Judge in Potter Trial Calls on Parties to Settle

[WSJ_law_blog]

Which way is Judge Robert Patterson going to decide the Harry Potter case?

If it were up to him, he wouldn’t. Rather, at the end of the second day of testimony today, he called on the parties to settle.

Judge Patterson removed his glasses and addressed the court. “I’m concerned that this case is more lawyer-driven than it is client-driven,” he lamented. “The fair use people are on one side, and a large company is on the other side. . . . The parties ought to see if there’s not a way to work this out, because there are strong issues in this case and it could come out one way or the other. The fair use doctrine is not clear.”

“I’m bringing it up now so you can think about it before you get into the rest of the case,” Judge Patterson added. “Maybe it’s too late; maybe we’ve gone too far down the road. But a settlement is better than a lawsuit.”

The plea came as plaintiffs counsel Marvin Putnam of O’Melveny was cross examining a witness, an exchange that seemed to leave the lawyer frustrated and losing patience. The Judge broke in to point out that it was four o’clock, and asked Putnam how much longer he needed. Putnam apologized, and said he’d need quite a bit longer.

The witness was one of two this afternoon who discussed how the book version of Vander Ark’s Harry Potter Lexicon would do in that market, and how it might affect the market for a similar Harry Potter encyclopedia that J.K. Rowling plans to write.

The plaintiffs’ publishing expert, Suzanne Murphy, the VP of trade publishing at Scholastic — Rowling’s U.S. publisher — testified that, while she finds Vander Ark’s lexicon to be of “poor quality,” she also believes it “has potential to do quite well in the marketplace.” This testimony was meant to indicate the lexicon has the potential to damage the market for Rowling’s work.

Then, the defense put on its publishing expert, an industry man named Bruce Harris, who has spent the bulk of his career at Crown, Random House and Workman Publishing. Harris testified that, based on what he knows about the market and the work of Rowling, whom he called the most successful author of the 21st century, there’s little chance that Vander Ark’s lexicon — which, he said, might warrant a first-run printing of about 1,500 copies — would harm Rowling’s market. Her last novel, “Harry Potter and the Deathly Hallows,” sold 13 million copies for a total of $250 million, said Harris, based on his review of Scholastic filings.