Home » Copyright/Intellectual Property, Legal Stuff » Sherrilyn Kenyon sues Cassandra Clare for ‘wilfully copying’ her novels

Sherrilyn Kenyon sues Cassandra Clare for ‘wilfully copying’ her novels

11 February 2016

From The Guardian:

The bestselling fantasy novelist Sherrilyn Kenyon is suing her fellow chart-topping author Cassandra Clare, alleging that Clare’s Mortal Instruments and Shadowhunters series “knowingly and wilfully copied” Kenyon’s Dark-Hunter series.

The Dark-Hunter series dates back to 1998, says the lawsuit; the first in Clare’s Mortal Instruments and Shadowhunter series, City of Bones, was published in 2007.

Filed on 5 February, the lawsuit – which alleges copyright and trademark infringement and is asking for damages, lost profits and an end to infringement – lays out a host of similarities between the series.

Both Dark-Hunter and Shadowhunter books, it says, “are about 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”.

“They are both given a manual on how to conduct their mission and on how to conduct themselves when dealing with other entities and species in their fictional world,” says the lawsuit.

In an exhibit, it continues: “Both series employ a line of warriors who protect the normal world from demons … In both series, a young person becomes part of the Dark-Hunters’ (or Shadowhunters’) world after being saved by a gorgeous blonde Dark-Hunter (or Shadowhunter) … They each must kill their demonic father … Both Dark-Hunters and Shadowhunters have enchanted swords that are divinely forged, imbued with otherworldly spirits, have unique names, and glow like heavenly fire.”

Link to the rest at The Guardian and thanks to Scath for the tip.

PG reminds all that the expression of ideas is protected by copyright, not the ideas themselves.

Copyright/Intellectual Property, Legal Stuff

42 Comments to “Sherrilyn Kenyon sues Cassandra Clare for ‘wilfully copying’ her novels”

  1. It sounds to me like the author and publisher have already agreed that there was some previous overstepping:

    “According to the lawsuit, Kenyon “was alerted by some of her distressed fans” in 2006 about Clare’s planned publication “of a work that incorporated [Kenyon’s] Dark-Hunter Marks”. Kenyon asked for the Dark-Hunter references to be removed, the lawsuit says, and Clare did so, replacing it with the term “shadowhunter”. But according to Kenyon, despite assurances that use of the shadowhunter term would not be expanded, “[Clare] has persisted over time in expanding her use of the term ‘shadowhunters’ from a mere description of her protagonists, first to a tag line on the cover of her works and eventually to a complete rebranding of her works so as to be confusingly similar to the Dark-Hunter Series”.”

    I read in another article elsewhere that these terms were trademarked by the original author.

  2. Considering there is both a movie and a TV series and the books have been around for ages, this does come a bit late.
    Also, DARK HUNTERS (if I remember correctly) is steamy paranormal romance rather than Buffy-esque YA. So I’m not sure how much trademark confusion there might be.

    She seems to be claiming ownership of tropes rather than actual plagiarism of specific stories. A bit of a stretch, methinks.

    Oh, well.
    The courts will decide.

  3. “Both Dark-Hunter and Shadowhunter books, it says, “are about 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”

    So they both incorporate the “unseen world” trope? They have magic blades? Daddy issues? Love interest rescues and empowerment of the young?

    None of those elements are new or unique. PG is definitely right, the only claim the author Kenyon can possibly have here is if there was willful plagiarism. None of her ideas are original, only her execution.

  4. I think I’ve heard of this woman plagiarizing before. But this does not help the charge:

    Both Dark-Hunter and Shadowhunter books, it says, “are about 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”.


    “They are both given a manual on how to conduct their mission and on how to conduct themselves when dealing with other entities and species in their fictional world,”

    And in exhibit three,

    When regular humans mix with supernatural beings (whether Dark-Hunters or Shadowhunters), the divine blood is dominant and the children will inherit those powers.

    I wouldn’t make an argument of plagiarism on that premise. Otherwise, Joss Whedon could accuse them both of ripping off “Buffy” and “Angel.” And Mercedes Lackey could get them for ripping off her Diana Tregarde series … so could whoever makes “Grimm” and “Sleepy Hollow.” The Bible has those mysterious nephilim; surely the’ve all heard of Hercules and Achilles …

    Anyhow, with those premises, there are certain ways the story would have to play out. If there is a person or group “in the know” they would have an “instruction manual,” which hopefully they refer to as a grimoire. Or a codex. Or a Book of Shadows, etc. They would have magic artifacts. And probably a special name for people not in the know: “muggles.” And maybe a name for those in the know: Stephen King called his “The Ten O’Clock People.”

    As for the fans who thought Clare was ripping off Kenyon? When “The Vampire Diaries” TV show came out, some people thought LJ Smith had ripped off “Twilight.” Smith’s fans told them to check the copyright date for the books.

    As far as I know, Smith did not accuse Meyer of ripping off her premise of a beautiful teenaged girl in a love triangle between paranormal monsters. To be fair, they vastly diverged in the execution of that premise. Maybe Clare’s problem isn’t plagiarism — maybe the problem is that both authors took the well-worn path instead of giving their stories enough unique twists.

    ETA — I accidentally posted this under India’s comment first.

    • Clare was reportedly banned from Fanfiction.net for plagiarism: http://fanlore.org/wiki/The_Cassandra_Claire_Plagiarism_Debacle

      If you read the exhibits (Courtney Milan linked them, and pointed out the next bit), Kenyon seems to be laying claim to some rather commonly used terms like “glamour.”

      • Oh yeah, the “exhibit three” I mentioned was from the court document. I was rolling my eyes at the “glamour” part. It’s one reason I’m having trouble taking this particular claim seriously.

        On the other hand, I guess I did remember correctly that Clare was the one accused of plagiarism before. I often mix up names so I wasn’t sure. The link you gave is very damning for the case that she’s a plagiarist in general.

        Writers are usually advised to read widely to avoid cliches and worn-out tropes. It looks like she just reads to steal ideas instead of using stories as a springboard for her own stuff.

        • Cassandra Clare was correctly accused of plagiarism before (mostly from Pamela Dean’s fantasy series – it was a lot of stuff about the Land of the Dead, IIRC, albeit there’s more that got documented), and of borrowing too many quotes from Buffy (probably not fair, as all the Buffy fans got that).

          However, the Mortal Instruments/Shadowhunter thing is really not plagiaristic of anything except maybe Cassandra Clare fanfic brain. Yes, there’s a guy who is reminiscent of Draco Malfoy in tight leather pants. Yes, the heroine is named Clary, and screams Author Insert. But I’ve never heard anyone say that it was reminiscent of Sherrilyn Kenyon. Sheesh.

          As for people running around killing monsters and using a manual, obviously they’re all ripping off Bureau 13: Stalking the Night Fantastic. I’m sure Richard Tucholka, Phil Foglio, and the late Nick Pollotta are hurrying to sue.

          Likewise, I’m sure that Larry Correia, author of the internationally bestselling Monster Hunters International books will be hurrying to sue.

    • “Otherwise, Joss Whedon could accuse them both of ripping off “Buffy” and “Angel.”

      I will never forgive Joss for not going after Twilight, which was obviously a fanfic of Buffy.


  5. Maybe this is the copyright version of Whale Math(TM)?

    • Kenyon may be doing Whale Math(TM), but there are plenty of other authors that she lifted entire passages from in her work (most out of print) – not to mention entire chunks of dialogue from TV shows. It isn’t that far-fetched, and Clare’s pretty well known for the plagiarism.

      • I did not know that. I stand corrected.

        You know, I was so afraid of unconsciously plagiarizing ANYONE that I didn’t read any fantasy at all while I was creating The Catmage Chronicles. I cannot tell you how many people asked me, “Oh, have you read the Warriors series?” after the first book was published.

        No, and I’m not going to. Your brain remembers things and then sends them out to you when you’re writing. The last thing I want is my readers thinking I stole from someone.

        • And that’s why I haven’t read Clare, Briggs, etc. I did read one of Kenyon’s Dark Hunter books several years back, but it wasn’t my cuppa.

          If it’s any consolation, my daughter is a big Warrior Cats fan, and she didn’t mention any similarities other than “cats” after reading yours.

          • That’s good to hear. I got over my fear of plagiarism sometime after the second book, I think. 🙂

            And I’m back to reading fantasy again. Patricia McKillip’s new book is out!

        • And that does happen – I know it’s happened to me (I wrote a call to arms in a historical novel that my editor had to point out sounded very much like Aragorn in LotR). We do, unfortunately, soak in things and reproduce them in our work.

          But there’s a difference between accidentally recreating something and copying whole passages (as was the case in “Opal Mehta”). And Clare was in “Opal Mehta” territory.

          • There’s a phrase that came so easily to me when I wrote it that I’m convinced I read it somewhere. I thought it was either Tolkien or one of the Psalms, but the search comes up empty when I’ve run it. Google turns up nothing.

            Yet I’m convinced I’ll find out I was right that I took that phrase from someone as soon as I hit “Publish” on that book.

  6. I think a problem with L. J. Smith would be the fact that she war writing the Vampire Diaries as works for hire so she wasn’t the owner of the books she wrote.

    However I don’t disagree with your what you have to say about Clare and Kenyon.

    I remember Clare’s problems when writing fan fiction and that was mainly an issue of her using very similar paragraphs from other authors–a lot of them actually.

    Is Kenyon having some problems with sales? I can’t think of any other reason for this. After all readers who enjoy one particular trope generally look for other books with the same trope which can be a win-win for other authors.

    Have to admit that I haven’t read books by either author (or L. J. Smith either).

    • To clarify one thing about Smith — I gather she wrote the stories on her own, but her agent had her sell them as a work for hire, because the agent was terrible. Smith didn’t understand the implications until it was too late. She’s one reason I’m glad for the Passive Voice and KKR and DWS, as they help bright-eyed writers avoid those traps.

      I’ve only ever read Smith, when TVD were first published. Her experience resonated.

      After all readers who enjoy one particular trope generally look for other books with the same trope which can be a win-win for other authors.

      Exactly. We just want the executions to be different enough that the books don’t seem like a copy-paste.

      • My favorite thing ever for Smith’s situation was when Alloy fired her (because she wanted to take the series in a different direction) and handed off her work to someone else.

        And then Kindle Worlds debuted, with “The Vampire Diaries” as one of them. Guess who the top-selling author is in that world? L.J. Smith. 😀

  7. If somebody’s going to sue Clare, it should be JK Rowling. The series is based entirely off of Harry Potter (Jace is Draco, Clary is Ginny, etc.)

    As has been pointed out – Google Clare and plagiarism. She’s definitely plagiarized from multiple sources (which she claimed was a “game” for fans). It caused quite the uproar in the fan fic world when she got a book deal because of it. I think she tried to remove most of it from her books, but Kenyon may have a leg to stand on.

    • I’d say most fan fic writers “plagiarize” to some extent. They’re playing in other people’s sandboxes, with other people’s characters. There’s only so many ways you can describe an established character, or the established settings.

      However, it appears what Clare was specifically called out for was incorporating actual lines from others’ works into her own writing, without attribution and not as quotes.

      Kenyon isn’t claiming Clare used any actual lines from her works, but some terms like “glamour,” which are commonly used terms. She’s claiming Clare used the same ideas, and as PG noted, you can’t copyright ideas, only your expression of them.

      The whole logo thing is a puzzle as well. The “Dark-Hunter” mark shown in the filing for comparison to Clare’s Shadowhunters logo isn’t the actual “Dark-Hunter” mark. It’s “Jaden’s mark”. The trademarked Dark-Hunter mark is a double bow.

  8. The entire fandom community pretty much despises Claire for her long history of blatant plagiarism and willingness to sell derivative works for profit even when violating terms of service and/or copyrights. I wouldn’t be the least surprised if she was guilty of all this and more.

    • I’m not surprised. I think you were the one who explained what fan fiction is about to me. I had thought it was just a phase that writers go through when finding their voice, which is how it was for me. You explained that it’s really about reacting to a story you love.

      I’m actually hoping Kenyon wins this just so that it’ll be a painful lesson to Clare to quit plagiarizing.

  9. Don’t be so quick to dismiss Sherrilyn Kenyon. We do not know the entire story and I’m sure she and her publisher thought long and hard before they took this step. For the record, I support her action.

    • I got curious enough to look for a copy of the Complaint. It was posted by Courtney Milan at http://www.courtneymilan.com/cc-complaint/1-main.pdf if anyone else wants to check it out.

      • Thanks. I’ll take a look at it.

        The one thing I wouldn’t want to see is Clare being pilloried unfairly. Yes, she apparently copied passages before, but it sounds like this time it’s for using concepts that is common to the genre, and possibly trademark violation for “dark-hunter” and “shadow hunter” (the latter, by the way, can be found in use back in the 1880s). (Though I admit I skimmed the article.)

        As usual, the devil’s in the details.

      • Thanks for posting. Interesting read.

        And not that this has anything to do with anything else, but I used to work for Frost Brown Todd (different name then) as a legal secretary right after I graduated from college. 😀

    • This isn’t really a copyright suit, or even a trademark suit. It’s a generic unfair competition suit that has been restated as if it is a copyright (and/or trademark) suit, and purposely filed in a court in the appellate circuit with the strangest arguably relevant law of what constitutes “infringement.”

      That is, this is lawyerly civil procedure more than anything else… and it’s terribly, terribly misguided on multiple levels.

      (1) It’s cast as copyright and copying because there are certain procedural and standard-of-proof advantages for the plaintiff. Copyright, unlike trademark (and certainly like unfair competition), is a strict-liability statute: Show unlawful copying without a defense and you win. Trademark has the additional requirement of showing an actual effect on the mark. Unfair competition has the further additional requirement of show that any actual effect on commerce was at least reckless (not the “copying” itself, but the effect).

      That also puts this in federal court. I’m one of the minority of plaintiff’s-side people who would rather be in federal than in state court, particularly when dealing with a nonlocal and/or over-time issue. State court is fine for dealing with personal injuries, but this is… different.

      (2) Looking at the identities of the parties and their counsel, and the actual pleading, leads me to gently disagree that SK and her publisher “thought long and hard before they took this step.” There’s an underlying current of “something finally snapped,” rather than a long and careful consideration. It could be that Ms Kenyon or her publisher lost patience; it could be counsel; it could be that a media deal for Ms Kenyon was blocked because Ms Clare’s existing media deals were believed “too close” in the irrational, wonderful world of Hollyweed. I’m withholding judgment on “bad faith” or anything like that; I’m merely observing that the complaint and its apparent theory do not reflect “long and hard consideration.”

      (3) In terms of abstract artistry and culture and all that, a pox on both sides: Neither appears to have a case that merits sanctions in their favor against the other, or for that matter acclaim in their favor. No, look instead to the presumed media money. And egos (don’t forget lawyer egos!). And inadequate education in literary theory and history, but that’s a rant for another time.

      (4) The Sixth Circuit has some really, umm, strange law regarding “how much copying is too much”: a musical refrain of “Bow wow wow, yippie yo, yippie yea” is too much; so is a mere three notes, but that’s too convoluted for a comment here. Some of this results from the silliness of hearing copyright lawsuits in regional circuits, rather than centralized in the Federal Circuit like the other federal right provided for in the Intellectual Property Clause (patents; see U.S. Const. Art. I § 8 cl. 8). Some of this comes from the century-long effort of the Nashville-based music-publishing subindustry to keep musical compositions special snowflakes. And some of it is just that, as Justice Holmes noted well over a century ago in Bleistein, judges are particularly ill-equipped to make judgments about the arts. I won’t bore you with the parallel silliness on trademark law also found in the Sixth Circuit.

      All of this is why this particular lawsuit is in Tennessee and not somewhere else, where the real subjects are somewhat more local. There’s an entire legal concept called “choice of law” that should come into play here: Can SK demonstrate that Sixth Circuit law applies to CC’s writings, her publications, and/or her media exploitations? It’s going to be… interesting. To a certain type of legal nerd (like me) with a longtime fascination with both intellectual property law and complex civil procedure.

      * * *

      If anyone is the shadowhunter here, it’s the lawyers. Of course, the lawyers are all evil to start with… <vbeg>

      • I wondered about why Tennessee. Thanks for the information.

        You also made me go to IMDb and it looks like there was a Dark Hunter tv show in development in 2013. No updates. There Can Be Only One– I guess.

        Now can you explain the trademark issue with the law suit about the town that either changed it name to or from Rocky Top, Tennessee and the person who wrote the Blue Grass song of the same name?

        Just kidding, btw. I read an article about it that made absolutely no sense.

      • Thank you for this, it’s starting to make sense now. I can imagine how frustrating it would be to have your legitimate efforts blocked by the spurious success of someone like Clare.

      • Isn’t it also in Tennessee because that’s where Kenyon lives (as stated in the Complaint).

  10. “103. PLAINTIFF created distinctive logos, symbols, book cover designs and trade dress for the Dark-Hunter series featuring tattooed, muscular characters, runes, letters reminiscent of ancient scrolls, and the Dark-Hunter logo referenced in paragraph 18.”

    Muscular, tattooed characters are a staple in paranormal romance (and urban fantasy). Using runes and “ancient” letters is a staple as well, in more genres than paranormal romance.

    Just sayin’.

  11. I can understand, I think, about plaguerism [sp] being lifting others words for instance and not gaining permission to use them from original author, and that a novel would perhaps be hard pressed to prove it adds to science and humanittttttiessssss for the Worllllllddddd!

    But I wonder why the pubs and courts seem to look at taking one line of a poem or of a song lyric and using it–say in a novel– as a stand alone, even crediting the lyricist or poet by name, as not kosher and demanding and gaining recompense for someone using such? I dont write novels, but I'[d heard this from more than one person, that poems and lyrics are off limits unless one has written permission [and pays fees] I wonder how poems and song lyrics are different? Are they seen differently under the IP laws?

    The other thing I wonder is something one of my buds got taken up in: running a multiauthor website blog. One author uploaded a pix [allthe articles seem to have a pix with them] and suddenly came a person w/lawyer attached who said photo was IP violation, and demanded money. Bud took down photo immediately. But legal team out of Calif pursued, and he wound up paying around $1,000 to close the case. I noticed the ‘legal team’ from Calif does nothing but attempt to dun bloggers online for using IP belonging to others. Also, I wonder how a photo is different than a paragraph that is like a picture but with words?

    • The same way the song writers get their take if you record one of the songs they wrote (which I’m going to have to shorten to ‘fair use’ lengths in a story I’m working on …)

  12. After reading this, I think Sherrilyn has a case.

    • Melissa- Read the entire complaint. Wow!

    • I just read the complaint.

      It’s not a copyright/plagiarism case, as we authors normally assume these things are. It’s really a case about that Dark Hunter Mark artwork. Clare (or her publisher’s graphics department) put it on the cover of one of Clare’s books. Kenyon sued, won, and those books (the unsold ones anyway) were destroyed. However, Kenyon is arguing that “the damage is done, therefore I should get a piece of profits from this body of work and its derivative tv/movie stuff”. Even Clare’s “revised” mark artwork is still pretty close to Kenyon’s.

      All that said, I agree with what someone said above. I suspect Kenyon simply finally “had enough”. Also suspect that because Clare beat her to the Hollywood market, she’s angry and feeling deprived because Hollywood may not be producing her work since it’s similar to Clare’s. So she’s arguing that her general mythos was “out there first” in hopes that will work. I don’t think it will.

      Not least because Kenyon’s work isn’t “original” either. It’s a giant mashup of romance tropes with Greek gods and demons and other standard Western mythological constructs.

      It’s not unlikely she’ll get some money off the Dark Hunter Mark thing though.

  13. I read a lot in the HP fan fic world when Clare was originally being accused of plagiarism. It was ugly, and she and her group of supporters did not behave well. It’s something that no one has ever forgotten. Even then, Clare was very nonchalant about her use of the work of others.

    I wasn’t sure what to think of this suit until I read the complaint. There are a lot of very specific details that are listed as being the same. If even half of them prove to be legitimate, I think Kenyon has a strong case.

    I don’t read either of the series, so can’t speak from any knowledge as a reader. But it sounds like requests for better behavior were made that were then ignored. I’m going to watch this one with interest.

  14. Well. I just spent my morning coffee break down the rabbit hole of Courtney Milan’s tweets/conversations about the case. And I’m more convinced than ever that what I thought last night is correct: this case has no merit.

    Huge kudos to Ms. Milan for sharing her knowledge.

  15. I bet that this is a case of “Publicity by Lawsuit”.

    If I were being sued like this, I would order a copy of her earnings report to see if she had a bump in sales after the press release. Then if anything went to court I would ask the court to award me the extra money she made since the press release.

    She should not be able to profit from a bogus suit.

    BTW, The same thing happened with the Da Vinci Code. Brown was sued by guys with a non-fiction book, and I bet they made a ton of money from increased sales of their previously obscure text. From the wiki page they ended up being being liable for millions in legal expenses.

Sorry, the comment form is closed at this time.