As new witnesses took the stand on the second day of the Rowling/Warner Brothers trial against RDR Books, discussion moved to the usefulness of the Harry Potter Lexicon, the potential advantages of its being first to market, and the degree to which the book might affect sales of Rowling’s own long-planned Potter encyclopedia. Steven Vander Ark, the author of the Lexicon, gave emotional testimony, and two publishing executives—Suzanne Murphy and Bruce Harris—took the stand as expert witnesses, but offered opposing opinions. And Judge Robert P. Patterson surprised the courtroom when, at day’s close, he seemed to advocate for a settlement, saying that there were “strong issues” at stake in the case that were not being addressed, adding, “The parties ought to talk about seeing if there can’t be a way to work this thing out.”
During his testimony, Vander Ark, a boyish, 50-year-old former middle-school librarian who has managed the Web site that the Lexicon is based on since 2000, defended the book as a “ready reference” for fans of the series who might not want to pore through the books’ 200 chapters to find mention of a character, creature or spell. He said that while the Lexicon was not intended to be an exhaustive resource, it is a way to “synthesize” information about characters, creatures and plot points and show when and where they occur in the extensive Potter universe.
When asked why the phrasing of many of the Lexicon’s entries so closely mirrored Rowling’s words, he said, “The Lexicon book is a reference book to a piece of literature. Naturally it refers to the source material,” adding that because these creatures and characters are fictional, the Rowling canon is the only source of information and details. He mentioned that the Lexicon’s entries always refer to the book and chapter from which the information was derived. Regarding the similarity between his manuscript and the content of Rowling’s own companion books, Quidditch Through the Ages and Fantastic Beasts and Where to Find Them, Vander Ark said, “We wanted to be complete but we certainly didn’t want to replace Ms. Rowling’s encyclopedic content.”
Vander Ark praised Rowling’s creativity and expressed genuine excitement when it was mentioned that, in her testimony, Rowling had mentioned an error in the etymology in one of his entries—a spell’s name that derived not from Hawaiian but from a West African dialect. “Oh, really? What is it?” he asked. “Did she happen to say which dialect it was?” When asked if he considered himself part of the Harry Potter fan community, he broke down in tears, initially answering, “I did,” but then saying, “I do.” After regaining his composure, he said, “It’s been difficult because there’s been a lot of criticism and obviously that was never the intention.”
Following Vander Ark, Suzanne Murphy, v-p and publisher, trade publishing and marketing at Scholastic, took the stand as an expert witness for the plaintiff, based on her experience at that house, as well as Simon & Schuster and Random House. Murphy derided the quality of the Lexicon manuscript as “poor,” adding that it doesn’t add any “new insights or analysis” of Rowling’s work and “really is just like reading Ms. Rowling’s work out of order.”
If the Lexicon were to be shelved with Rowling’s Potter novels, Murphy said, she believes the “tremendous amount of plot” in the Lexicon might spoil the novels for readers, including children who might be “aging into” the series and reading it for the first time.
Speaking to the “first to market” advantage the Lexicon it might enjoy were it allowed to be published, Murphy called it a “key selling point” because of customers’ desire for new and different books. She said she felt the Lexicon “had the potential to do quite well” based on the popularity of the Web site. When pressed on how the book could be both of poor quality and a serious threat to Rowling’s books. Murphy responded that she felt what readers would get in the Lexicon is “[Rowling’s] work rearranged in a not-very-artful way.” Asked if she believed the Lexicon manuscript contained Rowling’s copyrighted work, Murphy answered that she believed that was true.
The final witness of the day was Bruce Harris, who currently works as a publishing consultant but who was publisher of Workman for several years, and before that was publishing director at Crown for many years, and head of sales and marketing at Random House, during a more than 40-year career in publishing. Harris testified that, based on his experience and research, he did not believe that the Lexicon would pose a threat to Rowling’s book sales—either her novels or any future encyclopedia—because buyers, be they for chains, wholesalers or libraries—wouldn’t take a chance on an unknown author, particularly of a reference book. He said that a first printing of any more than 10,000 copies of the Lexicon would be “risky.”
Harris also said that the Lexicon wouldn’t have near the marketing budget that Rowling’s books have had, and that he didn’t expect the excitement for its release to mirror that of her books, adding that it would be “highly unlikely” that bookstores would throw midnight parties were the Lexicon to be published.
When questioned by plaintiff lawyer Marvin Putnam about his lack of background in children’s publishing, Harris said that Rowling, whom he called “the bestselling author of the 21st century,” is a publishing phenomenon that extends beyond children’s books, adding, “Bestsellers behave very differently than other books.” Putnam additionally attempted to throw doubt on Harris’s reliability as a witness; under cross-examination, Harris testified that he’d signed on as an expert witness in the past few weeks and was being paid $5,000 for his participation.
Before adjourning at 4 p.m., Judge Patterson took both sides to task for what he saw as a lack of progress on addressing the case’s core issue—that of fair use—and expressed concern that “despite Ms. Rowling’s strong feelings,” the case seemed more “lawyer-driven” than “client-driven,” with “fair use on one side and a big company with a lot of money on the other.” By asking the parties to consider a settlement, Patterson left the door open for a number of possibilities when the trial resumes Wednesday morning.
