By popular acclaim

He asked. And occasional LIKELIHOOD OF CONFUSION guest blogger Marc Whipple answered!

I have been seeing peripheral mentions of the #Omegaverse #copyright dispute (NOTE: Don’t Google that, it is NOT SFW.) and downloaded the complaint because I became curious. Does anybody want me to do a post on it? I need encouragement. 🙂#?ls (hashtag so people can mute topic)

— Marc Whipple – Legal Inspiration! (@legalinspire) March 14, 2019

Boy, did he answer. Below is the very small excerpt of the explanation of the case of the post that Marc Whipple was talking about, and this link is where you can read him talking about it. Which you should, and then tell me. Because I have no idea what he’s talking about and I’m not even sure I want to know, because it sounds a bit
risqué, frankly, which an attempt at finding a good image with which to ornament this post kind of confirmed. But it also sounds like a very intellectual property lawsuit, at least somewhat. So:

As sometimes happens, I was wandering the wilds of Twitter and started running across references to a legal spat between two authors. In this case, two romance authors who both write in the “Omegaverse,” an “alternate universe” or AU, which is used by a large number of writers, both commercial and amateur, as a setting for romance novels of various kinds and levels of explicitness. So be warned: both the case documents (which I’ll be discussing) and the setting and subject matter of the works will produce some very not-safe-for-work results if you search for them. Here, there be monsters. Some literal, as a common element of Omegaverse fiction is werewolves and other shapeshifters.

This spat involves DMCA notices, but as of this writing (3/14/2019,) does not involve a lawsuit for copyright infringement. Instead, the copyright part is a much less common and (to laypeople) much less well-known type of copyright lawsuit called a Declaratory Judgment action. How that works is that someone accuses someone else, not in a lawsuit but just in direct or public communication, of infringing their copyright, and the accused goes to court and files a lawsuit asking the court to rule pre-emptively that their work does not infringe the accuser’s work. . . .

In this case, an author who goes by “Addison Cain,” published by a publisher known as Blushing Books Publishing, accused an author who goes by “Zoey Ellis,” published by Quill Ink Books Limited, both of plagiarizing, and outright infringing on the copyright of, her Omegaverse-setting romance novels. Cain allegedly set some of her fans after Ellis, including inciting them to post bad reviews for Ellis’s books. She (and/or her publisher Blushing Books) also filed Digital Millennium Copyright Act takedown notices (click here for a discussion of the DMCA) against some of the books, allegedly including one which hadn’t even been published yet. As I said in the linked post above, the DMCA is not a Weapon for Great Justice, and trying to use it as one is a Stupid Legal Trick which can backfire on you if you don’t do it appropriately.

Heh. Okay, I can do a little better than just that excerpt, though. There’s also this:

In copyright, there is a legal doctrine called “Scènes à Faire,” which translates literally as “scenes to do” but by which we mean “elements which must be included.” It’s more than just scenes: it’s elements. For instance, if you are writing a fairy tale, there must be magic, and there will probably be fairies. Those elements, the Scènes à Faire, are not protected by copyright. You cannot copyright the idea of a fairy tale: you can only copyright the specific expression of the specific fairy tale that you write. That’s why Disney can’t stop Universal from making “Snow White and the Huntsman” even though it has common elements with Disney’s “Snow White,” like a princess usurped by her stepmother, the huntsman sent to kill the princess, her dwarf protectors, et cetera. Those are all ideas, and descend from a much older cultural heritage which belongs to all humankind. If you want to tell a story about Snow White, you have to use them, or it isn’t a Snow White story.

The Omegaverse is a shared universe which individual authors can pick and choose, and to an extent adapt, elements from, but if they want a story to be an Omegaverse story it must contain a certain number of those elements and they must have a relatively limited amount of variation. . . .

…

Here’s my take on this particular question after reading Ms. Angel’s well-written blog post: the things she cites as possibly not (yet) Scènes à Faire in Omegaverse fiction may well not be. I wasn’t familiar with the Omegaverse prior to about two days ago. But they are, in my opinion as someone who has read and written romance stories (there’s a lot you don’t know about me) is that they are fairly well-known Scènes à Faire, or “tropes” if you like that better, in romance fiction. Nothing she describes as happening, outside of Omegaverse particulars, in either story is something I haven’t seen happen in one or more non-Omegaverse romance stories. She claims to see similarities “… in both books, scene after scene, beat following beat with only a few differences between the plot structure.” She’s read the books and I haven’t: I can’t and won’t dispute her opinion. But if both books consist of a layer of Omegaverse tropes hand-craftedly laid over a base of romance fiction Scènes à Faire, that is exactly what we would expect to see. And in neither case would copyright protection extend to those elements of the works.

What could go wrong? From a copyright and litigation perspective, just about everything.

Trust me, however, the above excerpt is not a spoiler, because Marc has written the Longest Blog Post Ever — hey, look, he has his own blog, it’s his bandwidth — and there are many claims in this lawsuit, not all of which are copyright claims, so the slogging is unquestionably justified. I am certain, therefore, given Marc’s talent and assiduousness, that his is the correct take and that there is no reason for me to presume to offer my own.

Read all about it, and about all the other things, at Marc’s Legal Inspiration blog.