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

Filing 4

MEMORANDUM OF LAW in Support re: 3 Order to Show Cause,,,,,,. Document filed by Warner Bros. Entertainment Inc., J. K. Rowling. (Cendali, Dale)

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Warner Bros. Entertainment Inc. et al v. RDR Books et al Doc. 4 Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 1 of 15 UNIT�D STATES DISTRICT COURT SOUT -TERN DISTRICT OF NEW YORK WARNER BROS. ENTERTAINMENT, iNC. anal J.K. BOWLING, Case No.: 07-CV-9667 (RPPj Plaintiffs, -aga�nstRDR BOOKS and DOES 1-I0, Defendants. MEMORANDUM OF LAW IN SUPPORT OF MOTION OF PLAINTIFFS WARNER BROS. ENTERTAINMENT, INC. AND J.K. BOWLING FOR EXPEDITED DISCOVERY Dale M. Cendali {DC 276) Johanna Scl^it^ (JS 2125) O'MELVENY ^4L MYERS LLP Times Square Tower 7 Times Square New York, NY - 10036 Telepkone: (212j "326-2000 Facsimile: (212) X26-2051 Attorneys for Pla�niiffs Warner Bros. Entertainment, Inc. anal J.K. Bowling Dockets.Justia.com Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 2 of 15 TABLE O^ CONTENTS Page PRELIMINARY STATEMENT .........................................................................................,..........1 FACTUAL BACKGROUND .........................................................................................................2 ^, \The ^-Tarry Potter Books .......................................................................... ............................2 Th� ^^Iarr}^ Potter Films .:.:::.: ........:.::::.:..:...:.....:.:.......... ::::::::.:::..::.......:.:.....:::::::....,......3 Plaintiffs Learn of Defendant' s Infri^^geent ....................................................................4 ARGUMENT .................................................................................................................................. 6 PLAINTIFFS' RE�UEST FOR EXPEDITED DISCOVERY SHOULD BE GRANTED........... 6 1. Applicable Standard ..................................:................................................ 6 a. b. c. Under the Go�d Caus�/Reasonableness Test Plaintiffs Are Entitled to Expedited Discovery ...................... ...............................7 Plaintiffs Can Establish "Some Probability of Success oxe the Merits" Under the Notoro Standard ..........................................7 Irreparable Inj^y ..........................................................................1� Plaintiffs Can Show A Connection Between Expedited Discovery and the Avoidance of Irreparable Inj�ry .....................I� e. The Tejury That Plaintiffs Would Suffer Without Expedited Disc � ve ^-y ^ s C^reater Than Thai of Defendant Tf Expedited Relief Were Granted .....................................................................11 C�NCL,UST�N ............................................^........................,..........................:........................... I Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 3 of 15 TABLE OF AUTHORITIES Page Cas s ABKCO Music, 96 F.3d at 66 ..................... .........................................................................................................10 A^. ^yyash v. B ^k A-1^ad�na, 233 F.R.D. 325 {s.D.N.Y. 2oos^ {J. Ly^ch ) ................................................. .....:........................6 Beh^am Jewelr^�rp. v. Aron Basha Corp., 1997 U.S. Dist. LEX^S 15957 , at *S9 (S.D.N.Y. July l8, l9�7) ^ ............................................... 6 Castle Rock Entertainment v. Carol I'ublish�^ Gg rou^^ , 955 F. Sup�. 260 {S.D.N.Y. l�97) ..............................................................................................$ Hasbro Iz^c. v. Canard Toys, .Ltd., 858 F.2d 70 {2d C�r. 1988) ........................................................................................................10 l-Iorr^ A�bot Ltd. v. Sarsaparilla, Ltd., 60l F. Supp. 360 {D . II1. 1984 ) ....................................................................................................9 ^otaro, 9S F.R. D. at 4�S ..............................................................................^.........................................1 l Paramount Pictures Corp. v. Carol �ublish�n g Gr�u�, 1l F.Supp.2d 329 (S.D.N.Y, 1998, ^^{^^, l�l F.3d s^ {2d c�r. 1999) . ......................................8 Standard Investment Chartered. Inc. v. NASD. Inc., 2007 LT.S. Dist. L^XIS 27342 {S.D.N.Y. April l 1, 2007) (J. Krarra^ .........................................6 Co., Inc., T- .._ --oho Co., Ltd. v. iU�llia Morrow aid 33 F. Supp. 2d 1206 (C.D. Cal. 1998) .........................................................................................9 Trein Peaks Productons, Inc. v. Pu�lieations Intl. Ltd., .:...w ^. 996 F.2� l36� {2d C�r. 1993} ... ^ ..................................................................................................8 �rner ^r�S. Ine. v. Azx^erican Broad. Cos., 654 F.Zd 204 (2d C�r. 1981 } ................................................................................................:....... $ Westchester Media v. i'RL ^7SA Ilold^^^s, Ix^c., 214 F.3d 658 (5th. Cir. 2000) .......................................................................................................9 Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 4 of 15 O'MELVENY & MYERS LLP Dale M. Cendali (DC 2^7^) Johanna Schmitt (JS 2125) Times Square Tower 7 Times Square New Park, New York 1003 del: ^^`^2^ 32^ -2000 Pay: (2^2) 32^ -2�^^ Attorneys for Plaintiffs UNITED STATES DISTRICT COURT SOUTI�ERN DISTRICT OF NEB YORK Case No. 07-CY-9^^^ ^RPP) WARNER BR�S. ENTERTAINMENT INC. J.K. ROWLINC^, Plaintiffs. -againstRDR B��KS and DOE5 1-10, Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR EXPEDITED DISCO^ER^ PRELIIi^IINARY STATEMENT Plaintiffs Warner Bros. Er^tertain^ne^t Inc, ("Warzaer Bros."} ar^d J.K. Bowling ("R�wl g"j ^arger^tly seek the Court's assistance ire ^^btainir^g very limited and targeted expedited discovery i^^ advance af tl^�ir pral^osed n^atiar^ f�r a prelir^ inar}{ injurct�oz^. P1ai^t�ffs filed a corr^plaint yesterday far, inter alis, capyright infringeme^^t and traderriark infringerne^t because I^efe^da^^t's proposed 400-page book, entitled the "-Tarry Potter Le^ica^," (th� "I^fringing Book"j is a wholesale misappropriation of the "f^ctianal" facts, characters, �laees, potia^s, songs and spells that make up the Harry Potter universe. In addition, Defendant's Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 5 of 15 Infringing Book is being rr^arketed in a misleading way, as even the proposed cover of the book fallsto disclose that the work is unauthorized. Plaintiffs are now rrzoving for expedited discovery because Defendant has repeatedly refused to provide Plaintiffs with a copy of the manuscript and the definidve front and back cover design and also has adamantly refused to postpone publicadon . Thus, Plaintiffs seek ibis 1irr^ited, e^ped�ted discovery, requesting that Defendant provide Plaintiffs with a copy of the ^x^anuscript and cover of the proposed book , as well as any marketing materials related to the book so that Plaindffs can present to the C�Urt a full and complete regiord on which. to base its decision for prelirr^^nary inj^^ction.l FACTUAL BACKGROUND Tk^e ^iara-y PA^$�^� Books The ff-tarry Potter serles ^ f b^�k^ (the "Harry Potter Bn�k^"}, authored by Ms. Rowl�rg, are a modern day publishing phenomenon and success s^ory. The first look in the series, Harry Petter end the Philosopher's Stone, was published in the United K�ngdozx^ in Sune 1997,witl-^ a substantially identical version of the �ook published in the U^aited States in September 199 under the title Harry Potter �n� the S�rcerer's Sune {the title of tl^e L7nited States version is used herein to refer to both the original ^7nited Kingdart version and the ^Jn�ted States version} aa^d was rx^et with wide success and critical acclaim. leclaradon of Fell Blair daled Noverr ber 1, 2007 (hereinafter "Blair D�CI."}, 2. That boob was followed by six. rr^ore hugely popular and successful books: Harry Patter sand the Ch^^n^^er of Secrets {1999), Harry Fotgir and the Prisoner af Azk^b^n { 19��), H�rry Patter and the G�l^let of ^ ire (2O0�), Harry Potter tend the Order of the Ph�en�x (2003}, Harry Potter �nd the ^^^lf-^^Iةd Prince (2000, and, fanally, Marry 1 The lir^�ted discovery Plaintiffs seek �s set forth �n the Declaratia^ of Sale Cendal� , dated November 1, 2007. 2 Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 6 of 15 Potter tend the Deathly Hallows {2�Q7). Id. at � 3. It has teen reported that, collectively, the Harry Potter Boaks, which have been translated into more than 65 languages , have sold well over 350 mill^an copies worldwide . Id. at registr^^tion in the ^Jnited States. Id. at ^[ ^. 1^is. Bawling also has authored and published two companion books to the Harry Potter Boaks so far - Qu�dd�tch Through the Ages ind Fantastic Beasts and Where to F� ^ d Them (the "Companion Books"). Id. at � 5. Ms. Bowling generously donates royalties fro^x^ the Capan�on Books to the charitable orgaxzization Conczic Relief Id. Ms. Bowling has repeatedly stated that she plans to create additional ^ampan�on boaks and donate royalties to charitable organizations. Id. The two initial Companion Books she authored already have raised �I5 million for charily. Id. Ms. Bowling has develaped a long-term strategy to preserve th� integrity of the Harry Potter Books. Id. at b. The key features of this strategy include limiting the ^^urr^ber of licenses that are granted, the number of products thai are zxaade, and where they can be sold, Id. Thus, Bowling has ^^ever authorized enyens to do a ..Marry Potter cornpanion book and �r� particular objects to her fictional world being hijacked so ethers caz^ reap profit at the expense of charity fro^x^ her work. Id. at [ 7. The ^i^^�r^ Patter T+"�in^s ^ a result of tl^e popularity of the Harry Potter Books, arr^er Bros. so^zght, and ^. Each of these �ooks is the subject of a copyright obtained the file rights fram ^rls. Bowling to the ser�^s. L3eclaration of I3iar e delson dated November 1, 2O�7 (hereinafter "Nelson 17ec1."j, ^^ 2. To date, Warner Bros. has released five of the seven films (the "Harry Potter Films"j inclu��ng Harry Potter and the Sore^rer's Stone (2001), Harry Potter and the Chamber of Secrets (20 02}, Harry Potter ^d the Pr�so^er ^^ Azkaban {2O�^j, Harry Patter ^d the Goblet of Fire (2005), and Harry Potter and the Order of ^ Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 7 of 15 the Ph^en�^ (20o7j, Id. at ^( 3. Each of these films �s the subject of a copyright registration Id. The sixth film, Marry P^tter ^^d the H^^Bl^^d Prince is scheduled for a worldwide release ��a November, 200$ and productio^a of the seventh, Harry P^tter ^ d the Deathly H^ll^w.s is confirmed, but a release date has not yet been set. ICI. at 4. The five H�rry P^tter I^ films released to date represent the highest grossing film series of all time with over $4 billion �n worldwide receipts. Id. at 5. Pursuant to its agreement with Ms. Bowling, Warner Bros. owns trademark rights in Harry P^tter and Marry P ^ tter-related desigraatio^as in eonnect�on with its fih^a rights ar^d ancillary merchandising projects (collectively, the "H^rry P^tter Marks"}. I^. at ^[ �. Warner Bros. has obtained n^.^^merous trademark registrations for �^Qrry Potter Marks in the United States. Id. Plaintiffs Learn ^f Defendant ' s Infr^n^em^ent Ms. Rowl�ng's representative first learned of the Infringing Book when he saw an advert�seme^at on www.P^^blishersMarketplace.com announc�aag that R1^R Books would �e publishing th� Harry P^tter ^e�^^o^, purportedly scheduled, at that time, for release isa late October 2007. Blair I)ecl.1� $., Ex. A, The ad listed the author as Steve Vander Ark, the editor of a free website located at www.hp-le^�cnn.com (the ",Le �c^ta We�s�te"} and made clear that the book was intended to be the defin�t�ve .^^rry P^tter encyclopedia total�^^g approxirr^ately 400 pages long. I. Based ors tlae d�SCription �za the Publ�si^ersMarketplaee.com advertisen^^er^t and being familiar with the content of the Lexicon Website, Ms. Bowling and her representative became concerned that the proposed book was s�zr^ply an effort to trade off the success of the Harry Potter Books in violation of her rights and goals for the Harry Patter Books and ^ompa^ion Books. id. at � 9. As a result, for over a month, first Ms. Rowling's representative and then later, 4 Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 8 of 15 her outside counsel ( as well as counsel f�r Warner Bros.} nade repeated efforts to communicate with Defendant, requesting that Defendant cease and desist plans to publish the Tnfr�ng�ng Book -- or at least postpone publication -- until the parties had a chance to discuss the situation and to prov�d�\Plaintiffs with a copy. Declaration of Dale Cendali dated Noveaxaber 1, 20Q7 (l^ere�nafter "Cendal� Decl."), 2. Plaintiffs ' efforts were utterly rebuffed and Defendant merely stated that the Tnfringing Book was going to tie a "printed version" of the Lexicon Website. Td. at ^ 3. Defendant ' s statement caused even greater cor cern as the Lexicon Website is replete with materials that infringe T'laint�ffs ' copyrights and trademark rights, containing , a^xaong other things , stills from the Harry Potter P�lms, wholesale appropriation of lyrics ^o sangs contained in tlae Harry Potter Books as well as detailed plot surrarr^aries , lengthy quotes , extensive descr�pt�or^s of the characters and blatant copying of potions , spells and other "fictional" facts that originated with the Harry Potter Series. Td. at ^ 4. In addition to the infringing content, upon �nforn^at�on and belief, the Infringing Book is designed and will be rraarketed to ^n�slead consurr^ers infa believing that �t has been authorized, approved or licensed by Ms. IZowling and Warmer Bros. The cover of tl^e book apparently will s�n^ply say the words "H^rry P�tter Lex�c^n " �n large letters and �n a font reminiscent of the one used in other Harry Pytter Works, without any kind of disclaimer. Td. at 7. The front cover of the Infringing Book (as �t appears on the 1efendant's Website) contains numerous other indicia frorr^ the I-f r^^y '^^ter Works, inc^^ding a ^vh�ie o^1 s�^�lar to parry's owl, edw�g, and ter naag�cal objects irs a roorm that could easily be rra�staken for a dormitory �ra ^ryffindor Tower. Td. at ^[ 8. The subtitle of the Tnfring�ng Book says only that �t �s "The most complete and amazing reference to the magical world of Varry Potter." Id. at ^ �. 5 Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 9 of 15 Given �R Books' continued unreasonable delaying tactics, inexplicable refi^sal to postpone publication while the parties resolve these issues, and its unwillingness to even provide Plaintiffs with a review copy of the Infringing Book or a manuscript, Plaintiffs therefore have no choice but to seek a preliminary injunction and request that the Court provide Pla�nt�ffs with limited expedited discovery, namely l) a copy of the Infringing Book or the current verslon of the rr^anuscript and the last draft prior thereto; and (2) any advertising, marketing materials or rr^arketing plans used or intended to be used in the connection with the Infringing Boak. ARG�MEl^1T PLAINTIFFS' RE UEST F�R EXPEIIITEI) diISC�VERY SIiOIJI.^D BE GRANTED 1. A ^ licable Standard This Court has broad power to grant expedited discovery under Fed. R. C�v. P. 2b(d); see also Behnam jewel Co . v. Aron Bastia Co l�97 U.S. Dist. LEIS l5�57, at *59 {S.D.N.Y..Iuly 18, 1 997) {granting expedited discovery to counterclaim plaintiff to "dascover tl^e full nature of each eounterclaizxr defendant's infringing activities"). The traditional standard for obtaining expedited discovery is set forth in Notam v. Koch, na^x^ely that a parsy most establis#^: "{l) irreparable injury, {2) sorr^e probability of success on the rr^erits, (3) sorna connection between expedited d�sc^very and the avoidance of irreparable injury, and (4) some evidence that the injury that will result without expedited discovery looms greater than the injury that t#^e defendant will soffar �f the expedited rel�ef is granted." 95 F.IZ.D. 4[13, 405 (S.D.N,Y. 192). Iowever, sorxae judges in this district have applied the rr^ore #Iexible standard of reasonablerress and good cause. See Standard Investment Chartered, Inc. v. NASD, ^^�., 2007 T.S. Dist. LAXIS 27342 (S.D.N.Y. April 1l , 2O(�7) (J. Kram); Ay^^ash v. Bank Al-Marlina, 233 F.I^..D. 325 (S.D.N.Y. 2005) {J. Lynch) {noting that the Notaro standard mirrors the standard for preliminary injunction and therefore makes little sense when determining a request to expedite discovery �n b Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 10 of 15 order to prepare for a mnt�on for preliminary irajunct�on). Plaintiffs are entitled to expedited discovery under either standard. a. ^^ Under the Go�d CausefReasonabler^ess Test Plaintiffs torg E^t�tled to Expedited Dis^�Very Pl��nt�^fs have good cause to request e^ped�ted discovery as it �s necessary to perm^�t Plaintiffs to develop a foil and appropriate evidentiary record for timely cp^s�derat�on by this Court of Pla�^t�ffs' upcoming mot�pr^ for preliminary injunctive relief. Defer^daz^t has refused outright to give Plaintiffs the materials it has sought, namely a copy af the lnfr�ng�ng Book or the latest manuscript, the proposed cover, and any advertising or marketing rnater�als related thereto. C^�ven the significance of the issues, �t �s extremely �mpartant that Plaintiffs have the oppartux^�ty to present to this Court a Bally developed record, an opportunity �t cannot hage until �t obtains this limited discovery of Defendant. The requested discovery will provide Plaintiffs with a fair opportunity to dempr^strate to the Court rraore fully that Defendant has engaged �n illegal �ehav�pr that w�11 continue tp dara^^age Plaintiffs' rights in to their intellectual property. I^^ addition Plaintiffs' requests are reasonable. "^`he discovery Plaintiffs seek �s extremely narrow and does not place ar^y significant burden on Defendant. instead, Pla�r^t�ffs seek oily limited information frorra Defendant �n order to present a clear and accurate account of the claims at issue. Thus, under the good causelreasonabieness test, Plaintiffs si^ouid be granted expedited discovery. b. Plaintiffs dan Establisi ^ "an e Prc^l^ aiaility raf ^^ecess �r^ the iT^^der the Notar� S�andar erits,, The facts, o^^ their face, reveal that Plaintiffs have far greater than "some probability ^^f success ora the merits'' based on claims for both copyright �nfringemeant and trademark infringement. Notarp, �S F.R.D. at 405 (emphasis added). 7 Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 11 of 15 �. Plaintiffs Cap Sho^+v "Some Probability of Su^^ess " nn their Copyright Infr�^geme^t CIai� There can be no dispute but that Ms. Bowling �s the vai�d copyright owner of the Harry Potter Books and Warner Bros. is the al�d copyright owner of the Harry Potter Films. Nor can there be ay dispute that Defendant had access to Piaint^ffs copyrighted works, which �s presu^raed where, as here, a work �s world-rer^owr^ed. See Warner Bros. Inc. ^. Anr^erican Broad. Cos., X54 F.2d 204, 208 {2d C�r. 1980 (access to Superman character �s assumed based an character's worldwide popularity). At Defendant's own admission, �t �s about to p^^blish a 400-page "encyclopedia" of all things 1^^rry Pytter based on the ^exico^ Webs�te -- a website that is chock full of infringing material m�sapprnpr�ated from m Plaintiffs, including detailed plot su^^^^r^aries, lyrics to entir� songs, magic potion recipes, long passages from the Harry Potter Books, transcriptions of magic spells, character descriptions and screen shots from the Karry Potter Films. Cendali Decl. The courts �n this Circuit hamme made clear �n s�^r^�lar cases that such c�nduct cor^strtutes copyright �nfr�ng^ment. See Paramount Pictures Co . Carol ubl�shin� C'^rout^, 1 I F.Supp.2d 4. 329 [S.I^.N.^. 1998), ^af}^'d, 181 F.3d 83 ^2d C�r. 1999) (a book eo^^s�stiYg of detailed plot synapses of the show Star Trek, character descriptions, and explanat�oxzs of fictional alien species and technologies constituted copyright ir^fr�ngeent}9 Castle Rock B^tertair^^nent . Carol Publish�r^g t^ro^^^^, 955 F. Supp. 2b0 ^.I3.N.^. I997) {a book containing tr^ �a questions aba^^t tine Se�nfelci tele^isio^^ series cor^stit^^ted colsyr�ght ir^frir^geme^^t); Tw-i^^ Peaks Productiors Inc. v. P^^blications I^^t'l. Ltd., 99b F.2d 13�b (2d C�r. 1993) (� book cor^ta�rzir^� detailed plot summaries of Twin Peak. episodes constituted copyright �nfr�ngement). 8 Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 12 of 15 ��. Pla�nt�^fs Ca ^ Show "Some Probab��ty of Success" on the�r Trademark Infr�ngement C#a�m Similarly, there is more than ``some probability" that P}aintiffs can succeed on their trademark infringement c}aims. There �s no disputing that Warner Bros. owns numerous �ade �rk registrations for ^iA1^RY POTTER far a variety of goods and services including books and filras. Based o^ Defendant's own description of the Infringing Book and the image appearing on the Defendant's own website in co^rzection therewith, Defendant cleaxly intends to prominently feature the HARRY POTTED mark �n such a way that it w�}} give the m�staker^ impression to consumers, some of which wil} be chi}elren, that the Infringing Book �s authorized when it is not. Defendant's book apparent}y wi}l situp}y say the wor�s "Harry Potter ^exic^n" in large }etters and ire a font reminiscent of the one used in other Harry Potter Wore. Cendali Decl. � 7. The dorr^inar^t feature of Defendant's tit}e is ^-IARRY POTTE� and the addition of a descriptive word such as "Lexicon," which litera}1y means "d�cti�n ary," does r othirzg to distinguish Defendant's use from the myriad other uses by P}a�ntiffs. Tlae front cover of the Infringing Book contains numerous other indicts frorrz the H^r^ y Patter �orks, which only adds to the likelihood of confusion. Linder similar circumstances, courts have found that this type of conduct constitutes trademark infringement. See ^ Westchester Media v. PRL USA Io}dims, Inc., 214 I~.^d 658 (Sth ��r. 2000) (rxzagazine tit}e violated p}aintif^s traderrzark rights �n POLO mark); T^h ^^ ^o^ Ised. v. Wil}iarz^ iiilorrow and C;p., Inc., 33 F'. Supp. 2d 1206, 1211-13 (C.�. Ca}. 1^9$) ^find�ng trademark irzfringerrzent where use of P}aint�f^s Godzil}a mark on Defendant's book caused consumer confusion as to source or sponsorship); Dorn Abbot. Ltd. v. Sarsaparilla, Ltd., 601 F'. Supp. 360 (D. ^^^. ^ X84} (book about Tr�v�al Pursuit game entitled "In Search of Trivial Pursuit" infringed p}a^nt�ffs trademark). 9 Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 13 of 15 c. Irreparable Injary New York courts routinely hold that infr�nge^nent of a trademark or copyr�ght results �n a presum�t�on of irreparable injury. See, ^, ABKCO ^^lus�c, 9^ F.^d at ^b {ance a plaintiff demonstrates aprima facie case of copyr�ght �nfr�nge ^r ent, tl^e court w�^l presuz^e �rreparab^e harm}; Hasbro Inc. v. I anard Toys Ltd., 858 P.2d 7�, 73 (Zd C�r. l�88} {"[�jn a ll�z�h�m Act case a showing of l�kel�laaod of coxafusi^n establishes both a l�kel�hoad of success on the ^ner�ts and irreparable harm..."). As Pla�nt�ffs have demonstrated some probability of success on the merits of its copyr�ght aid �rade^r^ark �nfr�ngernent claims, irreparable injury nay be presumed. lurorenver, one of the basic rights o f a copyr�gbt holder �s the right fio control and authorize der^vat�ve works. Ms. Bawling has been careful about authorizing derivative works io preserve the integrity of the ferry Potter B�oks and also because she has �nd�cated that she intends to write her own companion guides and donate the proceeds to charity. Defendant's conduct both undermines ^i^ls. Rowling's rights �n the ^^^rry Pater Books and her efforts to create addit�oa^al ff^rry Patter Companion Boaks for tl^� benefit of charity. d. Pla�^^^��is Capa Shore A Ga^^^^ectg^^a $ et^weer^ Expedited Dise �^e^�y ad the Avoidance �f Irreparable Injury The discovery that Pla�nt�ffs seek �s directly tied ta their motion for preliminary �rajunction, which is des�gnel ta prevent further irreparable laaraT� to Pla�nt�ffs. Refendants have refuse to provide the axaater�als that Pla�nt�ffs seek and, rraoreovez^, have ref^^sed to delay publ�cat��n of the In^r�rag�ng Book sa that the parties could expls^re the issues involved �n this dispute, Maus creating the need far more urgent relief: Pla�nt�ffs rr^erely are seeking a copy of the Irafr�nging Book or the latest manuscript, the proposed cover, and any advertising ar n^arket�ng materials related thereto. These materials are at the heart of Pla�nt�ffs copyr�ght and trademark infringement claims and are necessary to present a fi.^ll and accurate record to the Court. 10 Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 14 of 15 Because Plaintiffs seek to a^a�d the above-demonstrated irreparable injury by bringing a motion for preliminary injunction �n uThich the requested discovery being sought would play a significant part, there is without �aubt "some conneet�on between the ex�edited discovery and the av�^dance af the irreparable injury." Notara, �S P.R.D. at 405. e. T`h� Injury That �1a� tiffs VVauld Suffer ^�tha^rt Expedited D�s^�Very �s Greater Than That of Defet^da^^t If Expedited Relief Were Granted The �urden to defendant is minimal. The requested d�seavery is limited solely ta the lnfring�rig Sook or the current version af the manuscript and the last draft pear thereto, its proposed cover and advertising ar marketing plans developed �n connection therewith. Sueh discovery is not likely t^ be voluminous and Defendant pxesu^nably would have this ii^farmation readily available. ^/ioreover9 Defendant would have to participate in discovery ors these issues in any event as the requests are literally at the heart of this case and therefore discoverable under Ped. I^. Civ. P. 2^. �n the other hand, Plaintiffs will suffer greatly in the absence of this rel�e^ As explained above, Defendant is on th� eve af p^iblish�ng its nfringin� soak despite all of Plaintiffs' efforts to communicate wish Defendant about it and Plaintiffs are on the verge af having their intellectual property infringed and exploited without their consent. The expedited discovery thus is required to ^errriit Plaintiffs to develop a full and appropriate evidentiary record for timely consideration by ibis Court of Plaintiffs' upc^^ning inot�on for prelirrii^^ary injunctive relief ^s such, the injury to Plaintiffs without this expedited discovery �s Duero{heliri�ngly greatcr than that of Defendant if expedited discovery orera granted. ll Case 1:07-cv-09667-RPP Document 4 Filed 11/05/2007 Page 15 of 15 CONCLUSION Por all of the foregoing reasans, Plaintiffs respectfully request that tine application far expedited dis^avery be granted. Dated:. November 2, 200 Respectfi^ lly su�rritted: r-~^ Da1e �i. Cendali Q'MEL^ENY ^^ MYERS LLP i"imes Square Tower 7 Times Square New York, New Yar 1 OO^b Tel : (212) 32b-2000 Fax: {2 12) 32b-2061 Att�r^eys for Plaintiffs 12

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