Even by the judge’s own admission, the Potter case could go either way. But at the close of today’s session, which concluded a three-day trial, the defense appeared to score some serious points. Here’s what happened:
Is “Weak Waggishness” a Legal Conclusion? The plaintiffs (author J.K. Rowling and Warner Bros.) called their literature expert, Jeri Johnson, a “senior tutor” (that’s like an academic dean) from Oxford. Johnson, whose title was constantly confused by the lawyers — mis-addressing her alternatively as Don, Dean, and Doctor (she has no doctorate) — testified in broad generalities, concluding that entries in the Lexicon don’t add new “layers of meaning” to Rowling’s novels, and merely rearrange Rowling’s intellectual “furniture.”
Unimpressed, Judge Robert Patterson interrupted. “It’s not helpful testimony because it draws conclusions without specifics,” he said. “I can’t simply take the expert’s opinion as my own.”
Then, when David Hammer — lead attorney for defendant publisher RDR who handled every witness examination — crossed Johnson, her testimony simply unraveled.
Hammer pressed Johnson on her previous statements that the H.P. Lexicon is “weak waggishness,” that its jokes are “facetious,” “condescending in the extreme” and amount to “tedious jocularity.” Hammer got Johnson to agree that what’s obvious or facile to an academic dean at Oxford might not be so to children — presumably the Lexicon’s main audience. He asked: Could a work be useful to a 10 year-old even if it’s not something she would classify as a work of academic scholarship? “Yes,” she said. “No more questions,” he said.
Does the Lexicon Take the Best Crumbs of Rowling’s Cake? The problem of generalities continued to plague the plaintiffs when Rowling, the first witness in the case, took the stand in rebuttal as the trial’s final witness. Comparing her novels to a cake, Rowling claimed that the Lexicon takes all the best “crumbs,” repackages them and sells them for “entertainment value.”
Again, Judge Patterson interrupted, and addressed Rowling directly. “Can you imagine anyone reading [the Lexicon] for entertainment value?”
“No,” she replied. “But, without seeming arrogant or vain, there are entertaining things in it — and I wrote them.” Rowling went on to say that, just because she’s been successful, the law shouldn’t grant her less copyright protection. And, if the case is decided in RDR’s favor, she argued, borrowing law school cliches, that it will be a “slippery slope,” “floodgates will open,” “a precedent will be set,” and anyone will be able to “lift an author’s work” and present it as their own.
Law students, refresh our memory, but don’t the profs caution against the slippery slope argument, on the theory that it’s the job of judges and lawmakers to draw lines?
Maybe I Need a Reference Guide for This Case: That was Judge Patterson’s commentary at the close of testimony. Again, he urged the parties to consider settlement, reminding them that fair use is a “murky area” of law. Hammer then requested the opportunity to make a closing statement, which was a good call because his co-counsel, Anthony Falzone, delivered a strong one.
Rowling’s lawyer, O’Melveny’s Dale Cendali, emphasized their main theme, that the Lexicon “takes too much and does too little” but offered little in the way of specifics.
The defense’s Anthony Falzone, a lecturer at Stanford law a who hadn’t spoken since his opening statement, invoked a professorial tone and led the judge through a thorough analysis of RDR’s case. Synthesis and distillation is what makes the Lexicon “tranformative,” he argued. “Quality shouldn’t matter,” he emphasized. If the Lexicon is lousy, Falzone concluded, the answer is not to suppress it, but for Rowling to write her own.
LB’ers: Therein lies the trial’s narrative arc, short of the judge’s decision. Which way should he rule?