as a doctor? 22 A. He does, yes. 23 Q. Do you have children? 24 A. We have three. 25 Q. What are their names and ages? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 84E7WAR2 Rowling - direct 1 A. Jessica, 14; David, 5; and Kenzie, 3. 2 Q. Now, let's talk about how you came to write the Harry 3 Potter books. When did you start writing the first Harry 4 Potter book? 5 A. I started writing the first book in 1990. 6 Q. So that would have been 18 years ago? 7 A. Yes. 8 Q. How old were you at the time? 9 A. 25. 10 Q. How long did it take you to finish writing that first book? 11 A. It took -- between having the idea for the book and the 12 book being published was seven years, but that sounds as though 13 I'm a very slow worker, but I was holding down a day job for 14 most of that time, and I was also planning what subsequently 15 became a seven book series. 16 Q. How were you supporting yourself while you were writing the 17 Harry Potter first book? 18 A. I worked for a time for Amnesty International. Then I was 19 working as a teacher, but in the later stages of writing the 20 book I was on what you call in America welfare. 21 Q. Why was that necessary? 22 A. My first marriage had broken down, and I was a full-time 23 caretaker for my eldest daughter, who was a very small baby at 24 the time. 25 Q. Was this a difficult period in your life? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 84E7WAR2 Rowling - direct 1 A. It was an extremely difficult period, yes. 2 Q. At some point did you ever get a grant to help you support 3 your writing? 4 A. Yes, I did. After the first book had been accepted for 5 publication, the Scottish Arts Counsel made me a grant to 6 enable me to provide child care for my daughter so that I could 7 write a second book. 8 Q. Do you remember what that grant was more? 9 A. The monetary value? 10 Q. Yes. I believe it was for $8,000 pounds, which for me at 11 the time was an absolute fortune. 12 Q. Now, was it an easy process to find an agent and publisher 13 for the Harry Potter books? 14 A. I would say that it wasn't although I did manage to get an 15 agent on my second attempt, but then he had some difficulty in 16 finding a publisher. 17 Q. Is the Christopher Little agency your literary agency? 18 A. Yes. 19 Q. Did they immediately accept your manuscript? 20 A. No. I had submitted the first three chapters, so they 21 asked could they see the balance of the book, so I then had to 22 type it up, which was 95,000 words. I submitted that to them, 23 and they said they liked it but they needed it double spaced, 24 so I had to type it yet again. 25 Q. Did you type the manuscript yourself? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 84E7WAR2 Rowling - direct 1 A. I did. I'm a very fast typist. 2 Q. And why didn't you get somebody to do it for you? 3 A. Because I literally did not -- well, there were weeks when 4 the food ran out, you know, so to pay someone hundreds of 5 pounds to type a manuscript, there was simply no money for 6 that. 7 Q. Ms. Rowling, Harry Potter was eventually accepted by 8 publishers, correct? 9 A. Yes, it was. 10 Q. Who is your publisher in the United Kingdom? 11 A. Bloomsbury. 12 Q. Who is your publisher in the United States? 13 A. Scholastic. 14 Q. Ms. Rowling, have you been surprised by the success of the 15 Harry Potter books? 16 A. There isn't a word big enough. Flabbergasted, astonished. 17 Q. Have the books won any awards? 18 A. Yes, they have. 19 Q. What types of awards have they won? 20 A. The British Book Award, many children's literary awards. 21 Q. Now, Ms. Rowling, when was the last of the seven Harry 22 Potter books published? 23 A. July 2007. 24 Q. What was its title? 25 A. Harry Potter and the Deathly Hallows. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 84E7WAR2 Rowling - direct 1 Q. Overall, how long did it take you to write the Harry Potter 2 series? 3 A. 17 years. 4 Q. And how much time did that take? 5 A. It was my life. Apart from my children, it was my life. 6 Q. Ms. Rowling, what does Harry Potter mean to you? 7 A. I really don't want to cry because I'm British, you know. 8 It means setting aside my children, everything. 9 Q. Ms. Rowling, I noticed this morning you were wearing a 10 bracelet. Can you tell the court about that bracelet? 11 A. It's a bracelet my UK publisher gave to me on publication 12 of the seventh book. 13 Q. Is there anything unusual about it? 14 A. It's a charm bracelet representing things that I invented 15 in Harry Potter books. 16 Q. Do you care, Ms. Rowling, about how your Harry Potter 17 characters are presented? 18 A. Very, very deeply, yes. 19 Q. Does that affect any decision you make about licensing 20 Harry Potter? 21 A. It's my prime concern, if not my only concern. 22 Q. Could you explain what you mean? 23 A. I mean that these characters meant so much to me, and 24 continue to mean so much to me over such a long period of time. 25 It's very difficult in fact for someone who is not a writer to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 84E7WAR2 Rowling - direct 1 understand what it means to the creator. I think the very 2 closest you could come is to say to someone how do you feel 3 about your child. You know, these books, they saved me not 4 just in the very obvious material sense, although they did do 5 that, they provided security for my daughter that I never 6 thought I would be able to provide her, but I would have to say 7 that there was a time when they saved my sanity. It was a 8 place into which I liked to vanish, and it was a discipline 9 that was very important in keeping me sane. 10 Q. And, Ms. Rowling, other than the seven Harry Potter novels, 11 have you written any other books about Harry Potter? 12 A. Yes, I've wrote two companion books which were books within 13 the novels, Fantastic Beasts and Where to Find Them and 14 Quidditch Through the Ages. 15 Q. Do you own the copyright to those books? 16 A. Yes, I do. 17 Q. Why did you publish those books? 18 A. I was approached by Richard Curtis who is the screen writer 19 and director, and who is the head of Comic Relief, which is a 20 very big charity in the UK, and he asked me would I consider 21 writing a Harry Potter short story for the charity. And I said 22 to him, well, what I thought would be good and would raise more 23 money would be to write these two short books. I thought that 24 children particularly would find them entertaining. 25 Q. Have you been able to give any money to charity as a result SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 50 84E7WAR2 Rowling - direct 1 of those books? 2 A. I think the last figure I heard for Fantastic Beasts and 3 Quidditch Through the Ages was 18 million pounds had gone to 4 charity. 5 Q. So with this current exchange rate would be over $30 6 million? 7 A. Yes, I think so. 8 Q. Now, to be clear, were you donating just a portion of the 9 proceeds or were you donating all your proceeds? 10 A. All the royalties went to the charity. 11 Q. Have you ever written a Harry Potter-related story for 12 auction? 13 A. Yes. Last year I hand wrote seven copies of the Tales of 14 Beedle the Bard, which is another book within the Harry Potter 15 novels. 16 Q. And why did you do that? 17 A. Six of the copies were to give to people who had been key 18 in the Harry Potter series, people who had worked with me for 19 ten years. And the seventh book I decided to auction, and the 20 proceeds went to a charity I cofounded. 21 Q. Tell us about that charity. 22 A. It's a charity called the children's voice, and it 23 campaigns for children's health and human rights, mostly in 24 Eastern Europe. 25 Q. Ms. Rowling, have you ever licensed anyone to publish an A SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 84E7WAR2 Rowling - direct 1 to Z encyclopedia of your work? 2 A. No. 3 Q. Why not? 4 A. Because it's been my long-stated intention that I wanted to 5 do that myself. 6 Q. When did you first announce that you wanted to write your 7 own encyclopedia? 8 A. It's very hard to be accurate about a date, but I know I've 9 been saying it in interviews and in conversations with fans 10 since I believe about '98. I know that I was being asked 11 questions about further books after the series as early as 12 that. 13 Q. How often have you repeated to the press your interest in 14 writing a Harry Potter encyclopedia? 15 A. Many, many times. 16 Q. Were you on a book tour in relation to the release of Harry 17 Potter book seven this summer and fall? 18 A. Yes, I was, yes. 19 Q. And in connection with the release of Deathly Hallows, the 20 last -- the seventh, I hope not the last -- Harry Potter book, 21 did you again tell the press in July 2000 that you intended to 22 write a Harry Potter encyclopedia? 23 A. Yes, I did. 24 Q. Have you begun working on that encyclopedia? 25 A. Yes, I have. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 84E7WAR2 Rowling - direct 1 Q. What stage are you at? 2 A. An early stage, but I'm assembling all my materials. I'm 3 fleshing out the plan, and I have requested certain materials 4 from my publishers that I hope to use to complete the book, so 5 I'm hoping to move forward with that. 6 Q. I would like to put up the screen the first page of 7 Plaintiff's Exhibit 23A. Do you recognize that document, Ms. 8 Rowling? 9 A. Yes, I do. 10 Q. What is it? 11 A. It's what is called, without any intent at blaphesmy, it's 12 what is known as the bible at my UK publisher. 13 Q. And how is it organized? 14 A. Largely A to Zed, I dare say. A to Z, story. 15 Q. Let's turn to the page of the Beasts and Beings section of 16 Exhibit 23A. Can you tell us about that page? 17 A. This is simply an alphabetical list of animals that appear 18 in the Harry Potter books. 19 Q. Did you ask Bloomsbury to provide you with a copy of this 20 material? 21 A. Yes, I have. 22 Q. And do you intend to use it in working on your 23 encyclopedia? 24 A. Yes, I do. 25 Q. You mentioned your publisher Scholastic as well. Let's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 84E7WAR2 Rowling - direct 1 look at Exhibit 18A, the first page of that. Do you recognize 2 that document? 3 A. Yes, I do. 4 Q. What is it? 5 A. Scholastic also called that the bible. It's their bible, 6 and that's also a list of major -- well, all characters, I 7 believe, in the Harry Potter books. 8 Q. And are you planning to use the Scholastic material to help 9 you write your encyclopedia? 10 A. Yes, I am. 11 Q. Are you planning on using an A to Z format for your 12 encyclopedia? 13 A. Yes, I am. 14 Q. When do you expect to complete your encyclopedia, Ms. 15 Rowling? 16 A. Well, until quite recently I would have said two to three 17 years would be a reasonable estimate. I want to do it 18 properly. I don't want to rush it. 19 Q. What happened recently? 20 A. I would say that about four weeks ago maybe the demands of 21 this court case have been such that it's caused me to halt work 22 on the novel I am writing. It's really decimated my creative 23 work over the last month. Again, it's very hard to describe to 24 someone who isn't engaged in creative writing, but you lose the 25 threads, you worry if you will be able to pick them up again in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 54 84E7WAR2 Rowling - direct 1 exactly the same way. It's certainly caused harm to my writing 2 process currently. And I must admit that at that time I began 3 to contemplate the possibility of The Lexicon being published, 4 and should it be published I firmly believe that carte blanche 5 will be given to anyone who wants to make a quick bit of money, 6 to divert some Harry Potter profits into their own pockets. 7 They can do it very easily; they can simply lift my words 8 verbatim wholesale, put it into an alphabetical rearrangement 9 and call it a guide. And should that happen, should my fans be 10 glutted with a surfeit of substandard so-called lexicons and 11 guides, I'm not at all convinced that I would have the will or 12 the heart to continue with my encyclopedia. 13 I already have enormous negative connotations. Every 14 time I think of my encyclopedia, all I think of frankly is The 15 Lexicon, and RDR, and Mr. Vander Ark, and all the stress and 16 heartache that has gone along with wanting to take a stand on 17 this book. And I think it's important to explain that writing 18 a novel is a labor of love, it's an exciting project for me, 19 but an encyclopedia is very different, it's not something that 20 I approach with passion. The encyclopedia I always saw as a 21 kind of give-back to fans who had been amazing and loyal to me 22 over ten years waiting for these books to come out, and I also 23 saw it as another very magnificent opportunity to make money 24 for charity, but I never approached it with the same lightness 25 of heart that you would approach a novel. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 55 84E7WAR2 Rowling - direct 1 Q. Ms. Rowling, if you do publish your encyclopedia, do you 2 intend to make money from it? 3 A. It was always my intention, as I've been saying for years, 4 that any royalties I made would be given probably to my 5 charitable trust. 6 Q. Now, let's talk more about The Lexicon that's at issue in 7 this case. When did you learn that defendant was planning on 8 publishing this book? 9 A. October last year. 10 Q. And was this during your book tour for the Deathly Hallows? 11 A. It was, I was here in the States, yes. 12 Q. What was your reaction upon hearing the news? 13 A. I was extremely shocked. I had assumed all along that 14 Mr. Vander Ark was operating in good faith. Indeed, I believed 15 his pronouncements that this was something that he did as a 16 hobby. There had never been any intimation to me that he 17 intended to publish The Lexicon. And I did feel a degree of 18 betrayal. 19 Q. Ms. Rowling, that big binder that I gave you, Exhibit 1, 20 have you read it? 21 A. Yes, I have read it. 22 Q. Have you read every word? 23 A. I believe I have. 24 Q. Based upon your review of The Lexicon, what's your overall 25 impression of the book? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 56 84E7WAR2 Rowling - direct 1 A. I believe that it is sloppy, lazy, and that it takes my 2 work wholesale verbatim. There is an absolutely minimal amount 3 of paraphrasing. It abridges my plots. And what does it add? 4 What benefit does the reader have? 5 There are facetious asides, comments occasionally 6 tacked on to the end of entries. There is a tiny amount of 7 etymologies, always of the easiest kind. A child with a pocket 8 Latin dictionary could decipher what Mr. Vander Ark has 9 deciphered, and worringly, given that the excuse apparently for 10 this massive wholesale copying is that this is some kind of 11 reference book. 12 There are incorrect translations, there are incorrect 13 etymologies, and there are places where Mr. Vander Ark quite 14 literally has not understood the books. 15 So, even if the loosest, most popular sense, I do not 16 consider this a worthwhile guide. And to me the idea of my 17 readership parting with their or their parents' hard earned 18 cash for this, I think it's a travesty. 19 Q. You have heard the opening statement of RDR's counsel 20 talking about how the book lexicon was useful in some way. As 21 the author of the Harry Potter books, do you think it's useful? 22 A. No, I absolutely see no use for it. I don't see what the 23 use is. 24 Q. Now, let's put on the screen Exhibit 501A, the proposed 25 cover for The Lexicon. Do you see there is a monitor right SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 57 84E7WAR2 Rowling - direct 1 there, Ms. Rowling? 2 A. Yes, I do. 3 Q. You can see his Honor has one at the bench as well. On the 4 cover it says The Lexicon, an Unauthorized Guide to Harry 5 Potter Fiction and Related Materials, by Steve Vander Ark. 6 Having read the manuscript, does The Lexicon appear to 7 you to contain Mr. Vander Ark's creative work? 8 A. In my view from what I've read, absolutely not. 9 Q. Whose creative work do you believe is in The Lexicon? 10 A. It is mine. 11 Q. And why do you say that? 12 A. Because every entry you will see my plots, my words often 13 verbatim, rarely with quotation marks around them. As I say, 14 what Mr. Vander Ark has added is not only of little use, it 15 sometimes actually would mislead. 16 MS. CENDALI: May I approach, your Honor, to hand the 17 witness an exhibit? 18 THE COURT: Yes, you may. 19 Q. I'd like to hand you Plaintiff's Exhibit 47. 20 A. Thank you very much. 21 Q. Ms. Rowling, I will put the first page of Exhibit 47 on the 22 screen. Could you please tell the court what that document is. 23 A. Yes, it's a chart I made to show what I felt was the 24 constant pilfering of my work. 25 MS. CENDALI: Mr. Hoy, would you please scroll down SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 58 84E7WAR2 Rowling - direct 1 that chart, Exhibit 47, to publish it to the court. 2 Q. Ms. Rowling, did anyone assist you in drafting that 3 document? 4 A. My 14-year-old daughter. She sat alongside the table, and 5 I told her where to look for the parts I recognized from The 6 Lexicon, and she would look them up and read them out to me, 7 and I would type out what I had written, and next to it I would 8 type out almost the identical passage that came from The 9 Lexicon. 10 Q. So you typed this yourself? 11 A. I did, yes. 12 Q. Did anyone ask to you draft this document? 13 A. No. 14 Q. Why did you do it? 15 A. Because I feel extremely strongly about this case, and I 16 wanted to show -- I felt the need to show what my problem with 17 the book is in this very graphic form. 18 Q. Well, let's put up on the screen one of the entries from 19 your chart which is Exhibit 47, which is in demonstrative form 20 with regard to the brain room. Now, the brain room is 21 something you created in the Harry Potter universe, is that 22 right? 23 A. Yes. 24 Q. And what about this comparison interests or concerns you? 25 A. Well, to me at least, if to someone to no one else, but to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 59 84E7WAR2 Rowling - direct 1 me it's a memorable image. I worked hard to find a way of 2 expressing this fact that this disembodied brain was leaking 3 memories and thoughts as it flew through the air, and I decided 4 that the image I wanted to use was that of strips of film 5 untangling and unraveling behind it as it came. 6 So, to find this precise image, one word changed, with 7 no quotation marks around it, in Mr. Vander Ark's so-called 8 book, I mean it's an assertion that he wrote this. There are 9 no quotation marks around it. I feel if he put quotation marks 10 around everything he has lifted from my book, there would 11 pretty much be quotation marks around the whole substance of 12 the book, with a few little sides omitted. 13 Q. Well, let's take a look at another example, to The Lexicon 14 entry for "armor, goblin-made". And on the left is your 15 writing from Deathly Hallows, is that correct? 16 A. Yes. 17 Q. And on the right is The Lexicon entry, correct? 18 A. Yes, that's right. 19 Q. Again, can you explain again what if anything concerns you 20 about that entry in The Lexicon? 21 A. Well, again there is a very recognizable phrase of mine at 22 the end of this passage, "imbibing only that which strengthens 23 it ..." This was a key plot point about the goblin silver. 24 And, again, The Lexicon, without quotation marks, has lifted 25 "imbibing only that which strengthens it." So, Mr. Vander Ark SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 60 84E7WAR2 Rowling - direct 1 without using quotation marks are claiming these words are his 2 own invention. 3 Q. Did you struggle to coin that phrase? 4 A. I would say that one came quite easily. I can't pretend I 5 bled over that one, but this happens in virtually every entry. 6 Even my list is not exhaustive. 7 Q. Let's look at another entry, the one for clankers. Again 8 on the left, is that text from Deathly Hallows, your novel? 9 A. Right. 10 Q. And on the right is The Lexicon entry? 11 A. Yes. 12 Q. And could you explain to the court your view about that 13 example. 14 A. Well, again, this is just evidence, in my view, of the 15 utter laziness of Mr. Vander Ark. He simply copies. He says 16 that the dragon has apparently been taught to fear hot swords 17 whenever it hears the clankers. Well, that is exactly what I 18 wrote. These things have no existence except in my words, so 19 he is taking my creation. 20 Q. Now, Ms. Rowling, to what extent do you think The Lexicon 21 abridges your work? 22 A. At every possible opportunity. 23 Q. Well, can you give us some examples? 24 A. The approach of The Lexicon, I believe, is wherever it 25 lists a character, Mr. Vander Ark generally gives the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 61 84E7WAR2 Rowling - direct 1 character's appearance verbatim in my words without quotation 2 marks and then he abridges the plots of any book in which that 3 character appears. 4 MS. CENDALI: Can you put up on the screen from 5 Exhibit 1, The Lexicon, the first page of the entry for 6 Voldemort. Forgive me for speaking the name. 7 Mr. Hoy, could you please scroll down so that the 8 entire entry can be published to the court. 9 THE COURT: Sorry. What page are you on? 10 MS. CENDALI: Forgive me. It's the Voldemort entry 11 from The Lexicon which is page 139 of at least the printout I'm 12 looking at. 13 DEPUTY COURT CLERK: That's from Exhibit 1? 14 MS. CENDALI: Exhibit 1. 15 MR. HAMMER: We're not following along with the same 16 text. I don't suppose you have an extra copy of that page. 17 Our text is numbered differently than yours. 18 MS. CENDALI: Maybe just a printout. 19 THE COURT: I can't find the page either on my copy. 20 MS. CENDALI: It's alphabetical. It's V for 21 Voldemort. 22 MR. HAMMER: We have it. 23 MS. CENDALI: You have the page number, Mr. Hammer, in 24 your version? 25 THE COURT: The numbers of the pages of the exhibits SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 62 84E7WAR2 Rowling - direct 1 do not run consecutively. 2 MS. CENDALI: It's Exhibit 1 in the exhibit binder. 3 THE COURT: The pages run according to the subject 4 matter. All right. 5 BY MS. CENDALI: 6 Q. OK. Ms. Rowling, is the entry for the Voldemort character 7 a lengthy one? 8 A. Very lengthy, yes, several pages. 9 Q. And again, Ms. Rowling, could you scroll down to publish 10 that entry to the court. 11 Ms. Rowling, what's your view of that entry? 12 A. I think it represents both wholesale lifting again of my 13 plots -- that's plots 1 to 7 -- of books 1 to 7 -- and it also 14 represents the most enormous missed opportunity. Other critics 15 in genuine guides to Harry Potter that are already published 16 have found a lot to say about Voldemort, about what he 17 represents, his psychology, the archetype of a villian, of this 18 particular kind of super natural villian. And we have none of 19 that here at all, nothing. I think it's lazy, just very, very 20 lazy. 21 Q. Now, so far we've mainly discussed your Harry Potter books 22 themselves. Let's turn to your book Quidditch Through the 23 Ages. Do you have a view of whether The Lexicon copies that 24 book? 25 A. I would say Quidditch Through the Ages has been plundered SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 63 84E7WAR2 Rowling - direct 1 by Mr. Vander Ark. There is absolutely no reason if this 2 lexicon is published why anyone would want to buy that book 3 that I created for charity. 4 Q. Well, let's put on the screen what has been marked as 5 Exhibit 43A. Do you recognize that document? 6 A. Yes, I do. 7 Q. What is it? 8 A. That's a chart showing the copying from Quidditch through 9 the ages by The Lexicon. 10 Q. And have you studied that chart? 11 A. I have. I have looked right through it, yes. 12 Q. Have you compared it to your work in The Lexicon? 13 A. Yes, I have. 14 Q. And could you please explain the chart to the court. 15 A. On the left-hand side you see examples of what I wrote 16 within Quidditch Through the Ages. On the right-hand side we 17 have The Lexicon's marginal paraphrasing of what I wrote. 18 Mr. Vander Ark has gutted that book. That book -- there is 19 nothing interpretive there, there is no commentary. He has 20 simply copied it. He has just taken it and copied it. 21 MS. CENDALI: Mr. Hoy, would you please scroll down 22 that exhibit to publish it to the court. 23 Q. Approximately how many pages is the exhibit, Ms. Rowling? 24 A. My goodness, is it 32 pages? That's very shocking. 25 MR. HAMMER: Sorry. I didn't hear the question and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 64 84E7WAR2 Rowling - direct 1 answer. 2 MS. CENDALI: I said approximately how many pages is 3 the chart, Exhibit 43A. 4 Q. Now, let's take a look at one of the comparisons in the 5 chart, the Lexicon entry for Chudley Cannons. Now, am I 6 correct that on this what's been marked for identification as 7 Plaintiff's Exhibit 168, on the left is what you wrote in 8 Quidditch Through the Ages and on the right is what is in The 9 Lexicon? 10 A. That's correct, yes. 11 Q. Could you explain your views about this lexicon entry to 12 the court. 13 A. I mean again these fictional facts -- which evidently they 14 have intrinsic entertainment value to anyone who likes Harry 15 Potter and wants to read this book -- have simply been taken. 16 There is nothing there that I haven't written. There is a tiny 17 paraphrase. 18 I think what particularly galls is the lack of 19 quotation marks. As I say, if Mr. Vander Ark had put quotation 20 marks around everything he has lifted, most of The Lexicon 21 would be in quotation marks. 22 Q. Ms. Rowling, does The Lexicon add any commentary or 23 analysis to your Quidditch Through the Ages book? 24 A. I don't believe it does. 25 Q. Now, let's talk about your book Fantastic Beasts and Where SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 65 84E7WAR2 Rowling - direct 1 to Find Them. Do you have a view as to whether The Lexicon 2 copies that work? 3 A. Again, a very strong view. I feel that as with Quidditch 4 Through the Ages, Fantastic Beasts has been simply taken and 5 taken wholesale. Again, I see no incentive whatsoever for 6 anyone to give their money to Comic Relief if they had bought a 7 copy of The Lexicon, because the whole book is repeated 8 virtually word for word in The Lexicon. 9 Q. Let's look at Exhibit 44, the Fantastic Beast comparison 10 chart. Have you studied that chart? 11 A. Yes, I have. 12 MS. CENDALI: Mr. Hoy, again could you scroll down so 13 that that entire exhibit in its length can be presented to the 14 court. 15 Q. Ms. Rowling, could you explain briefly that comparison 16 chart to the court. 17 A. Once again on left-hand side you have what I wrote in 18 Fantastic Beasts and Where to Find Them, and on the right-hand 19 side you have The Lexicon's entries, which as you can see are 20 virtually identical in all respects to my precise wording. 21 Q. Let's look at an example from Exhibit 44. Let's put up on 22 the screen what's been marked for identification as Exhibit 169 23 which shows an entry from Exhibit 444 comparing The Lexicon 24 entry for Chinese Fireball with the text from Fantastic Beasts. 25 Again, could you explain to the court your view about this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 66 84E7WAR2 Rowling - direct 1 example. 2 A. I think this is far from exceptional. This is very typical 3 of the kind of entries that concern me so much. But once again 4 there is a dragon type or species that I have invented, and 5 Mr. Vander Ark has simply copied my words. And in doing that, 6 he has effectively taken -- he's taken my creation because, 7 after all, it has no existence outside my words. He is simply 8 taking what I recreated. 9 If we were both describing a giraffe, then inevitably 10 certain words would occur in both descriptions, but it's not as 11 though we're both describing a creature that actually exists. 12 The Chinese Fireball has no existence outside the words and 13 phrases I have used to describe it, which he has taken. 14 Q. Does The Lexicon add any of its own commentary to the 15 Chinese Fireball entry? 16 A. Nothing at all. 17 Q. Does it add any commentary at all in your reviewing The 18 Lexicon to the Fantastic Beast entries? 19 A. I don't believe it does. 20 Q. Now, you touched on this a little bit earlier. I believe 21 you talked about -- you mentioned analysis and commentary, but 22 I want to be clear. As the author of the Harry Potter books, 23 did you see any analysis or commentary of your books in The 24 Lexicon? 25 A. There is a tiny amount of what purports to be commentary, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 67 84E7WAR2 Rowling - direct 1 but I think for those who haven't read The Lexicon it must be 2 understood that what Mr. Vander Ark puts -- his so-called 3 commentary is in italics at the bottom of an entry. 4 Occasionally it's a facetious remark. Occasionally it's an 5 etymology. The number of invented words and terms, names in my 6 books, given the number of those things, he has done a tiny, 7 tiny, tiny fraction of them has he attempted to give some kind 8 of etymology for. And many of those are erroneous; he has 9 mistranslated. 10 As it is my belief, as I say, that most of the 11 etymologies are cases where I give a spell that's recognizebly 12 from the Latin, and in that case he will simply translate the 13 Latin word. Any seven-year-old with a pocket Latin dictionary 14 could do that. And he doesn't even do that exhaustively, so 15 it's not as though everything that came from the Latin is 16 translated. I think it's a tiny and derisory quality of 17 commentary. 18 Q. Now, earlier I believe you said something about missed 19 opportunities. Are there examples of The Lexicon of missed 20 opportunities that you believe highlight the lack of analysis 21 in The Lexicon? 22 A. Where to begin? Where to begin? I mean the letter -- oh, 23 where to begin? The letter A, if we literally go through the 24 book alphabetically there are -- abraxan -- we just saw the 25 word abraxan on the screen from Fantastic Beasts -- there is no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 68 84E7WAR2 Rowling - direct 1 attempt at an etymology. 2 MR. HAMMER: I'm sorry. I object. What the book does 3 not contain really is not at issue in the case; it's what it 4 does contain. 5 THE COURT: Objection overruled. I'm going to take 6 the testimony. 7 Q. Ms. Rowling, let's put on the screen the ogre entry in The 8 Lexicon. Could you read that to the court. 9 A. Ogre. Ron and Hermione think they see an Ogre at Three 10 Broomsticks. 11 THE COURT: Sorry. What is this from? 12 MS. CENDALI: This is all from Exhibit 1, your Honor, 13 from The Lexicon, and that's the entire entry. 14 Q. What is your view of this entry, Ms. Rowling? 15 A. I think this goes to the heart of one of my largest 16 objections about The Lexicon. If the child spread the word 17 Ogre -- particularly a child, because I'm thinking largely for 18 the value of companion books to younger readers who might not 19 have the broad cultural understanding or the understanding of 20 literature that an adult may -- if the child wondered what is 21 an ogre, then what is the lexicon telling them? It's telling 22 them Ron and Hermione thought they saw an ogre. There is no 23 explanation of what an ogre is. I mention ogres once in the 24 whole seven book series, and I mention them when Ron and 25 Hermione go into village Hogsmeade, to the Three Broomsticks SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 69 84E7WAR2 Rowling - direct 1 Pub, and Hermione comes back and says to Harry Ron and I 2 thought we saw an ogre in the Three Broomsticks. So, that's 3 what The Lexicon gives the reader on ogre. 4 And an ogre in folklore, European folklore, was a 5 flesh-eating giant, which I think is of some interest if you 6 have an interest in ogres. It would be interesting to know 7 that, not to be told what you have already read in the Harry 8 Potter book. 9 MS. CENDALI: Let's put on the screen the entry for 10 death from The Lexicon, Plaintiff's Exhibit 1. What is your 11 view of that entry, Ms. Rowling? 12 A. Well, here again I think it's truly laughable that even 13 in -- as I say, even in the loosest, most popular sense, even 14 if no one is asserting that this is a scholarly work -- many of 15 the books that have been published on Harry Potter books, 16 they're light hearted, they are not purporting to be works of 17 deep scholarship, but they give the reader something. Any 18 guide to the Harry Potter books should have a lengthy entry on 19 death. It is probably the major theme of the whole seven book 20 series, and it appears in so many different ways. 21 You can discuss the attitude of the leading characters 22 to death, which is enormously revealing about their psychology. 23 You can talk about the fantastic objects that I created that 24 either attempt to overcome death or are dangerous and may cause 25 fatalities. And yet The Lexicon -- presumably because saying SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 70 84E7WAR2 Rowling - direct 1 of that would involve some independent work and research -- 2 simply says that death appears in a children's story within my 3 novel. That's the entrance on death. 4 MS. CENDALI: Let's put on the screen the entry for 5 occamy. Am I pronouncing that correctly 6 A. Yes. You can pronounce it any way you like; it's not a 7 real thing, you know. 8 Q. Again from Exhibit 1, The Lexicon. Which of your works did 9 you write about occamy? 10 A. This is from Fantastic Beasts and Where to Find Them. 11 Q. And again do you have a view of this entry in The Lexicon? 12 A. Well, this one I found. When I read The Lexicon and I saw 13 this one, this one made me smile to myself, because this should 14 have been a sitting duck for Mr. Vander Ark. 15 Q. What do you mean? 16 A. I mean I read that he claims that one of the works he used 17 to help him add value, as it were, to my work, one of his 18 research tools was the Dictionary of Phrase and Fable. Now, I 19 was pretty sure that he should have been able to work out my 20 little joke if he had looked in the Dictionary of Phrase and 21 Fable, and so I went and looked it up, and I was correct. 22 Ockham was a philosopher, an English philosopher, most famous 23 for what is known as Ockham's Razor, which is the statement 24 nothing should be presumed to exist which is not absolutely 25 necessary. So, this was my little joke, my little private joke SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 71 84E7WAR2 Rowling - direct 1 to create an occamy in a book of things that were quite clearly 2 not at all necessary. And there is nothing there. All The 3 Lexicon has done is reprint what I wrote about the fictional 4 creature the occamy. 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 72 84E3WAR3 Rowling - direct 1 Q. Let's look at some of your longer -- some of the longer 2 entries in the Lexicon manuscript. Let's look at the one for 3 Remus Lupin. That's again from Exhibit 1. Under L for Lupin, 4 Remus job. 5 And Mr. Hoy, can you just scroll down so that entry 6 can be published to the Court. 7 Is that a relatively lengthy entry, Ms. Rowling? 8 A. Yes, I would say it is. Yes. 9 Q. What's your view of that entry? 10 A. First it does what the Lexicon always does, which is to 11 abridge the books in which this character appears. But I was 12 surprised, very surprised, when I turned to Remus Lupin, 13 because I thought this would be a very easy one to add some 14 commentary to. 15 Q. Why is that? 16 A. Well, first Mr. Vander Ark does occasionally give the 17 meaning of the names I've given to my characters. I would 18 think this is a very, very obvious one to explain. Generally 19 he does go to the obvious ones. This is a double allusion to 20 the fact this character is a werewolf, so there is Remus, who 21 is one of the brothers who was raised by wolves in Roman 22 anthology, and Lupin, which comes from "lupine," wolf-like. 23 But there was more on Lupin. And again, it should 24 have been easy to anyone writing a -- genuinely attempting to 25 write a guide. I know that I've said publicly that Remus Lupin SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 73 84E3WAR3 Rowling - direct 1 was supposed to be on the H.I.V. metaphor. It was someone who 2 had been infected young, who suffered stigma, who had a fear of 3 infecting others, who was terrified he would pass on his 4 condition to his son. And it was a way of examining prejudice, 5 unwarranted prejudice towards a group of people. And also, 6 examining why people might become embittered when they're 7 treated that unfairly. 8 There is not one single attempt to examine that, which 9 is a key factor in the creation of the character. There is not 10 even a gesture towards explaining any of that on this entry. 11 All we have are abridged plots of the books in which Lupin 12 appears. 13 Q. Now, in addition to, in your view, taking material from 14 your books, does the Lexicon take material from any of your 15 other creations? 16 A. Yes, it does. 17 Q. Let's talk about the Daily Prophet. What is the Daily 18 Prophet? 19 A. Back in -- very early on in my publishing career, when -- I 20 think in about 1998, I produced a small run of fictional 21 newspapers, Daily Prophet Newspapers. Which were sent out free 22 to thousands by my UK publisher. They were very time consuming 23 to produce, and I think my publisher decided they'd rather I 24 concentrated on writing novels. I think three went out to 25 fans, and Mr. Vander Ark has again lifted wholesale from those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 74 84E3WAR3 Rowling - direct 1 publications. 2 Q. Where did you create the Daily Prophet? 3 A. In the UK. 4 Q. And was it was distributed there as well? 5 A. Yes, it was. 6 Q. Do you own the copyright to the Daily Prophet? 7 A. Yes. 8 Q. Let's put on the screen Exhibit 46. Can you describe to 9 the Court what Exhibit 46 is. 10 A. Again this is a comparison. On the left-hand side you have 11 the fictional stories I put in my Daily Prophet newspapers, and 12 on the right-hand side you have what the Lexicon has decided to 13 take and reprint. 14 Q. Do you have a view as to whether the Lexicon copies the 15 Daily Prophet? 16 A. It definitely copies the Daily Prophet. 17 MS. CENDALI: Mr. Hoy, can you scroll down so that 18 entire exhibit can be published to the Court. 19 THE COURT: The answer was it doesn't -- 20 THE WITNESS: It does copy. 21 THE COURT: It does copy. 22 THE WITNESS: Yes. 23 Q. Now, let's look at one of the examples from the chart. 24 Let's put on the screen what's been marked for identification 25 as Exhibit 170, the Lexicon entry comparison in Exhibit 46 for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 75 84E3WAR3 Rowling - direct 1 Dagbert Pips. Is there really such a person as Dagbert Pips? 2 A. If there is, I'm sure we'll find out after this court case. 3 But I do not believe there is a Dagbert Pips. 4 Q. Could you explain to the Court your view about that Lexicon 5 entry. 6 A. Yet again, this was just a very lighthearted news story, 7 sort of fictional news story. 8 MR. HAMMER: I'm lost here. We're off Daily Prophet 9 and on to something else? 10 MS. CENDALI: This is an example, Mr. Hammer, from the 11 Daily Prophet, and this is an example from the Daily Prophet 12 comparison chart. 13 MR. HAMMER: Exhibit 46? It is not on 46. 14 MS. CENDALI: I believe it is. 15 MR. HAMMER: Well, magically there are two different 16 46s. We don't have Dagbert Pips. 17 THE COURT: I can't find it. 18 MS. CENDALI: Does Mr. Pips appear? 19 MR. HAMMER: Of course. Pips always goes by the last 20 name. 21 MS. CENDALI: P for pips. 22 THE COURT: While you're talking, I can't find it. 23 MS. CENDALI: It is in Exhibit 46. 24 THE COURT: Page? 25 MS. CENDALI: Page 15. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 76 84E3WAR3 Rowling - direct 1 THE COURT: Thank you. 2 Q. Ms. Rowling, is there any commentary or analysis provided 3 about your Dagbert Pips character? 4 A. None at all. 5 Q. Do you have a view as to how much commentary or analysis is 6 provided to any of your Daily Prophet material? 7 A. There is no analysis that I can see. 8 Q. What are wizard cards? 9 A. Within the world of Harry Potter, if you buy a chocolate 10 frog, then you receive a famous wizard card inside the 11 wrapping. 12 Q. Did you create wizard cards for use in an Electronic Arts 13 video game? 14 A. Yes, I did. 15 Q. And do Warner Bros. and Electronic Arts own the copyright 16 to those cards? 17 A. Yes, I believe so. 18 Q. Let's put on the screen Exhibit 34. Can you please tell 19 the Court what Exhibit 34 is. 20 A. This is a list of the famous wizards, well, fictional 21 famous wizards, and their achievements and dates of life and 22 death -- of birth and death, that I provided to Electronic 23 Arts. 24 Q. Did you make these wizards up? 25 A. I did. Occasionally there is someone who existed in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 77 84E3WAR3 Rowling - direct 1 reality. I've taken some liberties with their biography. 2 Q. Did you create this chart yourself? 3 A. No, I didn't create this chart. 4 Q. But this was something that was used for making the wizard 5 cards? 6 A. Yes, that's right. 7 Q. Now, to what extent do you believe the Lexicon copies your 8 wizard cards? 9 A. Wholesale. Simply copied. 10 Q. Let's put on the screen Exhibit 45, The wizard cards 11 comparison chart. 12 Ms. Rowling, could you explain to the Court the 13 Exhibit 45. 14 A. Here you have artwork that was produced by Electronic Arts, 15 matched with the legends that I provided to them from my 16 notebooks and various creations. 17 Q. To what degree do you believe the Lexicon copies your 18 material from your magic cards? 19 A. As you can see from this page, they simply copy. 20 MS. CENDALI: Mr. Hoy, could you please scroll down so 21 that entire exhibit is published to the Court. 22 THE COURT: This exhibit doesn't purport to show 23 Exhibit 1. Does Exhibit 1 contain the cards? 24 MS. CENDALI: The -- yes. 25 THE COURT: On what page? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 78 84E3WAR3 Rowling - direct 1 MS. CENDALI: They're interspersed. In other words, 2 what would happen is in the Lexicon reference, for example, 3 your Honor, where it says Archibold Alderstone, where it says 4 Lexicon reference on the right. That's the material from the 5 Lexicon. So that's from Exhibit 1. 6 THE COURT: I see the language in the Lexicon. The 7 Lexicon reference. But I don't see the card. 8 MS. CENDALI: No. The card is an electronic card that 9 was in the Electronic Arts video game. Then the parties 10 stipulated we didn't need to make an exhibit of the actual game 11 because it is an electronic kind of card. 12 THE COURT: I'm not talking about the game. I want to 13 know whether it appears in the Lexicon. 14 Q. Ms. Rowling, could you describe -- 15 MR. HAMMER: Your Honor, I have an objection first if 16 I may. It is my understanding that on Friday we decided that 17 only 75 examples from all of these different charts were going 18 to be introduced into evidence. They have been in fact 19 introducing the entire charts. They have been publishing and 20 introducing the entire charts. 21 MR. SHALLMAN: Your Honor, it was clear from the 22 Court's ruling that the entire charts would be going in, but 23 that we would only refer, going through these charts, to the 24 universe of 75 that we agreed upon. 25 THE COURT: You were going to give Mr. Hammer advanced SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 79 84E3WAR3 Rowling - direct 1 notice. 2 MR. HAMMER: They gave me advance notice of the 75. 3 It was my understanding that the 75 -- what is the 75 a limit 4 on? The entire charts are going in. What was the limitation 5 that counsel thinks he is under? 6 MR. SHALLMAN: That was exactly the Court's ruling is 7 that -- 8 THE COURT: That was my ruling, that the entire chart 9 could go in. 10 MR. HAMMER: Very well, your Honor. 11 THE COURT: What I didn't understand was whether -- 12 and I don't understand yet, where in Exhibit 1 are the pictures 13 depictions that appear on Exhibit 47 is it? 45. 14 MS. CENDALI: Forgive me, your Honor. Because we 15 decided not to put the actual video game in, because these 16 cards only appear electronically, not physically, the picture 17 on the chart is not in the Lexicon. The picture on the chart 18 comes from the EA game. 19 The relevant consideration here, your Honor, the only 20 thing dealing with the Lexicon is the language, the text of the 21 card is in that middle column, description. That's what was 22 the writing on the card. And the column to the next of it is 23 that language from the Lexicon that we submit copies from the 24 language on the card. We're not suggesting that the pictures 25 appear in the Lexicon. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 80 84E3WAR3 Rowling - direct 1 THE COURT: All right. Thank you. 2 Q. Let's look at one of the examples from this chart which was 3 one of the examples on the list of 75 that we gave counsel on 4 Friday. Let's look at the example of Andros the invincible. 5 To make it easier to read we just blew that up as a 6 demonstrative, Plaintiff's Exhibit 171, but it is taken from 7 Exhibit 45. 8 And Ms. Rowling, could you explain that comparison to 9 the Court. 10 A. On the left-hand side you have a text that I provided to 11 Electronic Arts. And on the right-hand side the entry under 12 Andros the Invincible in the Lexicon, as you can see, they're 13 virtually identical. 14 Q. Does the Lexicon add any commentary or analysis to your 15 descriptions of these wizard cards? 16 A. No, it does not. No. 17 Q. Now, Ms. Rowling, are you aware of books other than the 18 Lexicon that have been written about Harry Potter? 19 A. Yes, I'm aware of many. 20 Q. Now, do you yourself handle the day-to-day policing of the 21 Harry Potter copyrights? 22 A. No. 23 Q. Are you aware that your lawyers have occasionally taken 24 action to protect your copyrights in the Harry Potter series? 25 A. Yes, I am. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 81 84E3WAR3 Rowling - direct 1 Q. What types of books have raised concerns for you? 2 A. Books that are very similar to the Lexicon that's the 3 subject of this case. Books that I -- I feel are an attempt to 4 jump on the bandwagon. They are profit-driven attempts to 5 resell to the public what it already owns. In other words, to 6 lift the facts that make up the -- well, fictional facts, 7 because it doesn't exist and I have to keep reminding myself 8 that. The facts that make up the Harry Potter universe as it 9 were, and resell them. 10 Q. Now, are there books written about Harry Potter -- well, 11 are all A-to-Z guides necessarily off limits? 12 A. No. Definitely not. 13 Q. Are there books written about Harry Potter that use an 14 A-to-Z format that you think take less of your work and provide 15 more commentary? 16 A. Yes. Many of them. 17 Q. Do you have a problem with those books? 18 A. No problem at all. I like many of them. 19 MS. CENDALI: Your Honor, I'd like to approach and 20 hand the witness physical copies of Exhibit 73, 74, 75 and 193. 21 THE COURT: 73, 74, 75, and 193. All right. 22 MS. CENDALI: Your Honor, so that it is clear, I have 23 taken the liberty of putting a few Post-its to speed things up 24 so Ms. Rowling can find certain entries. Is that all right? 25 THE COURT: Fine. You better show them to defense SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 82 84E3WAR3 Rowling - direct 1 counsel. 2 MS. CENDALI: Just so the record is clear, Plaintiff's 3 Exhibit 75, The Magical World of Harry Potter, by David 4 Colbert. Exhibit 74, Fact, Fiction and Folklore in Harry 5 Potter's World by George Beahm. 73, The Complete Idiot's Guide 6 to the World of Harry Potter by Tere Stouffer. 192, The 7 Sorcerer's Companion: A Guide to the Magical World of Harry 8 Potter. 9 THE COURT: Can you repeat the title of 75? 10 MS. CENDALI: Certainly, your Honor. The Magical 11 Worlds of Harry Potter. 12 THE COURT: Thank you. 13 Q. Ms. Rowling, are you familiar with these books? 14 A. "Familiar" may be overstating it, but I have seen them 15 before. 16 Q. Well, have you read many of the entries? 17 A. I've skim read a couple of them. 18 Q. Let's look at Plaintiff's Exhibit 73. And let's put the 19 cover on the screen so we know which one we're talking about. 20 Does this book contain an alphabetized guide to the Harry 21 Potter books? 22 A. Yes, it does. 23 Q. Does it raise copyright concerns for you? 24 A. No, not at all. 25 Q. Did you sue to enjoin that book? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 83 84E3WAR3 Rowling - direct 1 A. No. 2 Q. Let's put on the screen an entry from the Lexicon Exhibit 3 1. The Lexicon entry for parcel sis. Can you read that to the 4 court? 5 A. Paracelsus. A secretive wizard about whom little is known. 6 There is a bust of him in a Hogwarts corridor that Peeves have 7 been known to drop on people's heads. 8 Q. Did you read the entire Lexicon entry? 9 A. Yes, I did. 10 Q. Let's put on the screen the Paracelsus entry from the 11 Idiot's Guide on Exhibit 73. What is your view as to how the 12 Lexicon entry compares to the Idiot's Guide entry? 13 THE COURT: What page is this? 14 MS. CENDALI: The Idiot's Guide entry. 15 Q. Ms. Rowling, can you tell the page number to his Honor? 16 A. 17, your Honor. 17 Q. Could you please explain your view of the Paracelsus entry 18 in the Idiot's Guide to the Court. 19 A. Well, there is absolutely no comparison. The Lexicon does 20 not even explain that Paracelsus existed. Several of the 21 incidental wizards and witches that I mentioned within the 22 world of -- within the novel, Harry Potter novels, were 23 believed to be real. Or certainly were real as in the case of 24 Paracelsus. And so what Ms. Stouffer has done is to provide a 25 succinct but very informative paragraph about that real person. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 84 84E3WAR3 Rowling - direct 1 Q. Does that make a difference to you in terms of whether you 2 object to a book? 3 A. An enormous difference. Clearly the Lexicon is -- I 4 believe trying to sell people what they already own. If they 5 already own the Harry Potter books, then this is a shameless 6 attempt to resell them the same information. Whereas this 7 book, this guide, which is a genuine guide, is giving them all 8 sorts of background information and additional information. 9 Q. Now, let's turn to Exhibit 74. The Fact, Fiction and 10 Folklore in Harry Potter's book. Let's put that cover on the 11 screen so people know what we're talking about and it can be 12 published to the Court. 13 Does this book contain an alphabetized guide to the 14 Harry Potter books? 15 A. Yes, it does. 16 Q. Does it raise copyright concerns with you? 17 A. No. 18 Q. Did you sue to enjoin the book? 19 A. No. 20 Q. Why not? 21 A. I like this book. I haven't read it cover to cover, but it 22 looks good to me. 23 Q. Well, let's look -- let's put on the screen the entry in 24 the Lexicon Exhibit 1 for Florean Fortescue's ice crime parlor. 25 Could you read that entry to the Court. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 85 84E3WAR3 Rowling - direct 1 A. Florean Fortescue's ice cream parlor, a shop Harry has 2 frequented in Diagon Alley where the owner gave him free 3 sundaes and advice about his homework. 4 Q. Now let's put on the screen the first page of the entry for 5 Florean Fortescue's ice cream parlor in Fact, Fiction and 6 Folklore, which begins, your Honor, on page 215 of Exhibit 74. 7 Ms. Rowling, approximately how long is that entry? 8 A. About a page in total. 9 Q. What is your view as to how that entry compares with the 10 entry in the Lexicon? 11 A. Well, once again, after stating briefly where ice cream 12 appears, what happened at Florean Fortescue's, you then have 13 some information, certainly which I didn't know, about ice 14 cream. So you're certainly buying extra information if you get 15 this book. 16 Q. Let's turn to Plaintiff's Exhibit 75, the Magical Worlds of 17 Harry Potter by David Colbert. 18 THE COURT: Would you give me a moment. 19 MS. CENDALI: Certainly, your Honor. 20 Q. So let's put on the screen the cover to Plaintiff's Exhibit 21 75. The Magical Worlds of Harry Potter by David Colbert so 22 that can be published to the Court. 23 Ms. Rowling, does this book contain an alphabetized 24 guide to the Harry Potter books? 25 A. Yes, it does. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 86 84E3WAR3 Rowling - direct 1 Q. Does it raise copyright concerns for you? 2 A. No. 3 Q. Did you sue to enjoin that book? 4 A. No. 5 Q. Why not? 6 A. I really like this book. They can put that on the blurb if 7 they like. This is my favorite one. 8 Q. Ms. Rowling, I need to discuss this with them after that. 9 But let's put on the screen the entry in the Lexicon, Exhibit 10 1, for Fawkes. So we're looking at the Fawkes entry, your 11 Honor, from the Lexicon, Exhibit 1 book. 12 And can you in general, Ms. Rowling, describe that 13 entry. 14 A. The Lexicon entry? 15 Q. Yes. 16 A. This is a far from exhaustive list of times that the pet 17 phoenix of the headmaster appears in the books. And it repeats 18 information that I give within the novels. 19 Q. Now, let's put on the screen the entry for Fawkes in the 20 Magical Worlds of Harry Potter. Which, your Honor, is on page 21 91 of Exhibit 75. 22 THE COURT: Thank you. 23 Q. Mr. Hoy, can you scroll down to help further publish that 24 exhibit to the Court. 25 Ms. Rowling, how long is the Fawkes entry? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 87 84E3WAR3 Rowling - direct 1 A. About approximately three and a half pages. 2 Q. And what is your view as to how that entry compares to the 3 Lexicon entry for Fawkes? 4 A. I think this is a wonderful entry. It makes reference to 5 works such as the Egyptian book of the dead. It sets the idea 6 of the phoenix in the context, in the mythological context. 7 And it also of course explains Fawkes' name, because Fawkes was 8 named for Guy Fawkes who attempted to blow up the Houses of 9 Parliament. So another -- 10 Q. Why was that a suitable name for this character? 11 A. Well, Fawkes periodically explodes and then is reborn from 12 the ashes. So that was my joke. 13 Q. Let's turn to Plaintiff's Exhibit 193. The Sorcerer's 14 Companion: A Guide to the Magical World of Harry Potter by 15 Allen Cronzck and Elizabeth Cronzck. 16 THE DEPUTY CLERK: 193 or 192? 17 MS. CENDALI: Do you have the exhibit number? 18 THE WITNESS: I have it as 192. 19 MS. CENDALI: 192. Thank you. Let's put that on the 20 screen so we can publish to the Court. 21 Q. Does this book contain an alphabetized guide to the Harry 22 Potter books? 23 A. Yes, it does. 24 Q. Does it raise copyright concerns for you? 25 A. No, it doesn't. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 88 84E3WAR3 Rowling - direct 1 Q. Did you sue to enjoin that book? 2 A. No. 3 Q. Why not? 4 A. Again because I consider this is a genuine guide or a 5 reference book to the Harry Potter books. This provides a lot 6 of additional information. 7 Q. Let's put on the screen the entry in the Lexicon, Exhibit 8 1, for flying carpet. And could you explain to the Court your 9 view of that particular Lexicon entry. 10 A. Again, there is -- Mr. Vander Ark has copied what I've 11 written about flying carpets. He does not go beyond that. He 12 doesn't explain the history of the flying carpet in other 13 eastern fairy tales and so on. He's copied certain phrases 14 without adding any commentary. 15 Q. Let's look at page 86. The flying carpet entry in the 16 Sorcerer's Companion book. 17 A. Yes. 18 Q. And how long is that entry, Ms. Rowling? 19 A. Nearly two pages. 20 Q. And what is your view as to how that entry compares to the 21 Lexicon entry? 22 A. It is infinitely superior. The references to the Koran and 23 to other fairy tales and a broader culture of magical myths. 24 It is a very -- it is an interesting entry. 25 Q. And does that make a difference to you in deciding whether SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 89 84E3WAR3 Rowling - direct 1 to enforce your copyright rights? 2 A. Well, it makes a difference because I consider that this 3 genuinely is -- this is an original work. This is -- the 4 author of this book took as much of my work as they needed to 5 illustrate their own points. Their own attempt to analyze 6 certain elements that go into making the Harry Potter novels. 7 Q. Let's look at the Lexicon entry for rune stones. 8 A. Yes. 9 Q. That's again from Plaintiff's Exhibit 1. Could you read 10 that entire entry to the Court. 11 A. Rune stones. A method of divination which Umbridge forces 12 Trelawney to demonstrate when she's on probation. 13 Q. Let's turn back for a for moment to Exhibit 73, the Idiot's 14 Guide, and in particular page 232, your Honor, of Exhibit 73. 15 Tell me when you have it, Ms. Rowling. 16 A. I'm lost. Where are we? 17 Q. It is the Idiot's Guide, the orange colored one. 18 A. Yeah. 19 Q. Turn to page 232, I believe. 20 THE COURT: 232 is the appendix B. 21 MS. CENDALI: Forgive me. 22 Q. Could you perhaps find under R the entry for runes in 23 the -- 24 A. Is it definitely in The Idiot's Guide? Because I found one 25 in this one. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 90 84E3WAR3 Rowling - direct 1 Q. Forgive me, but I defer to you, Ms. Rowling. 2 A. That's dangerous. I've made mistakes before. I think it 3 is Exhibit 192. 4 Q. Let's turn to Exhibit 192 and -- 5 THE COURT: The Idiot's Guide or not? 6 MS. CENDALI: No, it is in the Sorcerer's Companion. 7 And -- 8 THE COURT: I don't find it. 9 MS. CENDALI: -- which is Exhibit 192. 10 THE COURT: I don't find it at all in The Idiot's 11 Guide. All right. There is nothing about those stones in The 12 Idiot's Guide? 13 MS. CENDALI: Let's look at the Sorcerer's Companion 14 book, your Honor. Exhibit 192. The bigger blue book. 15 THE COURT: The Sorcerer's Companion? 16 MS. CENDALI: Yes. 17 Q. Ms. Rowling, what page of the Sorcerer's Companion has the 18 entry for runes? 19 A. 232. 20 MS. CENDALI: Okay. Do you see that, your Honor? 21 THE COURT: Give me one moment. Yes. 22 Q. Ms. Rowling -- 23 THE COURT: I have it now. 24 Q. How long is that entry, Ms. Rowling? 25 A. Nearly three pages. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 91 84E3WAR3 Rowling - direct 1 Q. And what is your view as to how that entry compares with 2 the Lexicon entry for rune? 3 A. Well, again in this -- in compared to the Lexicon, you're 4 getting an almost an incomparable amount of information, 5 including examples of runes, of ancient runes, discussion of 6 where they came from, which peoples used them. So it is 7 extremely informative. 8 Q. And let's, since I brought up the subject of The Idiot's 9 Guide, Exhibit 74, I believe, can you turn to page 183 of The 10 Idiot's Guide book. 11 A. Ah, yes. 12 Q. Is there in fact an entry that deals with runes in The 13 Idiot's Guide book on page 183? 14 A. Yes, there is, yes. 15 Q. And does it -- how does the information provided there 16 compare with that of the Lexicon? 17 A. Again, they have given examples of the runes, they've given 18 entire runic alphabet. 19 Q. Does that make a difference to you from the copyright point 20 of view? 21 A. It certainly does. Because I think that there is value in 22 this book. Independent value. It is an original work, and 23 some research has gone into the creation of that book. 24 Q. Now, switching gears a bit, you can put the books aside for 25 the moment, Ms. Rowling. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 92 84E3WAR3 Rowling - direct 1 Before this lawsuit, had you ever visited the Harry 2 Potter Lexicon Web site? 3 A. Yes, I have. 4 Q. Did, in 2004, did you give a fan site award to that Web 5 site? 6 A. Yes, I did. 7 Q. Is that the only Web site you've given fan site awards to? 8 A. No. I believe I've given the fan site award to about 9 eight -- about eight Web sites now. 10 Q. Why did you give the award to the Lexicon? 11 A. I believed then that Mr. Vander Ark was showing quite 12 obsessive interest in the Harry Potter books. But in a 13 positive way. I didn't think that what he created was of 14 immense use, but I thought that it demonstrated a real passion 15 for my work. And I -- I gave the award, I would have to say, 16 as a kind of A for effort. I could see that time had gone into 17 his creation. 18 Q. Did you give the award because you thought the site was of 19 great quality? 20 A. No. 21 Q. Now, have you ever tried, even after this case was filed, 22 have you ever tried to stop the Harry Potter Lexicon Web site 23 from posting online its alphabetical listings? 24 A. No, I haven't. 25 Q. Why not? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 93 84E3WAR3 Rowling - direct 1 A. I never saw any harm in the Lexicon. I didn't consider 2 that anyone was being exploited by it. No child was being made 3 to view it, and I didn't feel certainly at the time when I gave 4 the fan site award, that any great claims were being made for 5 it. It simply seemed to be a fan who had decided to rearrange 6 my work alphabetically. 7 Q. When you are saying the Lexicon, you meant the Lexicon Web 8 site? 9 A. Yes, yes, of course, yes. 10 Q. Now, do you see the Lexicon Web site as competing with your 11 planned Harry Potter encyclopedia book? 12 A. No, not at all. 13 Q. Why not? 14 A. It is not a book. 15 Q. Now, we've talked a lot about the content of the Lexicon 16 manuscript. Now let's talk about the consequences if any that 17 you feel you would face if the Lexicon book were published. 18 Ms. Rowling, do you believe the publication of the 19 Lexicon would cause you harm as a writer? 20 A. Yes, definitely, I believe not only that it would cause me 21 harm, but that the publication of the Lexicon would represent a 22 change to copyright law that would harm any creative writer. 23 Anyone who struggled to create something out of nothing. I 24 worked exceptionally hard, and I made sacrifices for my work. 25 And if, when I had been literally choosing between food and a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 94 84E3WAR3 Rowling - direct 1 typewriter ribbon, I had been told I did not own these words, 2 these words were not mine, they could be taken, lifted by 3 anyone and resold under a different author's name, so-called 4 author's name, I would have found that quite devastating. And 5 I believe that publication of the Lexicon would mean a shift 6 that would protect not creators and certainly not legitimate 7 critics or reviewers or scholars, but I believe it would 8 protect -- such a change would be to the advantage of 9 plagiarizers, people who are seeking to make a fast buck off 10 the back of other people's hard work. 11 Q. Ms. Rowling, you had talked a lit bit about this earlier. 12 But would publication of the Lexicon in any way disincentivize 13 you in your own writing? 14 A. Well, I certainly don't think it would disincentivize me 15 from writing something entirely different. It would be very 16 pleasant to escape to a world that no one else could invade. 17 But as far as anything related to Harry Potter is concerned, as 18 I've already stated, the encyclopedia does not hold the same 19 allure for me as an author as a novel. I always saw it as 20 slightly more drudgery. But something that I was very happy to 21 do because I saw its worth to fans, whose loyalty I value 22 immensely, and to whom I'm enormously grateful. And also 23 because I saw its potential in making money for charity. 24 But, I mean, the associations as I've already said, 25 every time I think of the encyclopedia lately, I, far from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 95 84E3WAR3 Rowling - direct 1 wanting to settle down blithely to work, I would rather lock it 2 away. I don't want to think about it. It is associated with 3 stress and legal documents and long legal discussions, and, no 4 offense, but it is time consuming and it is not really what I 5 know. I'm a writer. 6 Q. Do you feel any timing pressure because of the Lexicon? 7 A. Certainly I -- Mr. Vander Ark's counsel have been vocal in 8 their attempts to make me say that I'm producing the book 9 within a certain period of time. And I did feel that I didn't 10 owe anyone a promise. I said I would do it, and I've never yet 11 failed to do what I promised to do in my work. I set out to 12 write seven Harry Potter novels, I did that. I promised 13 Richard Curtis two companion volumes, I did that. And yes, I 14 intend to write the encyclopedia, but of course it adds 15 pressure. Anything like that adds pressure. 16 Q. Do you have any concerns about quality due to timing 17 issues? 18 A. Well, I will resist very strongly being forced to rush -- I 19 would rather not write it at all, in truth, than be forced to 20 rush it on to the market before the avalanche starts. I wanted 21 to do it properly. There was no other reason to do it than to 22 do it properly. And that will take time. 23 Q. Do you feel -- you said this avalanche starts. What do you 24 mean? 25 A. I mean that I sincerely believe if the Lexicon is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 96 84E3WAR3 Rowling - direct 1 published, that the law will have changed, and it will be 2 considered fair use to copy wholesale with virtually no 3 commentary the most token gesture toward commentary, 4 essentially anyone would be able to repackage a popular 5 author's work and sell it as their own. And I think that's -- 6 this is the reason I flew here. This is the reason I wanted to 7 testify. This is very personal to me. This is not -- this is 8 not something that I felt at all comfortable happening arm's 9 length or with my representatives speaking on my behalf. 10 I am an author. 17 years of my work are being 11 exploited here. And this is not about money. There is a 12 massive principle at stake here. And I am determined to have 13 my say, if nothing else, as the author. 14 Q. Ms. Rowling, do you have any other creative fears about the 15 publication of the Lexicon? 16 A. Well, I have one I think very justifiable fear, which is 17 that if the Lexicon is published, and I then produce my 18 encyclopedia, on the assumption that I do still have the will 19 to go on after all of this, I do wonder, and I think with good 20 cause, whether Mr. Vander Ark will not seek to sue me because 21 my paraphrase ran a little too close to his paraphrasing if he 22 has copied my work. In restating any of my work, will I then 23 be accused of plagiarizing Mr. Vander Ark. 24 And he has formed, as we say, he has been very open in 25 his desire to receive spectacularly large amounts of money, way SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 97 84E3WAR3 Rowling - direct 1 more money that I received for my first three novels, 2 Mr. Vander Ark has been asking for, for writing a timeline 3 based on my fictional characters' lives. 4 Q. What do you mean by that, Ms. Rowling? 5 A. I mean that Mr. Vander Ark took the dates within the Harry 6 Potter books and he wrote a timeline on his online Lexicon. 7 And he has since claimed that he's owed money for doing that. 8 Q. And why -- and has he presented any claims to Warner Bros. 9 as a result of that? 10 A. Absolutely. He has asked for an absolutely extortionate 11 amount of money for a timeline that, that I mean -- he's copied 12 down some dates. 13 THE COURT: I'm sorry, counsel. But it is my 14 understanding that that was RDR Books that made the -- 15 MR. HAMMER: Actually, no one has asked for a penny. 16 This was all false. But let her continue. I don't know where 17 she's gotten this information from. 18 THE COURT: As I understand it, it is not Mr. Vander 19 Ark. Is this -- 20 MS. CENDALI: Let's put on the screen -- 21 THE COURT: Isn't that right? 22 MS. CENDALI: Let's put on the screen -- 23 THE COURT: I just want to know an answer. 24 MS. CENDALI: The answer is that RDR Books wrote on 25 behalf of Mr. Vander Ark, and they had a deal to split the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 98 84E3WAR3 Rowling - direct 1 proceeds of what they would get from Warner Bros. 2 THE COURT: All right. I was unaware of that. 3 MR. HAMMER: This is a settlement agreement that is in 4 fact -- this is not a part of this case. The facts are false. 5 It is utterly irrelevant. Let them continue. 6 MS. CENDALI: Let her continue. 7 MR. HAMMER: Let everyone continue. 8 MS. CENDALI: Let's put on the screen, Mr. Hoy, can 9 you please pull up the exhibit in the record of the cease and 10 desist letter that RDR sent to Warner Bros. on behalf of it and 11 Mr. Vander Ark. 12 MR. HAMMER: First of all, this is testimony by 13 counsel about an issue that is not relevant to this case. This 14 is -- 15 THE COURT: Objection is noted. 16 MS. CENDALI: Could you give me the exhibit number too 17 so I can inform the Court. 18 (Pause) 19 THE COURT: I was told this matter was withdrawn, 20 Ms. Cendali, and there was no claim of this sort. 21 MS. CENDALI: The declaratory judgment claim has been 22 withdrawn against RDR. Mr. Vander Ark has refused to settle 23 the action. We have not worked out the settlement against RDR. 24 Mr. Vander Ark is still pressing his claim, and our reference 25 to it here is not from the point of view of the merits of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 99 84E3WAR3 Rowling - direct 1 claim. The reference to it here is an illustration of part of 2 the harm that Ms. Rowling feels as a writer that she will in 3 fact be sued by Mr. Vander Ark. The exhibit number -- 4 THE COURT: All right. 5 MS. CENDALI: The exhibit number is Exhibit 14-H, your 6 Honor. 7 THE COURT: All right. 8 Q. Ms. Rowling, let's put 14-H on the screen. 9 Ms. Rowling, could you please read to the Court the 10 first line of that exhibit. 11 A. From Dear Mr. Meyer? 12 Q. Yes. 13 A. "Dear Mr. Meyer, as publishers of the print version of 14 Steven Vander Ark's popular international Web site the Harry 15 Potter Lexicon, we represent Mr. Vander Ark in matters of 16 subsidiary rights to the content of the Lexicon." 17 Q. Would you also read to the Court at the bottom it says 18 "regarding the countless millions of copies the Harry Potter 19 DVDs that have been and will be sold around the world," would 20 you read that to the Court. 21 THE COURT: Where are you? 22 MS. CENDALI: On the -- 23 THE COURT: Way down. 24 MS. CENDALI: Way down. 25 Q. Could you read that sentence to the Court, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 100 84E3WAR3 Rowling - direct 1 A. Me? 2 Q. Excuse me, Ms. Rowling. Would you mind reading that. 3 Forgive me. 4 A. "Regarding the countless millions of copies the Harry 5 Potter DVDs that have been and will be sold all over the world, 6 you will surely agree that it is only fair and just that he 7 receive acknowledgment and tangible rewards for his 8 contribution." 9 Q. Does it concern you at all, Ms. Rowling? 10 A. Very much so. 11 Q. Why? 12 A. Mr. Vander Ark is seeking to be paid for writing a timeline 13 based on my fictional facts. Now, anyone could do that. 14 Any -- absolutely any fool, forgive me, but any fool can write 15 a timeline based on a number of dates given in a book. I -- I 16 cannot -- I literally do not understand what he thinks he's 17 done of value and why he deserves money for that. 18 Q. Are you concerned that if you were to write your 19 encyclopedia, Mr. Vander Ark might sue you? 20 A. I am very concerned. I have to say there came a day when I 21 nearly choked on my coffee as I looked at, having been told 22 that this was the case, and I went and looked at the Lexicon 23 and suddenly found -- 24 Q. The Lexicon? 25 A. Online. I'm sorry. The online version of the Lexicon. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 101 84E3WAR3 Rowling - direct 1 And I found that Mr. Vander Ark had peppered the site with 2 "This is my original work. Do not copy." 3 Now, RDR Books have made a great play of the fact it's 4 all free for everyone, everyone is allowed to take whatever 5 they'd like. Except anyone who read the Lexicon online, 6 because Mr. Vander Ark has decided that no one must copy him. 7 Even though what is on there is all my work. 8 So what happens when I decide that I would like to 9 make reference to my work and my phrases and my encyclopedia. 10 Will Mr. Vander Ark sue me? 11 Q. Ms. Rowling, switching from the consequences to you as an 12 author, do you see any consequences from the publication or 13 possible consequences from the publication of the Lexicon to 14 the market for your own Harry Potter encyclopedia? 15 A. Well, I think there is no doubt whatsoever that if the 16 Lexicon is published, and if it therefore is deemed in law to 17 be acceptable to take this amount of an author's work and add 18 this little to it, then absolutely anyone, I do believe the 19 floodgates must open and this is the quickest and easiest way 20 to make a quick bit of money. I believe my readers will 21 rightly become servitive with this avalanche of dross, and I 22 imagine that by the time my encyclopedia comes limping into the 23 market, everyone will be sick to the back teeth of Harry Potter 24 encyclopedias. 25 Q. Ms. Rowling, you have a lot of fans. Don't you think your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 102 84E3WAR3 Rowling - direct 1 fans will buy your encyclopedia no matter what? 2 A. No. Frankly, no. I don't. I'm not that arrogant. If 3 they've already bought five books expecting to get something 4 new and interesting when they haven't yet seen it, I don't 5 really see why they are going to keep spending money. And it 6 of course is also the case, as I think you mentioned in your 7 opening remarks, that the market for companion books is smaller 8 than the books -- than the market for novels. The Fantastic 9 Beasts and Where To Find Them and Quidditch Through the Ages, 10 they sold very well and the charities were grateful for the 11 money. But they didn't sell anything like the quantities of 12 the novels. It is a different market. 13 Q. Turning to -- we talked about consequences to you as a 14 writer and consequences with regard to your planned perhaps 15 encyclopedia. Let's talk about potential consequences if any 16 to the Harry Potter novels themselves. 17 Do you have any concerns about that as a result of 18 potential publication of the Lexicon? 19 A. I think that I would -- I would quibble very much with the 20 statement that the Lexicon only means anything to someone who 21 has read all of the books. That simply is not true. In all of 22 the longer entries under characters, my plots are abridged. So 23 you're being told exactly what happens to Lord Voldemort's 24 mother and to Harry Potter. Books one through seven. 25 So it is possible, I imagine that someone might SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 103 84E3WAR3 Rowling - direct 1 decide, well, I don't really need to read books four and five, 2 I might just skip through to book seven. 3 But I think that it needs to be stated that I am not 4 here because -- we all know I've made enough money. This is 5 not -- this is not -- I didn't come here because I thought, uh, 6 I might sell three fewer novels. That is absolutely not why 7 I'm here. 8 Q. Do you have any concerns about reading in terms of -- 9 A. I absolutely do. Because if there is one thing of which I 10 am enormously proud with regard to the Harry Potter novels, it 11 is that there were children who are not big readers before they 12 read Harry Potter, and that is the most gratifying thing I 13 think an author for children can be told. "I wasn't interested 14 in reading until I found Harry Potter." And I have met 15 numerous times children who have told me that, and who have 16 been very proud of themselves that they finished seven books. 17 Clearly I'm not a big fan of people putting abridged 18 forms of my plots out there. I would rather they read the whole 19 novel. This isn't about selling books. They can get them from 20 the library. I frequently encourage children to take them off 21 the library shelves. It is the reading experience that I think 22 stands to be endangered here. 23 Q. Ms. Rowling, do you intend to have detailed plot summaries 24 in your encyclopedia if you write it? 25 A. No. I've already told my stories in the novels. I don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 104 84E3WAR3 Rowling - direct 1 intend to abridge my own books. 2 Q. Ms. Rowling, do you see any consequences -- we talked about 3 potential harm to you as a writer, to your encyclopedia, to the 4 Harry Potter books, do you see any potential consequences from 5 publication of the Lexicon to your existing Harry Potter 6 companion books, Fantastic Beasts and Quidditch Through the 7 Ages? 8 A. There is no doubt at all in my mind that there would be no 9 incentive for anyone to buy those two companion books if they 10 owned a copy of this Lexicon. Because effectively, those two 11 books are reprinted within the Lexicon. 12 Q. Ms. Rowling, do you see any consequences to your Harry 13 Potter licensing program from the publication of the Lexicon? 14 A. Well, I'm not delighted to have work that I consider to be 15 this shoddy associated with Harry Potter. So to that extent, 16 yes, I would say there is some harm. 17 Q. You mentioned shoddiness. Do you have a view as the author 18 of the Harry Potter novels as to the quality of the Lexicon 19 manuscript? 20 A. I think it's dire. I think it is atrocious. 21 Q. Could you explain why. 22 MR. HAMMER: We've been here for a while hearing why. 23 This has all been asked and answered. 24 Q. Briefly. 25 THE COURT: I will allow the answer. But let's not go SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 105 84E3WAR3 Rowling - direct 1 on for an hour. 2 THE WITNESS: I am verbose on paper. 3 A. I think that it is sloppy, I think there is very little 4 research, and I don't think that it -- I don't think it 5 constitutes an original work. 6 Q. You mentioned that the Lexicon occasionally -- earlier that 7 the Lexicon occasionally contained etymologies. 8 A. Yes. 9 Q. I believe you also mentioned that the some of those 10 etymologies were wrong? 11 A. Hmm-hmm. 12 Q. Could you give the Court an example. 13 A. I could give several. But Mr. Vander Ark gives an 14 etymology for alohomora, which is an incantation used within 15 the Harry Potter books to open a locked door by magic. And he 16 asserts that this word was derived from the Hawaiian aloha 17 meaning good-bye. Which is errant nonsense. Alohomora is a 18 Sidiki word from West Africa, and it is a term used in 19 geomancy. It is a figure -- the figure alohomora means in 20 Sidiki "favorable to thieves." Which is obviously a very 21 appropriate meaning for a spell that enables you to unlock a 22 locked door by magic. 23 Later on there is the word alihotsy which came from 24 the same source which is also from Western Africa. And it 25 means lightness of spirit. I used that word for a bush, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 106 84E3WAR3 Rowling - direct 1 leaves of which causes hysteria. But Mr. Vander Ark simply 2 does not explain the etymology of alihotsy, and he makes no 3 attempt to do so. 4 Q. Now, Ms. Rowling, do you have any concerns about the 5 publication of the Lexicon in terms of your fans? 6 A. Huge concerns. That is at least half the reason I'm here. 7 I think that this publication of this book, the sale of this 8 book would be exploitive. If would be exploiting a very loyal 9 readership. Or attempting to exploit a very loyal readership. 10 Q. Why do you believe that? 11 A. I believe because it is attempting -- I believe that the 12 proposed price is $24.95? 13 Q. Yes. 14 A. For that money, I believe you are being resold the Harry 15 Potter books with a negligible amount of attempted commentary, 16 some of it false, and a lot of facetious comments. I quote, I 17 would like to see Hagrid fit himself into a McDonald's booth. 18 For $24. 19 Q. Ms. Rowling, do you have any concerns about the online fans 20 who might have helped contribute to the Lexicon at one point in 21 time online? 22 A. Well, I am certainly confused to see Mr. Vander Ark's name 23 alone, alone on the cover, of the proposed cover of the 24 Lexicon, because it was my understanding that he worked with a 25 team of people. So I don't really understand that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 107 84E3WAR3 Rowling - direct 1 Q. Do you have any views as to the impact the publication of 2 the Lexicon on your relationship with fan Web sites? 3 A. Very definitely, that's part of my concerns about fans. I, 4 perhaps naively, I accept that, perhaps naively, I was very 5 keen to maintain an almost entirely hands-off approach to the 6 online fandom where Harry Potter was concerned. And I say 7 "almost" because there are obvious boundaries of decency that 8 occasionally one would not like to see overstepped. But by and 9 large, I simply let it happen. Maybe that was naive, but I saw 10 massive positives in this amount of fan activity. I saw -- I 11 saw it as a great global book club with a lot of enthusiasm. I 12 met people who had made real life friendships through posting 13 on Harry Potter message boards, which I thought was a wonderful 14 thing. The fan sites, the fan created fan message boards and 15 the essays and so on, they were all fun. 16 I have never read online fan fiction. It is 17 uncomfortable to see your world restated in that way. But, I 18 never censored it or wanted to censor it. I let it all happen. 19 So, what will happen if it is decided in court that by 20 taking that approach, I effectively gave away copyright, I -- 21 well, I know what will happen. Other authors -- I mean, other 22 authors are already much more draconian than I am with their 23 view of the Internet. Of course, other authors will look 24 sideways at what happened to me and say I need to exercise more 25 control. She was an idiot. She let it all go. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 108 84E3WAR3 Rowling - direct 1 Q. Ms. Rowling, do you want the Court to enjoin the book? 2 A. Yes, I do. 3 MS. CENDALI: Thank you. No further questions. 4 THE COURT: All right. 5 MR. HAMMER: May we have a few minutes to organize our 6 presentation? 7 THE COURT: Surely. 8 MR. HAMMER: Thank you. 9 THE COURT: Do you want to -- 10 MR. HAMMER: I'm sorry. 11 THE COURT: Do you think it would be wise if we take 12 the luncheon recess now and come back? 13 MS. CENDALI: I think that make sense, your Honor. 14 THE COURT: That would be good. 15 MR. HAMMER: Thank you. 16 THE COURT: All right. Let's come back at quarter of 17 two. 18 (Luncheon recess taken) 19 (Continued on next page) 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 109 84E5WAR4 1 A F T E R N O O N S E S S I O N 2 1:45 p.m. 3 THE COURT: All right. Mr. Hammer. 4 JOANNE ROWLING, continued 5 CROSS EXAMINATION 6 BY MR. HAMMER: 7 Q. Ms. Rowling, good afternoon. 8 A. Good afternoon. 9 Q. My name is David Hammer and I believe that I'm one of the 10 esteemed and learned counsel that the lawyer was referring to. 11 Perhaps we will find out. 12 The first thing I want to discuss with you is the 13 Vander Ark time line. Now, you said -- I believe you said 14 twice that Vander Ark was demanding extortionate sums from 15 Warner Brothers for use of that time line, is that correct? 16 A. That was my belief, yes. 17 Q. Yes. That was your testimony, isn't that correct? 18 A. Yes, that's what I said. 19 Q. I would like to show, perhaps, if we could, what you call 20 the cease and desist letter? 21 THE COURT: Would you mind staying at the podium? 22 MR. HAMMER: I'm sorry. 23 May we display the cease and desist letter, or what is 24 called the cease and desist letter? 25 THE COURT: Does it have an exhibit number? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 110 84E5WAR4 Rowling - cross 1 THE DEPUTY CLERK: 14H. 2 MR. HAMMER: I think technology is overrated, I 3 just -- all right. 4 Q. So, this is a letter that you are referring to dated 5 October 11, 2007 that Mr. Rapoport in fact wrote to Warner 6 Brothers; isn't that correct? 7 A. I never saw this letter before this case but that's how it 8 appears, yes. 9 Q. Well, it is a letter that you testified about, isn't that 10 true? 11 A. No. 12 Q. This morning, this morning in your testimony -- 13 A. No. My belief that Mr. Vander Ark was looking for 14 financial recompense for what he represented as original work 15 on the time line was not based on ever having seen this letter. 16 It was information that I believe I got from Neil Blair, my 17 lawyer. 18 Q. This letter was in fact displayed to you this morning, 19 isn't that true? 20 A. Yes, that's true. 21 Q. Okay. And you were asked to read from that letter this 22 morning by your lawyer Ms. Cendali, isn't that true? 23 A. Yes, that's true. 24 Q. And, in this letter at the end of this letter Mr. Rapoport 25 says to Warner Brothers, You will surely agree it is only fair SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 111 84E5WAR4 Rowling - cross 1 and just that he -- that is Mr. Vander Ark -- receive 2 acknowledgment and tangible rewards for his contribution. 3 Isn't that true? 4 A. Yes. 5 Q. Okay. So acknowledgement, that's not in itself an 6 extortionate sum, is it? 7 A. No. 8 Q. And tangible reward is not an extortionate sum, is it? 9 A. Well, I don't know what Mr. Rapoport meant by tangible 10 reward so I can't judge. 11 Q. And Vander Ark has never asked you or your representatives 12 for a penny, has he? 13 A. Well, that's not quite true. He proposed himself as my new 14 editor in an e-mail that I believe was submitted in this case 15 so -- 16 Q. He asked to work for you and be paid for his work. That's 17 usually how it is done when you work for someone, isn't it? 18 MS. CENDALI: Your Honor, I object to Mr. Hammer not 19 letting Ms. Rowling get to answer his question before he starts 20 the next one. 21 THE COURT: Do you wish to add more to your answer? 22 THE WITNESS: Yes, please, your Honor. 23 I think your question was had he ever asked me for a 24 penny. Well, he certainly was asking me to pay him for his 25 services so he was asking for more than a penny, I would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 112 84E5WAR4 Rowling - cross 1 imagine. 2 Q. That's not illegitimate, is it, for someone to be asked to 3 be paid for his services? 4 THE COURT: Let me just understand. 5 He hadn't performed any services? 6 THE WITNESS: No. 7 THE COURT: It was to be. 8 THE WITNESS: Yes. 9 BY MR. HAMMER: 10 Q. He never asked you for a penny for the time line, isn't 11 that true? 12 A. I don't believe that he did, although the impression given 13 to me by my lawyer who had met with Mr. Vander Ark was that 14 Mr. Vander Ark was very keen to receive recompense in some form 15 for the time line. And I -- the impression I received is that 16 he was -- was that he was not fussy about where the recompense 17 came. 18 Q. You have never seen a letter or other document other than 19 this letter in which in request is made of anyone on earth for 20 money from that time line, have you? 21 A. Well, no. It is correct but I did hear about 22 conversations, several of them, that Mr. Vander Ark had with 23 Neil Blair. 24 Q. You complained that Mr. Vander Ark's etymology is sometimes 25 inaccurate, is that so? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 113 84E5WAR4 Rowling - cross 1 A. Yes, that is so. 2 Q. And one of the examples you gave was to spell alohomora? 3 A. That is correct, yes. 4 Q. And Mr. Vander Ark's derivation of alohomora came from the 5 Hawaiian word "aloha," correct? 6 A. Yes. 7 Q. And you disparage that because in fact you coined that word 8 from something in a West African dialect, right? 9 A. No. I didn't coin it. I used a term that's used in a form 10 of West African geomancy. 11 Q. You derived it from a West African geomancy you say? 12 A. Yes. 13 Q. That's not in the book in which "alohomora" appears, is it? 14 A. No. 15 Q. You have never given an interview in which you identify 16 that as the source of alohomora, did you? 17 A. I'm not sure that's true, actually, Mr. Hammer. I may well 18 have told a fan or two that fact but I don't believe that I've 19 ever said it on television. 20 Q. Mr. Vander Ark is not privy to every conversation that you 21 had have with a fan, correct? 22 A. Of course not. 23 Q. So there is no way that he could have known that you had 24 told a fan that alohomora derived from a word in a West African 25 language, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 114 84E5WAR4 Rowling - cross 1 A. Well, they said there is a much easier way to find out 2 where alohomora comes from and that's to do some actual 3 research. 4 Q. You never sent in to the Lexicon website a correction 5 saying: You've got this wrong, Steve. It doesn't come from 6 "aloha," did you? 7 A. Well, the answers on the Lexicon made it rather useful for 8 me to know what fans thought they knew so I wasn't in the 9 business of correcting Mr. Vander Ark's work. I was too busy 10 writing my own novels. 11 Q. But now you have some free time and you are willing to 12 correct his work? 13 A. I have no intention of correcting his work. I'm busy on my 14 own encyclopedia. 15 Q. In fact, when you write there are meanings that are 16 subconscious that are attached to terms that you use; isn't 17 that true? 18 A. Well, if they're subconscious I don't know how I would know 19 that. 20 Q. That's what we hope to go through here, the process of 21 therapeutic disclosure. 22 A. Oh. 23 Q. Sometimes things were pointed out to you about your work 24 that you didn't realize yourself, isn't that true? 25 A. It is true that a friend of mine, on one occasion, said to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 115 84E5WAR4 Rowling - cross 1 me, Do you not remember that we saw a plant called Hogwarts? 2 And I took her word for it. I don't remember but that could 3 well could have been a subliminal memory. So, if you are 4 talking about something like that, then I suppose so. 5 Q. But, it often happens in doing etymologies that people 6 suggest different sources for an unusual word, isn't that so? 7 A. Well, I would take issue with that really because in the 8 case of many of my made up words they have -- they are derived 9 from existing languages so it is not such a stretch to find out 10 what the underlying meaning is. It is not as though I threw 11 Scrabble letters up in the air and took what was formed there. 12 There is usually an underlying meaning. 13 Q. Let's turn to the example you gave of death. 14 You complained that Vander Ark's discussion of death 15 was too short, correct? 16 A. I think it is -- if this book is purported to be a guide, a 17 reference guide of any kind, then I think that that's one 18 particularly lamentable example of no commentary, true. 19 Q. Because death is in fact a major theme of your works, 20 correct? 21 A. Yes, that's true. 22 Q. But Vander Ark wasn't talking about the process of dying in 23 the Lexicon, was he? The entry that you displayed was about a 24 character named Death in one of your books, isn't that true? 25 A. I don't exactly understand your question. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 116 84E5WAR4 Rowling - cross 1 Q. Simple question. 2 There are two meanings to death: One is a character 3 in one of your books, one is the process of dying we all go 4 through. 5 A. I would actually say there are many more meanings of death 6 than just two. 7 Q. Well, fine. But the one I'm trying to hone in on that 8 Mr. Vander Ark referred to was the character Death in one of 9 your novels. Isn't that so? 10 MS. CENDALI: Objection. Objection. 11 THE COURT: Objection overruled. 12 A. He was undoubtedly destroyed by Death as a character as a 13 story within my story, of course, but -- 14 Q. So, there is much more to talk about than the process of 15 dying than a -- it is not really criticism about his entry 16 about a character? 17 A. Mr. Hammer, I don't think you have shown great familiarity 18 with my book. It is not that I am complaining that he doesn't 19 explain to the reader what it means for someone to die. That's 20 not my complaint in the slightest. 21 Q. Perhaps I misunderstood your testimony, Ms. Rowling. 22 I would like to go now to what you said about the fan 23 site. I think you said on several occasions that the fan site 24 was not useful to you at all; is that true? 25 A. No, that's not true. I -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 117 84E5WAR4 Rowling - cross 1 Q. Sorry. I don't mean to interrupt. 2 A. The fan site, the website, the Lexicon did have a use to me 3 but not the use I think that Mr. Vander Ark thinks it had to 4 me. 5 Q. I think you said this morning that the only reason you gave 6 it an award was that you were giving it an A for effort; isn't 7 that true? 8 A. Well, if you are talking about the fan site award, then 9 that is substantially the reason I gave for -- 10 MS. CENDALI: Again, your Honor. 11 THE COURT: Please don't interrupt the witness, 12 Mr. Hammer. 13 MR. HAMMER: Forgive me. If you want to repeat the 14 answer, please do. 15 A. It is true that the main reason I gave the fan site award 16 to the Lexicon was because I felt that it represented something 17 in terms of effort, yes. 18 Q. And, in fact, you disparaged the quality of the Lexicon, 19 isn't that true; the website Lexicon this morning in your 20 testimony? 21 A. Yes. 22 Q. And I believe if you will think back you did say on two 23 occasions that it was of no use to you, isn't that so? 24 A. I can't remember. I would need to see a transcript but I 25 would stand by the statement that it was not a useful reference SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 118 84E5WAR4 Rowling - cross 1 tool for me. 2 Q. Now, in 2004 I believe you testified you gave it a fan site 3 award, is that true? 4 A. I testified this morning that I gave it an award in 2004, 5 yes. 6 Q. And I would like you to look at that demonstrative on the 7 wall, I believe that contains the language of the -- 8 THE COURT: What is the exhibit number? 9 MR. HAMMER: I guess we will call it 601 for 10 identification, your Honor. 11 MS. CENDALI: Is that on the screen, Mr. Hammer? 12 MR. HAMMER: Yes, it is. 13 THE WITNESS: Yes, I have it. 14 THE COURT: Defendant's Exhibit? 15 MR. HAMMER: Defendant's 601, your Honor, yes; just 16 for identification. 17 Q. Now, if you want to read through it you will see, I 18 believe, that that is in fact taken from your website. Is that 19 correct? 20 A. That's absolutely correct, yes. 21 Q. And what you say in that award is this is such a great site 22 that I have been known to sneak into an internet cafe while out 23 writing and check a fact rather than go into a book store and 24 by a copy of Harry Potter, which is embarrassing. A website 25 for the dangerously obsessive; my natural home. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 119 84E5WAR4 Rowling - cross 1 That's your language, correct? 2 A. That's my language. 3 Q. That wasn't written by Mr. Vander Ark, was it? 4 A. Well, it probably will be at some point, but no, he hasn't 5 done it yet. 6 Q. But, in fact, aside from the witness it was written by you? 7 A. Not my be. 8 Q. Not by Ms. Cendali or any lawyer but by you? 9 And what you are saying there is that as you are 10 writing -- were you referring to writing your novels in an 11 internet cafe? 12 A. No, I don't write in an internet cafe but I -- I would be 13 out in Edinburgh in a cafe writing. 14 Q. And what would be the nature of a fact that you would want 15 to investigate at that stage? 16 A. Well, the truth is that I think -- I think twice I did go 17 into an internet cafe and I used the Lexicon but I used the 18 Lexicon so I could say I had used it, Mr. Hammer, because the 19 fact is that Harry Potter is so ubiquitous on the internet that 20 a Google search engine will give you the kind of information 21 that I was checking; which I know on one occasion was the 22 Christian name of an incidental character. 23 I didn't need the Lexicon specifically to tell me 24 that. I could have simply Googled it but because I knew of the 25 existence of the Lexicon. And because I had seen it and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 120 84E5WAR4 Rowling - cross 1 glanced at it, I wanted to say I had used it because I wanted 2 to do a nice thing and give him the award. Do I now regret 3 that? Yes, bitterly. 4 Q. Is that not in fact something that a fan could find useful 5 if he wanted to look up the Christian name of a minor 6 character, to use the Lexicon? 7 A. He could Google it the same as I did so I strongly suggest 8 the Lexicon was not necessary for that. 9 Q. If you had a lexicon book could he not use it in precisely 10 the way you used it, to look up the name of a minor character? 11 A. But, again, he would be much better advised getting a book 12 that had commentary in it rather than regurgitation of Harry 13 Potter. 14 Q. The book that you picked up in fact is not a comprehensive 15 encyclopedia of Harry Potter, is it? 16 A. If we define comprehensive Harry Potter encyclopedia, which 17 is inasmuch as I have gotten then, no, sir, David Colbert is 18 not. 19 Q. That's not how I was defining it. 20 A. Can you rephrase? 21 Q. I was defining encyclopedia of all the characters, major 22 and minor, in Harry Potter. Is that not such a book? 23 THE COURT: What is not such a book? 24 MR. HAMMER: The book by David Colbert that you just 25 picked up. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 121 84E5WAR4 Rowling - cross 1 MS. CENDALI: Objection to the form. 2 THE COURT: Of which book? Which book? Just so we 3 have -- we are talking about The Magical World of Harry Potter. 4 BY MR. HAMMER: 5 Q. Magical World of Harry Potter is not a comprehensive 6 encyclopedia of all the characters in Harry Potter, is it? 7 A. Well, I don't know it well enough to say whether it has all 8 my characters in it. 9 Q. What was the name of the character that you looked up that 10 day in the internet cafe? 11 A. I can't remember. But it was a -- I can't remember. But 12 it was a very incidental character, like a -- I think it was a 13 member of the Order of the Phoenix. 14 Q. None of the books that you mentioned today are books that 15 you did not challenge are comprehensive encyclopedias of the 16 characters of Harry Potter, are they? 17 A. Well, I don't have enough familiarity with these books to 18 say that. 19 Q. Well, you have enough familiarity to say that you approve 20 of them, that they're fine books; isn't that true? 21 A. I have enough familiarity to see that there is masses of 22 commentary there but I haven't -- I haven't combed them to see 23 whether every one of my characters is mentioned. 24 Q. Well, it doesn't take a long time to open those books and 25 see if they're a comprehensive listing of every character in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 122 84E5WAR4 Rowling - cross 1 the Harry Potter novels, why don't you do that; take them one 2 by one? 3 A. You would like me to do that now on the stand? 4 Q. Yes, I would like you to do that, please. 5 MS. CENDALI: Objection. 6 THE COURT: Objection overruled. 7 A. I have done one. Do you want me to do the rest? 8 Q. Well, I would like you to answer the book that you have 9 done. Would you identify it for us? 10 A. The Magical World of Harry Potter. 11 Q. Who is the author of that book? 12 A. David Colbert. 13 Q. That book does not in fact contain listings for all the 14 entries in the Harry Potter novel, isn't that true? 15 A. No, it doesn't. 16 Q. Now, why don't you go through the Idiot's Guide because you 17 look it so much. 18 A. I no longer have the Idiot's Guide with me. Sorry, I don't 19 have that one here on the stand. 20 Q. I usually carry it with me always. 21 MR. HAMMER: Your Honor, may I give this to the 22 witness? 23 THE COURT: Yes. 24 THE WITNESS: Thank you. 25 BY MR. HAMMER: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 123 84E5WAR4 Rowling - cross 1 Q. That book also, the Idiot's Guide also is not a 2 comprehensive listing of all the characters in your novels, 3 correct? 4 A. I would agree. 5 Q. Nor of the spells in your novels, correct? 6 A. I didn't check the spells. Would you like me to go back 7 through and look at the spells? 8 Q. Nor of the -- how about this, how about the beasts in the 9 books? That might be easier. 10 A. Well, it has a section on beasts. I don't know whether it 11 has every beast. I don't know. 12 Q. In fact, the encyclopedia sections of these books are a lot 13 shorter than the encyclopedia section of -- I'm sorry, Judge -- 14 the encyclopedia section of the Lexicon, isn't that true? 15 A. Yes. 16 Q. There are many fewer entries. 17 So, it is not -- because the encyclopedia sections are 18 shorter it is understandable that each individual entry might 19 be longer than the entries in the Lexicon, isn't that true? 20 MS. CENDALI: Objection. Argumentative. 21 THE COURT: Objection sustained -- objection 22 overruled. I'm sorry. 23 A. Mr. Hammer, to me you seem to be suggesting that what 24 Mr. Vander Ark has produced is an index, a simple listing of 25 everything in my books. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 124 84E5WAR4 Rowling - cross 1 Q. No, I'm not. I'm suggesting that it's -- I don't want to 2 get into an argument with you. The Lexicon describes itself as 3 an encyclopedia about the Harry Potter books, is that correct? 4 A. I know it describes itself that way, yes. 5 Q. And it has more than simply an index of names, isn't that 6 true? 7 A. It lifted my work wholesale, that's very true. 8 Q. Please, Ms. Rowling. Just say yes or no. 9 A. No, that wasn't a yes or no, Mr. Hammer. 10 Q. The Lexicon has entries under each listing in the text, 11 correct? 12 A. It has verbatim copying from my work under each entry. 13 Q. So you are saying that the entire Lexicon has simply 14 example of Xerox copying of the Harry Potter novels? 15 A. It is very slightly more than that. 16 Q. In any event it has text wherever the source of the text is 17 for every one of the characters of the Potter novels, as far as 18 you know, isn't that true? 19 A. Yes. And is that the best you can say for The Lexicon? It 20 has text? 21 Q. What I'm getting at now is that that amounts to hundreds 22 and hundreds and hundreds of entries within one book. Isn't 23 that true? 24 A. Yes. It was a lot of work. I remember doing it. 25 Q. Many times the number of entries in either of the books SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 125 84E5WAR4 Rowling - cross 1 that you have just looked at? 2 A. But -- 3 Q. Isn't that true? 4 A. Yes. 5 Q. That's all I'm asking, a simple quantification question. 6 A. Yes, but quantity is no guarantee of quality, is it? 7 Q. No, it certainly isn't, but quantity is an explanation why 8 individual entries might be shorter than individual entries in 9 a book with fewer entries; isn't that so? 10 A. I'm afraid I don't think that follows at all. 11 Q. In fact, there have been two other comprehensive 12 encyclopedias about Harry Potter and you've forced them both 13 off the market, haven't you? I would like to show you -- 14 THE COURT: Do you want an answer to that question or 15 not? 16 MR. HAMMER: I do, your Honor. Thank you. 17 A. I'm not sure what books you are talking about. I would 18 need to see -- 19 Q. Well, first let's look at 527, Exhibit 527, which is the 20 J.K. Rowling Encyclopedia by Connie Ann Kirk. 21 A. Thank you. 22 Q. Have you seen that book before? 23 A. I have seen it recently in the context of this lawsuit. 24 Q. It is about a 350-page book, is it not? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 126 84E5WAR4 Rowling - cross 1 Q. It seems to be -- 2 A. Appears to be. 3 Q. Seems to be the comprehensive encyclopedia of Harry Potter 4 novels, does it? A lot of entries? 5 A. I haven't read it so at a glance it looks very lexicon-like 6 in the sense it looks rather like the book we are here to 7 discuss. 8 Q. Now, in fact, when you looked at this book were you told 9 that your lawyers had forced this book to be withdrawn from the 10 market? 11 A. I was -- 12 MS. CENDALI: Objection. Privilege. 13 THE COURT: I don't know in what context she looked at 14 the book from whom so I can't rule on that objection. 15 BY MR. HAMMER: 16 Q. Are you aware, Ms. Rowling, that your lawyers wrote a 17 letter to the publisher of that book demanding it be taken out 18 of circulation? 19 A. I have not seen the letter but I am aware that my 20 representatives took action on this book. 21 Q. And I would like to read from the letter they wrote and ask 22 you whether or not you agree with the propositions that are 23 contained in it. It is Defendant's Exhibit 574, it is a letter 24 written by Ms. Cendali to the publisher of Greenwood Publishing 25 Group. And it says: The book appears to contain unauthorized SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 127 84E5WAR4 Rowling - cross 1 derivative material in violation of our client's intellectual 2 property rights. For example, the book purports to contain an 3 alphabetical glossary of fictional facts from the Potter books, 4 presumably with little or no independent analysis or 5 commentary, e.g. hundreds of alphabetically arranged entries on 6 Rowling's characters, themes, settings, motifs, spells, 7 positions, etc. 8 Then it goes on to say that this type of infringement 9 is particularly troublesome and inappropriate as Ms. Rowling 10 has long stated that she wants to create a companion book to 11 the series and perhaps donate such proceeds to charity. 12 Now, the proposition in that letter is that an 13 alphabetical glossary of characters, themes, is itself a 14 violation of your copyrights? Is that a proposition that you 15 agree with? 16 A. It is not a proposition. I don't think that's what 17 Ms. Cendali was saying, that an alphabetical arrangement is, 18 per se, damaging to me or anyone else. 19 It so happens -- and I think I testified this 20 morning -- that an alphabetical rearrangement is the laziest 21 way to rearrange and sell my work. 22 Q. Well, it is a lazy way but it is a very useful way to 23 readers, isn't it? 24 A. In what way? 25 Q. It is easy to get information in alphabetical listing, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 128 84E5WAR4 Rowling - cross 1 isn't it? 2 A. I don't understand. Why -- how would I -- I don't 3 understand how I would use this book as a reader. 4 Q. Have you ever used a dictionary, Ms. Rowling? 5 A. You are telling me Mr. Vander Ark is going to teach me how 6 to spell? 7 Q. I'm telling you the dictionary uses A to Z listings. 8 A. Yes, but I think that's slightly different. 9 Q. Talking simply about the purpose of an A to Z listing. You 10 say you think it is a lazy way to arrange things. I'm asking 11 isn't that a useful way to arrange things? It is what the 12 dictionary uses, isn't that true? 13 A. Yes. 14 Q. It is what the Encyclopedia Britannica uses, isn't that 15 true? 16 A. Definitely what the encylcopedia Britannica uses. 17 Q. And that is because it is an easy way for ordinary reader 18 to access information? 19 A. To access information, yes. 20 MS. CENDALI: Objection, your Honor. Would Mr. Hammer 21 please let Ms. Rowling finish her answers before he starts 22 asking? 23 THE COURT: Please, let her finish. 24 MR. HAMMER: Yes. 25 A. Mr. Hammer, you said to access information. I think that's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 129 84E5WAR4 Rowling - cross 1 what -- part of the reason we are all here, isn't it? 2 What are you accessing in these A to Zs? You are 3 accessing my words lifted verbatim. And you, on the Harry 4 Potter books, aren't you being suckered out of your hard-earned 5 cash? 6 Q. You feel that it is your responsibility to prevent people 7 from paying their hard-earned cash for things you don't like? 8 A. Absolutely not. 9 Q. But you don't like the Lexicon, correct? 10 A. I don't like it. 11 Q. You don't think it is a good book? 12 A. Correct. 13 Q. You think the etymologies could have been better done? 14 A. To say the least. 15 Q. You could have simply said on the publication of the 16 Lexicon I don't like this book, couldn't you? 17 A. It is not only about that, Mr. Hammer, and you know that. 18 This is -- this is theft. This is, wholesale, is 19 theft. This is -- of course it is nonsensical to suggest that 20 I think I have the right to stop a book because I might not 21 like it. There are -- there are books out there that I -- I 22 don't agree with conclusions and I think that they could have 23 been done better but, of course, they're not infringing my 24 rights. I have made no attempt to stop them being published. 25 Q. Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 130 84E5WAR4 Rowling - cross 1 Is it true that you had your lawyers stop the 2 publication of a book by the staff of Mugglenet this last year? 3 A. I know that my -- I know that my lawyers asked them to, I 4 think, not to proceed with plans to produce a book very like 5 the Lexicon. 6 Q. And that was a book that hadn't even been written yet, 7 isn't that true? 8 A. Yes, it was. And Mugglenet had done us the courtesy I 9 think of -- I may be wrong, but I believe that we have already 10 had -- always had a very good relationship with Mugglenet. 11 They have already published one Harry Potter book that was very 12 good. And they were very open about their plans and I believe 13 my representatives said it sounded like an infringing book and 14 that was the end of it. 15 Q. I think your testimony was, though, that you don't see it 16 as your role to tell people not to write books just because you 17 don't like them. Isn't that so? 18 A. That's so. 19 Q. I would like you to turn to Exhibit 567 -- Defendant's 20 Exhibit 567, which is a letter that Ms. Cendali wrote to an 21 attorney for the publisher of that Mugglenet book. 22 THE COURT: Can we have dates on these letters? 23 MR. HAMMER: Yes, sir. That letter is dated June 24 20th, 2007. 25 Q. The letter starts off as noting that, We are writing in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 131 84E5WAR4 Rowling - cross 1 response to your letter -- that is, the lawyers for Mugglenet's 2 letter -- confirming that your client Ulysses Press is 3 considering the publication of a new work of commentary and 4 criticism. 5 MS. CENDALI: Objection. Can you put the exhibit 6 before the witness? I don't believe she has a copy. It is not 7 on the monitor. 8 THE COURT: The Court doesn't have a copy either, 9 Mr. Hammer. 10 MR. HAMMER: Okay. Does the Court not have our 11 exhibits? Do you both have the letter? 12 THE COURT: Yes, sir. 13 Q. So, the first paragraph starts off by noting that Mugglenet 14 people said this was going to be a work of commentary and 15 criticism. Is that true? 16 A. I'm sorry. Where are you reading from? 17 Q. I'm sorry. From the very first paragraph. 18 A. Oh, yes. I see, yes. 19 Q. Now, commentary and criticism, normally you would agree, is 20 acceptable; correct? 21 A. I would, yes. 22 Q. The letter then goes on in the third paragraph to state: 23 We reiterate that the issue of Harry Potter companion books is 24 particularly troubling to Ms. Rowling who has publicly stated 25 that it is her intention to write a definitive companion book SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 132 84E5WAR4 Rowling - cross 1 with commentary herself and to donate the proceeds from the 2 sale of such book to charity. 3 Then on the next page: As a result, not only is 4 Ms. Rowling concerned that the book may be an infringement of 5 her rights, but that it might be quite similar to her intended 6 companion book and may, therefore, diminish its charitable 7 proceeds. She therefore requests that regardless of any 8 discussion of the respected legal positions, as a courtesy to 9 her and out of respect to her wishes (and charitable design), 10 Ulysses Press and the authors refrain from publishing the book. 11 So, here is an example in which you asked these people 12 not to write a book simply because you didn't want them to 13 write the book? 14 MS. CENDALI: Objection. Foundation. 15 MR. HAMMER: Foundation. It has just been read out. 16 MS. CENDALI: She hasn't even seen the letter. 17 THE COURT: Isn't the letter displayed in front of 18 her? 19 THE WITNESS: It is. It is, your Honor. 20 MS. CENDALI: I meant before. 21 THE COURT: I'm sorry. It is displayed, Ms. Cendali. 22 BY MR. HAMMER: 23 Q. When Ms. Cendali said that, "Ms. Rowling requests," had she 24 spoken to you and asked if that was your request? 25 A. Not directly, no. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 133 84E5WAR4 Rowling - cross 1 Q. So she simply invented the notion that that's what you 2 wanted her to do? 3 A. Mr. Hammer, I'm -- 4 THE COURT: Just a yes or no answer. 5 THE WITNESS: No, she did not invent it but, your 6 Honor, I -- 7 BY MR. HAMMER: 8 Q. Is Ms. Cendali empowered on her own to force books or 9 demand that books be taken off the market without consulting 10 you first? 11 A. My representatives do not consult me every time such a 12 matter comes up, Mr. Hammer. 13 Q. Is she empowered to say that you have personally said that 14 you want such a book taken off the market without asking if 15 that's what you said? 16 A. Is she -- sorry. Could you repeat that question? 17 Q. The letter says Ms. Rowling wants this. Is she empowered, 18 Ms. Cendali empowered? 19 THE COURT: Are you going to repeat the question or -- 20 Q. The letter states that: Ms. Rowling requests that 21 regardless of any discussion of the respective legal positions, 22 as a courtesy to her and out of respect for her wishes (and 23 charitable designs), Ulysses Press and the authors refrain from 24 publishing the book. 25 Now, in that sentence Ms. Cendali has attributed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 134 84E5WAR4 Rowling - cross 1 certain desires and certain requests to you, is that correct? 2 A. Yes. Yes, that is correct. Yes. 3 Q. And you say that she had not in fact spoken to you when she 4 wrote that letter? 5 A. She didn't need to speak to me. It is absolutely the case 6 that I would have -- had I spoken directly to Mugglenet I would 7 have said to them -- not in legalese -- but I would have said 8 you know that I want to do my own encyclopedia, please -- 9 please, don't do this. 10 I would have said that directly to them. 11 Q. So, have you given Ms. Cendali guidelines to follow in 12 determining what books to demand be removed from the market? 13 A. I haven't given her guidelines. She follows the law. 14 Those are the guidelines. I said it is not -- 15 Q. In that letter Ms. Cendali states that you requested that 16 the Mugglenet manuscript not be published, correct? 17 A. Correct. 18 Q. You say that you did not discuss this with Ms. Cendali, 19 correct? 20 A. Correct. Although I -- I'm sorry, Mr. Hammer, but to, the 21 only lawyer with whom I have regular contact is -- 22 THE COURT: Just answer the question yes or no if you 23 possibly can, Ms. Rowling. 24 A. It is, no, I didn't discuss it with Ms. Cendali. 25 Q. So Ms. Cendali, on her own, decided to simply write to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 135 84E5WAR4 Rowling - cross 1 these people saying you wanted them to remove that book from 2 the market? 3 A. Well, I can't -- I can't answer for what Ms. Cendali was 4 thinking, but it is my belief that my representatives, as a 5 matter of course, would protect my copyright. 6 Q. Well, this was a book on commentary and criticism, isn't 7 this true? 8 A. Well, I never saw it so I don't know that it is described 9 thus in this letter. 10 Q. And commentary and criticism, I believe you will concede, 11 is fair use? 12 A. Genuine commentary and criticism is fair use. 13 Q. So that book would not be an infringement of your 14 copyright, correct? 15 A. Well, I don't know because it never existed so how can I 16 judge that. 17 Q. So you demand that all possible books be suppressed because 18 one of them may conceivably violate your copyright? 19 A. No, Mr. Hammer. 20 Q. Why did you not wait until the book did exist to decide if 21 it infringed a copyright? 22 A. I don't really know how to answer that. Ms. Cendali 23 approached Mugglenet and we have seen and asked them 24 courteously to not proceed with what she felt would be an 25 infringing book -- and they were kind enough to do so. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 136 84E5WAR4 Rowling - cross 1 Q. Isn't it true that in fact what Ms. Cendali's brief is, is 2 to force the removal of any book that might conceivably compete 3 with a companion book that you one day might want to write? 4 A. Absolutely not. 5 We have seen there are a hundred books out there. 6 Some of them are guides, encyclopedias. Some of them are 7 great. Some of them, in my view, are less great, but they're 8 all legitimate and they've been published. 9 And, Mr. Hammer, we have seen what's published in the 10 states. Worldwide it amounts to thousands of books about Harry 11 Potter that have not been, in your words, forced off the market 12 by anyone. 13 Q. We saw this morning some titles like Harry Potter and the 14 Talmud, correct? 15 A. And the? 16 Q. Talmud. 17 A. Yes, yes. 18 Q. You were never going to write a book on Harry Potter and 19 Judaism, right? 20 THE COURT: And what? 21 Q. It was never her intention to write a book about Harry 22 Potter and the Talmud, isn't that correct? 23 A. I regret to say that is the case. 24 Q. So that book, in fact, was not going to compete with any 25 books that you intended to write; true? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 137 84E5WAR4 Rowling - cross 1 A. True. 2 Q. So, the fact that you allowed that book to be published 3 doesn't indicate anything at all about whether or not you 4 tolerate books that may be in competition with yours? 5 A. Mr. Hammer, you are a lawyer so of course you're going to 6 pick that example, but a looking at The Magical World of Harry 7 Potter is a guide of precisely the same type as the one that I 8 intend to write and I think is a good one. 9 Q. Actually, Ms. Rowling, you picked that example. 10 A. I picked which example. 11 Q. Harry Potter and the Talmud. That's how I saw it, it was 12 up on your screen. 13 THE COURT: I'm sorry. Have you got a question or is 14 that just a commentary? 15 MR. HAMMER: That was just a snide remark. 16 Q. All right, I would like to show you a book by Fionna Boyle. 17 May I, your Honor? It is 521. 18 THE COURT: We don't have that. 19 BY MR. HAMMER: 20 Q. Have you seen that book before, Ms. Rowling? 21 A. I don't think I have. 22 Q. Very well. I don't have any questions about it. 23 I would like to go over some of the display material 24 that you showed this morning. The first one, you made a 25 display of the Brain Room. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 138 84E5WAR4 Rowling - cross 1 THE COURT: When you move away from the podium it is 2 hard for the Court Reporter and myself to hear you. I won't go 3 into the reason. 4 BY MR. HAMMER: 5 Q. In the Brain Room. 6 We have presented a display which shows both the text 7 from the Harry Potter novel, the text from your chart that you 8 say overlaps with the text from the novel, and then the large 9 text of the entire lexicon. So, if you would look at that and 10 if you want to have the Lexicon by hand to check if we have 11 accurately displayed the entire text of the Lexicon, you may. 12 Do you have the Lexicon? Do you have a copy there of 13 your own? 14 A. I do. I have a Lexicon here, yes. 15 Q. If you want to check on the Brain Room entry you can, but 16 the one on the right-hand side is the entire text of the 17 Lexicon. 18 This morning you pointed out that the entry in -- part 19 of the entry in the Lexicon seemed to overlap with language 20 from the Order of the Phoenix and the language in the Order of 21 the Phoenix that you quoted was: "What looked like ribbons of 22 moving images flew from it unraveling like rolls of film," 23 correct? 24 A. Yes, correct. 25 Q. And the portion you said that left -- was highlighted and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 139 84E5WAR4 Rowling - cross 1 it goes, "the brains fly out of the tank unspooling ribbons of 2 thought like strips of film." 3 So that phrase, "unspooling ribbons of thought like 4 strips of film," is the overlapping phrase, correct? 5 A. There is more than that phrase in that entry. 6 Q. Okay. But, in fact, there is more to that entry than 7 simply that phrase? 8 A. It is lifted. May I show you where? I'm ready -- 9 Q. You may. 10 A. "A long rectangular room," my language. 11 "Low-hanging lamps," my language. 12 "Huge tank of greenish liquid," my language. 13 At -- towards the end of the entry, "which Wrap 14 themselves around the summoner and cause quite a bit of 15 damage," that's not my language. 16 And then, "As Pomfrey says, thoughts can leave deeper 17 scarring than almost anything else," my language. 18 So, in fact, I highlighted just the one phrase that I 19 thought was particularly -- a particularly shameless example of 20 copying because it was an unusual image but, in fact, nearly 21 all of that entry is taken, Mr. Hammer, from my work. 22 Q. You say that "long rectangular room" is your language? 23 A. Well -- 24 Q. Well that's what you just said, isn't it? 25 A. It is, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 140 84E5WAR4 Rowling - cross 1 Q. You find that a particularly distinctive phrase? 2 A. No. That's why I didn't copy it into the chart. But you 3 are claiming that long rectangular room adds value. 4 Q. You don't know what I'm claiming. I haven't asked you a 5 question. 6 A. Please ask me a question. 7 Q. I'm claiming that the phrase that you said quoted 8 definitive J.K. Rowling language is highlighted, correct? 9 A. One of the -- 10 Q. You did not include the rest of the that section, is that 11 correct? 12 A. I literally did not have time. I didn't include it because 13 I didn't have time. 14 If I listed every example of Mr. Vander Ark lifting or 15 minimally paraphrasing my work my daughter and would I have had 16 to sit at the dining room table for a week. I did not have the 17 time. 18 Q. May we show the next one? 19 This is armor, goblin-made armor. And we have in your 20 testimony you complain that the highlighted phrase on the right 21 had not been placed in quotation marks? 22 THE COURT: What is the exhibit number, please? 23 MR. HAMMER: This actually is, it is called the 602, 24 it is a demonstrative. Defendant's Exhibit 602. It will not 25 be entered into evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 141 84E5WAR4 Rowling - cross 1 THE COURT: All right. 2 BY MR. HAMMER: 3 Q. Once again we have in the middle section the text that you 4 quoted in your Exhibit 47 from your own novels. The right-hand 5 section highlighted the text that you complained about from the 6 Lexicon? 7 MR. SHALLMAN: Do you have a copy for the plaintiffs? 8 MR. HAMMER: I'm afraid we don't. You can look on, 9 though. 10 THE COURT: When you move away we don't hear you. The 11 loud speakers were built in this courtroom to start over 12 counsel's table and so you have got to stay at the podium, 13 Mr. Hammer. Nor does it register in the other courtroom 14 downstairs for the overflow. 15 BY MR. HAMMER: 16 Q. I believe that you complained this morning that the 17 highlighted portion of that text, "goblin-made armor does not 18 require cleaning because goblin silver repels mundane dirt, 19 imbibing only that which strengthens," this had not been placed 20 in quotation marks is that true? 21 A. Yes. Yes, sir that true. 22 Q. In fact, the portion of the Lexicon that you did not 23 include in your entry states: According to Phineas Nigellus, 24 goblin-made armor does not require cleaning. 25 Isn't that true? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 142 84E5WAR4 Rowling - cross 1 A. No, sir, that's so -- that's a trick that Mr. Vander Ark 2 uses quite a lot. He thinks that putting in 'according to a 3 fictional character' means that anything that follows that does 4 not need to be in quotation marks. 5 Q. Is that the slightest doubt in the mind of a reader? Do 6 you think that that is a quotation when it is preceded that 7 way, "As according to Phineas Nigellus"? 8 A. I definitely think that there is a doubt. Just because it 9 says "According to" there is -- unless there are quotation 10 marks around it why would any reader not think that the phrase 11 is Mr. Vander Ark's rather than mine? 12 Q. Why would you leave out "According to Phineas Nigellus" in 13 trying to list this, that one, without quotation marks? 14 A. Mr. Hammer, I didn't have time. If I listed literally 15 every sample of copying I would not -- I would have been a week 16 at this job. 17 Q. You did not have time to write those four words: 18 "According to Phineas Nigellus?" 19 A. Do you really think that makes a difference? 20 Q. I certainly do. It makes it an indirect quotation. 21 THE COURT: Please, let's go on. Let's not have an 22 argument. 23 MR. HAMMER: Can I just have a second? 24 THE COURT: Sure. 25 Q. Can we show the Voldemort exhibit that you looked at this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 143 84E5WAR4 Rowling - cross 1 morning? 2 THE COURT: Do you have a number? If so, make a 3 record. 4 MR. HAMMER: It was Plaintiff's Exhibit. 5 MS. CENDALI: It would be Exhibit 1 if 2 were the 6 Lexicon. 7 BY MR. HAMMER: 8 Q. Now, Ms. Rowling, you complained that the entry on 9 Voldemort was a plot summary, correct? 10 A. Yes. 11 Q. Voldemort, by the way, is one of the major figures in the 12 Potter novels? 13 A. Correct. Yes. 14 Q. So, on its face it is not surprising that one of the 15 longest entries in the Lexicon should be devoted to Voldemort, 16 correct? 17 A. I would expect one of the longer entries to be on 18 Voldemort, that's correct. 19 Q. Now, the first paragraph of the entry on Voldemort goes: 20 Tom Marvolo Riddle was the son of Merope Gaunt, a descendent of 21 the Salazar Slytherin and Tom Riddle, a handsome, wealthy 22 Muggle from Little Hangelton who Merope ensnared with a love 23 position. When her husband found out she was a witch, he 24 abandoned her while she was pregnant. 25 And that is -- what the heck is (HBP 10)? Half-Blood SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 144 84E5WAR4 Rowling - cross 1 Prince? Okay. Chapter 10. She died shortly after giving 2 birth to Tom. 3 Half-Blood Prince is what? Is the sixth book in the 4 series? 5 A. That's correct. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 145 84EVWAR5 Rowling - cross 1 Q. Voldemort appears, what, in the second book in the series? 2 A. He appears in the first book. 3 Q. In the first book. So if this were simply a plot summary, 4 it would be arranged by the order that the stuff arises in the 5 plot, isn't that correct? It would start with, as plot 6 summaries do, with Book 1, Voldemort first appears. 7 A. Mr. Hammer, I truly -- of course a summary doesn't have to 8 be chronological. 9 Q. Isn't a plot summary, in fact, usually a tracking of the 10 plot? If you buy a pony, for example, in a store that talks 11 about the plot of War and Peace, doesn't it usually start with 12 the first scene in War and Peace? 13 A. Yes, but that's describing a book. As he's describing a 14 character, he has, of course, rearranged -- which is all he 15 ever does -- rearrange my fictional facts chronologically in 16 terms of the character's history. 17 Q. And doesn't that, in fact, turn it into other than a plot 18 summary? 19 A. What does it turn it into? 20 Q. Into a character description. 21 A. This doesn't describe a character; it simply says what a 22 character did. There's no -- 23 Q. But it rearranges the plot in order to do that, isn't that 24 true? It starts with something that happens in the sixth book, 25 not the first book. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 146 84EVWAR5 Rowling - cross 1 A. Please show me in the century where he discusses the 2 psychology, the mythology, the archetype, please show me in the 3 century where he does any of those things except just say 4 Voldemort did this and this and this and this. 5 Q. Ms. Rowling, my question was only isn't this different than 6 a simple plot summary, isn't that true? 7 A. You believe so, but I don't. 8 Q. This starts with nearly the end of the series; that is not 9 what a plot summary usually does, is it? 10 A. It so happens in Book 6 for the first time you have 11 Voldemort's pre-story; therefore, he has chosen to start, 12 predictably, with a pre-story. Subsequently, he goes through 13 Books 1 to 7. 14 MR. HAMMER: I have no further questions of 15 Ms. Rowling, your Honor. 16 DIRECT EXAMINATION 17 BY MS. CENDALI: 18 Q. Ms. Rowling, there was a lot of discussion about a letter 19 that I sent. Who normally instructs me on your behalf? 20 A. Neil Blair, who works at my literary agency. 21 Q. And as far as you know, have you ever acted in any way to 22 stop a book that did not infringe your copyrights? 23 A. Definitely not. 24 Q. Now, counsel asked you some questions about usefulness and 25 whether the lexicon could be useful in some sort of a way. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 147 84EVWAR5 Rowling - redirect 1 What is your view of that? 2 A. If you've already read the Harry Potter books, then I do 3 not believe that the lexicon gives you anything of value. It 4 simply tells you what you will already know, because you read 5 the Harry Potter books. 6 Q. Now, what does the lexicon do, if anything, in terms of 7 letting you find where characters appear in your books? 8 A. It is useless as a serious tool. For example, if you look 9 up a character to discover where they first appear, you will 10 frequently not find that information. Gilderoy Lockhart, the 11 entry of Gilderoy Lockhart is a prime example. He is a 12 character who appears throughout the second book, Chamber of 13 Secrets, and only once subsequently in the series. And Chamber 14 of Secrets isn't mentioned once in his entry. So it's not only 15 it's not exhaustive, it doesn't tell you every place that a 16 person appears. It doesn't mention the first place frequently 17 that a person appears, which people might want to look up, I 18 suppose. And it occasionally misleads. 19 Q. Does it give you the page numbers where -- 20 A. No page numbers. Only refers to the chapters. 21 Q. And you mentioned errors. You were asked about the 22 Alohomora entry. Are there other errors in the lexicon that 23 you noticed? 24 A. There are many, actually. And some of them are 25 mistranslations. For example, patronus the Latin word patronus SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 148 84EVWAR5 Rowling - redirect 1 is mistranslated. I think Mr. Vander Ark says it means patron 2 saint; it means guardian, protector. And it also has an 3 association, which one of these books has picked up on, with 4 the word pater, father, which is relevant to Harry, as he has 5 the same guardian as his father. 6 But there are more serious, to me, more serious 7 mistakes in the Lexicon. On the few places where Mr. Vander 8 Ark cannot simply copy and attempt to explain a concept, a 9 larger concept that cannot be lifted from the few lines in the 10 book, I counted, I think, four or five places where he attempts 11 to do that. And on every occasion he gets it wrong. 12 He literally has not understood -- for example, he 13 does not understand how Harry survived the final dual with 14 Voldemort, which I think is a very serious error. This is not 15 a small matter of an etymology that he's mistakenly ascribed as 16 Hawaiian. 17 Q. What did he get wrong? 18 MR. HAMMER: This is not redirect. None of this was 19 touched upon in cross. 20 MS. CENDALI: You asked about it error. 21 MR. HAMMER: I asked about specific errors; nothing 22 that you're now eliciting. 23 THE COURT: It does seem to be beyond the scope. 24 MS. CENDALI: You asked about errors in the Lexicon. 25 I'll move on, your Honor, but I'd like you to at least tell us SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 149 84EVWAR5 Rowling - redirect 1 what he got wrong; I think everyone is interested in hearing. 2 THE COURT: All right. I'll allow you to go ahead. 3 A. Mr. Vander Ark asserts that Harry survived the final dual 4 with Voldemort because Voldemort's wand wouldn't work against 5 him. This is not correct. He's missed the key point. 6 The key point is that Voldemort is keeping alive in 7 his own body the sacrifice that Harry's mother made for him 8 17 -- 16 years previously. 9 I could go into detail, but I think that... 10 Q. Thank you. Mr. Hammer occasionally interrupted you, 11 Ms. Rowling. Is there anything else that you wanted to say 12 that you did not have a chance to respond to? 13 A. I don't think so. I think I've said my piece. 14 MS. CENDALI: Thank you, your Honor. 15 MR. HAMMER: Nothing further, your Honor. 16 THE COURT: Thank you very much. 17 THE WITNESS: Thank you. 18 (Witness excused) 19 MR. SHALLMAN: Your Honor, plaintiffs call Roger 20 Rapoport. 21 MS. HASSE: Excuse me. If my client go to the 22 bathroom first. 23 MR. HAMMER: May we have a break, your Honor, first? 24 THE COURT: All right. Five minutes. Ten minutes. 25 MR. SHALLMAN: Thank you, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 150 84EVWAR5 Rowling - redirect 1 (Recess) 2 MR. SHALLMAN: Your Honor, the plaintiffs call Roger 3 Rapoport. 4 ROGER RAPOPORT, 5 called as a witness by the Plaintiffs, 6 having been duly sworn, testified as follows: 7 THE DEPUTY CLERK: Please be seated and pull that 8 chair as far forward as you can. Keep your voice up so the 9 microphone will pick it up. 10 Please state your name, spell your last name slowly 11 for the record please. 12 THE WITNESS: Roger Rapoport, R-A-P-O-P-O-R-T. 13 DIRECT EXAMINATION 14 BY MR. SHALLMAN: 15 Q. Good afternoon, Mr. Rapoport. 16 A. Good afternoon. 17 Q. My name is Dan Shallman, I'm one of the lawyers for Warner 18 Brothers and Ms. Rowling. 19 You are the president of the defendant RDR Books, is 20 that right? 21 A. Yes. 22 Q. And RDR is a book publisher based in Michigan, is that 23 right? 24 A. Yes. 25 Q. And you are the one who is seeking to publish the Harry SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 151 84EVWAR5 Rapoport - direct 1 Potter Lexicon by Steve Vander Ark, is that right? 2 A. Yes. 3 Q. And, Mr. Rapoport, I think you probably remember your 4 lawyer, Mr. Hammer, stand up this morning and say, You're the 5 reason why we're all here, right? You remember him -- 6 A. I heard him say that. 7 Q. You would agree that Ms. Rowling is the reason we're all 8 here, wouldn't you? 9 THE COURT: Let's go on. Just go on. 10 Q. Mr. Rapoport, do you remember you entered into an agreement 11 with Mr. Steve Vander Ark on August 23rd of 2007, do you recall 12 that? 13 A. Yes. 14 Q. I want to take you back to when you first met Mr. Vander 15 Ark. I'd like to place on the screen Plaintiffs' Exhibit 86. 16 Do you recognize Plaintiffs' Exhibit 86, sir? 17 A. I do. 18 Q. What is it? 19 A. It's a letter to Steve Vander Ark. 20 Q. This was an email dated August 6, 2007 from you to 21 Mr. Vander Ark, correct? 22 A. Yes. 23 Q. You were introducing yourself to Mr. Vander Ark, right? 24 A. Yes. 25 Q. Good morning. I'm a book publisher based in Muskegon, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 152 84EVWAR5 Rapoport - direct 1 correct? 2 A. Yes. 3 Q. And you said that you would like to talk to him about the 4 Harry Potter Lexicon, right? 5 A. Correct. 6 Q. And that does appear to be your first attempted contact 7 with Mr. Vander Ark, correct? 8 A. Yes. 9 Q. Now, you did submit a declaration in this case? 10 A. Yes. 11 Q. And according to your declaration, you contacted Mr. Vander 12 Ark after you read a story in your local newspaper, do you 13 remember that? 14 A. Yes. 15 Q. And that newspaper was The Muskegon Chronicle, right? 16 A. Correct. 17 Q. And you said in your declaration you read that article in 18 August, right? 19 A. I'm not sure of the exact date of the publication, but 20 obviously I read it before I wrote this email, and it was not 21 too long before. 22 Q. All right. Well, just so we're clear on this, let's put up 23 Exhibit 501, paragraph 4, which is your declaration. And here 24 you say, In August of 2007, I read a newspaper article in The 25 Muskegon Chronicle about Steve Vander Ark. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 153 84EVWAR5 Rapoport - direct 1 A. Right. That's what I wrote, yes. 2 Q. Okay. Now, I'd like to direct your attention now to 3 Plaintiffs' Exhibit 77. And you see a cover there, The 4 Muskegon Chronicle, from July 23rd, 2007? 5 A. Correct. 6 Q. And I'd like to -- if Mr. Hoy, if you can go to the next 7 page of that exhibit. 8 Do you see an article there titled "Schlumpy Librarian 9 Holds Key to All Things Harry Potter"? 10 A. Right. 11 Q. This is the article that you saw that you're testifying 12 that led you to reach out to Mr. Vander Ark, is that right? 13 A. That's right. 14 Q. And the date again, that's July 23rd, right? 15 A. That's the date on the newspaper, yes. 16 Q. Okay. And do you recall, sir, that that was just a couple 17 of days after Ms. Rowling released her final book in the Harry 18 Potter series? 19 A. I believe so. 20 Q. And you learned from this article about Mr. Vander Ark that 21 he had become somewhat of a celebrity in the Harry Potter fan 22 community, right? 23 A. Correct. 24 Q. And again, sir, you remember -- I want to sort of take you 25 back to this period of time here, summer '07. You remember SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 154 84EVWAR5 Rapoport - direct 1 there was a tremendous amount of excitement about the Harry 2 Potter release in the publishing world, right? 3 A. Correct. 4 Q. And you were aware, certainly, that the Harry Potter books 5 had been enormously successful, right? 6 A. Yes. 7 Q. And, in fact, so when you saw this article, said, maybe I 8 should reach out to this guy, right? 9 A. Yes. 10 Q. Maybe there's a publishing opportunity there for me, right? 11 A. Yes. 12 Q. And you thought he might actually be interested in 13 publishing a Harry Potter encyclopedia based on his web site, 14 right? 15 A. Yes. 16 Q. And you went to his web site before you reached out to him, 17 correct? 18 A. Yes, I went to his web site. 19 Q. Now, there were a couple weeks though between the time this 20 article appeared, July 23rd, 2007, and the date when you 21 actually contacted him for the first time on August 6th, right? 22 A. Yes. 23 Q. And, sir, you had been in the publishing business for many 24 years, right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 155 84EVWAR5 Rapoport - direct 1 Q. And you follow -- I assume you follow the news in the 2 publishing world, right? 3 A. Yes. 4 Q. And you knew that the release of the Harry Potter seventh 5 book, that was big news, right? 6 A. Yes. 7 Q. And I want to direct your attention now to Plaintiffs' 8 Exhibit 14-I, and the ninth page of that exhibit. We placed on 9 the screen there -- 10 THE COURT: You'll just have to wait a second. 11 MR. SHALLMAN: Oh, sure, your Honor. 12 THE COURT: 14-I? 13 MR. SHALLMAN: Yes, your Honor. 14 THE COURT: Thank you. 15 MR. SHALLMAN: 14-I, your Honor, is a series of 16 newspaper articles. 17 THE COURT: I've got it. 18 MR. SHALLMAN: We're on the ninth page. 19 BY MR. SHALLMAN: 20 Q. Mr. Rapoport, do you see an article from the UPI Wire 21 Service from July 26, 2007? 22 A. Yes. 23 Q. Okay. And that's a couple of days after this article about 24 Mr. Vander Ark appeared, right? 25 A. Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 156 84EVWAR5 Rapoport - direct 1 Q. And do you see where it says, Harry Potter creator J.K. 2 Rowling says she's planning an encyclopedia of the world of 3 wizardry she created. The British author isn't ready to write 4 it yet. Did you see that? 5 A. Yes. 6 Q. And did you see that article before you contacted 7 Mr. Vander Ark? 8 A. No. 9 Q. Let's take a look at page 13 of that exhibit. This is a 10 Reuters story from July 27, 2007. Do you see that? 11 A. I do. 12 Q. And I think we need to go to the second page of that. Do 13 you see there there's a quote from someone that says, We now 14 know J.K. Rowling is planning to write a Harry Potter 15 encyclopedia, someone named Mr. Sparts? 16 A. Right. 17 Q. Do you see that? 18 A. Right. 19 Q. Did you see this article before you -- 20 A. No. 21 Q. -- contacted Mr. Vander Ark? 22 A. No. 23 Q. And did you ever watch The Today Show, sir? 24 A. No. 25 Q. Countdown with Keith Olbermann? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 157 84EVWAR5 Rapoport - direct 1 A. No. 2 Q. NBC Nightly News? 3 A. Sometimes. 4 Q. You do pay attention to the news though, right? 5 A. Yes. 6 Q. You've been a reporter, correct? 7 THE COURT: Question whether that's news, but go 8 ahead. 9 A. What are you seeking? 10 Q. You've been an author, you follow the news, right? 11 A. Are you asking me a specific question? 12 Q. I am. 13 THE COURT: Talk shows are not news. 14 A. What is the question you are asking me? 15 Q. I'm not asking you about any specific program right now. 16 A. You want to know my -- 17 Q. In general you follow the news, right? 18 A. I follow the news. 19 Q. Okay. And sometimes you may even watch the NBC news, 20 right? 21 A. Sometimes. 22 Q. Okay. You may even see The Today Show? 23 A. No. 24 Q. Never? 25 A. I don't watch The Today Show. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 158 84EVWAR5 Rapoport - direct 1 Q. Well, sir, did you happen to hear, as was announced 2 frequently during this time period, that Ms. Rowling was 3 planning to do her own Harry Potter encyclopedia? 4 A. I don't recall hearing about it. 5 Q. And, sir -- but you waited; you didn't contact Mr. Vander 6 Ark until August 6, right? 7 A. Yes. 8 Q. So there were a couple of weeks there where you didn't 9 reach out to him, right? 10 A. That's true. 11 Q. During that time period, Ms. Rowling was announcing to the 12 world that she was publishing an encyclopedia, correct? 13 THE COURT: Objection to the form of the question. 14 MR. SHALLMAN: I'm sure your Honor can sustain his own 15 objections, so I'll ask a different one. 16 MR. SHALLMAN: 17 THE COURT: Ask the question properly with proper 18 foundation. You have to have a proper foundation for it. 19 MR. SHALLMAN: Thank you, your Honor. I'll just ask 20 my next question. 21 BY MR. SHALLMAN: 22 Q. Isn't it true, Mr. Rapoport, that you knew very well that 23 Ms. Rowling was about and had announced her intention to write 24 her own encyclopedia before you reached out to Mr. Vander Ark? 25 A. Are you asking me -- I just want you to restate the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 159 84EVWAR5 Rapoport - direct 1 question. Are you asking me did I know -- I think this is what 2 I'm hearing, but I just want to play this back to you. Are you 3 asking me did I know before I wrote the first communication to 4 Steve Vander Ark whether I knew Ms. Rowling had been thinking 5 about writing an encyclopedia? 6 Q. Sure, you can answer that one. 7 A. No. 8 Q. Okay. You had no idea, is that your testimony? 9 A. I didn't know. 10 Q. But still you waited; you didn't contact Mr. Vander Ark 11 right away, correct? 12 A. As far as I remember, I had not heard about this 13 encyclopedia at that point in time. That's my best memory. 14 Q. Well, Mr. Rapoport, before you even met with Mr. Vander Ark 15 in person, you were already in discussions with the British 16 publisher named Methuen about selling the book to the United 17 Kingdom, isn't that right? 18 A. Sorry, you're now going to try to show me that I did know 19 and my memory is faulty? 20 Q. I think you just may need to wait for me to ask the 21 question and then answer. 22 THE COURT: Don't you ask the question. Just answer 23 the question. 24 THE WITNESS: Okay. 25 Q. My question is before you even met with Mr. Vander Ark, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 160 84EVWAR5 Rapoport - direct 1 weren't you in discussions already with the British publisher 2 named Methuen, isn't that true? 3 A. Discussions about what? 4 Q. About a Harry Potter project with Mr. Vander Ark. 5 A. When you say "discussion," what do you mean? 6 Q. You know what? I'll take you to a document. Let's turn to 7 Exhibit 87. By the way, before we ask you about this document, 8 Mr. Rapoport, you say you didn't know Ms. Rowling was going to 9 do an encyclopedia before you contacted Mr. Vander Ark. When 10 did you find out that she was going to do one? 11 A. I don't remember the exact time, but I found out that she 12 was doing an encyclopedia. 13 Q. You did find out at some point? 14 A. I found out at some point, but I don't recall exactly when 15 I found out. 16 Q. Mr. Vander Ark told you about it, didn't he? 17 A. I don't remember. 18 Q. All right. Well, we've placed on the screen Exhibit 87. 19 Do you see there an email from you dated August 8th, 2007 to 20 someone named Peter Tummons? 21 A. Mm-hmm. 22 Q. Who is Mr. Tummons? 23 A. He's the head of Methuen, a British publisher. 24 Q. Had you worked with them in the past? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 161 84EVWAR5 Rapoport - direct 1 Q. And this is August 8th; this is just a couple of days after 2 you sent that first email to Mr. Vander Ark, right? 3 A. A couple of days after? 4 Q. Yeah. 5 A. Yes. 6 Q. And you hadn't yet met with him, right? 7 A. No. 8 Q. You said, I am meeting with the Harry Potter Lexicon 9 ringleader, and will let you know shortly what he says about 10 doing the project. Right? 11 A. Yes. 12 Q. Those are your words. 13 A. Yes. 14 Q. And, sir, so you had discussed this project already as of 15 this point, August 8th, with Mr. Tummons, right? 16 A. Of course. 17 Q. Hadn't met the author yet, right? 18 A. Yes. 19 Q. And Mr. Tummons, is it your testimony he didn't say 20 anything about there being -- Ms. Rowling having plans to put 21 out an encyclopedia? 22 A. I don't recall when I first learned of Ms. Rowling's 23 encyclopedia. I don't know the exact date. 24 Q. It's possible Mr. Tummons did tell you about the 25 encyclopedia? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 162 84EVWAR5 Rapoport - direct 1 A. I don't remember him telling me that there was going to be 2 a Rowling encyclopedia at some point. 3 Q. You don't remember means it's possible he did tell you? 4 A. No, that doesn't mean that at all. I have no memory of him 5 telling me that. 6 Q. All right. Well, in any event, once you did decide to do 7 this book, you did view Ms. Rowling as one of the competitors 8 for the lexicon book, didn't you? 9 A. Of course not. 10 Q. And, in fact, you viewed the Lexicon as competing directly 11 with the Harry Potter books themselves, the companion books for 12 sales? 13 A. Maybe you didn't hear me. You seem to go right over my 14 answer. I said "Of course not." 15 Q. And let's take a look at Exhibit 100. I want to direct 16 your attention to the email there that starts at the bottom -- 17 A. Okay. 18 Q. -- of the first page from you to Mr. Vander Ark dated 19 August 29th, 2007. 20 THE COURT: Sorry, 100 says it's from Mr. Vander Ark 21 to him. 22 MR. SHALLMAN: Yeah. And, your Honor, I'm sorry, 23 there's an email from Mr. Rapoport to Mr. Vander Ark that 24 starts at the very bottom. 25 THE COURT: I've seen it. I'm going to the second SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 163 84EVWAR5 Rapoport - direct 1 page. 2 MR. SHALLMAN: Yes. Dear Steve. 3 Q. Do you see that email, Mr. Rapoport? 4 A. Yes. 5 Q. Okay. I want to direct your attention now to the one you 6 wrote to Mr. Vander Ark. You see where it says, You need to 7 know that the bookstores are telling me that the books should 8 be a paperback, because basically everything, Book 7, including 9 the books about the series, is in paperback. And that means 10 that a hardcover in America would have a very tough time 11 competing against all the paperback titles. Right? 12 A. Yes. 13 Q. And other than Book 7, all of the Harry Potter books were 14 in paperback, correct? 15 A. Yes. 16 Q. And, sir, in this email what you were doing here was you 17 were advising against doing a hard copy because you were 18 worried -- a hardcover -- because you were worried that that 19 would have trouble competing against these books that were in 20 paperback, right? 21 A. Yes. 22 Q. Now, Mr. Rapoport, you finally did meet with -- I shouldn't 23 say "finally," but you eventually met with Mr. Vander Ark on 24 August 17th. So I'd like to direct your attention now to 25 Exhibit 91. Do you see there an email from you to Mr. Vander SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 164 84EVWAR5 Rapoport - direct 1 Ark from August 17, '07? 2 A. Yes. 3 Q. And he says, Pleasure meeting with you today, right? 4 A. Yes. 5 Q. And that was your first meeting with Mr. Vander Ark, right? 6 A. Yes. 7 Q. And you sent him a contract that day, correct? 8 A. I don't remember the exact date that I sent the contract. 9 Perhaps you have a record of it; you can show it to me. 10 Q. Well, here in the email, this maybe help you out here. It 11 says, Here is an electronic version of our proposed contract. 12 A. Well, obviously. 13 Q. Okay. And that contract you sent him, that was signed 14 within a week, correct? 15 A. I don't have the contract in front of me, but it was signed 16 in the month of August. You have a date, I think. 17 Q. Sure. We asked you before, it was August 23rd, do you 18 remember that? 19 A. That's fine. Yeah. 20 Q. Okay. Take my word for that. 21 A. I'll take your word for it. I don't have my calendar in 22 front of me. 23 Q. All right. Let's do this: Let's just confirm this date 24 for you because I don't want you to have any doubt about it. 25 Let's go to 14-J. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 165 84EVWAR5 Rapoport - direct 1 A. Yes. 2 Q. Is that the agreement between you and Mr. Vander Ark? 3 A. Yes. 4 Q. Okay. It's dated August 23rd? 5 A. Right. 6 Q. Now, even before this agreement was signed, you had 7 Mr. Vander Ark working on a manuscript for the Lexicon book, 8 correct? 9 A. Yes. 10 Q. And your goal here was to get this book out fast, wasn't 11 it? 12 A. We produce our books very quickly. And this was not an 13 atypical situation for us. 14 Q. So you were trying to get this book out for Christmas, 15 right? 16 A. Yes. 17 Q. In fact, you were trying to get a manuscript done within 18 two weeks, right? 19 A. Well, we were trying to get the manuscript into rough shape 20 and to get it out for Christmas. And it was based on existing 21 work that was a good control, yes. 22 Q. Okay. You didn't think there would have to be much added 23 to it, is that right? 24 A. There were additions to the book, but we felt they were 25 well within our reach. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 166 84EVWAR5 Rapoport - direct 1 Q. But you thought you could get them done in a couple weeks, 2 is that your testimony? 3 A. Correct. 4 Q. And the reason you were in such a hurry is because you were 5 trying to take advantage of all the excitement about this 6 seventh Harry Potter book, right? 7 A. The reason we were in such a hurry is that we wanted to get 8 the work out in a timely way. 9 Q. And the reason was is because you wanted to be potential 10 competitors, isn't that right? 11 MS. HASSE: That's ambiguous. Objection. 12 THE COURT: I'm sorry, is there an objection? 13 MS. HASSE: Objection. I'm sorry, your Honor. 14 Ambiguous. 15 A. Could you be more specific about what you mean by that? 16 Q. You know you have competitors in the publishing world, 17 right? 18 A. Well, that's kind of a broad term. 19 Q. You know there are such a thing as competitors? 20 A. Yes, I do. 21 Q. Okay. And there is potentially competitors in the Harry 22 Potter companion book market, right? 23 A. This may not be the answer you want, but I'll give you -- 24 the truthful answer is that other people had used material from 25 this site in various ways. There were other books in the works SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 167 84EVWAR5 Rapoport - direct 1 that had borrowed in the past from the Lexicon; so this was a 2 concern that other people were going to take from the Lexicon 3 for their work, and that was a concern of mine. 4 Q. And it had nothing to do with taking advantage of all the 5 publicity from the release of Harry Potter just a couple weeks 6 before, is that your testimony? 7 A. Well, actually, you've sort of answered your own question 8 because of that delay between when I found out about it, I 9 didn't even contact Steve for a couple of weeks. 10 Q. So your testimony, sir, is that your big hurry to get this 11 book done had nothing to do with the fact that the seventh 12 Harry Potter book came out in July, is that your testimony? 13 A. That was a factor. 14 Q. It was a factor? 15 A. It was a factor. 16 Q. Okay. It was a big factor, wasn't it? 17 A. It was one of the factors. 18 Q. You wrote a book called Citizen Moore? 19 A. Yes. 20 Q. How long did that take you to write? 21 A. About a year, 22 Q. And then how long from the time you wrote it till the time 23 you get it into publication? 24 A. It actually published about six weeks after, after it was 25 done. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 168 84EVWAR5 Rapoport - direct 1 Q. Have you ever heard the term "crashing the market"? 2 A. I'm sorry? 3 Q. Have you heard the term "crashing the market" in the 4 publishing world? 5 A. Sure I've heard it, yeah. 6 Q. Isn't that a term for rushing out a poor-quality book onto 7 the market in a short amount of time? 8 A. Well, those are your words, they're not mine. 9 Q. How would you define "crashing the market"? 10 THE COURT: There are a number of conclusions in your 11 question. 12 MR. SHALLMAN: I'll ask the witness, your Honor. 13 Understood. 14 BY MR. SHALLMAN: 15 Q. How do you define the term "crashing the market"? 16 A. It's not a term that I normally use, so I would have a 17 tough time defining it. 18 Basically, to me it just means getting a book out 19 quickly. But in publishing that's very common to get a book 20 out quickly. 21 Q. Right. And here you were trying to get out a 400-plus-page 22 encyclopedia and finish it within two weeks, correct? 23 A. No. 24 Q. That's not a lot of time to write new material, is it? 25 THE COURT: The answer was no. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 169 84EVWAR5 Rapoport - direct 1 A. The answer was no. My answer was no. 2 THE COURT: The answer was no. 3 Q. You said before you were trying to get this book done in 4 two weeks, right? 5 A. I said no. 6 Q. Earlier you just told us, sir, that you were trying to get 7 this book done, get the manuscript finished within two weeks, 8 isn't that right? 9 A. You're splitting hairs. You're trying to say -- you're 10 making it sound like we're trying to get it in print in two 11 weeks. That's not true. 12 Q. That's not what I'm suggesting, sir. I'm suggesting how 13 long it would take talking about actually putting together a 14 manuscript. Your testimony, sir, earlier was that your goal 15 was to get this manuscript done in two weeks, correct? 16 A. At one point that's true. 17 Q. Okay. 18 A. Yeah, at one point that was true, yes. 19 Q. And my question is two weeks is not a lot of time to add 20 new material, is it? 21 A. Well, this was a book that had been worked on for seven 22 years and was substantially done. So I mean you're trying to 23 make it sound like there was nothing to work from. 24 Q. I'm not talking about the seven years and what was on the 25 web site. I'm talking about whether two weeks is a lot of time SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 170 84EVWAR5 Rapoport - direct 1 for adding new written original material. It's not, is it? 2 A. We've completed books in less than two weeks, our company. 3 Q. From scratch? 4 A. Yup. 5 Q. Written from scratch? 6 A. We've done it from scratch, yes, in less than two weeks. 7 Q. How did those books do? 8 A. Quite well, actually. Well-reviewed. 9 Q. Now, in marketing the Lexicon, Mr. Rapoport, you were often 10 using a quote from Ms. Rowling about the Lexicon web site, 11 isn't that right? 12 A. Yes. 13 Q. And I want to take you to Plaintiffs' Exhibit 14-M. This 14 is one of your fliers for the Harry Potter Lexicon book, isn't 15 that right? 16 A. Yes. 17 Q. And taking you to the bottom of that, where it says, Winner 18 of J.K. Rowling's fan site award, J.K. Rowling on the Harry 19 Potter Lexicon website, right? Is that what that says? 20 A. Yes. 21 Q. Did you write that? 22 A. No, I didn't write it. 23 Q. Who wrote it? 24 A. It's a quote. 25 Q. Who put together the flier? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 171 84EVWAR5 Rapoport - direct 1 THE COURT: Are you asking about the flier -- 2 Q. I'm asking about the flier, Mr. Rapoport. 3 A. I worked on the flier. 4 Q. Did you write where it says, J.K. Rowling on the Harry 5 Potter Lexicon web site? 6 A. Yes. 7 Q. She didn't refer to a book there, did she? 8 A. No. 9 Q. And I take, sir, you were always very careful to use this 10 quote to -- you were very careful to avoid suggesting 11 otherwise, weren't you? 12 THE COURT: Let's reframe the question please. 13 MR. SHALLMAN: I will. 14 Q. You were very careful not to deceive people with this 15 quote, weren't you, sir? 16 A. I don't understand your question now. What are you 17 implying? 18 Q. You weren't trying to suggest -- you didn't suggest to 19 anyone that this meant that she gave her blessing for the 20 Lexicon book? 21 A. It's very specific. You can read it out loud for yourself. 22 Q. Just talking about the web site, right? 23 A. That's what the quote says. 24 Q. Okay. Now, let's take a look then at Exhibit 89. 25 THE COURT: 89. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 172 84EVWAR5 Rapoport - direct 1 Q. Now, do you see an email from you to Mr. Tummons of 2 Methuen, sir? 3 A. Methuen, yes. 4 Q. Yes. August 16, 2007. 5 THE COURT: Wait a minute, 89? 6 MR. SHALLMAN: This is Plaintiffs' Exhibit 89, your 7 Honor. 8 THE COURT: Oh, I see. Okay. Go right ahead. 9 BY MR. SHALLMAN: 10 Q. Mr. Rapoport, the purpose of this email was to persuade 11 Mr. Tummons to go forward in securing the British rights for 12 the Harry Potter Lexicon, right? 13 A. Yes. 14 Q. It says, We are going to need an advance from you for this 15 book to cover our rush production and editorial costs and, of 16 course, to secure the British publishing rights. Were those 17 your words? 18 A. Yes. 19 Q. And you were trying to get an advance out of them, right, 20 get some money? 21 A. Sure. 22 Q. And you said in that email, You should know that J.K. 23 Rowling has said again and again that the people behind this 24 book are her absolute favorites when it comes to a Harry Potter 25 reference book. Is that -- did you write those quotes? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 173 84EVWAR5 Rapoport - direct 1 A. Yes. 2 Q. Now, the quote you had said nothing about a web site, 3 right? 4 A. Yes. 5 Q. Or said nothing about a book, is that right? The quote 6 from Ms. Rowling said nothing about a book? 7 A. Yes. 8 Q. Right? You're telling Mr. Tummons, in order to get money 9 out of him, that Ms. Rowling had said again and again that the 10 people behind the Lexicon are her favorite when it comes to a 11 reference book. Did you say that to him? 12 MS. HASSE: Objection. Complex. Compound. Compound 13 question, your Honor. 14 THE COURT: It is a compound question. You threw in a 15 phrase you didn't have to throw into the question. 16 BY MR. SHALLMAN: 17 Q. Mr. Rapoport, you weren't being honest here with 18 Mr. Tummons, were you? 19 A. That's not true. 20 Q. Ms. Rowling had never said a thing about the people behind 21 the Lexicon being her favorite when it comes to writing a 22 reference book, isn't that right? 23 A. I don't think there's any question about the enthusiasm of 24 the people who created the Harry Potter books for the work of 25 Steve Vander Ark. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 174 84EVWAR5 Rapoport - direct 1 Q. Sir, you said you had one quote from Ms. Rowling about a 2 web site. 3 A. And that quote was furnished to them. 4 Q. Right. And, sir, you put words here in Ms. Rowling's mouth 5 about her blessing a book, isn't that right? 6 A. Well, there had been a long and constructive relationship, 7 it was a positive one; there had been awards given and so 8 forth. 9 Q. You were making this up, weren't you, Mr. Rapoport? 10 A. No. 11 Q. Do you have one quote, one word, from Ms. Rowling, let 12 alone again and again, where she said she was -- these folks 13 were her favorites when it comes to -- 14 A. You just showed the part what Ms. Rowling had to say about 15 the -- 16 Q. It was about a web site, right? 17 A. The book is -- it's the print version of an online web 18 site. I mean the two worlds are intertwined at this point in 19 our lives. 20 Q. Well, you would agree you were exaggerating here, weren't 21 you? 22 A. There was a very strong positive relationship; awards had 23 been given and so forth; positive statements had been made. 24 The Lexicon was freely used by editors who sent thank-you 25 notes, and film directors had phoned the author and movie sets. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 175 84EVWAR5 Rapoport - direct 1 Q. You were exaggerating here to Mr. Tummons, weren't you? 2 A. I don't think so. 3 Q. All right. Let's turn back to your communications with 4 Mr. Vander Ark. Let's go back to that document real quick. 5 THE COURT: What exhibit are you going to show? 6 MR. SHALLMAN: This is the prior exhibit. It's 89. 7 THE COURT: Go ahead. 8 Q. Mr. Rapoport, when did Ms. Rowling ever say again and again 9 that the people behind -- 10 THE COURT: What exhibit do you have up? 11 MS. CENDALI: It's 89, your Honor. 12 MR. SHALLMAN: If we can highlight the "you should 13 know" portion, Mr. Hoy. 14 THE COURT: Are you going on to Mr. Vander Ark or are 15 you going -- 16 MR. SHALLMAN: I'm going to ask one more question 17 about this, your Honor. 18 THE COURT: All right. 19 BY MR. SHALLMAN: 20 Q. Mr. Rapoport, when did Ms. Rowling say again and again the 21 people behind this book are her absolute favorites when it 22 comes to a Harry Potter reference book? When did she ever say 23 that? 24 A. She didn't use those exact words. 25 Q. She didn't use the word "reference"? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 176 84EVWAR5 Rapoport - direct 1 A. This is a paraphrase. I'm not aware of any other 2 lexicon-style book or its web site that has received the kind 3 of praise that this site got from her. 4 Q. You're calling this a paraphrase, is that right? 5 A. Yeah. 6 Q. This is what you call a paraphrase of Ms. Rowling's quote 7 about a web site, right? 8 MS. HASSE: Your Honor, I object. It's been asked and 9 answered. 10 THE COURT: I think you've heard the answer. Let's 11 move on. 12 (Continued on next page) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 177 84E5WAR6 Rapoport - direct 1 BY MR. SHALLMAN: 2 Q. And you knew the website had fan fiction on it, right? 3 A. Are you referring to the Lexicon site? 4 Q. Referring to the Lexicon. 5 A. I didn't really look at the fan fiction. 6 Q. All right. Well, you knew it had other things than this A 7 to Z listing? 8 A. Yes. 9 Q. It had a fan forum? 10 A. Yes. 11 Q. Fan artwork, right? 12 A. Yes. 13 Q. It had things or message boards for Harry Potter fans to 14 talk about Harry Potter? Right? 15 A. Right, right. For the obsessive. 16 Q. So, let's talk real quick about your initial communications 17 with Mr. Vander Ark. If we can go to Exhibit 501, paragraph 4? 18 MR. SHALLMAN: Your Honor, may I have a moment with 19 Mr. Coy? (Pause) 20 Q. This is a paragraph from your declaration, Mr. Rapoport? 21 A. Yes. 22 Q. And Mr. Vander Ark, when you spoke to him, he expressed 23 interest in publishing a book version of the website, right? 24 A. Yes. 25 Q. And you told him that the encyclopedia entries on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 178 84E5WAR6 Rapoport - direct 1 website would be the best subject for a book, right? 2 A. Yes. 3 Q. That would be the quickest to create into a -- turn into a 4 manuscript; right? 5 A. That isn't what I said to him. 6 Q. Is that what you were thinking? 7 A. No. 8 Q. Now, Mr. Vander Ark, he expressed an interest in publishing 9 a book. He did express concern about whether such a book would 10 create copyright problems, right? 11 A. He did. 12 Q. And he asked you to indemnify him if Ms. Rowling brought a 13 copyright case, right? 14 A. Well, he didn't say Ms. Rowling. He said if anyone. It 15 wasn't about her, it was about if any, if there was any claim. 16 Q. Let's take a look at 14J, Mr. Rapoport. This is the 17 contract. This is the indemnification clause from your 18 contract with Mr. Vander Ark? 19 A. Right. 20 Q. And in this agreement you are agreeing to indemnify -- I'm 21 sorry -- Mr. Vander Ark is agreeing to indemnify you against 22 all actions proceedings, claims, demands, etc.; except you're 23 indemnifying Mr. Vander Ark any claims brought by Ms. Rowling; 24 right? 25 THE COURT: I think you -- maybe I misheard you. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 179 84E5WAR6 Rapoport - direct 1 think you meant to say indemnify. 2 MR. SHALLMAN: I thought I did. If I didn't -- 3 Q. Is that right, Mr. Rapoport? And you agreed to do that, 4 right? 5 A. Right. 6 Q. And that's unusual in the publishing business, isn't it? 7 A. It was something that I felt very comfortable doing. 8 Q. Well, let's take a look at one Exhibit 141. Do you see an 9 e-mail from you to Mr. Vander Ark dated November 2nd, '07? 10 A. Right. It speaks for itself. 11 Q. Is that your e-mail, sir? 12 A. Yes. 13 Q. Did you write that? 14 A. Yes. 15 Q. Now, first of all, you said in this e-mail to 16 Mr. Vander Ark: Anything you say in public can and will be 17 used against you. 18 Did you say that to him? 19 A. Yes. 20 Q. You were worried he might say something about how he warned 21 you about copyright issues, right? 22 A. No. 23 Q. And, sir, you also said in this e-mail you were not sued 24 and it is also noteworthy that if you are sued we have already 25 agreed to defend you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 180 84E5WAR6 Rapoport - direct 1 Those were your words, right? 2 A. Yes. 3 Q. And then you state: In standard publishing contracts the 4 reverse is true. Right? 5 A. Yes. 6 Q. So, this is unusual to have a clause like this in a 7 publishing contract? 8 A. It was something I felt comfortable doing. 9 Q. Sir, my question was, was this was unusual in a publishing 10 contract to do this. 11 A. Every publishing contract is different. There is no such 12 thing as a standard contract in publishing. 13 Q. Sir, you stated here: In standard publishing contracts the 14 reverse is true. Right? 15 A. There is no standard contract in publishing. Every 16 contract is a different contract. 17 Q. It is your words here, you said, "standard publishing 18 contract," right? 19 A. Right. 20 Q. And you said it -- 21 THE COURT: I think we have read the exhibit. Let's 22 move on. 23 THE WITNESS: We have read the exhibit. 24 MR. HAMMER: All right. 25 Q. Now, Mr. Vander Ark had told you he was concerned about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 181 84E5WAR6 Rapoport - direct 1 potential copyright issues, right? 2 A. He asked, yes. 3 Q. Yes. And you went ahead and signed an agreement with him, 4 right? 5 A. Yes. 6 Q. And you didn't give a heads up to Scholastic the publisher, 7 did you? 8 A. I don't know what the word "heads up" means. 9 Q. Did you let them know that you were going to do this book 10 before you entered into this agreement with Mr. Vander Ark? 11 A. No. 12 Q. Did you let Bloomsbury the U.K. publisher know? 13 A. No. 14 Q. How about Warner Brothers? 15 A. Yes. 16 Q. Before you signed the agreement you let Warner Brothers 17 know? 18 A. No. Not before I signed the agreement. 19 Q. And you were doing everything you could to keep this book a 20 secret before it was done, right? 21 A. We generally don't discuss our book publishing plans until 22 the books are in the house and complete. 23 Q. You took special efforts in this case to keep this book 24 secret, didn't you? 25 A. Actually, that's not true. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 182 84E5WAR6 Rapoport - direct 1 Q. Let's take a look at Exhibit 93. This is an e-mail chain 2 between you and someone named Richard Harris from August 20th. 3 Who is Richard Harris? 4 A. He is the managing editor of RDR Books. 5 Q. I want to go to the second page of that exhibit. Do you 6 see an e-mail there, from August 17th, from you to Mr. Harris? 7 A. Yes. 8 Q. Down there at the bottom it says: The Harry Potter project 9 looks like a go. 10 A. Yes. 11 Q. Do you remember that was the day you met Mr. Vander Ark we 12 talked about earlier? Is that right? 13 A. Right. 14 Q. And the same day you sent him that contract? 15 A. Yes. 16 Q. Is that right? 17 A. Correct. 18 Q. So, based on your meeting, that first meeting with 19 Mr. Vander Ark, it was ready to go; right? 20 THE COURT: I'm sorry. You better rephrase your 21 question. 22 THE WITNESS: You could be more specific. 23 Q. Based on your meeting from that day -- 24 THE COURT: What you are trying to ask, it does not 25 convey what you are trying to ask about. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 183 84E5WAR6 Rapoport - direct 1 MR. SHALLMAN: I understand, your Honor. 2 Q. Mr. Rapoport, based on your meeting that day with 3 Mr. Vander Ark, right, you concluded that the Harry Potter 4 project was ready to go, right? 5 A. It looked like it. 6 Q. All right. 7 THE COURT: What do you mean by ready to go? 8 A. Well, it looked like he was going to go ahead and write 9 the -- finish the book and turn it in. 10 THE COURT: I see. 11 THE WITNESS: And sign a contract. 12 THE COURT: Not -- not ready to publish. 13 THE WITNESS: No. Not -- not ready to publish. 14 MR. SHALLMAN: Just one moment, your Honor. 15 Q. Mr. Harris is a former lawyer, isn't he? 16 A. He is an attorney. 17 Q. He is currently a practicing attorney? 18 A. He is not practicing now, know. 19 Q. Okay. Let's turn to the third -- the next page of that 20 e-mail. This was your e-mail from August 17th to -- 21 THE COURT: Exhibit 93? 22 MR. SHALLMAN: This is still Exhibit 93, your Honor. 23 THE COURT: All right. 24 Q. Do you see where it says: We are not telling anyone about 25 this book. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 184 84E5WAR6 Rapoport - direct 1 A. I see that. 2 Q. And: I would really appreciate your keeping our cover. 3 Right? 4 A. Yes. 5 Q. Those are your words? 6 A. Yes. 7 Q. You said: I will explain the details in a phone call this 8 weekend. Right? 9 A. Right. 10 Q. You didn't want to talk about this in e-mail, correct? 11 A. No. That wasn't -- that wasn't it. I just wanted to talk 12 to him by phone. 13 Q. All right. Well, you were worried about your cover being 14 blown about this book, weren't you? 15 A. Well, until a book is under contract it doesn't -- it is 16 not really a book. Until a book is finished it is not really a 17 book. 18 Q. Well, Mr. Rapoport, you tried to keep this book a secret 19 even after you signed the contract, didn't you? 20 A. We don't generally talk about our books until they're ready 21 to go. 22 Q. Let's take a look at Exhibit 93. Oh, I'm sorry. 14K, we 23 where already looking at 93. 24 Do you see an e-mail there from you to someone named 25 Mr. Riff? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 185 84E5WAR6 Rapoport - direct 1 A. Uh-huh. 2 Q. Who is that? 3 A. He is an agent who works in Brazil. 4 Q. You wrote that e-mail on September 6th? 5 A. Yes. 6 Q. And this was an e-mail to market the Harry Potter Lexicon, 7 is that right? 8 A. Yes. 9 Q. Let's turn to the next page. Do you see there where it 10 says: We do not want to sell this to any of the publishers 11 currently publishing the Potter books. 12 A. Yes. 13 Q. Did you write those words? 14 A. Yes. 15 Q. Sir, isn't it true that you were trying to conceal your 16 marketing efforts from the plaintiffs until it was too late for 17 them to come into court and stop your book? 18 A. No. 19 Q. Is that right? 20 A. No, that's not true. 21 Q. That's why you were trying to hide this book from 22 publishers who might let the plaintiffs know, isn't that right? 23 A. No. 24 Q. Is that no? 25 A. That's no. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 186 84E5WAR6 Rapoport - direct 1 THE COURT: He said no twice. 2 Q. Now you did eventually sell foreign rights in Britain, 3 France, Australia and Canada; right? 4 A. Not -- the answer to your question is the only rights that 5 were actually sold were in France and Canada. Those are the 6 only countries where rights were sold. 7 Q. Let's take a look at Exhibit 15A. 8 THE COURT: 15A? 9 THE DEPUTY CLERK: 15A, as in apple. 10 Q. This is an ad -- I will give you a moment, your Honor. 11 THE COURT: 15A. 12 MR. SHALLMAN: 15A, your Honor. 13 THE COURT: Have I got the wrong number? My letter 14 15A is a letter from O'Melveny & Myers. 15 MR. SHALLMAN: I am going to the last page of that, 16 your Honor. 17 Q. Do you recognize that, Mr. Rapoport? 18 A. I do. 19 Q. That's an advertisement you put on the Publishers 20 Marketplace, correct? 21 A. Yes. 22 Q. On September 10th of '07, right? 23 A. Right. 24 Q. And it was an advertisement for the Harry Potter Lexicon, 25 right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 187 84E5WAR6 Rapoport - direct 1 A. Yes. 2 Q. And you said, in that advertisement, that rights were 3 already sold in British rights, French rights, Canadian rights 4 and Australian rights? 5 A. That's correct. 6 Q. Is that correct? 7 A. Yes. 8 Q. But that wasn't true? 9 A. The rights in Britain and Australia were not under 10 contract. There had been an agreement but no contract had been 11 signed. 12 Q. But you went ahead and advertised this book as if it had 13 been, right? 14 A. Well, in publishing sometimes it takes a while for the 15 contract to actually get signed but there was an oral 16 understanding. But, there was no contract was ever actually 17 signed on that. And that happened because before any contract 18 was signed in Britain this lawsuit was filed. So, therefore, 19 the contract was never executed. 20 Q. But you weren't exaggerating in this ad, right? 21 A. Well, the British publisher in fact was working on 22 typesetting the book and they were -- we were working out the 23 details of the contract. It just never got turned in and 24 executed because of the lawsuit. 25 Q. All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 188 84E5WAR6 Rapoport - direct 1 A. Sometimes contracts -- when Methuen Publishing published 2 the Michael Moore book that we did and we had a good 3 relationship with them. So, we figured the paperwork would 4 come in due course. We had a history of selling them other 5 books. 6 Q. But you were advertising this to the world as the rights 7 already being sold in Britain, France, Canada and Australia, 8 right? 9 A. Yes. 10 Q. Now, after you placed this ad you received an e-mail from 11 someone named Neil Blair. Do you remember that? 12 A. No, I didn't receive any e-mail from Neil Blair. I 13 received a cc from Neil Blair written to someone else. 14 Q. To Mr. Vander Ark. 15 A. That's correct. It was not addressed to me. It was a CC. 16 I was carboned on it. 17 Q. You were carboned on it. And that was around September 12? 18 A. Yes. 19 Q. That was the day after that? 20 A. Right. 21 Q. And you didn't respond to that, did you? 22 A. He said that someone would be getting in touch with me from 23 the United States. 24 Q. All right. Well, a few days later -- let's go to -- 25 THE COURT: Do we have an exhibit number for that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 189 84E5WAR6 Rapoport - direct 1 MR. SHALLMAN: That was 15A, your Honor, the one that 2 we just showed. That was the fourth page. 3 Q. Let's go to the first page of 15A. 4 THE COURT: 15A is a letter from O'Melveny & Myers to 5 Mr. Rapoport. 6 MR. SHALLMAN: Yes. And your Honor, the last -- 7 attached to that letter was the Publishers weekly ad that we 8 just discussed. 9 THE COURT: I understand that. But my problem is that 10 Mr. Rapoport's testimony is that he received an e-mail cc and 11 what you are referring to me is a letter on O'Melveny & Myers 12 letterhead. 13 MR. SHALLMAN: That's right, your Honor. 14 THE COURT: Well then, I know it is right. But, if 15 you are not going to show me the e-mail I have to know where it 16 is. I have to keep a record here. 17 MS. CENDALI: I believe, your Honor, the e-mail is in 18 evidence. 19 THE COURT: What? 20 MR. SHALLMAN: The e-mail, your Honor, is not in 21 evidence, it is referred to in this letter. Mr. Rapoport just 22 said that he received it as a carbon. 23 THE COURT: Did you receive a copy of this letter? 24 MR. SHALLMAN: I received a cc, yes. Yes, your Honor. 25 THE COURT: No, but what about this letter addressed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 190 84E5WAR6 Rapoport - direct 1 to you? 2 THE WITNESS: Yes, that letter I received. 3 THE COURT: All right. 4 THE WITNESS: Yes, I did, your Honor. 5 THE COURT: Okay. Exhibit 15A. 6 BY MR. SHALLMAN: 7 Q. And you received this letter on behalf -- from our law firm 8 on September 18th, is that right? 9 A. Yes. 10 Q. And on behalf of Warner Brothers and Ms. Rowling, correct? 11 A. Yes. 12 Q. You remember receiving that letter? 13 A. Yes. 14 Q. And you responded by saying that you would be studying the 15 issues raised in the September 18th letter and would reply 16 before long. Do you remember responding that way? 17 A. I don't have it in front of me but I'm trusting you to, you 18 know -- I'm trusting you. 19 Q. Let's go to 15B. We will show you. 20 A. Show me. It would be great to look at it. 21 Yes. You are right. 22 Q. You say: We expect to get back to you before long. Right? 23 A. Yes. 24 Q. Now, by October 3rd you had not responded to this letter. 25 You didn't respond within two weeks, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 191 84E5WAR6 Rapoport - direct 1 A. That's true. 2 Q. I want to show you Exhibit 15C. You received another 3 letter from us on October 3rd, correct? 4 A. I did. 5 Q. This was another letter regarding your intention to publish 6 the Harry Potter Lexicon? 7 THE COURT: Number again? 8 THE DEPUTY CLERK: 15C. 9 Q. Is that right? 10 A. Correct. 11 Q. And, between September 18 being and October 3rd you didn't 12 respond as you said you were going to, correct? 13 A. That was a two-part question. Can we do them one at a 14 time? 15 Q. Sure. 16 You didn't respond other than saying we will get back 17 to you before long, right? 18 A. I had consulted with my -- I was consulting with my 19 attorney. 20 Q. That wasn't what I asked you. What I asked you is how you 21 responded to Ms. Cendali's letter. 22 THE COURT: That isn't what you asked him. Let's go 23 back. Go back to your question. If you want to have him 24 answer a question, ask him if -- 25 MR. SHALLMAN: I will, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 192 84E5WAR6 Rapoport - direct 1 Q. Between September 19th, when you wrote the letter saying 2 that you would respond to this before long, and October 3rd 3 2007, you didn't respond, right? 4 THE COURT: He has answered that. No, he did not do 5 that. He was conferring with his attorney. 6 Now let's move it on. 7 Q. And you received this letter, another cease and desist 8 letter, right? 9 A. That's correct. 10 Q. And you responded that day to our letter, correct? 11 Let's -- do you remember that? 12 A. I do remember writing a response. 13 Q. Let's take a look at Plaintiff's Exhibit 15D, and in 14 this -- this was your response to us that day, right? 15 A. Right. That's my e-mail. 16 Q. It is dated October 3rd, 2007 at 12:30 p.m., right? 17 A. Right. 18 Q. And you were -- advised us of a family tragedy of yours, 19 right? 20 A. Right. 21 Q. And as you said: You can imagine this has overwhelmed all 22 of us, we are a very close family and I am sure you can 23 understand that this situation has interrupted all of my work 24 including your request. 25 Is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 193 84E5WAR6 Rapoport - direct 1 A. Yes. 2 Q. And isn't it true, Mr. Rapoport, that it didn't really 3 interrupt all of your work, right? 4 A. I don't understand the question. 5 Q. Well, let's take a look at Exhibit 120. 6 THE COURT: 120. 7 BY MR. SHALLMAN: 8 Q. Do you see an e-mail to Mr. Riff from you dated October 9 3rd, 2007? 10 A. I do. 11 Q. About an hour later, an hour after you had sent that e-mail 12 to us, is that right? 13 A. That's right. 14 Q. And you said here is a copy of our flyer for the Harry 15 Potter Lexicon, right? 16 A. Right. 17 Q. And you said you were going to send sample pages to 18 Mr. Riff and the British cover the next day, right? 19 A. That's true. 20 Q. You also offered to send the entire manuscript via e-mail, 21 is that right? 22 A. That's true. 23 Q. But one hour before that you had told us that all of your 24 work had been interrupted, right? 25 A. That's true. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 194 84E5WAR6 Rapoport - direct 1 Q. This was still business as usual for you, Mr. Rapoport, 2 wasn't it? 3 A. No. 4 Q. Let's take a look at the top of that e-mail. This is 5 October 5, 2007. Do you recognize that e-mail? 6 A. Yes. 7 Q. It is, again, from you to Mr. Riff, correct? 8 A. Yes. 9 Q. And, again, just two days after you told us that all of 10 your work had been interrupted, right? 11 A. It is written on October 5th, two days later. 12 Q. Did you state there to Mr. Paulo that we had a big sale 13 yesterday in Italy? 14 A. That's true. 15 Q. So, the day after you told us your work had been 16 interrupted you made a big sale in Italy, correct? 17 A. Well, actually I didn't make the sale so that's a little 18 mis -- you are being misleading. You are acting as if I made 19 the sale myself. I didn't make that sale. 20 Q. But you went the next day and you told Mr. Riff all about 21 it, right? 22 A. I sent him a very short e-mail. It took about a minute to 23 write. 24 Q. Okay. And, again, in that same e-mail you say I am 25 assuming you will not be discussing this book with Editorial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 195 84E5WAR6 Rapoport - direct 1 Presenca, the publisher of Harry Potter and the Deathly 2 Hallows, is that right? 3 A. Yes. 4 Q. Again, you did not want publishers of the Harry Potter 5 books to get -- 6 A. Well, excuse me for saying this, but I thought you just put 7 up a display, an advertisement that was on Publishers 8 Marketplace, is that right? Apparently the readership of that 9 is pretty broad, at least it certainly seemed to catch the 10 attention of Neil Blair, among other people. Would you call 11 that secrecy? 12 Q. Sir, you had received two cease and desist letters from our 13 firm, correct? 14 THE COURT: Go ahead. 15 A. That's right. We've agreed to that. 16 Q. And you had received a letter from -- an e-mail from Neil 17 Blair, right? 18 A. Sure. 19 Q. And you didn't want them to find out that you were still 20 marketing this book around the world, isn't that right? 21 A. Well, you had sent me a copy of the advertisement that you 22 have already shown to the Court that had already gone around 23 the world. I think you have answered your own question, 24 haven't you? 25 Q. That even after -- even after you received the -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 196 84E5WAR6 Rapoport - direct 1 THE COURT: Let's answer the question, Mr. Rapoport. 2 A. Yes, we were continuing to work. 3 Q. And you were continuing to try to avoid getting this book 4 into the hands of publishers who might turn it over to us, 5 isn't that right? 6 A. No. 7 Q. You didn't want us to see that book, right? 8 A. That's not true. 9 Q. You didn't want us to see what was in it? 10 A. That's not true. 11 Q. You didn't want to see -- you didn't want us to see the 12 fact that it was copied wholesale from Ms. Rowling's books, 13 isn't that right? 14 A. That's not true. 15 Q. And you didn't want us to be able to go in to court with 16 that book and be able to shut it down, isn't that right? 17 A. No. 18 Q. I direct your attention now to Exhibit 121. I want to 19 direct your attention now to a e-mail from October 5th, that 20 same day, to, maybe you can help me pronounce that gentleman's 21 name, Almuth? 22 A. Almuth Andreae. 23 THE COURT: Which date are you -- what date are you 24 referring to, Mr. Shallman? 25 MR. SHALLMAN: This is the October 5th, 2007 e-mail. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 197 84E5WAR6 Rapoport - direct 1 THE COURT: It is not an e-mail on October 5th. It is 2 to Mr. Rapoport, I think. 3 MR. SHALLMAN: I'm sorry, your Honor. Please direct 4 your attention to the center of that e-mail. It is the e-mail 5 at the top is a response to the e-mail in the middle, and I 6 want to -- 7 THE COURT: Have you addressed yourself to the 8 addressee of that e-mail? If I am on the same exhibit you are, 9 121. 10 MR. SHALLMAN: Yes, your Honor. If you look at the 11 screen, that e-mail is at the center of that document and that 12 is the one I wanted to ask Mr. Rapoport questions about. 13 THE COURT: But you have characterized it before as 14 to -- as from Mr. Rapoport, I believe. It is to Mr. Rapoport. 15 Go ahead. 16 MR. SHALLMAN: I'm sorry. You're right. Yes. 17 BY MR. SHALLMAN: 18 Q. The e-mail in the middle is to you from Almuth, correct? 19 A. From Almuth, right. 20 Q. And in that e-mail he said to you: I wanted to ask whether 21 there are any copyright matters we have to keep in mind, any 22 rights we have to clear regarding the use of "Harry Potter" in 23 the German title? Is this authorized by J.K. Rowling? Do we 24 need her permission? 25 Do you remember him asking you that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 198 84E5WAR6 Rapoport - direct 1 A. Yes. 2 Q. Let's take a look now at the e-mail that you responded with 3 from October 8th, 2007 which is at the top of Plaintiff's 4 Exhibit 121. 5 A. Yes. 6 Q. Do you see where it says: In the unlikely event that any 7 questions are raised on this issue regarding your edition; do 8 you see that? 9 A. Yes. 10 Q. And by that point, sir, you had received two cease and 11 desist letters from O'Melveny & Myers, right? 12 A. Right. 13 Q. You had received an e-mail from your -- you were copied on 14 from Neil Blair, correct? 15 A. Yes. 16 Q. Questions had certainly been raised, hadn't they? 17 A. Yes. 18 Q. This was not a theoretical possibility, was it? 19 A. Correct. 20 MS. HASSE: Objection, your Honor. Misstates the 21 document. 22 THE COURT: Objection overruled. 23 Q. Mr. Rapoport, you told Mr. Andreae that questions being 24 raised is an unlikely event, right -- 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 199 84E5WAR6 Rapoport - direct 1 Q. -- in response to his questions about whether there was any 2 copyright issues or whether we needed -- they needed 3 Ms. Rowling's permission, right? 4 A. Yes. 5 Q. Again, you weren't being very honest with Mr. Andreae here, 6 were you? 7 A. No, I disagree with you. 8 Q. You didn't disclose to Mr. Andreae the fact the question 9 had been raised directly to you, did you? 10 MS. HASSE: Objection, your Honor. It is misstating 11 the document. It says regarding your edition. 12 THE COURT: I'm sorry? I missed your point. Would 13 you repeat it? 14 MS. HASSE: Yes, your Honor. This is -- he is saying 15 implicating Mr. Rapoport's honesty with respect to his 16 statement whereas the statement refers to questions raised 17 regarding Mr. Almuth's edition, not regarding Mr. Rapoport's 18 activity. 19 THE COURT: Overruled. 20 Q. Let's take a look at Exhibit 126. I would like to direct 21 your attention, Mr. Rapoport, to the e-mail at the bottom from 22 you to someone -- do you recognize who you sent that to? 23 A. Sure. 24 Q. Who is that? 25 A. That's an editor at a publishing house in Milan. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 200 84E5WAR6 Rapoport - direct 1 Q. And you sent that e-mail to her on October 11th, is that 2 right? 3 A. Right. Yes. 4 Q. And in the first line you say: It was a pleasure meeting 5 you in Milan, correct? 6 A. Right. That's right. 7 Q. You traveled to Milan to meet with her, right? 8 A. Right. 9 Q. And this was just eight days after the family tragedy which 10 interrupted -- 11 A. I'm sorry, but could you please be a little more specific 12 in this question? I'm not following you. 13 Q. All right. You know what? 14 A. No. Are you trying to -- 15 Q. When did you go to -- 16 A. I went to Milan at the end of September. 17 Q. And, in any event, you were back to business, though, on 18 October 11th, right? 19 A. Actually, on the same day I wrote a letter to Warner 20 Brothers. 21 Q. Okay. 22 A. Which you know about. 23 Q. Let's take a look at it. How about 14L? Is this the 24 letter you wrote to? 25 MR. SHALLMAN: ? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 201 84E5WAR6 Rapoport - direct 1 A. Yes. 2 Q. And this is a letter accusing Warner Brothers of infringing 3 Mr. Vander Ark's copyrights on a time line that he wrote based 4 on Ms. Rowling's books, right? 5 A. Well, why don't you read the letter to the Court because I 6 don't think that's what it says at all. 7 Q. What were you accusing Warner Brothers -- 8 THE COURT: What is the exhibit number now? 9 THE DEPUTY CLERK: 14H. 10 THE WITNESS: Would you mind if I read from my own 11 letter? 12 THE COURT: Just a second. Let me get caught up here 13 because -- all right. We have the letter addressed to Warner 14 Brothers. 15 Q. I would like to direct your attention, Mr. Rapoport -- 16 please direct your attention to the middle where it says: 17 There is no question that the DVD time line was copied directly 18 from the Harry Potter Lexicon. 19 Do you see that? 20 A. Sure. Yes, I do. 21 Q. What did you mean by copied directly? 22 A. Well, it was on the DVDs. Verbatim -- you know, it was 23 taken from a lexicon and put on the DVDs. 24 Q. Right. So copying from Mr. Vander Ark's which you claim is 25 Mr. Vander Ark's work -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 202 84E5WAR6 Rapoport - direct 1 A. His original, yeah. 2 THE COURT: Wait a minute. 3 A. Yes, he created an original time line that ended up on the 4 DVDs, right. 5 Q. And you know Ms. Rowling created seven original Harry 6 Potter books, right? 7 A. Yes. 8 Q. And that material was copied and put in the Lexicon, wasn't 9 it? 10 A. No. 11 Q. Is it your testimony, Mr. Rapoport, that the Lexicon, that 12 Mr. Vander Ark did not copy from Ms. Rowling's books? 13 A. No. 14 Q. He did not, is that your testimony? 15 THE COURT: No, his testimony is, his answer was no to 16 you. The way you phrased the question his answer was no. 17 Q. Are you saying that he did copy? 18 A. No. 19 MR. SHALLMAN: I think that cleared it up, your Honor. 20 THE COURT: I don't know that it does. 21 Q. Well, again, this was eight days after you told us all of 22 your work had been interrupted and you wrote this detailed 23 letter to Warner Brothers about the time line issue, right? 24 A. Yes. 25 Q. And, in fact, you understand that Mr. Vander Ark has not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 203 84E5WAR6 Rapoport - direct 1 settled this issue with Warner Brothers, right? 2 A. Yes. 3 Q. Mr. Rapoport, I'm going to try this one more time. 4 Do you think that Mr. Vander Ark copied -- 5 THE COURT: Let's just ask the question without the 6 comment, all right? 7 Q. Mr. Rapoport, do you think Mr. Vander Ark copied 8 Ms. Rowling's work in the Lexicon? 9 A. No. 10 Q. Now, between October 3rd when you said you had a family 11 problem -- 12 THE COURT: Let me just ask you a question. 13 You believe that certain words and paraphrases from 14 her work were not copied in the Lexicon? 15 THE WITNESS: He was asking a general question and I 16 was giving a general answer to a general question. Is that 17 satisfactory? 18 THE COURT: I understand you. 19 Q. So generally he didn't copy, is that your testimony? 20 A. Well, your question is a very broad one. I assume that's 21 the subject of this -- 22 THE COURT: The way you asked the question -- 23 THE WITNESS: It is a very broad question. 24 THE COURT: The way you asked the question was whether 25 he copied her work and he answered no. And I asked whether he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 204 84E5WAR6 Rapoport - direct 1 had copied from her work. He said he had given a general 2 answer. 3 THE WITNESS: To the broad question that you asked. 4 BY MR. SHALLMAN: 5 Q. The distinction may be lost on me but Mr. Rapoport -- 6 THE COURT: Well, that's why I thought I would call it 7 to your attention. 8 MR. SHALLMAN: Thank you. 9 Q. You are aware that Mr. Vander Ark copied specific language 10 from Ms. Rowling's work, aren't you? 11 A. Well, you are not -- you are not being specific about what 12 you are asking about, though. You need to be more specific 13 about what it is you are talking about. 14 Q. I'm just asking you, the entire 400-plus page Lexicon, is 15 there anything in there that is copied from Ms. Rowling? 16 A. The answer is that this book, the Harry Potter Lexicon is 17 fair use. 18 Q. That is not what I asked you. 19 Of that entire 400-plus page book that is going out 20 under RDR Books' name, is any of it copied from Ms. Rowling? 21 A. There is material in the -- yes, there is material in the 22 book that's based on -- absolutely, that's based on the Harry 23 Potter Lexicon series, of course. 24 Q. And, sir, you admit that there is material in the Lexicon 25 book that is based on the Harry Potter books that Ms. Rowling SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 205 84E5WAR6 Rapoport - direct 1 wrote? 2 A. Yes. 3 Q. Now, we wrote to you -- O'Melveny & Myers wrote to you 4 again on October 19th, correct? 5 A. Yes. 6 Q. And between October 19th and October 3rd we had given you 7 space, right? We hadn't been bugging you again because you 8 told us there was this family issue. 9 A. Well, you are kind of skipping over in the chronology. 10 Have you not read all the documents? 11 Q. Sir, I'm just asking you a question. 12 A. Okay. Well -- 13 MS. HASSE: I think you misstated the dates. 14 A. Your memory is a little faulty here. 15 I wrote a letter to Barry Meyer which you just 16 conveniently went over, and then I got a letter back from the 17 vice president of Warner Brothers, Dale Nelson. 18 Q. We will get to that. 19 A. Well, maybe since that is part of the chronology you might 20 want to talk about it. 21 Q. Mr. Rapoport, in fact Warner Brothers asked you for a 22 manuscript, didn't they? 23 A. That's correct. 24 Q. And you refused, right? 25 A. That's not true. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 206 84E5WAR6 Rapoport - direct 1 Q. You did not provide them a manuscript? 2 A. That's not true. 3 Q. In fact, you told them to just go print out the website, 4 isn't that right -- 5 A. That's correct. 6 Q. -- and that you considered providing them the manuscript? 7 A. Well, as you know, the book is online. 8 Q. Mr. Rapoport, you were sending out electronic copies of the 9 Lexicon manuscript all around the world, weren't you? 10 A. I was sending it to other publishers. 11 Q. Yes; but you didn't send it to Warner Brothers when they 12 asked you, right? 13 A. Yes. 14 Q. You told them just go print it out. You guys know how to 15 print, right? 16 A. Yes. And they also said they were going to get back to me 17 and never did. 18 Q. Well, you received a letter from us on October 24th, didn't 19 you? 20 A. Yes. 21 Q. And during this time period -- 22 THE COURT: Do we have an exhibit number? 23 MR. SHALLMAN: 15H, your Honor. 24 THE COURT: 15H. 25 Q. Do you see a letter from Ms. Cendali to you dated October SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 207 84E5WAR6 Rapoport - direct 1 24th? 2 A. Yes. 3 Q. Again, you said that Warner Brothers never responded to 4 you, right? 5 A. Warner Brothers didn't respond. Dale Nelson said she would 6 respond and she never did. 7 Q. You know Ms. Cendali represents Warner Brothers, don't you? 8 A. Yes. 9 Q. You understand that lawyers write letters on behalf of 10 clients, right? 11 A. I understand that. 12 Q. Okay. And you see in this letter the second paragraph 13 references: Your refusal of Warner Brothers' prior request for 14 a copy of the book only heightens our client's fears that the 15 book infringes their rights. 16 Do you see that? 17 A. I do. 18 Q. And you had refused Warner Brothers' request for a copy of 19 the book, right? 20 A. That's true. 21 Q. And we asked you for a copy here, right? 22 A. Yes. 23 THE COURT: In this letter you mean? 24 MR. SHALLMAN: In this letter. 25 THE COURT: You mean Ms. Cendali asks in this letter SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 208 84E5WAR6 Rapoport - direct 1 for one? Is that what your question is? 2 MR. SHALLMAN: Yes, your Honor. 3 Q. Mr. Rapoport, Ms. Cendali was asking you for a copy of the 4 manuscript here, right? 5 A. Yes. 6 Q. And you didn't e-mail us a copy, did you? 7 A. No. 8 Q. And do you see, I want to refer you to the first paragraph 9 where it says: For example, we have learned that RDR Books 10 recently offered the publishing rights for the book in Germany 11 to Random House and in Taiwan to Crown Publishing. 12 A. Yes. 13 Q. That's true, right? 14 A. Yes. 15 Q. You were offering this book to publishers around the world, 16 right? 17 A. We were sending it to publishers in other countries, yes. 18 Q. And, by October 24th you still had not responded to our 19 request for information about the Lexicon, right? 20 A. Request for information? No, that's not true. 21 Q. You still had not produced us a response to any of our 22 letters? 23 A. No. I had written back and said that the book was 24 available to you online as it had been for the last seven 25 years. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 209 84E5WAR6 Rapoport - direct 1 Q. And it is your testimony that everything on that website is 2 in that book, is that right? 3 A. No. 4 Q. You understand there is a lot of other stuff on that 5 website than there is in that book? 6 A. Yes. 7 Q. Right? 8 A. I understand that. 9 Q. Now, did you tell any of the foreign publishers who you 10 were out marketing this book to that Ms. Rowling had raised 11 objections to the Lexicon? 12 A. No. 13 Q. Now, you recall that we contacted you again on October 14 31st, 2007, right? 15 A. Yes. 16 Q. And that was just prior to the filing of this lawsuit, 17 right? 18 A. Yes. 19 Q. And we requested again a copy of the manuscript so we can 20 take a look, right? 21 A. At that point the request was to stop -- to Nelson that we 22 were going to stop publication of the book. 23 Q. But we did ask you for a copy of the manuscript, right? 24 THE COURT: Where? What exhibit are you referring to, 25 Mr. -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 210 84E5WAR6 Rapoport - direct 1 MR. SHALLMAN: I'm not referring to a document, your 2 Honor. This is just a conversation. 3 A. No, as I recall -- 4 THE COURT: What date? What date? 5 MR. SHALLMAN: October 31st. 6 THE WITNESS: As I recall, I was asked repeatedly to 7 stop, to declare that I would stop publication of the book. 8 That's what I recall. 9 Q. Right. We asked you to confirm that you would not go 10 forward -- 11 A. Right. 12 Q. -- until we had a chance to see the book, right? 13 A. No. I was told specifically: Will you stop? Will you 14 stop this book? Will you stop this book? That was what I was 15 told. 16 Q. And again, Mr. Rapoport, you did not provide us with a 17 manuscript, right? 18 A. At that point I was told specifically -- I was specifically 19 asked: Will you stop this book? Will you stop this book? 20 THE COURT: Are you saying you weren't asked to supply 21 the manuscript? Please. We can't both talk at once. 22 THE WITNESS: At that moment I was asked specifically, 23 repeatedly, will you stop this book? 24 THE COURT: I heard that. So, I'm asking you -- 25 THE WITNESS: At that point -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 211 84E5WAR6 Rapoport - direct 1 THE COURT: In that conversation were you asked to 2 produce a copy for their inspection? 3 THE WITNESS: I don't recall being asked at that 4 moment for a copy. 5 THE COURT: Okay. 6 THE WITNESS: No. I recall being asked specifically 7 to stop, to announce that I would not publish the book. 8 THE COURT: Okay. 9 THE WITNESS: Stop. Cease and desist. 10 BY MR. SHALLMAN: 11 Q. Isn't it true that Ms. Cendali said to you: Please don't 12 publish that book until we've had a chance to see it? 13 A. That's not the way I remember it. 14 I remember Ms. Cendali screaming at me at the top of 15 her lungs for about 20 minutes saying: Will you stop this 16 book? Will you stop this book? And I kept asking questions. 17 But I don't recall her saying to me, you know, will you send me 18 a copy. It had gone beyond that point. 19 She said she was going to court that afternoon, you 20 know, this was a courtesy call because I was getting sued. 21 Q. And, Mr. Rapoport, it wasn't until you were sued in order 22 to produce discovery that plaintiffs were able to see the 23 Lexicon manuscript, right? 24 A. We sent the book in, yes. 25 Q. As part of discovery, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 212 84E5WAR6 Rapoport - direct 1 A. Yes. Correct, yes. 2 Q. Now, you didn't voluntarily send us -- 3 A. That's correct. 4 Q. Now, foreign interest in this book was very strong, wasn't 5 it? 6 A. It was pretty good, yeah. 7 Q. Yeah. And you were, as we talked about earlier, you were 8 trying to get this book to market as quickly as you could, 9 right? 10 A. Sure. 11 Q. And, in fact, you felt that RDR would have a market 12 advantage if it could get its book out before competitors, 13 right? 14 MS. HASSE: Objection. Asked and answered and vague, 15 your Honor. 16 THE COURT: Yes, it has been asked. You went into 17 that. 18 Q. Let's take a look at Plaintiff's Exhibit 14K. I want to 19 direct your attention now again to this e-mail which starts in 20 the middle of the page from you to Mr. Riff dated September 21 6th. Do you see at the bottom there is a sentence that begins: 22 Our title will be... 23 I want to go to the next page. 24 A. Uh-huh. 25 Q. It says: Our title will be the only complete up-to-date SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 213 84E5WAR6 Rapoport - direct 1 reference book on the series through book 7, Harry Potter and 2 the Deathly Hallows. 3 Right? 4 A. Yes. 5 Q. You thought you were going to be first to market with a 6 complete, up-to-date reference book, right? 7 A. Yes. 8 Q. And you also said: It is without a doubt the definitive 9 book on the series and will come out way ahead of possible 10 competitors. 11 Right? 12 A. Yes, I said that. 13 Q. So you knew there were possible competitors, right? 14 A. Of course. 15 Q. And you wanted to be out to market before them, right? 16 A. Yes. I knew that Ulysses Press was working on a book. 17 That was coming out November 28th. 18 Q. And, in fact, you thought this book would be more 19 comprehensive than other books coming out about Harry Potter, 20 right? 21 A. Yes. 22 Q. Let's take a look at Exhibit 139. 23 You mentioned Ulysses Press, what were they planing to 24 do? 25 A. They had another book. The Mugglenet team was doing a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 214 84E5WAR6 Rapoport - direct 1 book. You have heard about it already today. 2 Q. Why did you want to get out to market before them? 3 A. We just wanted -- because we were going to be competing 4 with them. 5 Q. You thought being first would give you a market advantage, 6 correct? 7 A. Well, it wouldn't -- it is always good to be out with a 8 good book in a timely way, sure -- yeah, on any book -- and 9 this was a good situation. 10 Q. Before competitors, right? 11 A. Well, you know, to come out, not to be way behind, I'm 12 sure. 13 (Continued on next page) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 215 84EVWAR7 Rapoport - directShallman 1 Q. Now, by this point -- let's turn to 139, and I want to 2 direct your attention to email from you to Tereza Pagano dated 3 October 29th, '07. 4 A. Right. 5 Q. Do you see that? 6 A. Right. 7 Q. And by that point, sir, you certainly knew that Ms. Rowling 8 was planning a Harry Potter encyclopedia, right? 9 A. Yes, I heard about it by that point, yes. Yes. 10 Q. Ms. Cendali in her letters -- 11 A. Right, yeah, I knew. 12 Q. -- told you. Okay. Let's turn to the next page in the 13 second paragraph. I want you to see -- highlight where it 14 says, "No competing work." Do you see that? No competing 15 work, and hope to compete with our lexicon. Do you see that? 16 A. Sure. 17 Q. You didn't think there was anything that could come out 18 that could compete with the Lexicon, right? 19 A. Nothing that we knew that was in the near term, sure. 20 Q. And, sir, you were trying to sell this book in the 21 children's -- to children's booksellers, right? 22 A. We were selling the book to anyone who was interested in 23 the Harry Potter books of any age. 24 Q. And you were specifically marketing toward children's 25 bookstores, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 216 84EVWAR7 Rapoport - directShallman 1 A. No. 2 Q. Children's booksellers? 3 A. Not necessarily. Adults and children both buy this book. 4 Anyone who's interested in Harry Potter, adult or children, 5 would be a potential audience. 6 Q. Let's take a look at Plaintiffs' Exhibit 14-L. I want to 7 direct your attention to an email that starts at the bottom, 8 September 29th, do you see that? 9 A. Yeah, I see it. 10 Q. And that's directed to someone named Megan. Who is Megan? 11 A. Megan is an employee, Megan Trane. She's somebody who 12 works for me. 13 Q. Okay. And you say here, Here are a few questions. 14 A. Mm-hmm. 15 Q. Megan's job is again? 16 A. Well, she was helping getting information out to the stores 17 with marketing. 18 Q. She was helping marketing the Lexicon book, right? 19 A. Yeah, right. 20 Q. And in the first sentence there you say, Do you have all 21 the children's stores added, right? 22 A. Yeah, children's stores were included, yes. There are 23 about 200 children's stores in the country. 24 Q. Right. And, sir, you are specifically targeting children's 25 stores here, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 217 84EVWAR7 Rapoport - directShallman 1 A. They were part of the stores that we were going to, not 2 just -- not them alone, no. 3 Q. Well, they were an important part of this, aren't they? 4 A. They were one part of it. 5 Q. All right. Well, let's direct your attention to where it 6 says "but since." Do you see that? It's the end of the first 7 paragraph. But since the kid buyers are critical for this 8 flier, I do think it might make sense to get the right names 9 for those stores. 10 A. Right. 11 Q. You thought kid buyers were critical, right? 12 A. Yes. Stores sell books, these books, to both adults and 13 children, that's correct. 14 Q. And you knew and for a Harry Potter work of scholarship and 15 research that kid buyers were critical, right? 16 A. They were certainly important. 17 Q. Do you believe that everyone who can afford to by one 24.99 18 encyclopedia can afford to buy another one? 19 A. On the same day? 20 Q. Let's start with the same day. 21 A. I don't know. I don't know how to answer that question. 22 THE COURT: I think -- go ahead. 23 Q. Now, you have told -- in marketing this book, you told 24 someone named Mr. Marc Valet, you talked to him? 25 A. Sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 218 84EVWAR7 Rapoport - directShallman 1 Q. Who is that? 2 A. He's a Canadian publisher in Montreal. 3 Q. Okay. And he was someone you were working with on the 4 Harry Potter Lexicon? 5 A. Mm-hmm. 6 Q. And he purchased the rights? 7 A. Correct. 8 Q. Was he one that you were under contract with? 9 A. Yes. 10 Q. And you told Mr. Valet that the book was written -- the 11 Lexicon was written by 20 academic scholars and reference 12 experts, right? 13 A. I wrote that, yes. 14 Q. And you were aware though that there were only four primary 15 writers of the Lexicon book, right? 16 A. There was a principal group, that's correct, yes. There 17 was a principal group. 18 Q. Well, let's look at Exhibit 109. Do you see an email from 19 Mr. Vander Ark to you dated September 17? 20 A. I do. 21 Q. And in that email he said to you, There will be four 22 dedications, one from me and one from each of the three primary 23 writers, right? 24 A. That's correct. 25 Q. Okay. And you were pitching this book as having been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 219 84EVWAR7 Rapoport - directShallman 1 written by 20 academic scholars and experts, right? 2 A. That's true. 3 Q. Belinda Hobbs, an academic scholar or reference expert? 4 A. I'm sorry, but I don't -- are you asking me to tell you 5 more about all the 20 people, is that what you're driving at? 6 Q. I asked you about Belinda Hobbs, Mr. Rapoport. Did you 7 consider her one of the 20 academic experts and reference 8 scholars? 9 A. I can't tell you specifically which of the people, because 10 there are a lot of people who worked on this project, both in 11 my office and Steve Vander Ark's office and in other places. 12 So everybody who worked on it made an important contribution. 13 Q. How about John Kearns, is he an academic scholar or 14 reference expert? 15 A. I would say so, yes. 16 Q. How about Lisa Waite Bunker. 17 A. Absolutely. I would say everybody who worked on this 18 qualifies as an expert. 19 Q. On Harry Potter, right? 20 A. Absolutely. 21 Q. That's readers and fans of the books, right? 22 A. Yes. 23 Q. I want to show you Exhibit 14-N, as in Nancy. And 24 directing your attention now to the email on the second half of 25 the page from you to Marc from October 16, '07. Do you see SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 220 84EVWAR7 Rapoport - directShallman 1 that? 2 A. Yes, I do. 3 Q. And Marc is Marc Valet, correct? 4 A. Yes. 5 Q. And do you see where it says, Our book is written by 20 6 academic scholars and reference experts? 7 A. Yes, I do. 8 Q. Is that right? Who are the 20, sir? 9 A. I'm sorry, I don't have all of the names here. 10 Q. Start at the beginning. Name as many as you can. 11 A. Well, I don't have all the names of everybody who worked on 12 the team. This is a project over seven years, and I'm sure 13 that Mr. Vander Ark can probably help you with that. 14 Q. Can you name one? 15 A. Well, you just named four. 16 Q. Can you name anymore? 17 A. Well, sure. I mean we had -- 18 Q. Can you name anymore? 19 A. Yeah, I mean there were other people working at Methuen, 20 you know, the publisher of Methuen. He had several people 21 working there. 22 Q. So the publish -- people at the publisher's company you 23 were including in this 20-academic-scholar reference? 24 A. That's correct. There was a team at Methuen of experts. 25 Methuen is a publisher of reference books, including SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 221 84EVWAR7 Rapoport - directShallman 1 encyclopedias. And they had their own encyclopedia experts 2 working with us, both in editorial and production, on this 3 book. 4 So there was a group of people in Methuen; there's a 5 group of people in my office; there was a group of people 6 working with Steve Vander Ark, who have been working with him 7 over a period of seven years, the top editors you just named, 8 but there were other people that had been working along the 9 line. And overtime I helped him to create this, and some of 10 their work, of course, ended up in the final. 11 Q. Book says it was written by Steve Vander Ark, right? 12 A. He's listed as the lead author, but as you just showed, 13 there was a group of co-editors who also were getting 14 acknowledgement on the title page of the book. 15 Q. Were they getting compensated? 16 A. They were going to be compensated, yes. 17 Q. By you? 18 A. No, by Steve. 19 Q. So you didn't have a contract with any of them? 20 A. No. 21 Q. You did not intend to compensate them for their work? 22 A. Steve was going to deal with that. 23 Q. You understand, sir, that as part of the Lexicon web site, 24 that fans could submit information and emails for Ms. Rowling's 25 books to help build that web site, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 222 84EVWAR7 Rapoport - directShallman 1 A. Well, fans could contribute in many different ways, sure. 2 Q. Right. They contributed information that could go into the 3 Lexicon, right? 4 A. Potentially. 5 Q. And that information, as you said, goes from the Lexicon 6 web site, and it's in that book, right? 7 A. It is certainly possible for that process to happen, sure. 8 I mean somebody submits an idea, of course. 9 Q. Right. And it's possible that that idea submitted by a fan 10 to Mr. Vander Ark's web site is in your book that you want to 11 sell, right? 12 A. It's possible, yeah. I mean, yes, it is possible. 13 Q. And are those fans who submitted contributions to the 14 Lexicon web site, are they going to be compensated in any way 15 for their contributions? 16 A. That's a complicated question because it's a hypothetical 17 question at this point. 18 Q. Are you objecting to that question? 19 A. It's a hypothetical question. It's a difficult question to 20 answer. 21 Q. Are you going to be compensating any fans who submitted 22 information that ended up in the Lexicon book? 23 A. Not if I can't publish the book I'm not. 24 Q. You hope you can publish a book though, don't you? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 223 84EVWAR7 Rapoport - directShallman 1 Q. You hope to make money off of this book, right? 2 A. Yes. 3 Q. You're not going to give any of that money to charity, are 4 you? 5 A. That's not true. 6 Q. Mr. Rapoport, out of the money -- if you win this case, out 7 of the money that you receive, you don't plan to give any of it 8 to fans who submitted their work, their time, to submitting 9 information from Ms. Rowling's book to Mr. Vander Ark's web 10 site, is that right? 11 A. That's not true. 12 Q. You're going to give back money to the fans, is that what 13 you're saying? 14 A. If the book is successful, there's a lot of possibilities. 15 If the book is published, of course, yes. I publish 16 collections of groups of authors all the time and compensate 17 all of them. 18 Q. What did you mean, sir, when you said that there were -- 19 what did you mean by "academic scholar" in this email? 20 A. Well, I think Steve is a pretty good example. 21 THE COURT: Who? 22 THE WITNESS: Steve Vander Ark, the author. I think 23 he's a good example. 24 Q. Of an academic scholar? 25 A. You bet. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 224 84EVWAR7 Rapoport - directShallman 1 Q. Any others? 2 A. All the people you just named. 3 Q. They are all academic scholars? 4 A. They all have -- in this world that they are in, they do 5 reference work, they do indexing, they do research, they do -- 6 yes, this is a good example. It's not unlike Wikipedia. 7 Q. Any masters or Ph.D.s in literature? 8 A. No. 9 Q. Did you tell that to Mr. Valet in that email 10 A. No. 11 Q. Now, let's take a look at Plaintiffs' Exhibit 27-O. 12 THE COURT: How much longer are you going to be? 13 MR. SHALLMAN: About -- if I can have ten minutes, 14 your Honor, and I can be done. 15 THE COURT: All right. 16 MR. SHALLMAN: Thank you. 17 BY MR. SHALLMAN: 18 Q. You see an email there from Mr. Harris to Mr. Rapoport? 19 A. I do. 20 Q. And it's dated September 30th, 2007? 21 A. I do. 22 Q. And in this email you say -- or Mr. Harris said to you, 23 I've tried to take out some of the overly defensive language. 24 Just because you say it's a critical reference work or covered 25 by the Fair Use Doctrine doesn't mean it is. Do you remember SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 225 84EVWAR7 Rapoport - directShallman 1 him sending that to you? 2 A. I do. 3 Q. You understand that that's the case, right? 4 A. I received it. 5 Q. Well, you understand that just calling something a 6 reference work doesn't make it so, right? 7 A. No, I don't share that view, not the way you're 8 interpreting it. 9 MR. SHALLMAN: I may have underestimated my time, your 10 Honor. This may be a convenient time. 11 THE COURT: No. Let's go ahead and get it over with. 12 MR. SHALLMAN: All right. I'll do my best. 13 THE COURT: Maybe you can shorten it a little bit. 14 BY MR. SHALLMAN: 15 Q. You do expect that -- if this book is allowed to be 16 published, you do expect it to do well, don't you, sir? 17 A. I expect it to be sold to people who are interested in the 18 book, sure. 19 Q. In fact, you hope that the publicity around this lawsuit 20 might help generate sales, too, right? 21 A. I haven't really thought about that possibility, not 22 really. 23 Q. You've never thought about that, is that what you're 24 saying? 25 A. Well, are you now going to show me an email where I said SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 226 84EVWAR7 Rapoport - directShallman 1 that, is that what you're going to do? 2 MR. SHALLMAN: I'm not going to show you an email, 3 Mr. Rapoport. 4 A. I'm waiting for you to show it to me. Where is it? 5 Q. This case has been in The New York Times, in The Wall 6 Street Journal, the BBC. 7 A. Are you blaming me -- 8 THE COURT: Let's not have a speech and let's ask the 9 next question right now. Now. Question. 10 Q. Mr. Rapoport, are you saying that you haven't thought about 11 the fact that the publicity around this case might help boost 12 sales for your book, is that what you're saying? 13 A. I'm not really thinking about that right now, to tell you 14 the truth. 15 Q. You have thought about that, though, haven't you? 16 A. Not really. 17 Q. You thought about that when you were refusing to respond to 18 all of our letters, weren't you? 19 A. No. 20 Q. You were thinking about that when you were refusing to 21 provide us a manuscript, weren't you? 22 A. No, I was thinking about whether Dale Cendali was going to 23 call me up again and scream at me again. 24 Q. You were thinking about the publicity that a case like this 25 might generate when you -- on October 31st, when Ms. Cendali SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 227 84EVWAR7 Rapoport - directShallman 1 called you and said, We're going to file a lawsuit, you were 2 thinking about the publicity that you might generate for this 3 book. 4 MS. HASSE: Objection, your Honor. Compound question. 5 A. No, that's not true. 6 Q. Well, you thought this book would be a best-seller, didn't 7 you? 8 A. No. 9 Q. In fact, sir, you agreed to give Mr. Vander Ark a bonus for 10 every week that this book appeared on The New York Times 11 Best-seller List, isn't that right? 12 A. We've never had a book on The New York Times Best-seller 13 List. 14 Q. Well, you were thinking you were going to have one here, 15 weren't you? 16 A. No. 17 Q. But you did put in that provision in the contract, right? 18 A. Yes. 19 Q. And you had made numerous deals to sell this book in other 20 countries, right? 21 A. We had a signed contract in Canada and France. 22 THE COURT: Haven't we covered this? Now, let's come 23 on. This is cross-examination like it usually is to make it 24 short and sweet. 25 MR. SHALLMAN: We're almost there, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 228 84EVWAR7 Rapoport - directShallman 1 Q. Methuen paid you a, 5,000-pound advance, correct? 2 A. No. Actually, I never got 5,000 pounds from Methuen. The 3 contract was never signed because of the lawsuit. 4 Q. Well, and no other foreign publishers gave you an advance 5 more than Methuen gave you? 6 A. There were no -- there were -- the only signed contracts 7 for this book, for the Harry Potter Lexicon, were in Canada and 8 France. And so the other contracts you're referring to were 9 never signed because of the lawsuit. 10 Q. Okay. So no one gave you an advance beyond 5,000 pounds -- 11 or at all, really, from the foreign publishers, right? 12 A. Well, what I'm saying is -- no, that's -- say it again. 13 State the question. 14 Q. Did you get any other advances, sir? 15 A. Yes, I did. 16 Q. How much? What was the largest? 17 A. When I told you I sold the rights to the publisher in 18 France. 19 Q. For how much? 20 A. It was for $5,000. 21 Q. Okay. Take a look at Plaintiffs' Exhibit 123. 22 A. I mean it was a Canadian publisher. And so basically there 23 was a Canadian deal and a French deal. And there was a $5,000 24 payment for one of them -- 25 Q. Mr. Rapoport -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 229 84EVWAR7 Rapoport - directShallman 1 A. -- that was actually received. 2 MR. SHALLMAN: This is Plaintiffs' Exhibit 123, your 3 Honor. 4 A. Right. 5 Q. Do you see, Mr. Rapoport, an email from you to Mr. Tummons 6 of Methuen? 7 A. Yes. 8 Q. From October 8, 2007? 9 A. I do. 10 Q. And I want to direct your attention to a sentence there, 11 starting, As it turns out, the price I quoted you -- we can 12 bring out that whole sentence and then highlight "as it turns 13 out." And the purpose of this email was to try to get Methuen 14 to go ahead and pay you the advance, right? 15 A. Yes. 16 Q. And in this email to Mr. Tummons you said, As it turns out, 17 the price I quoted you, 10,000 pounds, is lower than the 18 advances we are getting from other publishers in Europe. Is 19 that right? 20 A. That's true. Yes. 21 Q. You said that? 22 A. Yes. 23 Q. That wasn't true? 24 A. No, that is true. 25 Q. You got -- you just told us you didn't get anything other SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 230 84EVWAR7 Rapoport - directShallman 1 than 5,000 pounds. 2 A. As you know, there were deals that were made that were 3 never signed; contracts that were never executed. And there 4 was another publisher in another country that paid more than 5 10,000 pounds, except -- that was the deal that was agreed on 6 orally between the agent and the publisher, except the contract 7 was never signed because of the lawsuit, so the money never was 8 actually paid. The contract was never signed. 9 Q. You were telling Mr. Tummons here that you were getting 10 advances of more than 10,000 pounds, right? 11 A. Yes, there was one other publisher that was going to pay 12 more 10,000 pounds, that's true. 13 Q. They hadn't paid it yet, right? 14 A. They hadn't paid it yet. And they never paid it because of 15 the lawsuit; there was no contract. 16 Q. Well, Mr. Rapoport, you made a deal to sell -- you had an 17 order from Barnes & Noble and Borders already, right? 18 A. No, that's not true. 19 Q. You didn't make a sale for 1500 books? 20 A. No. 21 Q. And you were aware that the Muggle net book had done very 22 well, right? 23 A. Sure, yeah, I knew that. 24 Q. You knew it was on the best-seller list, right? 25 A. Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 231 84EVWAR7 Rapoport - directShallman 1 Q. You know that if you win this case you stand to make a lot 2 of money, right? 3 A. Not at all. 4 Q. And you know if you don't, you're not going to see any of 5 it, right? 6 A. Well, obviously I won't be able to sell the book. 7 Q. You won't be able to sell the book; you won't make any of 8 the money you think you're going to make from it, right? 9 A. Yes. 10 MR. SHALLMAN: Nothing further, your Honor. 11 THE COURT: I know you'll be a little while on direct, 12 so let's break for the day and come back tomorrow at 9:30. 13 MR. HAMMER: Your Honor, we only have five minutes on 14 redirect. 15 THE COURT: What? 16 MR. SHALLMAN: Only got about five minutes on 17 redirect. 18 THE COURT: You've only got five minutes? All right. 19 Let's do it. 20 MS. HASSE: Good afternoon, your Honor, Lizbeth Hasse. 21 CROSS-EXAMINATION 22 BY MS. HASSE: 23 Q. Mr. Rapoport, did you ever think that your book would 24 compete with Ms. Rowling or any of her books? 25 A. Not in my wildest dreams. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 232 84EVWAR7 Rapoport - cross 1 Q. How long have you been operating RDR Books? 2 A. Fifteen years. 3 Q. And what kind of books do you generally publish? 4 A. We publish history, biography, books on the environment, 5 science, medicine, and children's books. 6 Q. What's the average number of copies that sell of the books 7 that -- the titles that -- 8 MR. SHALLMAN: Objection. Beyond the scope, your 9 Honor. 10 MS. HASSE: Excuse me? 11 MR. SHALLMAN: Beyond the scope of direct. 12 MR. HAMMER: Should we have to recall this man for our 13 case? 14 THE COURT: I can recall him. Go through it. 15 MR. SHALLMAN: He's not on their list, your Honor. 16 THE COURT: All they're doing is five minutes or 15 17 minutes, whatever it is. Let's go ahead. 18 BY MS. HASSE: 19 Q. What are the usual number -- 20 A. The average book sells less than 5,000 copies, which is an 21 industry average, by the way, or average. 22 Q. And what's the largest number that any single title -- 23 A. In the last ten years, about 10,000 copies. 24 Q. Are you a writer yourself? 25 A. I am. I've written and edited 17 books. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 233 84EVWAR7 Rapoport - cross 1 Q. You sell these books also? 2 A. I have written books for other publishers, yes, and I have 3 also written and edited books in my own company. 4 Q. What was your projected marketing budget for the Lexicon? 5 A. Probably a couple thousand dollars. 6 Q. Do you have a sales staff? 7 THE COURT: I'm sorry? 8 THE WITNESS: About $2,000. 9 THE COURT: For what? 10 THE WITNESS: For the Lexicon, for this book, the 11 marketing budget. 12 THE COURT: Marketing budget. 13 THE WITNESS: Marketing budget, your Honor, would be 14 about $2,000. 15 BY MS. HASSE: 16 Q. Do you have a marketing staff at RDR Books? 17 A. I have a marketing assistant. 18 Q. So the marketing staff consists of -- 19 A. One assistant. 20 Q. You and one assistant? 21 A. Yeah. 22 Q. And what about a sales staff? 23 A. Well, I am the sales staff. 24 Q. And how do you sell books? 25 A. I travel to bookstores all over the country and I call on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 234 84EVWAR7 Rapoport - cross 1 accounts directly myself. And when I can't travel, I reach 2 them by phone and email. 3 Q. You walk into bookstores with the books? 4 A. Right. Last week I was in New Orleans, and I visited every 5 bookstore in New Orleans. 6 Q. Why were you in New Orleans? 7 A. Because that's how I do it. I pick a city and I go there 8 and I present my books. And I've been in over 2500 bookstores 9 that way all over the country. 10 Q. Is it a common practice for you to put into your contracts 11 with authors that if there's -- the book becomes a best-seller 12 it will get a bonus? 13 A. I've done it before, yes. And I've had it done for me, 14 actually. And it's never actually kicked in in anytime. I've 15 never had it ever kick in for me or for anybody else that I've 16 given it to. 17 Q. So you might put that provision into a contract, whether or 18 not -- 19 A. Right. 20 Q. -- you thought it had a chance of becoming a best-seller? 21 A. Right. I've had it in my own contracts with other 22 publishers and it's never kicked in. 23 Q. Why do authors choose to be published by your press? 24 A. Because we do a lot of first-time authors, and we're always 25 looking for the best book in the category, and sometimes the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 235 84EVWAR7 Rapoport - cross 1 best author is not a well-known author. We like beginners. 2 Q. Do you sell books to libraries? 3 A. All the time. In some cases they are half or more of our 4 market. The Michael Moore book we did a huge library sale. 5 More than half of the 10,000 books we sold went to libraries 6 because of very good reviews. 7 Q. So if you sell books to libraries, that would be about how 8 many books would you say? 9 A. You mean on the typical book? 10 Q. If you made a good sale -- 11 A. A good library sale would be two to three thousand copies. 12 Q. Did you anticipate this would be a good book for libraries, 13 the Lexicon? 14 A. Would be a great book for libraries, right. And the 15 leading library wholesaler in the country told me their first 16 order would be about 500 copies. They are called Baker & 17 Taylor. 18 THE COURT: I'm sorry, what was the name? 19 THE WITNESS: Baker & Taylor. They are the No. 1 20 library wholesaler in the country, they told me they would 21 probably buy -- 22 MR. SHALLMAN: Objection, your Honor. This is 23 hearsay. Move to strike the answer. 24 THE COURT: I think objection overruled. Let's go 25 ahead. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 236 84EVWAR7 Rapoport - cross 1 BY MS. HASSE: 2 Q. Did you take any provisions to try to be sure that your 3 book wouldn't be confused with a book of Ms. Rowling's or 4 confused as being endorsed by Ms. Rowling? 5 A. Well, we had a disclaimer. And, of course, now, as you 6 know, we've changed the cover to make it even more clear that 7 there's no connection whatsoever. Make it totally obvious. 8 Q. You had a disclaimer on the book? 9 A. Yeah, on the book, right. 10 Q. The do you recall -- 11 THE COURT: You always had the disclaimer? 12 THE WITNESS: Yes, there was a disclaimer always on 13 the book, yes. 14 THE COURT: What was the disclaimer? 15 THE WITNESS: We have it here. I mean I think we can 16 show it. Don't we have the flier? We can read it. Do you 17 have a copy of the marketing flier? It's been shown today. I 18 think you had it up; counsel had it up just a little while ago. 19 THE COURT: Just the word "unauthorized"? 20 THE WITNESS: No, it was the whole statement. I know 21 we can show it to you because it's been on the screen this 22 afternoon. Maybe you can bring it back up for us. 23 THE COURT: That's what you're referring to, in any 24 event. 25 THE WITNESS: Yeah. It was a whole paragraph spelling SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 237 84EVWAR7 Rapoport - cross 1 out that this book was completely unauthorized and so on. And 2 we wanted everybody to know that it was unauthorized. We felt 3 that was important to everybody to understand that this was a 4 totally unauthorized book. 5 BY MS. HASSE: 6 Q. And did you place that disclaimer on your books from the 7 first design of the cover? 8 A. Yes. And then we subsequently redesigned the book to make 9 it even more clear by changing the title of the book, as you 10 know. We took out the words "Harry Potter," we just called it 11 "The Lexicon," so that the words "Harry Potter" aren't even in 12 the title. And that's the current cover design that we've 13 submitted to the Court. 14 MR. SHALLMAN: Objection, your Honor. This is 15 irrelevant now to the state of the case. 16 THE COURT: It's irrelevant? 17 MR. SHALLMAN: Yes, the cover issue is not at issue 18 anymore. 19 MS. HASSE: Your Honor, I believe that whether or not 20 he's seeking to take advantage of Ms. Rowling and the publicity 21 to her is important to this book -- to this case, at least the 22 testimony that the plaintiffs have offered. 23 THE COURT: The cover has been changed, but that was 24 only done after the lawsuit was filed. 25 THE WITNESS: That's true. And I think it's not an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 238 84EVWAR7 Rapoport - cross 1 issue anymore. 2 MS. HASSE: That's right. 3 Q. But I was asking about the disclaimer, was the disclaimer 4 on the book from the start? 5 A. Yes, yes. 6 Q. And you sought not to confuse the book with anything by 7 Ms. Rowling? 8 A. Right. Exactly. 9 MS. HASSE: I have no more questions, your Honor. 10 THE COURT: Any redirect? 11 MR. SHALLMAN: Yes. 12 REDIRECT EXAMINATION 13 BY MR. SHALLMAN: 14 Q. Mr. Rapoport, you said that this New York Times or 15 best-seller list provision has never kicked in before? 16 A. That's true. 17 Q. You've never sold a Harry Potter book before, have you? 18 A. That's true. 19 Q. You haven't written one either, have you? 20 A. That's true. 21 Q. All right. 22 THE COURT: Did you have projections for sales on this 23 book? 24 THE WITNESS: Actually, we did, your Honor. We were 25 projecting a first printing of 10,000 copies, which is the most SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 239 84EVWAR7 Rapoport - redirect 1 we've ever done in the history of our company, 10,000 copies 2 first printing. 3 THE COURT: What were your -- didn't you have more -- 4 isn't that just a safety measure on your part? 5 THE WITNESS: Right. I mean the most -- in the last 6 ten years, the most we've ever sold of any book we've done is 7 about 10,000 copies. 8 THE COURT: I understand. 9 THE WITNESS: You're asking if we think we might do 10 more than that? It's possible. We might sell 20,000 maybe if 11 we're lucky. 12 THE COURT: The publisher will print only 10,000 13 copies to see how it goes, is that right? 14 THE WITNESS: Right. Yes. Exactly. 15 THE COURT: And if it goes well -- 16 THE WITNESS: Right. We might do another 10,000. 17 THE COURT: Or more. 18 THE WITNESS: Possibly, yes, possibly. But the Harry 19 Potter, you know, the -- our projection at this point in time 20 is probably -- you know, we'd be happy to sell the 10,000. 21 THE COURT: Didn't you have a responses from all these 22 people you were in contact with? 23 THE WITNESS: Well, we did, as a matter of fact, we 24 did have some responses. We got a response from Borders, who 25 was one of the companies you mentioned. And Borders said they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 240 84EVWAR7 Rapoport - redirect 1 weren't going to buy it at all; they actually turned the book 2 down for us. And Barnes & Noble never placed an order because 3 of the lawsuit, so we don't know their number. But a very good 4 number for Barnes & Noble, because I sell to them personally, 5 is two to three thousand copies. 6 THE COURT: That's for the books that don't have any 7 connection with Harry Potter. 8 THE WITNESS: Oh. Well, actually, it's interesting 9 you raise that question. I've talked to the stores that had 10 all these kinds of companion books. 11 THE COURT: I can't hear what the stores told you. 12 THE WITNESS: Yes. 13 MR. SHALLMAN: Thank you, your Honor. 14 BY MR. SHALLMAN: 15 Q. Mr. Rapoport, you said that Borders turned you down, is 16 that right? 17 A. That's right. They turned the book down. 18 Q. Can we take a look at Plaintiffs' Exhibit 137? I direct 19 your attention to an email from you to Susan Aikens at Borders 20 Group, Inc., is that right? 21 A. Right. That's right. 22 Q. And this is from October 28, 2007? 23 A. Right. 24 Q. And in this email you said, I'm delighted to know that you 25 are interested in starting with a Harry Potter Lexicon order of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 241 84EVWAR7 Rapoport - redirect 1 roughly 1500 copies, right? 2 A. That's what I wrote her, yes. 3 Q. Did you say that? 4 A. Yes, I did. 5 MR. SHALLMAN: Nothing further your Honor. 6 THE WITNESS: Well, can I respond? Am I allowed to 7 respond? 8 THE COURT: I think your lawyer can ask you a 9 question. 10 THE WITNESS: Would you like to ask me a question 11 about that? I'd appreciate it. 12 RECROSS EXAMINATION 13 BY MS. HASSE: 14 Q. Can you explain your answer? 15 A. Yeah, I'm sorry. What happened was that I actually did 16 meet with a buyer at Borders, and she said she was thinking 17 about doing an order of 1500 copies, according to that email. 18 And then she subsequently -- but she said I had to talk to some 19 other people in her company. And she did. And then she 20 subsequently told me that she wasn't going to order it at all; 21 that they decided they didn't want the book. 22 THE COURT: That was after the lawsuit started? 23 THE WITNESS: Yes, it was. That's correct. Yes. 24 MS. HASSE: Thank you. 25 THE COURT: All right. We're done for the day. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 242 84EVWAR7 Rapoport - recross 1 (Witness excused) 2 MR. SHALLMAN: Thank you, your Honor. 3 MR. HAMMER: Your Honor, two quick questions. First 4 of all, can we have the order of what witnesses will be called 5 tomorrow? 6 MS. CENDALI: Plaintiffs will call Steven Vander Ark 7 tomorrow morning. 8 MR. HAMMER: Okay. My one concern is with the rate 9 that we're proceeding, our expert, Ms. Sorenson, has to leave, 10 I think, by noon on Wednesday. So I would ask that after lunch 11 tomorrow, if they are not finished with Mr. Vander Ark, if we 12 can just take her out of turn; or perhaps Wednesday morning, 13 the first thing, whoever is on the stand, she still can take 14 the stand. 15 MS. CENDALI: Why don't we discuss it with you, 16 Mr. Hammer, tonight and we'll try to work it out to accommodate 17 her schedule. 18 MR. HAMMER: All right. 19 THE COURT: All right. See you in the morning. 20 MR. SHALLMAN: Thank you, your Honor. 21 MS. CENDALI: Thank you, your Honor. 22 (Adjourned to April 15, 2008 at 9:30 a.m.) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 243 1 INDEX OF EXAMINATION 2 Examination of: Page 3 JOANNE ROWLING 4 Direct By Ms. Cendali . . . . . . . . . . . 42 5 JOANNE ROWLING 6 Cross By Mr. Hammer . . . . . . . . . . . . 109 7 Direct By Ms. Cendali . . . . . . . . . . . 146 8 ROGER RAPOPORT 9 Direct By Mr. Shallman . . . . . . . . . . . 150 10 Cross By Ms. Hasse . . . . . . . . . . . . . 231 11 Redirect By Mr. Shallman . . . . . . . . . . 238 12 Recross By Ms. Hasse . . . . . . . . . . . . 241 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 244 1 PLAINTIFF EXHIBITS 2 Exhibit No. Received 3 1 through 32 . . . . . . . . . . . . . . 41 4 43 through 48 . . . . . . . . . . . . . . 41 5 50, 51, 52, 53, 69 73, 74 and 75 . . . . 41 6 86 through 99 . . . . . . . . . . . . . . 41 7 101 through 105 . . . . . . . . . . . . . 41 8 108 through 123 . . . . . . . . . . . . . 41 9 141, 143 and 192 . . . . . . . . . . . . 41 10 DEFENDANT EXHIBITS 11 Exhibit No. Received 12 502 through 507 . . . . . . . . . . . . . 41 13 520, 521, 523, 525, 526, 527 . . . . . . 41 14 559, 574, 576, 577 . . . . . . . . . . . 41 15 579 through 584 . . . . . . . . . . . . . 42 16 587 through 596 . . . . . . . . . . . . . 42 17 598 through 600 . . . . . . . . . . . . . 42 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300