(no subject)

[the_rck]

I should note ahead of all of this speculation that I am not a lawyer. I am, particularly, not either a trademark or a copyright attorney.

I saw from links on File 770 (fourth item down) that Sherrilyn Kenyon is suing Cassandra Clare. The article headline claims it’s a copyright thing, but the text of the article seems to me to indicate mostly a trademark dispute (which is quite different) with a probably unsustainable copyright complaint tacked on. Kenyon is basically saying that her books, the Dark-Hunter series, came before Clare’s Shadowhunter series and that there are enough similarities between the series that people might reasonably mix them up. Kenyon also says that Clare obviously read Kenyon’s books and deliberately took plot elements from them.

The trademark issue may or may not go Kenyon’s way. Trademark stuff is weird according to everything I’ve heard, and Kenyon says that Clare has used 'symbols and merchandise' that are similar to Kenyon’s stuff which, if it can be proved, may well be enough. Funimation changed the name of the anime series known in Japan as Detective Conan to Case Closed for US release due to 'legal considerations’ which, by the rumors I’ve heard, seem to boil down to fear of infringing a trademark (Conan the Barbarian? Anybody know?).

I’m not convinced that the similarity of plots thing will go anywhere, except as support for the idea that people could confuse Dark-Hunters with Shadowhunters. Kenyon is not, as far as I can tell, claiming that Clare lifted actual text from her books (which, you know, many of us would believe given Clare’s history), just that the plots are similar. I’m pretty sure that, if Kenyon could show that Clare had lifted text, verbatim, that would be included in the complaint, and the article doesn’t mention anything of the sort.

To the best of my knowledge, nobody can own the general idea of "an elite band of warriors that must protect the human world from the unseen paranormal threat that seeks to destroy humans as they go about their daily lives." I’m pretty sure that I wouldn’t have to work very hard to come up with half a dozen other things that share that premise. Even Diane Duane’s Young Wizards series would more or less fit that description.

The cynic in me is wondering if Kenyon is hoping that Disney will pay her to settle so that the Shadowhunters TV series doesn’t get disrupted.

ETA: Author Courtney Milan seems to have gotten her hands on and posted the actual documents filed. It's interesting reading once one gets into the body of the complaint.

Comments

[heavenscalyx]

Woooow, that's faaaaaascinating.

Yeah, plagiarism isn't reallllly a surprise here.

[the_rck]

There's a certain train crash fascination.

I don't think that the plagiarism/copyright infringement claims will necessarily stand up to the legal definition of the terms.

Someone on LJ responded to this post by saying that, since this is Cassie Clare, she's likely guilty.

This is what I said in response:

I'm familiar with Clare's history, and I don't doubt that she's a plagiarist. Everything I've heard indicates that she's an awful person. I just don't think that what's outlined in *this* complaint meets the legal definition of the term plagiarism or copyright infringement.

My suspicion is that the trademark case is going to be stronger and more likely to go Kenyon's way, but the strongest bit of her claim is something that the publishers did in printing a run of Clare's books that used symbols associated with the Dark-Hunter series (there's some other stuff involving fonts and cover art that's also publisher issues. I don't really think Clare is a big enough name to pick her own fonts and cover art. Maybe I'm wrong and she is. Mainly what I know about her published stuff is that my twelve year old thinks her books are incredibly tedious).

I'm not entirely convinced that 'Dark-Hunter' and 'Shadowhunter' are enough alike for readers of one series to get confused and think that the other series is related and thus buy that instead of the first series. This is especially true when the series are, as I understand it (not having read either but having read reviews of both), very different things. The Kenyon series is paranormal romances that are designed to be readable as standalones but that are set up to have ongoing supporting characters but with each book focused on a completely different romantic pairing. I know less about Clares books, but I have the impression that they're YA and ongoing stories fairly focused on the same characters over and over with the adventure primary over the romance.

The trademark case depends entirely on convincing the judge and/or jury that mixing up the two series is likely and that that has resulted or will result in Kenyon losing money. Whether or not a movie and TV show based on Clare's work make a movie and/or TV show based on Kenyon's work less likely also figures in but not as much.

Clare may or may not be morally guilty of ripping off some of (a lot of?) Kenyon's ideas. That's something else entirely, and I'll be damned if I'm going to read both series to find out. I don't generally enjoy YA of any flavor, and I almost never like paranormal romances.

Kenyon is also taking a scorched earth approach in terms of her demands. I'm sure that's a negotiating tactic, but... She's asking that all 'benefits' from the books, the movie, and the TV show go to her and not to anybody else involved, and Disney is not going to go for that. She's also demanding that everything with the Shadowhunter name be destroyed and/or deleted. I don't think she'd get either demand met in court, but the case could tie things up for quite a long time, so Disney may think, based on money put into the show, that paying her off will be cheaper than being unable to air the remaining episodes for three or four years.

So, yeah, I don't like what I know about Cassandra Clare, but I'm also not at all keen on Sherrilyn Kenyon. Maybe they deserve each other?

[carbonel]

I am unwilling to give Cassandra Clare/Claire any benefit of the doubt, because this is the second plagiarism foofooraw she's gotten into, and the first time around was overt -- and then her friends were really obnoxious about it.

The original posts aren't around anymore, but you can find Wayback Machine links here:
http://fanlore.org/wiki/The_Cassandra_Claire_Plagiarism_Debacle

[the_rck]

I'm familiar with Clare's history, and I don't doubt that she's a plagiarist. Everything I've heard indicates that she's an awful person. I just don't think that what's outlined in *this* complaint meets the legal definition of the term plagiarism or copyright infringement.

My suspicion is that the trademark case is going to be stronger and more likely to go Kenyon's way, but the strongest bit of her claim is something that the publishers did in printing a run of Clare's books that used symbols associated with the Dark-Hunter series (there's some other stuff involving fonts and cover art that's also publisher issues. I don't really think Clare is a big enough name to pick her own fonts and cover art. Maybe I'm wrong and she is. Mainly what I know about her published stuff is that my twelve year old thinks her books are incredibly tedious).

I'm not entirely convinced that 'Dark-Hunter' and 'Shadowhunter' are enough alike for readers of one series to get confused and think that the other series is related and thus buy that instead of the first series. This is especially true when the series are, as I understand it (not having read either but having read reviews of both), very different things. The Kenyon series is paranormal romances that are designed to be readable as standalones but that are set up to have ongoing supporting characters but with each book focused on a completely different romantic pairing. I know less about Clares books, but I have the impression that they're YA and ongoing stories fairly focused on the same characters over and over with the adventure primary over the romance.

The trademark case depends entirely on convincing the judge and/or jury that mixing up the two series is likely and that that has resulted or will result in Kenyon losing money. Whether or not a movie and TV show based on Clare's work make a movie and/or TV show based on Kenyon's work less likely also figures in but not as much.

Clare may or may not be morally guilty of ripping off some of (a lot of?) Kenyon's ideas. That's something else entirely, and I'll be damned if I'm going to read both series to find out. I don't generally enjoy YA of any flavor, and I almost never like paranormal romances.

Kenyon is also taking a scorched earth approach in terms of her demands. I'm sure that's a negotiating tactic, but... She's asking that all 'benefits' from the books, the movie, and the TV show go to her and not to anybody else involved, and Disney is not going to go for that. She's also demanding that everything with the Shadowhunter name be destroyed and/or deleted. I don't think she'd get either demand met in court, but the case could tie things up for quite a long time, so Disney may think, based on money put into the show, that paying her off will be cheaper than being unable to air the remaining episodes for three or four years.

So, yeah, I don't like what I know about Cassandra Clare, but I'm also not at all keen on Sherrilyn Kenyon. Maybe they deserve each other?

[carbonel]

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<So, yeah, I don't like what I know about Cassandra Clare, but I'm also not at all keen on Sherrilyn Kenyon. Maybe they deserve each other?</i>

I'm good with that. A plague on both their houses, as it were.

I slogged through the first three Mortal Instruments books, though in retrospect I'm not sure why.

[the_rck]

My daughter's comment on the ones she read was that the last ten to fifteen pages were exciting and interesting but that everything before that was horribly boring. She says she may make herself read more of them because her friends love them and she wants to be up on what her friends love, but so far, she hasn't been willing to put time into it, not when there are so many books she actually enjoys. She's a fairly slow reader, no more than a book or two a week most of the time, at least during the school year.

[lady-of-mists.livejournal.com]

Really the publisher sounds like they are trying to push right up to the border of infringement on Kenyon -- IF what she claims is true. This may be why we have the John and Jane Does 1-50.

The paragraph about the blurbs sounded a little suspect too... they supposed used the term "dark-hunter" for the blurb regarding the Clare writing as opposed to Kenyon's writing.

However, I'm not on the legal team on either side and Clare hasn't yet responded to the complaint, so I guess we'll see what her side of the story is.

[the_rck]

Based on what has been said so far, complaints against Clare's publisher are likely justified (whether or not they're enough for a court to award damages, etc., who knows?).

I'm iffy on the trade dress thing because there are a lot of books that use similar sorts of cover images, not just Kenyon's and Clare's. Muscular, tattooed men are extremely popular for cover images right now, and the runes and scrolls sound like fairly standard indicators of fantasy content of some sort. Similarities in the 'runes' might just mean that both artists took the same runic language for inspiration. If I was a cover artist, I'd probably google 'runes' for inspiration and use whatever looked cool. Also, looking at Amazon, most of Clare's book covers don't feature muscular, tattooed men.

I haven't looked into the claims about tie in items because I don't care enough to work that hard.

My suspicion is that the Shadowhunters name thing is the key because that's the thing that people may be willing to pay Kenyon off to keep without going to court over it. I suppose that will depend on whether or not the court orders suspension of the use of the name for the duration and what that means for selling Clare's books and airing the TV show.

I've seen speculation on fail_fandomanon on DW (which out and out loathes Clare and wants very badly to see her take it in the throat) that Disney and Simon & Schuster will throw Clare under the bus, but I don't see enough here to make me think that that would make sense for them to do. I suspect it would mainly make sense to do if they think that large swathes of Kenyon's copyright infringement claims will be upheld or that Kenyon has documentation not yet presented of some sort of actual, firm agreement with Clare about not using the name Shadowhunters.

I think that fannish communities have some considerable confusion about what actual falls under copyright because fannish standards in terms of how close it's okay to come to someone else's plots/characters/etc. are very, very different. What fandom considers beyond the pale may not actually be illegal. I'm very, very sure that, if Kenyon had found Clare lifting passages directly from her books (something Clare did repeatedly from other works as a fic writer), Kenyon would have mentioned it specifically in her filing. It's pretty easy to find that sort of thing now-- Look at what happened with Cassie Edwards.

[lady-of-mists.livejournal.com]

Re: looking into tie-in items. In other words, one of us would have to take a field-trip to Hot Topic? ;D

Re: Disney and Publisher -- Yeah, total abandonment might be the answer if you find lifted passages in the Clare books. I'm pretty sure that the author probably learned their lesson on that one?

[the_rck]

She would have to be very stupid not to have realized that people could catch lifted passages very easily. She got caught years ago, and the tools for such things have only gotten better. If I recall correctly, she claimed that her lifted passages were homages and Easter eggs, but that didn't fly then, so I don't think she'd expect it to fly now.

I mean, there are certainly people who repeat such mistakes and who think they won't get caught this time or that it's okay for one reason or another, but... Surely she'd realize that she's loathed enough that there are likely to be people acquiring copies of her books entirely for the purpose of looking for lifted passages?