Warner Bros. Entertainment Inc. et al v. RDR Books et al

Filing 39

DECLARATION of Emily Blumsack in Support re: 22 MOTION for Preliminary Injunction.. Document filed by Warner Bros. Entertainment Inc., J. K. Rowling. (Attachments: # 1 Exhibit A, # 2 Exhibit B (1 of 3), # 3 Exhibit B (2 of 3), # 4 Exhibit B (3 of 3), # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F (1 of 3), # 9 Exhibit F (2 of 3), # 10 Exhibit F (3 of 3), # 11 Exhibit G, # 12 Exhibit H, # 13 Exhibit I)(Cendali, Dale)

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Warner Bros. Entertainment Inc. et al v. RDR Books et al Doc. 39 _________________________________..__.... i^IARNER BRAS. ENTERTA^^^^IENT I^1^. anal J.K. RO^rVI,Tl^^O, Plaintiffs, -againstRDR BOOKS and TOES 1-1Q, Defendants. UNITED STATES DISTRICT COURT SOLTTIIERl^ DISTRICT` ^` NEB lr®R ^ Case No. 07-CV-9667 (ØPPj D E C L ARA 'd'I ® N O F E IVI I I.Y B LII IVI S AC I^ I1^ SIJ ' I' O RT g,^ ^ ^ 7 ^^ ^ + p ^^ÿ }y7 g^ g q g¡^^ g ^7 ^+ ^ ^J ^7 `g^^ , ^, O^ ff 1 i'âi1\TI^i ^ J9 1Y1®T1^L® ^ '^R Á^ R'i.A._^X.P' A \AR I ^eP 4.11VCTI® 4 I, Emily Blumsaclc, declare and state as follows: l. a an associate in the law fïrrn of O'Melveny & Myers LLP, counsel for ^arraer Brothers E^^te^-iai^^^nent, I^^c. ("arner Bros.") a^^d J.K. Rowlíng ìrß t}ais action. Except f^^r the faets stated on info^^ation and belief, all of the facts set fØrtl^ herein are known to personally, and if cared a^ a witness, co^^ld and wo^^id tesíify competently tlaeret®. e Tie I^^f^-1^^^^ Ro^l^ 2. A draft c®py of the lfringig Book presd ^ ced by Defe^^dat indicates that the boØk will only consist of dicdonaryfencyclØpedìa - style listings that retell plots, recreate events, and describe tlae characters , spells and other rr^agical ele^^^ents from all seven of the H^^ry Potter books and the two Companion Books authored by Ms. Rowli^iØ , as well as t1^e Warner Bros.' I-urry Potter films. ^Tpor i ^forn ation ^r^d belief, the lnfringirg B ^ ok contains thousands ^ f entries detailing most, if not al ], of the fictional " facts" from the Harry Potter series and 'which Dockets.Justia.com have merely been reorganized from their original presentation as found in IVIs. Rowling ' s works into an alphabetical tisting. F`or example , the Infringing Book includes synopses of major plots and story lines of td^e urry P^tt^r books , descriptions of the history and personalities of the Harry Pytter el^aracters, and catalogues the fictional creat^^res and elements that constitute the ==heart " of the urry Potter series ..All of these facts are taken from the Harry Potter books. TI^e Infringing Book co^^tai^^s no literary criticis n or analytical discussion of the Harry Potter works. For exarraØle , there ^s r^o analysis of the H^r^^^ Patter books in reference tØ other books, or any analysis of themes ard rr eanings af the boaks ar their role irs literature. 3. Defendant has produced í^^ discovery a rr^anuscrípt for the proposed book. Øttached hereto as ^xl^il^íá A is a true and correct copy of the section of the Infrir^gíng Book containing letters A-I^ as farmatted and typeset .for publication. Attached. hereto as Exl^íbí B is a true and correct copy of the section of the Infrir^gï^^g Book containing letters E-Z as produced by Defe^ldar^t without forrr^attí;^g and typesetting for publication. 4. Úpon inf®ratior a ^d belief, the back c®ver af the Ifringá^g Book arigí^al ly prod^zced by RD^Z Books p^^rs^aar^t to the ^o^^rt's expedited T.^iscovery Order contains a quotatio^^ froze 11l^Ïs. Rowl^^^g from 20aß that refers to the Lexicon Website ar^d not the InfringinØ Boek. Attached l^ereta as Exl^íbík ^ ís a color copy of the cover of the Infringing Book that was orígir^ally prod^^ced p^^rsuant to the Oc^uri's Order. 5. Úp ^r info^-tnation and belief, after prod^^cíng the c ^ vcr of the r^frír^gir^g Book io Pai^^tíffs, RI7R Books subsec^^^ently redesigned the co^Ter ^f the Infri^^gir^g Boek which they lave sírce produced. This redsed book cover car^^i^^ues to bear the inaccurate and isl eadir g q^^otation from Nls. Ro^vling, and has hidden its disclaimer in the folds of a desigr eler^ en^ 2 shaped like an antique book. Attached hereto as ^^hi ^ i^ D is a color copy of the revised cover of the Infringing Boob that was subsequently produced Øy Defendant. ^íher Bø ks aba^^^ ^^r^ Pater ^. Upon information and belief, other books about the fá^^'ry Potter series that are on the market, unlike the Ir^f^ ngir^g Book, generally contai^^ analysis, commentary, crit^cisr^^, or ether original contrib^^tions and are ^^ot ^^^erely comprised of recapitulations of eler^^.ents referenced and described in the H rry^ Pater series, i^^'arner Bros.' H^rr}^ Potter filras and 10/[s. Rowling's c^rr^par^í^n books, F^^^tt^^sti^ Bests ^anØ Yi^^ere ta Fá^d Them and ^uid^^iteh Through tl^e Ages. In addition, ^ aria not aware of any other book on the rr^arket about Harry Patter that is sold with an apparent quote frorra ^. Bowling supposedly endorsing the boek. 7. I understand that RDR Boeks has stated in the press tinat ti^eìr encyclopedia ìs the same as other books that have bien printed abØ^zt the series, but this isnot true. There have been r^urraeroi^s books i^^^blished a^^alyzing the ^-I r^-y Potter bo oks ©r comrrnt^ng o r ^f er^ as a cult^^ral phenorner^on. 7'1íe contrast, however, between the co^^terzt o f these books as compared to the eo^^tent of the I^fr^^rgí^ag Book could not Øe clearer. por exarr^ple: 111^^^gles ^ ^ l^^ác; A ^ Il^^ ^fj ^ íc^^ ^ ^de tø ,T ^ I^^ivl^ag ^r cl the ^arry Puter ^ Pl e^^ ^ ^ eaa ^ ^ by ^ea^-^e Beahrn - Tree ar^d correct copies of the front and back covers and i lustrative pages frorr^ i^t ggles r^ d 1^gíc: A^ ^In ^ff^ í l uíde t^^ J.^. ^^^ wlírag ^ i the Hrrv P^tter Pher^ar^^er^^r^ are attached hereto as ^xhil^l^ ^. Thìs book is Ørganázed by t ^pics s^ch as "The Rea ^T+Ior1d ^ f Joanne Rowling," "Harry Patter - hereen ^Vlagic" and "Harry Potter Websites." It ís further divided into 3 chapters that include essays about ^^Fs. R^wling's fife and literary career, the cultural. phenomenon s^^rroundìng the Harr}, P^tté^° books, casting the H^xrry Patter films, and a sectíor^ on a byok reading by Ms. Bowling, Stephen I{inØ and .^ohra Irving. the boek also contains chapters that talk about each. of the Harry Potter books, providing selected reviews, commentary about the pul^licatíon, and detailing awards they hage won. Pran^inently displayed o^^ the frog^t cover is a disclaimer printed. ire large white letters identifying that it ìs "fin Unofficial Guìde." In smelter golden text at the bottom of the front cover is the follotiving diselai^ner: "this book is ^^t prepared, endorsed, or authorized by J.K. R^wlíng or Warne^· gyros. and ìs not part of tl^e ^^arry Potter Ser^^es." b. I3e ^ el r^ ^^ 's ^®creel^oa^^ ^ar ?'e^e^aí^ag ^o^^ r^ 14 ^l^lt ^íct^® ^ .^`^p1^r^^g H^rr}^ Puter by E1i^abeti^ 1^. ^ afer _ Tr e a^^d correct copíes of tl^e frort ad back covers and illustratìve pages fro ^r 3 eachc^ rr^ 's ^otrce^aoks for Te ci ía^ g }'a ^^g A`zlt ^íctiot: Ex^^ loring Hrr% P tter are attached heret^ as 1^ xlaíbit ^. `^hìs Øook includes discussì^^^s about tl^e Hc^r^^ Potter phenomenon, tl^e many reasons f ®r the series' appeal, a^^ " nterpret ^ ve biography,, af I^is. RØwIing's career, a^^^ expl^ratit^^^ ^f characters, settings, activities and tl enes that thread through the H^rn^ Potter bo^l^s. ^t alsy contains chapters ^n rr^ytl^^ology, biblical refere^^ces, science, and the history° of witchcraft. the biok p.reser^ts critical analyses ^^ various literary dualities of the Harry Potter books, ir^cludir^g the ^^se of narrtes, language, hurr^or, cØlor, numbers and gender, and devotes a chapter to tl^e moral and social odes reflected in and challenged by the series. While the book includes des^ripti^ns of each ©f the Harr}· Patter books, starting with a 2-3 page overview, this material is 4 ìnterir^gled with vocabulary lessons, highlighted ternes, cymbals and xr^ythical references, along with suggested questions for critical discussion of each chapter. Prominently displayed at the top of the front caver are the w^^rds "N®T Approved by J.K. ^Zowlíng." I, f ,^`^a^^^ ^^ tte^ I^caya Cáer^e^^^d ^1e^i°^^: Ler^e^sh ^p Wí^ ^r^ ^t f^^^^t tl^ e Yí^^rid ^f ^1 ^ YY^z^^ '1s ey T^^ 1^irrls - True anØ correct copies ofthe front and back covers and íllustrative pages frarr If Hrry P^tter i r^ Ge^ eral Eleciric are attached lereto as ^^hlbit ^. c. This oak is a running narrative that discusses nor^natíve values that can be see^^ in the Harry Patter navels and lessons that can be learned fram the characters and stØríes within. ®rgan^zed inte seven sectíans on topics such as courage, confidence and leadershiØ, the boek ìs comprised of a collection of essays tl^e^x^atìcally linkel ta the idea ^^f empowering the reader to level®p ínterpers^nal skills, a s^^ccessful career anal creating a satisfying life for terr^selves. ï^Ihíle ff Hare Pater ^^^n ^ef^eral Electric describes certain plot paints af the H^rr^^ PØtter praperties and includes lì^^^ited character q^rotatior^s, ít does so in a lírraited way in the cor^te^ct af providing c^nte^t t^^ its anaiytícal assertíans. ^ r Øxarr^ple, ín a section on "upport and ^anfîder^ce," the author quotes a single sente^^ce fr ^ t^ Har^^y Pater ^^^^^ the ^r°^^er af the Plaoeníx in w}?icÎ^ a character describes living with her rascally older twír^ brothers: "The thing about growing up with `red a^^d C^earge...ís that you sort of start thinking anything's possible ìf you've got enough nerve." The book then discusses the importance of surr©unding oneself with positive people in order to achieve one's goals, The front cover includes the following disclaimer: "This book S has not been prepared, approved, or licensed. by any person or entity that createØ, published, or produced the Harry Potter books or related properties." $. it is also ^y understanding that, in the press, ^^R ^^ooks has identified at least two specific titles as examples of published books that are similar to the Infringing BoØk. I have reviewed these two books an observe that they are fundamentally different from the mar^uscrípt ^fthe Infringing B^^k that RI^R B^^ks produced t^ us, as discussed below: a. ^^I^^ggC^ræ^t.c®rÉ^'s haí mí11 ^Ï`^ppet^ í^^ H^^^r°y P®tP^r % by erg ^c^e^^ , E^^^e^-sc^r^ S^^art^ , A.dy ^^rd®^, Gretche^a Steal ar ^ar^aåe ^^rvrece -True and correct copies of the front and back covers and illustrative pages from ^^luggle^^et.con^'s ^dac^t Yijíll HØppera írß ^I[^rry Potter 7 are attached hereto as Ex^^^l^it . This boob ís primarily a collectí^n of observations abo^^t the characters and story Øre ^f the hrst sig Nnrry, }'ottes" b^^ks. The a^^th^rs offer predíctí^ns abo^^t the resolution of pressing ^{^^estior^s and r^^ysteries that they expect to be answered in the f^r^al install^-nent of the senes, .Fi^rr y Potter Ø ^ cÍ the 1^eathly f-^^^11a^Js. Referenc es to the fzrst six ^-1Ørry Potter books, white more in-depth than those ín i^.^^rry Potter I^^^n ^^er^er^æl ^`lectrác dísc^^ssed above, are presented ín the context of analyzing es and relationships benveen the characters. I~^r example, the book lists seven examples of "debts between friends" ard "debts bewee^^ e^^erníes" -- a single sentence each -- to discuss whether these debts will be repaid in the final installment of fis. ^^owling's Harry> Potter series. Prominently displayed on the front cover is a red image of "sealing wax" starnped just left of the rr^iddle of the page w}^ieh states in gold writing: "Unauthorszed'Deathly ^ allows' Predickion^s." The back cover includes ^ a statement telling readers that the book ^s u^^authorized, does not have any affiliation with or sponsorship by Ms. Roavling, her puØlishers, or other copyright holders, and states that Ø1I references to c^py^igl^ted or trader^aarked characters and other elements of the books are fnr the purpose ^f e^entary, criticis^xa, analysis, and literary discussion only. b. T{a^ ^o^plet^ Icliot'^ Guide to t{ae ^^^^^{c1 ^, f ^aa'ry ^o^^er ^ y Te^e St^#'e^ - Tre ard urreet copies ^f the front and back covers and illustrative pages from Td^e C`orr^¡^lete Idíot'.^ G^^íde to the I^orld o^Hcerry Potter are attached hereto as ^^Zl^^lt I. This Ø^ok is organized into hve parts: "Wizards, Mo^lsters and Creatures of Ail Sorts," °'VVl^ere and Hov tine Wizards Are,°' "Magical Places," '°Spells, potions, a^^d Other Ways of Øerfnrming Magic," Ønd "Regulating Magic and the Wizards Who #'erform It." Mach pari includes chapters arrangdd Øy topic. For example, °'Magical Places" includes chapters on "Where the Witches Coo in L,ondon," "Íogwarts Schnol and ^Iogsrr^eade,°' and "lnterr^ational Wizardíng Schools.'° 'he content of the text o^^ly references the original ^á^^r^r^}^ }'Øtter^ works in nrder to discuss ^^tewc ^ rthy facts external to the looks, suC11 as the origin ^f words and names or to draw parallels between characters, creatures and plots elements in the ^I^^^ry ^otte^° books and these in ether r^^yt^logies aro^^nd the woad. Fir example, the entry for Rube^^.s ^agrid ^s two paragraphs long (each is only 2-3 sentences). The first ider^ti%es his role in the ^-l^rrt^° Petter senes, and the second discusses the Ï.,atin origins of his nare. In its discussion of wands. the book discusses different kinds of r^vo^d ^^sed in their manufacture, explaining, f©r ex^r^pl e, tlat t1^e wood of an Ash i^ee ìs considered particularly magical and powerful in Norse mythology. The book also includes "cut 7 a^vays" explaining British ter^x^in^l^gy used in the Harry Potter books and travel tips for readers ínterest^d in visiting lacatìons referenced in the series. The author uses a tar^ge-ín-cheep tØne and includes significant com^^^^entary throughaut the bo©k. The entire cover ofthe b^^k is outlined in the reeagnízaØle grange trade Øress which ider^tif^es thai it is part of the "Complete IØi©t`s C^^^ide" series, and therefore ís nit sp^nsareØ by ^^1s. Bowling ^r t^arr^er Bros., and íncl^zdes a srx^all disclai^^^er stating that "[t]his oo was nat authorized, prepared., approveØ, licensed, ^^ e^^dorsed by J.K. Bowling, Scholastic, i^arø^er Br®s., ^r any ether individual ar entity ass®eiated with the ^iA^^1^Y P®TTEØ books or ^r^ovies," 1Vi^reaver, the first paragraph ^f the author's introduction contains the following explar^atían: "I^1 these pages, y©u wan ° t f^nØ character sketches, plot su^r^rr^aries, ^r details about who saiØ what on which page of which navel. Instead , you get to explore J.K. Ra^^ling ° s genius even more Øeeply , disc^veríng the bael^grounØ af termir^alagy, characters, daces, and ideas throughput her n®ve1s." I Øeclare ender penalty of perjury under the laws pf the United States pf A^^^e ^ ca that the foregoing is true anØ correct. Éxecuted on January 15. 2008, at New Bork, Ne^,v York. BØspectfully stbn^ítted, By: E ily;^3lu x sack 8

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