A few weeks back, we had a guest post by Kat Cantwell about the ins and outs of writing fanfiction. Now we have word of a cautionary tale that fanfiction writers – in fact, all sorts of writers – might do well to heed.
Trad-pubbed urban fantasy author Sherrilyn Kenyon has filed suit in U.S. District Court in Tennessee against fellow author Cassandra Clare. Kenyon’s complaint alleges Clare’s “Shadowhunter” series infringes on the copyrights and trademarks associated with Kenyon’s “Dark-Hunter” series. Kenyon says she learned of the infringement from her fans, and that when she spoke to Clare about it, Clare promised to change her work so that there would be no infringement. What Clare did was to change the term for her demon-fighting warriors from “darkhunter” to “shadowhunter” – and then proceeded to use the new term extensively in promoting her series.
Kenyon’s court filing includes examples of each series’ distinctive symbol – a stylized version of the same Norse rune. Kenyon says Clare’s symbol is so much like her own that Clare’s publisher accidentally put Kenyon’s symbol on the cover of 100,000 copies of one of Clare’s books. Here are the symbols, side by side – Clare’s Shadowhunter symbol on the left, and Kenyon’s Dark-Hunter mark on the right. 
But there’s more. Kenyon’s complaint includes a point-by-point comparison of major characters in the two series, and what they have in common. It’s clear from a reading of the complaint that Kenyon wants the court to dismantle Clare’s publishing empire and put her rival out of business.
Some observers have suggested Kenyon may have been prompted to file the suit because Clare’s series has been turned into a movie (“The Mortal Instruments”) and a TV show, while Kenyon’s books have not. But this isn’t the first time Clare has been accused of appropriating others’ intellectual property; in June 2001, she was banned from Fanfiction.net for lifting extensive excerpts from an out-of-print fantasy novel and including them without attribution in her Harry Potter fanfic, The Draco Trilogy.
Kenyon’s suit was filed last Friday. Clare has not yet responded, so we don’t know her side yet. (Under the court’s rules, she still has plenty of time to do so.) It’s highly likely that some of the alleged copyright infringement – things like the style of her book covers – could be attributed to Clare’s publishers’ marketing decisions. Don’t we indie authors study book covers in our own genres to see what sells, and imitate it? Publishers do the same thing.
Also, many of the similarities Kenyon relies on are essentially literary tropes, and fantasy tropes in particular. Lots of authors have written books about specially talented humans who kill demons in order to protect humanity. Just about every fantasy novel I’ve ever read features a magic sword – often several. And the idea of an elixir in a special cup goes back at least as far as the Holy Grail.
This isn’t the first time an author has been called out for plagiarism. It’s widely known that E.L. James first wrote Fifty Shades of Grey as Twilight fanfiction, and many readers of James’s story in its original incarnation have said the only thing she changed was the names. Going farther back, Twentieth Century Fox filed suit in 1978 claiming “Battlestar Galactica” infringed on its “Star Wars” copyrights. That lawsuit was settled out of court – but it took four years to get there.
What’s the moral of the story for indie authors? If you’re emulating another author’s style, be sure to make your work different enough from the original work that you won’t be sued. And never, ever try to pass off someone else’s work as your own.
Yikes.
Her publisher “accidentally” put the other writer’s rune symbol on the cover? How would that even happen (rhetorical.)
Well if the lawsuit has the merit it appears to have at this point, there will likely be justice because at the very least, the movie deal will fall through for the plagiarist. No producer will want anything to do with a contested property.
Candace, I’m no lawyer, and I’m definitely no patent/trademark lawyer, but I do think some of Kenyon’s claims have merit.
The movie was released in 2013, although the planned sequels have been delayed partly due to lackluster box-office results. The TV show — which, by the way, is called “Shadowhunters” — premiered last month on Freeform (which, Wikipedia says, used to be ABC Family). I wonder what the network will do now, in light of the lawsuit. The film sequels are probably toast (although they may have been toast already).
I’ve been reading up on this – really interesting stuff. Thanks, Lynne!
You bet, Melinda! 🙂
I don’t understand the fascination of some readers and writers for fan fiction.
For writers who go that route, though, it’s good for them to see there are potential legal pitfalls.
Malcolm
Malcolm, it’s not a problem *if* the fanfiction author is clear that their work is more or less a tribute. I believe fanfic authors (and fan artists) put disclaimers on their work saying they don’t own the copyright, etc.
I don’t get the fascination with extending or rewriting other people’s stories, either. But clearly there’s a readership for it.
Going to bet to any takers right now that the case is dismissed, and the defendant gets damages to compensate them for the legal fees involved.
Want to know why?
Because *copyright does not protect ideas*.
Ever. Your ideas are NOT protected. Your plot is not protected. Having a blonde heroine is not protected. Sorry. If someone wants to take your story, strip out the plot, plunk the plot down in their computer and write all new words for PRECISELY the same plot, you can sue them… But you will absolutely lose.
Copyright protects *finished works* in their *actual form*.
Now, it IS possible to come so very close that you’ve violated copyright. Nora Roberts sued someone over a similar scenario a while back, and Roberts won. The reason she won was that the other writer actually lifted entire passages of text – lightly reworded them – and then sold the work to a publisher. It was very clear when comparing the two works that actual copyright infringement had occurred.
Your ideas are not protected by copyright, though. And you can’t sue someone for copying your work. If you write a story about a boy who lives in the basement of his step-parents, but finds out he is a wizard and is whisked away to a magic castle where he learns to use his powers with other people, some of whom befriend him – and goes through a series of adventures which culminate in a battle against an evil wizard thought dead years ago – you’re still not going to be successfully sued by Rowling.
And her lawyers are likely smart enough to not let her try.
Kevin, I agree with you on the copyright issues. But I think Kenyon has a stronger case for trademark violation. If the marks are similar enough that somebody at Clare’s publisher mixed them up and put the wrong one on a 100K print run, that’s a strong indication right there.
Only if they registered the marks as trademarks. Unlike copyright, trademarks are not automatic. If they didn’t register, they can’t sue on the basis of trademark infringement.
Kenyon owns no trademark for most of the things she is claiming. She has “dark-hunter” trademarked, as recently as 2015 and as far back as 2006 – but for games, apparel, and motion pictures. She never trademarked it for use as a book series. She’s got a tough case ahead of her.
Her copyright suit has no merit and will likely be thrown out.
Right — I was referring to her trademark for the Dark-Hunter symbol. Her complaint isn’t specific to the books — it covers the other uses of the trademark, too.
I tend to agree with you on the copyright counts.
Couple of other thoughts… Style of a cover is never protected by copyright. In fact, copying the style of cover of a successful book is more the norm than anything else in traditional publishing. You WANT your cover to look a lot like the cover of bestselling books similar to yours. That’s one of the main things a successful cover *should* do.
It’s also not fan fiction.
Fan fiction is writing unauthorized new stories about existing characters (or new ones) in the writer’s existing world. Usually unauthorized, anyway – technically Kindle Worlds is a whole bunch of authorized fan fiction for sale.
But it takes place *in that world*, usually with the existing characters. New stories about Harry Potter are fan fic. A story taking place about a boy similar to Harry in a world similar to Harry’s – but distinct – might be ripping off the plot of the Potter books, but *isn’t* fan fiction.
You can’t sell fan-fic, without permission of the author. You can usually sell a ripped out plot that you wrote a new story for. It’s still generally NOT a great idea – look at all the Hunger Games clones which crashed and burned, right? It’s usually a waste of time, because these authors miss whatever made the original story great in the first place. But it’s very different from fan fiction.
Agreed, pretty much. Kindle Worlds is a special case because Amazon sought authorization. (I’ve suggested to my daughter more than once that she write for Kindle Worlds, but they don’t have any properties she’s interested in writing about.)
I brought up the fanfiction connection because Clare started out as a fanfic writer and got in trouble in that community for unethical behavior. Whether she learned anything from the experience is the question. Kenyon appears to think she didn’t.
It seems like maybe she did… We’ll find out as the court battle spins off over the next couple of years. But I suspect that we will see little grounds for the suit, and most of the complaints will be thrown out.
The bottom line is an important one for authors to remember: your ideas are NOT protected by intellectual property law.
I’d not heard this story. It’s fascinating. Plagiarism is bad, obviously, but Ian is right that you can’t copyright an idea. So, out and out theft, is bad. Having similar ideas — just a part of life. I don’t know how the Clare/Kenyon matter will work out, but I’ll be following it now.
Thanks, RJ. I’ll be following it, too.
There’s a gray area, beyond the straight up copying of large amounts of text, where copyright protects an author’s ideas and their presentation, and this gray area is what this lawsuit is about. The courts will have to decide what does and doesn’t constitute copyright infringement in this case.
Since most of us don’t have the funds or the publisher’s funds to go to court on the matter, it’s best we take great care not to deliberately copy another author’s work. That means text, the very specific elements of the plot, and clone characters.
I’m not a lawyer either, but I do write on copyright issues for writers and readers. You can find a list of my articles here.
http://mbyerly.blogspot.com/search/label/copyright
Thanks for the good advice, Marilynn. We all have better things to do with our time than having a court battle suck up our energy and time.
It would be so nice if they could use the fanfiction plagiarism issue from back in the day as admissible evidence. If you could establish that someone is a habitual, intentional plagiarist, it would be a stronger case.
It would certainly cast Clare’s behavior in a less favorable light, and I expect it will be brought up if the case ever goes to trial.
Sad. 🙁
No kidding. 🙁
I’m no expert, but I’ve seen the similarities between the two novels and I have to agree they’re practically the same BUT they didn’t happen in the same place with the same characters and the runes Clare uses are different other than the Angelic rune which seems to be fairly similar to the Dark-Hunter rune.
As far as I know it will only be considered as plagiarism if all characteristics of the characters and plot are exactly the same with no difference what so ever except for the name (which is unlikely as there are several other minor characteristics that are different)
However as Mr. Laughlin said, ideas are not protected, I mean copyright doesn’t just protect books it also protects other art forms. As a person who was in media I can tell you that there are at least 30% of Films and TV shows that are practically the same as other Films and TV Shows.
My point is that from the 3/4th book onwards Clare took the book to a different direction and is in-fact continuing to expand the ‘Shadowhunter Universe’ further as what Kenyon is doing with hers. Both series aligned at some point yes, but the route from there is different enough that it probably will not be enough to hold the case. Even if they bring up the past, I still don’t believe it can harm Clare as much as Kenyon wants.
It’s a very interesting case, however I have this feeling it will result in a waste of time for the court.